PLANNING CASES UPDATE

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PLANNING CASES UPDATE

• by
• CLARE PARRY
• 2-3 Grays Inn Square

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Areas to be covered

• Enforcement notices
• Estoppel
• Second bite development
• Procedural requirements
• Time limits
• Temporary stop notices
• Bias
• Delegation
• Village greens
• EIA
• Trees and TPOs
• Polytunnels

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Enforcement notices estoppel

• R (East Hertfordshire District Council) v FSS
  2007 EWHC 834
• About second bite enforcement notice.
• Had accidentally given the wrong drawings in
  first proceedings-couldnt conclude the dwelling
  was in the wrong place.
• HC accepted cause of action estoppel in
  enforcement notice proceedings survives
  Reprotech.
• On the very particular facts of this case the
  inspector in 1st proceedings had merely said
  there wasnt enough evidence-he hadnt made a
  final decision on the issue.
• See further 2007 JPL 1283 (September)

4
Enforcement notices second bite development

• R (Romer) v FSS and LB Haringey 2006 EWHC 3480
• Appellant owned 2 houses 221 223 Archway Rd.
  Local authority meant to enforce against house
  built at rear 221 but specified 223 in 1st
  enforcement notice.
• 1st appeal inspector refused to amend notice.
• 2nd enforcement notice issued against
  221-Appellant argued it was out of time.
• Inspector (upheld by Court) concluded was part of
  same development enforced against therefore valid
  2nd bite enforcement.
• Very wide interpretation part of same
  development?
• See further JPL 2007 1093 (August)

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Enforcement notices procedural requirements

• Clive Payne v National Assembly for Wales and
  Caerphilly County BC 2006 EWHC 597
• Inspector found notice failed to meet
  requirements s. 173 in that failed to specify
  steps required-simply required them to submit a
  scheme for approval then implement the approved
  scheme.
• He then purported to vary the terms of the notice
  under his s. 176 powers.
• He had no power to do this-the notice was invalid
  and therefore he could not use his s. 176 powers.
  
• See further 2007 JPL 117 (case report) and
  2007 JPL 483 (article).

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Enforcement notices time limits

• FSS v Arun DC 2006 EWCA Civ 1172
• Time limit for breach of condition in respect to
  use of a building as a dwellinghouse.
• Traditionally been a question of whether it was 4
  or 10 years?
• CA overrule 1st instance Judge and determine that
  it is 4 years in all cases.
• See further 2007 JPL 237 (February)

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Temporary stop notices

• Wilson v Wychavon DC v FSS 2007 EWCA Civ 52.
• Upheld Crane J saying S. 183 (permanent stop
  notices) NOT incompatible ECHR Art 8 and 14.
• However, this is in part because LPAs have a
  discretion whether to serve SN, have to exercise
  compatibly HRA 1998 under s. 6.
• Arguable article 8 defence could be raised in
  prosecution for breach of a SN. In any event
  could JR decision to seek SN.
• See further 2007 JPL 1096 (August)

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Bias (1)

• R (Port Regis School) v North Dorset DC 2006
  EWCA 1373
• It was thought that a lodge of Freemasons had an
  interest in a planning decision.
• 2 members of other lodges (1 member of national
  organisation) sat on planning committee.
• Fair minded observer informed of all the facts
  about freemasonry and having regard to
  circumstances of the case would not conclude
  there was a real possibility of apparent bias
  affecting the decision.
• It was relevant that Councillors were required by
  freemasonry and the law to adhere to their
  obligations under the Local Government Act.

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Bias (2)

• National Assembly for Wales v (1) Contron (2)
  Argent 2006 EWCA Civ 1573
• Incident where member of planning development
  control committee said they were going with
  inspectors report.
• CofA considered that when looked at all the
  circumstances a fair minded observer would not
  conclude the assembly member or the committee as
  a whole was biased.

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Bias (3)

• R (Sager House Chelsea) v FSS RBKC 2006 EWHC
  1251
• Large number grounds challenge of an inspectors
  decision.
• Sixth ground very general-unparticularised
  allegation of bias.
• Judge-unfortunate this ground of challenge was
  raised at all-not sufficient for the appellant to
  be aggrieved by the outcome.
• A fair-minded and informed observer, having
  considered all the facts, would not have
  concluded there was a real possibility the
  Inspectors decision was infected by bias.

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Delegation schemes

• R (SPRINGALL) v RICHMOND UPON THAMES LBC 2006
  EWCA Civ 19
• About the scope of a delegation scheme, but not
  specifically in relation to enforcement.
• Suggests more relaxed approach to enforcement.
• 32 in my view it is for local planning
  authorities to determine the policy or basis of
  their schemes of delegation, not for the courts
  to gloss them by imposing fetters on them
  according to the courts perception of how the
  decision-making should be allocated between the
  council committee and the officer.
• Different approach to delegation challenges in
  enforcement/non-enforcement proceedings?

12
Village greens

• Oxfordshire County Council v. Oxford City Council
  2006 UKHL 25 (the Traps Case)
• The House of Lords has spoken, yet again on
  village greens.
• Doesnt matter that it doesnt look like a
  village green.
• Is supposed to be easier to register a village
  green-less technicality.
• Once registered for dog walking can be used for
  any reasonable sporting pursuit.
• 20 years runs to date of application, not
  decision.
• Commons Act 2006 article 2006 Nov. JPL

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Environmental Impact Assessment (1)

• With regard to EIA development, EA no longer just
  at outline stage, may be needed at detailed stage
  too, see R. (Barker) v Bromley LBC FSS 2006
  UKHL 52
• Carry out at detailed stage if (a) significant
  environmental effects not identified at outline
  stage or (b) they were, but fresh assessment
  required (probably arising from a change in
  circumstances)
• See further August 2006 JPL and 2007 JPL 675

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Environmental Impact Assessment (2)

• R (Catt) v Brighton and Hove CC and Hove Albion
  Football Club 2007 EWCA Civ 298
• Decision permitted continued use Brighton
  Albions stadium, provision new stands, extension
  existing stands and increased capacity.
• Applicant contended was unlawful for absence EIA
  assessment.
• Council wrote screening opinion-no EIA required
  because proposal schedule 2 development and no
  significant impacts on environment.
• Council took proper approach-were no required to
  shut their eyes to remedial measures.
• In terms delay in bringing JR entitled to look at
  date planning permission not date screening
  opinion.

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Environmental impact assessment (3)

• R (Horner) v Lancashire City Council Castle
  Cement 2007 EWCA Civ 784
• Proposed development to handle animal waste
  derived fuel (AWDF).
• Site area was more than 1000m2, but the proposed
  development was smaller.
• Challenged because said Council wrong not to
  require EA or undertake a screening opinion.
• No challenge to adequacy of transposition of the
  EU Regulations.
• As such meaning and applicability criterion such
  as floorspace is a matter of law. Their
  applicability as a matter fact and degree is
  susceptible to usual public law challenges.
• Dont have to have EU sympathetic approach to
  interpretation floorspace.

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TPOs

• Perrin Ramage v Northampton BC 2006 EWHC 2331
• When can one top, lop, cut down etc to abate a
  nuisance (s.198(6)(b))?
• Nuisance means actionable nuisance, not just an
  overhanging branch.
• Irrelevant that an alternative scheme, ie root
  protection, could also abate nuisance.
• On appeal. See article 2007 JPL 194 (February)

17
Polytunnels

• Hall Hunter Partnership v FSS 2006 EWHC 3482
• Enforcement action taken against polytunnels-for
  growing strawberries- covering 34-45 ha.
• Were situated substantially in green belt and
  area great landscape value.
• Inspector had considered all the circumstances
  including size, degree physical attachment and
  permanence.
• As such was entitled to come to the conclusion
  they were development.
• Inspector was correct that activities were use
  and not operations.