Important Case on Relocation for Telecoms Agreements under Old and New Codes

In telecoms siting agreements, a right to “Lift and Shift” is a landowner’s right to make a telecoms operator relocate its plant and equipment.

The Old Telecommunications Code, applicable to agreements entered into prior to the 28th December 2017, contains its own Lift and Shift Clauses in Paragraphs 20 and Paragraph 21. These apply whether or not the Landowner’s agreement with the Operator contains a Lift and Shift Clause and whether or not that agreement has expired.

If a Landowner served notice under either of those provisions of the Old Code the Operator has a 28 day period in which to serve a counter notice and, if a valid counter notice is served by the Operator, the apparatus can only be removed if a court order is obtained by the Landowner.

Where either of these paragraphs have been invoked, the service of a counter notice by the Operator has been a tactic to protect the Operator’s position pending a compromise permitting the Operator to relocate to a mutually satisfactory place and there are no decided cases in this area.

The new Telecommunications Code, applicable to agreements entered into on or after the 28th December 2017 contains no Lift and Shift provision so it is important that the Landowner’s agreement with the Operator contains a Lift and Shift Clause.

In the recent case of PG Lewins Limited v Hutchison 3G UK Limited and EE Limited (2018) the Operators had agreed, under the Old Code, to relocate their apparatus to a temporary scaffold and then (when required) to return the equipment to the roof. However, the Operators did not relocate their telecommunications equipment back to the roof until after the Landowner had applied for an injunction against them.

The Judge ruled that the old telecoms code did not afford the Operators any defence to the Landowner’s claim that they had breached their obligations under the “Lift and Shift” clause.

The Judge said that the Landowner’s agreement with the Operators defined the scope of the rights granted to the Operators under the Old Code.

In particular Paragraph 2(5) of the Old Code said a Code right was only exercisable in accordance with the terms conferring it.

Also Paragraph 27(2) of the Old Code said the provisions of the Old Code would be without prejudice to any rights or liabilities arising under any agreements the Operator was a party to. So, the judge said that the agreement to relocate the telecoms apparatus took precedence over Paragraph 20 whether or not the terms of Paragraph 20 were or could be expressly excluded by the telecoms agreement between the parties.

The reasoning behind the decision carries over into the New Telecoms Code because Paragraph 27(2) of the Old Code has its counterpart in Paragraph 100(1) of the New Code and the New Code replicates Paragraph 2(5) of the Old Code with its identical Paragraph 12(1).

Therefore, the terms of the telecoms agreement which creates the Code rights will remain predominant on the issue of Lift and Shift and Operators must be vigilant to comply with them.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

New Electronic Communications Code: Site Providers who are “Operators”.

The Electronic Communications Code gives licensed telecoms operators statutory rights to have equipment on private land. The Digital Economy Act 2017 contained a new Code with sweeping changes in favour of operators.

Main drawbacks of the new code for site providers:

Site Sharing: regardless of the terms of any written agreement, telecoms operators can share sites without the landowner’s consent. Landowners can no longer insist on sharing the income from operators sharing sites.

Site Dealings: regardless of the terms of any written agreement, telecoms operators can transfer their leases without landowners’ consent.

Upgrades: so long as any adverse visual impact is at most minimal and no extra burden is placed on the landowner, telecoms operators may upgrade equipment without landowners’ permission.

Valuations: Telecoms sites had been valued on an open market basis. Under the New Code they will be valued on a ‘no scheme’ basis where the existence of telecoms leases and the telecom operator’s rights will be disregarded. So compulsory purchase principles will be applied merely to value the land lost to the mast and equipment cabins and any adverse impact. This will greatly reduce landowners’ income from operators.

Terminating Code rights: Here there has been a welcome clarification of grounds. But landowners must serve a notice specifying the date when the agreement is to cease. That date must be at least 18 months from the date of notice and the contractual term of the lease must have expired by the end of that 18 month period. The telecoms operator then has three months to serve a counter-notice on the landowner and a further three months to apply to court. Even when the court has terminated the agreement the landowner then has to reapply to court to get the equipment removed unless the telecoms operator removes it voluntarily in the meantime.

Retrospectivity: The New Code’s sharing, assignment and upgrading rights will not apply to leases granted before it came into force on 28th December 2017.

Not unnaturally site providers are keen to avoid the New Code applying if they can.

It was the policy of the New Code that the New Code was not to be asserted by Telecoms Operators against other Telecoms Operators. Such arrangements were to be regulated by OFCOM. The easiest way to have achieved this would have been for the New Code to exclude itself giving Operators rights against other Operators or applying to any other Operator’s electronic communications apparatus.

Instead, the New Code draftsmen modified the New Code’s definition of “Land” over which all code powers are exercised “to expressly exclude “electronic communications apparatus”.  

Save for that exclusion “land” includes anything and everything annexed to it.

The New Code defines “electronic communications apparatus” to mean:

“(a) apparatus designed or adapted for use in connection with the provision of an electronic communications network, … and

(d) other structures or things designed or adapted for use in connection with the provision of an electronic communications network.”

This distinction between “apparatus” and “structures or things” is significant.

As a matter of law a “structure” is a composite thing put or built together from a number of different things.

All “buildings” are “structures”, but not all structures are “buildings.”

A motorway embankment may be a structure but not a building.

This has created artificial distinctions.

Antennae may be attached to “structures”, which are not obviously electronic communications apparatus such as grain silos, overground gas mains, bridges and aqueducts.

None of those structures will have been “designed” for “use in connection with the provision of an electronic communications network”, but they may or may not have been made suitable or modified (i.e. “adapted”) for such use.

I now deal with the strange results which would arise from pursuing the concept of “adaption” to it’s semantic conclusion – illogical though the outcomes may appear.

The act of attaching an antenna to a “structure” may or may not make the structure “adapted” for “use in connection with the provision of an electronic communications network” but strengthening that structure to take the weight and windloading of the antenna would make the structure “adapted”.

A single cable may sit in established channels or bespoke cable carrying trays may added to support the cable. Where the cable sits in an existing channel, the channel would be “land” and so Code rights would apply. If the cable sits within a tray added to the channel, the channel would have been adapted and so would be itself electronic communications apparatus and Code rights would not apply.

Similarly attaching brackets to a motorway embankment would be “adapting a structure for use in connection with the provision of an electronic communications network” so any electronic communication apparatus attached to those brackets would be attached to “electronic communications apparatus”, not land, and so the New Code would not apply to them.

However the position would be different if the brackets were attached, not to a motorway embankment, but instead to the parapet walls of an office roof. This is because Paragraph 5(3) of the New Code says that a “structure” only includes a “building” if the sole purpose of that building is to enclose other electronic communications apparatus.

This introduces fresh uncertainty. A water tower or grain silo may or not be a “building” as well as a “structure”.

Worst still the New Code only excludes new leases from security of tenure under the Landlord and Tenant Act 1954 where their “primary purpose” is the grant of Code Rights. If it is uncertain whether the New Code applies how can such be the “primary purpose”? Where there is doubt it would be as well to continue old lease contracting out procedures.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases

Planning: Secretary of State should have allowed parties further representations

In the High Court case of Gladman Developments Ltd v Secretary of State for Communities And Local Government & Anor [2017] the Secretary of State rejected the Inspector’s recommendation to grant planning permission on appeal.

Gladman’s first ground for seeking judicial review was that the Secretary of State proceeded unfairly and irregularly by relying on “facts”, set out in paragraphs DL29 and 30 of his decision letter, obtained by him subsequent to the Inspector’s report from the Council’s website, without complying with Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 [S.I.2000 No. 1624] (“the 2000 Procedure Rules) and providing an opportunity to the parties to challenge those facts and make representations.

The court said Secretary of State was taking into account new evidence which led him to a materially different factual finding: namely, that the housing land supply fell in the bracket of 3.7 to 5 years, rather than the 3.73 years as found by the Inspector.

Had representations from the parties been invited, the Secretary of State would have been informed that (1) the LPA did not “currently claim a more than 5-year supply”, and (2) the real contest between the parties was between Gladman’s figure of 3.65 years and the LPA’s figure of 4.15 years.

Rule 17(5) of the 2000 Procedure Rules had been breached. Both sub-paragraphs (a) and (b) were applicable, although the principal focus should be on (b).

The Secretary of State had differed from the Inspector on a matter of fact (a).

The reason why he had done so was because he had taken into account new evidence (b).

“Rule 17(5) [was] not activated if the Secretary of State discovers new evidence but decides at that juncture not to take it into consideration (see the opening words of (b)), but if he does, or is minded to, he must at that stage seek further representations from the parties if he considers that the new evidence is likely to form the basis, in whole or in part, for the ultimate recommendation reached. The Secretary of State does not have to be satisfied that the new evidence would constitute the sole reason for a different recommendation; it merely has to form part of the decision-making process.”

Furthermore, the Rule says “disposed to disagree” which imported a lower threshold.

In summary Rule 17(5) would not apply if the Secretary of State has reached the firm and fixed conclusion that the new evidence will not be taken into account or was clearly immaterial; otherwise, however, it does apply.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

NPPF Limitations on presumption in favour of sustainable development

Paragraph 14 of the National Planning Policy Framework (“NPPF”) says:

“14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.

For plan-making this means that:

• local planning authorities should positively seek opportunities to meet the development needs of their area;

• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole;

– specific policies in this Framework indicate development should be restricted.

For decision-taking this means:

• approving development proposals that accord with the development plan without delay; and

• where the development plan is absent, silent or relevant policies are out-of¬date, granting permission

unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.”

In Wychavon District Council [2016] Coulson J. had said the presumption in favour of sustainable development would apply whether or not the development plan was silent or absent, or whether or not the relevant policies were out-of¬date. To think otherwise would be an important limitation on the ‘golden thread’. Had the NPPF intended this, it would have said so in the clearest terms.

However in Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] Jay J. recognized that the Government’s policy as to the striking of the relevant balance was to be found in paragraph 14 of the NPPF, not elsewhere in the NPPF. He could not see “on what basis paragraph 14 would have any practical utility if it only applied to cases where the development had already been found to be sustainable …paragraph 14 “is the driver to correct decision-taking.”

Wychavon has now been overruled by the Court of Appeal in Barwood Strategic Land II LLP -v- East Staffordshire Borough Council and another [2017].

The Court said the inspector’s decision had been based on the Wychavon misconception:

“that a proposal which does not ….gain the “presumption in favour of sustainable development” under the policy in paragraph 14 of the NPPF [here because the Council could actually demonstrate that there was a 5 year housing supply] can nevertheless acquire it elsewhere in the NPPF. In stating ……that “the presumption in favour of sustainable development is a golden thread that runs throughout [the NPPF]” and that “[as] a result, where a proposal is contrary to the development plan this presumption is a material consideration that should be taken into account”, [the inspector] was accepting that there was a wider “presumption in favour of sustainable development” beyond that described in paragraph 14 of the NPPF….”

There was not.

The decision means that the presumption in favour of sustainable development can only apply in the circumstances expressly prescribed by the NPPF at paragraph 14 and there being no other relevant deficiency in the development plan e.g. being “absent, silent or out of date” the inspector’s decision to grant planning permission had to be quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Supreme Court on sustainable development and the housing supply

Paragraph 49 of the National Planning Policy Framework (“NPPF”) says:

Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.

Paragraph 14 mentions the presumption in favour of sustainable development. It then says this entails for determinations:

approving development proposals that accord with the development plan without delay; and

where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.

When local authorities do not have a 5 year housing land supply how do paragraphs 14 and 49 of the NPPF apply?

This was the position in the Supreme Court case of Suffolk Coastal District Council -v- Hopkins Homes Ltd & Anor [2017].

The Supreme Court applied a 2 stage process.

Firstly you had to apply Paragraph 49.

“Policies for the supply of housing” had to be applied narrowly. Paragraph 49 only considered “housing supply policies” “out of date”. It did not to extend to presume out date other policies that merely “affected” housing supply.

It was necessary to assess whether in fact there was a 5 year deliverable land supply.

Whatever policies caused the lack of 5 year supply such a lack, if it existed, would invoke paragraph 14.

Secondly, if Paragraph 14 applied, the application should receive planning permission unless:

– adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole; or

– specific policies in the NPPF indicated that development should be restricted. These are not only restrictive policies actually in the NPPF. They could include green belt and other development plan policies merely referred to in the NPPF.

This is an issue of planning judgment. It is for the decision maker to decide how much weight it to be given to other policies in the development plan.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning Condition excluded the General Development Order

It is widely known that a planning condition on a planning consent can exclude the application of the Town and Country Planning (General Permitted Development) Amendment Regulations (England) Order 2013 (“GPDO”).

In the High Court case of Dunnett Investments Ltd v Secretary of State for Communities and Local Government & Anor [2016] the claimant applied to East Dorset District Council for prior approval under paragraph N(2) of the GPDO for a change of use from Class B1(a) offices to Class C3 dwelling houses at Pear Tree Business Centre, Ferndown, Dorset. The proposal was to subdivide the office building into a total of 127 studio, one bedroom and two bedroom units.

The Council purported to refuse the claimant’s application. The letter said that the proposal was not permitted development as a planning condition in force prevented permitted development rights being exercised.

Condition 1 of the original planning consent to B1 use had said:

“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.”

The reason for the condition was:

“In order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal.”

The court said consent could be granted by the GPDO, but that was not the case here. The wording of the condition “and for no other purpose whatsoever” meant planning permission was granted solely for B1 (business) use and nothing else without getting prior express planning consent from the local planning authority.

The reason for the imposition of the condition made it clear that control had been retained by the local planning authority so that it could be satisfied about the details of any proposal due to the particular character and location. In other words the sensitivity of the area to potentially unsympathetic uses was protected.

Further, the condition itself restricted any change of use from Class B1 (business) until after the approval of the local planning authority had been “first…obtained” the words used in the condition were consistent with the local planning authority retaining control over any other development that might be contemplated on the site. If that were not the case the words used would be superflous. There was a clear planning purpose behind the imposition of the condition.

The Court of Appeal has just upheld the High Court decision saying:

“…and for no other purpose whatsoever…” is not, as Mr Katkowski would have it, merely emphatic of the scope of the planning permission, but is rather a clear and specific exclusion of GPDO rights.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

No bar to the existence of recreational easements

There was no English (or Scottish) precedent authoritatively deciding whether or not an easement can legally exist to use a golf course, swimming pool or tennis court etc.

In the High Court case of Regency Villas Title Ltd & Ors v Diamond Resorts (Europe) Ltd & Anor [2015] the court ruled that there is no legal impediment to the grant of such an easement, provided the intention to grant an easement, as opposed to a merely personal right, is clear when interpreting the grant in the light of the material surrounding circumstances.

The case concerned the 1981 grant of a “right for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities …. on the Transferor’s adjoining estate”.

The High Court said there was nothing vague or excessively wide about the rights.

They clearly extended to all recreational and sporting facilities on the estate, and to the gardens, and must include facilities that were not present or planned in 1981, or which may have been significantly improved since then.

To interpret the rights as limited to the actual facilities which were on site or planned in 1981 was unrealistic and might inhibit the servient owner from introducing improvements or replacements or adding facilities which would benefit everyone. After all if the rights did not extend to the new or replacement facilities, any alteration to the facilities, might amount to a substantial interference with the claimants’ existing rights. That could not have been intended on any sensible interpretation of the rights.

Worse still to interpret the rights in such a restrictive way would have allowed the estate landowners or their predecessors to profit from their own default in having filled the outdoor pool before the current estate owners had constructed a new one in the basement of the Mansion House. The point had been rendered academic as the rights under the 1981 Transfer expressly extended to the basement, where the pool now happened to be.

On appeal to the Court of Appeal the court said it was necessary to interpret the actual words of the grant of the right “to use the [existing sporting and recreational facilities] and the ground and basement floor of [the Mansion House], [the] gardens and any other sporting or recreational facilities … on the [defendants’] adjoining estate”.

The most natural meaning of these words was that what was intended was a grant of the right to use the garden, the existing sporting and recreational facilities, and any sporting or recreational facilities only to be found at the date of the grant on the ground or basement floors of the Mansion House.

There was no element of futurity in the words used, so it could not include any future sporting or recreational facilities that might later be provided by the defendants on their land.

The lack of futurity in the grant contrasted to the second grant which was the “right to the full and free passage of gas water [etc.] … now in under or over the [Transferor’s] adjoining land or constructed within 80 years of the date hereof”.

Could a new or improved facility replacing an existing facility of the same type on the same area of ground be covered. Yes. The easement was granted for so long as the dominant and servient tenements existed, so that it would make no sense to grant the right to use the present tennis courts, but not any rebuilt tennis courts later provided on the same ground.

The grant could not be interpreted widely enough to cover any major extensions, substitutions or moved facilities. The grant was to use “the” swimming pool, not any swimming pool anywhere on the servient land. The same must apply to the other facilities.

It was perfectly possible that the golf course might be extended on to some acres of new land also forming part of the Estate or that further tennis courts might be built adjoining the existing ones. But the court could not see how such extensions could be covered, because the essence of an easement was the land over which it is granted.

The court said in passing that a minor or de minimis extension to the land used by the existing or replacement facilities amounting to an incremental increase in the land used by the golf course or, say, a small extension to the existing land used by the swimming pool or to the run back used by the tennis courts, would be covered on the proper interpretation of the grant.

A completely new facility on new ground would not be covered, but a replacement facility, even one that had been slightly extended beyond the ground used by the original facility, would be.

In the absence of the most specific words, a grant would not be interpreted as entitling the dominant owner to use any facility that might be constructed anywhere on the servient tenement.

Here the grant was only a grant to use the existing facilities as they stood at the date of 1981 transfer, together with any new, improved or replacement facilities of the same kind replacing the existing facilities on the same areas of land, subject only to minor or de minimis extensions, but not any substantial extensions of such facilities on additional areas of land.

The claimants argued that, because there already existed an easement over the whole of the basement of the Mansion House, the building of a pool there in place of the existing facilities could not affect that easement.

To amount to an easement the grant had to be more than of a personal right to use chattels and services provided by the defendants in the ground floor and basement e.g the television or restaurant on the ground floor or a sun bed or sauna.

Since mere personal rights of that nature (but no valid easement) were granted over the basement of the Mansion House in 1981, there can be no valid easement of a swimming pool built after the grant on the same land. Neither could the new swimming pool be regarded as a direct substitute for the old one, elsewhere on the Estate, that the defendants had filled in in the year 2000. The easement was in respect of the land on which the old outdoor pool had been constructed in 1981, and mere personal rights (not amounting to any valid easement) had been granted over the basement of the Mansion House where the new swimming pool was now situated.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: the death of “interim planning guidance”?

Local planning authorities facing constant changes in legislation and national policy face practical difficulties keeping their local plans under review.

Local planning authorities have produced interim planning guidance to bridge the position between out-of-date development plans and new development plans being adopted.

Regulation 2 of Town and Country Planning (Local Planning) (England) Regulations 2012 (“the 2012 Regulations”) defines “local plan” as “any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b), and for the purposes of section 17(7)(a) of the [Planning and Compulsory Purchase Act 2004 (“the 2004 Act”)] these documents are prescribed as [Development Plan Documents (“DPDs”)].”

“Supplementary plan document” (“SPD”) means “any document of a description referred to in regulation 5 (except an adopted policies map or a statement of community involvement) which is not a local plan”.

Regulation 5 of the the 2012 Regulations defines Local Development Documents (“LDDs”):

“Local Development Documents

(1) For the purposes of section 17(7)(a) of the [2004 Act] the documents which are to be prepared as [LDDs] are –

(a) any document prepared by a local planning authority individually or in co-operation with one or more local planning authorities which contains statements regarding one or more of the following

(i) the development and use of land which the local planning authority wish to encourage during any specified period;

(ii) the allocation of sites for a particular development or use;

(iii) any environmental, social design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and

(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission.”

There is another category of LDD recognised by the courts, which the 2012 Regulations are silent about – the ‘residual LDD’.

The categorisation of these different types of documents governs how they will be developed:

– the DPDs/LDDs are to be tested through independent examination;
– SPDs must be formally consulted on; and
– residual LDDs have no procedural requirements.

In R (Miller Homes) v Leeds City Council [2014] the old adopted development plan said designated land should not be developed in the plan period but kept back to meet longer term requirements.

Leeds later produced interim guidance to set the guidelines for the release of safeguarded land.

The High Court said Leeds’ Interim Policy did not fall within regulation 5(1)(a)(iv) because the Interim Policy was not a development management policy: it was a safeguarding policy, rather than a policy which regulated the development or use of land. Thus, the statements in the Interim Policy were not “regulating a development management policy.”

Thus it was neither a DPD/Local Plan nor a SPD. It was a “residual LDD”.

In the recent case of Skipton Properties Ltd, R (On the Application Of) v Craven District Council [2017] the High Court said:

If the document in question contains statements within any of (i), (ii) or (iv) of regulation 5(1)(a) (above), it is a DPD.

“This is so even if it contains statements which, taken individually, would constitute it an SPD or a residual LDD. This conclusion flows from the wording “one or more of the following”, notwithstanding the conjunction “and” between (iii) and (iv).”

In the Skipton case the real question was therefore whether the Council’s Policy NAHC 2016 concerning affordable housing “contained development management policies which guide or regulate applications for planning permission.”

The issue here was not the same as under 2012 Regulation 5(1)(a)(i) because there was no need to find any encouragement; regulation 5(1)(a)(iv) above is neutral.

NAHC 2016 clearly contained statements, in the form of development management policies, which regulate applications for planning permission.

NAHC 2016 contained statements in the nature of policies which related to the development and use of land which the Council wished to encourage, pending the Council’s adoption of a new local plan which would include an affordable housing policy.

“The development and use of land is either “residential development including affordable housing” or “affordable housing”. It is an interim policy in the nature of a DPD. It should have been consulted on; [a Strategic Environmental Assessment] should have been carried out; it should have been submitted to the Secretary of State for independent examination.”

So the court quashed policy NAHC 2016.

In conclusion if any guidance fulfils the criteria for a DPD/Local Plan in the 2012 Regulations, it must be prepared as a DPD/Local Plan. Alternatively, it might be a SPD requiring to be prepared as a SPD.

The scope of Regulation 5(1)(a) of the 2012 Regulations is so wide as to pretty much rule out meaningful ‘residual LDDs’ to provide interim guidance.

The correct course for local authorities is to press on with the timely preparation of up-to-date local plans, and in the intervening period between draft and adoption, to deploy them as material considerations for the purpose of the rights and duties conferred by the 2004 Act.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Flooding sequential test should have been applied

Policies in the National Planning Policy Framework (“NPPF”) cover development in “areas at risk of flooding”.

These include the policy for the “sequential test” in paragraphs 100 to 104.

“100. Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk, but where development is necessary, making it safe without increasing flood risk elsewhere. … Local Plans should apply a sequential, risk-based approach to the location of development to avoid where possible flood risk to people and property and manage any residual risk, taking account of the impacts of climate change, by:

applying the Sequential Test;

if necessary, applying the Exception Test;

using opportunities offered by new development to reduce the causes and impacts of flooding; ….”

The Planning Practice Guidance, issued by the Government has a section on “The sequential, risk-based approach to the location of development”. It gives guidance on the sequential test.

“….The aim is to steer new development to Flood Zone 1 (areas with a low probability of river or sea flooding). Where there are no reasonably available sites in Flood Zone 1, local planning authorities in their decision making should take into account the flood risk vulnerability of land uses and consider reasonably available sites in Flood Zone 2 (areas with a medium probability of river or sea flooding), applying the Exception Test if required. Only where there are no reasonably available sites in Flood Zones 1 or 2 should the suitability of sites in Flood Zone 3 (areas with a high probability of river or sea flooding) be considered, taking into account the flood risk vulnerability of land uses and applying the Exception Test if required.”

In Watermead Parish Council v Aylesbury Vale District Council [2017] planning permission was sought and obtained for a crematorium. Prior to the planning committee meeting the planning officer’s report had mentioned the sequential test but said “The proposal relates to an already developed site, and therefore a sequential assessment is unnecessary.”

The Court of Appeal said the sequential test:

“involves an assessment of the availability of “sites appropriate for the proposed development in areas with a lower probability of flooding”. It is required not only for “new development” proposed on sites which have not previously been developed but also for “new development” on land that is already developed.”

None of the express exemptions to that applied here.

The officer’s advice that under NPPF policy a sequential test was unnecessary in this case because the proposal was for “an already developed site” was based on a misinterpretation of the policy. This was an error of law.

A local planning authority could depart from national planning policy but if it did that, it must do so consciously and for good reason. That was not one here and this was not a case where it could be said that the mistake would have made no difference to the planning decision. Accordingly it was quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Construction: Employer could not challenge adjudication in enforcement proceedings

In construction disputes if an adjudicator has decided the issue referred to him, and he has acted in accordance with natural justice, his decision will be enforced by the court.

The defendant must pay now and argue later.

There are two narrow exceptions to this rule:

1. Involves an admitted error. For example a calculation error admitted by everyone, including the adjudicator. Here in the absence of an arbitration clause, the court would have jurisdiction to make a final decision on the point, and correct the error. However if there is an arbitration clause in the construction contract, the court would not have the power to determine the issue and the decision would be enforced.

2. Involves the proper timing, categorisation or description of the relevant application for payment, payment notice or payless notice. However it would not be open to a defendant to seek to avoid payment of a sum found due by an adjudicator by raising the very issue on which the adjudicator ruled against the defendant in the adjudication.

If the issue is a short and self-contained point, which requires no oral evidence or any other elaboration than that which is capable of being provided during a relatively short interlocutory hearing in the court enforcement proceedings, then the defendant may be entitled to have the point decided by way of a claim for a declaration.

It is envisaged at paragraph 9.4.3 of the Technology and Construction Court Guide that separate Part 8 proceedings will not always be required in order for such an issue to be decided at the enforcement hearing.

This procedure will rarely be used, because it is very uncommon for the point at issue to be capable of being so confined.

Very often, the defendant’s point is straightforward: the adjudicator was wrong and that, with regard to its timing, or its content, the relevant payment notice was invalid and/or that the defendant’s pay less notice was valid and prevented payment. Here, the defendant will have issued Part 8 proceedings seeking a declaration to that effect, and the claimant may issue its own enforcement claim or,the parties may agree that, if the defendant loses its Part 8 claim, it will pay the sums awarded by the adjudicator in any event.

These “consensual approach” cases all involved a significant degree of agreement between the parties. In particular, they all involved CPR Part 8 claims issued by the defendant challenging the decision of the adjudicator, and seeking a final determination by way of court declaration.

In all those cases:

1. There was a tacit understanding that the parties’ rights and liabilities turned on the decision as to whether or not the particular notice had been served in time and/or was a valid application for payment or payment/pay less notice.

2. The issue of a separate Part 8 claim was important in two respects:

2.1 it provided a means whereby the defendant could detail its challenge to the adjudicator’s decision so that the claimant could see and understand the precise basis of the challenge and the declarations sought and

2.2 the existence of a separate Part 8 claim meant that the court knew what was going to be involved at any subsequent hearing. This was vital to the court for the making of directions. A Part 8 claim means more involved arguments than would ordinarily arise on an adjudication enforcement, so the court will be able to list the hearing for a longer timeslot, and will be less concerned about fixing it within the usual 28 days.

Problems have arisen elsewhere because there has been no such consent.

This was the position in Hutton Construction Lted v Wilson Properties (London) Ltd [2017].

Here the High Court laid down the following guidelines for these cases:

1. The defendant must issue a CPR Part 8 claim setting out the declarations it seeks or, at the very least, indicate in a detailed defence and counterclaim to the enforcement claim what it seeks by way of final declarations. A prompt Part 8 claim is the best option.

2. Where there is a dispute between the parties as to whether or not the defendant is entitled to resist summary judgment on the basis of its Part 8 claim, the defendant must be able to demonstrate that:

(a) there is a short and self-contained issue which arose in the adjudication and which the defendant continues to contest;

(b) that issue requires no oral evidence, or any other elaboration beyond that which is capable of being provided during the interlocutory hearing set aside for the enforcement; and

(c) the issue is one which, on a summary judgment application, it would be unconscionable for the court to ignore. For example, that the adjudicator’s construction of a contract clause is beyond any rational justification, or that the adjudicator’s calculation of the relevant time periods is obviously wrong, or that the adjudicator’s categorisation of a document as, say, a payment notice is wrong, when, on any view, it was not capable of being described as such a document.

Such an issue could still only be considered by the court on enforcement if the consequences of the issue raised by the defendant were clear-cut. If the effect of the issue that the defendant wishes to raise is disputed, it will be most unlikely for the court to take it into account on enforcement. Any arguable inter-mingling of issues would almost certainly be fatal to the defendant being able to claim that their challenge falls within this limited exception.

The dispute between the parties as to whether or not the issue should be dealt with on enforcement would have to be dealt with shortly at the enforcement hearing itself. Due to the inevitable time constraints of such a hearing it will be rare for the court to decide that the issue can still be raised as a defence to the enforcement application even though the issue and its effect is disputed.

Because it is a potential abuse of the court process, a defendant who unsuccessfully raises this sort of challenge on enforcement will almost certainly have to pay the claimant’s costs of the entire action on an indemnity basis. Conversely, if the claimant does not agree to the defendant’s proposal to deal with the issue on enforcement, but the court finds that the issue does fall within the limited exception, it is the claimant who runs the risk of being penalised in costs.

In this particular case

1. It was common ground that:

1.1 The proper meaning and interpretation of the documents was a straightforward matter for the court. No other evidence of any kind was required.

1.2 If the adjudicator was wrong, and those documents did not constitute a proper claim for payment or a payee’s notice, then the defendant’s payless notice was valid and there is no entitlement to summary judgment.

So it was one of those rare cases where the substantive point in issue can be determined at the enforcement hearing.

2. The defendant’s challenge was of a type which should have been the subject of a separate Part 8 claim at the outset. The defendant’s solicitor’s correspondence did not make clear how and why the enforcement was being resisted. Neither did the witness statement.

So, it was only when the Part 8 claim was provided that the claimant (and the court) was given an inkling as to the defendant’s stance. But even that was inadequate. No specific declarations were sought in the Part 8 claim.

Further the defendant endeavoured to rerun the issues in the adjudication and rely on other matters too, such as the earlier sequence of interim applications and how they were dealt with by the parties. The court, on an adjudication enforcement, simply could not deal with all of the points – and more – raised in the adjudication.

The defendant now wished to rely on a number of factual matters. Once they have been set out properly, they might be agreed, but the claimant had not had sufficient time to consider them and its precise response. There may well be disputes. That was another reason why the defendant’s challenge was wholly inappropriate for any consideration on the summary judgment application.

The adjudicator’s decision ran to 73 closely-typed paragraphs. The adjudication had lasted from 11 October to 15 November 2016. The court had seen only some of the documents relating to the adjudication.

Absent any consent from the claimant, it could not be right, to let the defendant shoehorn into the time available at the enforcement hearing the entirety of that adjudication dispute.

“Such an approach would mean that, instead of being the de facto dispute resolution regime in the construction industry, adjudication would simply become the first part of a two-stage process, with everything coming back to the court for review prior to enforcement. That …. cannot be permitted.^

The challenge to the adjudicator’s decision failed and the claimant was entitled to summary judgment.

The defendant could pursue its Part 8 claim separately. The defendant would need to amend that claim and there needed to be a proper exchange of pleadings.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.