Monthly Archives: September 2013

Court could not overturn due decision of Planning Commitee

Salford Estates (No 2) Ltd R (on the application of) v Dalton Park Ltd [2013] illustrates the degree of independence that planning committees of Councillors have to ignore the recommendations of the Council’s planning officers when it comes to making a planning decision.

In applying for judicial review a claimant must show that the Councillors have either behaved irrationally (arrived a decision which no reasonable body of Councillors would have arrived at) or failed to take account of a material consideration. So long as they take account of that material consideration the degree of weight they give to it is their own affair. In matters of planning judgement it’s not for the Court to substitute it’s own views of the planning merits.

The Judge applied a cricket analogy. So long as the Captain has abided by the rules, how successfully or otherwise he sets the field is down to him.

Also the Committee had correctly interpreted and applied what needed to be considered under the “Sequential Test” for prioritising sites in Government Planning Guidance PPS4 and had appropriately required a planning obligation under Section 106 Town & Country Planning Act 1991 to be entered into to bind the development site. They had given correct consideration to the availability of that Agreement. Despite it’s emphasis on the provision of local benefits rather than the development itself, it was a relevant consideration as it directly related to the development making it more acceptable within the locality for all it’s scale and nature,.

So the Court declined to quash the Planning Committee’s decision to grant permission for the supermarket.

Mineral Exploration Planning for Green Belt

Europa Oil and Gas Ltd v Secretary of State for Communities and Local Government & Others [2013] involved a planning application for construction of an exploratory drill site to include plant, buildings and equipment; the use of the drill site for the drilling of one exploratory borehole and the subsequent short term testing for hydrocarbons; the erection of security fencing and the carrying out of associated works to an existing access and track all on 0.79ha, for a temporary period of up to 3 years, with restoration to forestry – in a Green Belt area.

Surrey County Council refused permission in 2011 contrary to its officer’s recommendations. On appeal this refusal was upheld by the Inspector, though for reasons which included Green Belt considerations.

Quashing the Inspector’s decision, the High Court ruled that it was a mining operation as exploration for mining operations and later production from mining operations were one and the same thing and so the Inspector erred in concluding they were not mining operations which, like engineering operations, might be permitted if appropriate to a Green Belt area.

Secondly those opposing mineral extraction or engineering operations as inappropriate in a green belt area had to identify a specific harm which made them inappropriate to a Green Belt Area.

Due to its short duration, and the environmental precautions, being taken this exploratory set up might be quite appropriate and suitable weight had not been given to this by the Inspector at the appeal.

Judicial Review on Green Belt Housing

Where there was no up to date development plan against which an application for Green Belt development could be assessed the presumption in favour of sustainable development required that planning permission be granted unless the policy within the National Planning Policy Framework (“NPPF”) concerning the Green Belt indicated that development should be restricted. Inappropriate development within the Green Belt is in effect prohibited except in “very special circumstances”.

In Hunston Properties Ltd v Secretary of State for Communities and Local Government [2013] it was common ground between the parties that the Scheme was “… inappropriate development…” which should not be approved unless HPL could satisfy the Planning Inspector on Appeal that very special circumstances existed, which clearly outweighed the substantial weight that is required to be given to harm to the Green Belt.

The Council contended that the proposed development and its scale represented inappropriate development for which there weren’t the “very special circumstances” necessary to warrant development in the Green Belt.

HPL appealed and the Inspector dismissed the appeal for the reasons that both the proposed residential development and the proposed care home would be inappropriate development in the Green Belt for the purposes of National and Local Policy

Before the Inspector, HPL’s case had been that there was independent and objective evidence of annual and projected housing need for St Albans of 688 households per annum for the period 2011-2028. The Inspector rejected this submission and concluded that the appropriate housing target was 360 dwellings per annum. Since that could be accommodated on the sites identified by the Council it followed that there was no identified unmet need.

There was an emerging strategic local plan being developed by the Council but it carried no weight for the purpose of making planning decisions as it was suspended by a series of resolutions passed by the Council on 28 November 2012. This left a “policy vacuum” which the Council’s cabinet sought to fill by passing a resolution adopting a housing target of 360 dwellings per annum. In fact this in no way filled the policy vacuum as it satisfied none of the requirements of a strategic local plan that complied with the NPPF and in any event was not passed by the Council.

HPL’s case was that the Inspector had misconstrued and misapplied the relevant parts of the NPPF. The decision based on an annual housing target of 360 dwellings was fatally flawed.

The High Court ruled that the Inspector should have:

1. assessed need and then identified to what extent that need would remain unfulfilled by the supply of specific deliverable sites over the planning period; and

2. decide whether fulfilling the need, and any other supporting factors, taken together clearly outweighed the identified harm to the Green Belt that would be caused by the proposed development.

Those matters were of planning judgment for an inspector and not the Court.

The Inspector had not applied this process in arriving at this decision and had instead relied on old figures adopted by the Council Committee so her decision was quashed.

Who are you contracting with?

Where you are procuring services from a company within a group it is important that the contract spells out, and it is clearly agreed, who you are contracting with.

In Liberty Mercian Ltd v Cuddy Civil Engineering Ltd [2013] the claimant, Liberty Mercian, entered into an amended NEC3 Form of Contract for works for a new retail plateau for a Sainsburys’ supermarket at Bath House, Cardigan. The contract originally referred to the builder as “The Cuddy Group” so there was a dispute as to whether the Contract was entered into by the second defendant (“CDDL”) a company carrying on business as a construction and civil engineering contractor and trading as “The Cuddy Group” or by the first defendant (“CCEL”) a company which was dormant.

Before the contract, a letter of intent was entered into to enable the work to start and a collateral warranty was provided in the name of CCEL to Liberty and Sainsbury’s in April 2010 – though dated December 2010.

The High Court ruled that the contract was made on 5 July 2010 when Mr Jones of Liberty sent Mr Evans of Cuddy Group five pages of the Contract requesting Mr Evans to sign and return the amendments and requesting two directors of CCEL to sign the contract documents and that was promptly done.

It was to become a key fact that on 23 July 2010, at the request of Sainsburys, the contractor’s name was amended from Cuddy Group to CCEL and the amendment initialled by both parties.

Nevertheless, in the course of the build Cuddy Group also sent Mr Jones HM Revenue & Customs Construction Industry Scheme and bank account details for CDDL on Cuddy Group letterhead. It referred at the bottom to CDDL and its company registration details. All invoices in relation to the Contract up until the invoice of 1 November 2011 named CDDL and all correspondence was sent by CDDL until a letter dated 29 November 2011 in the name of CCEL. All payments were made to the CDDL bank account and the insurance provided was in CDDL’s name.

Liberty’s Project Manager gave Cuddy Group notice of defects in earthworks and later of termination. CCEL wrote back rejecting this.

The court said that although CCEL was, and remained, a dormant company it could have been awoken. The fact that the parties had been quite deliberate in the warranty referring to the contractor as CCEL and in accepting a contract signature placed alongside a reference to CCEL ruled out any possbility that CCDL had been misnamed in the contract as CCEL either.

So Liberty was ruled to have contracted with a dormant company. Hardly a satisfactory situation.

Liability for Tree Roots

Khan v Harrow Council & Anor [2013] was a claim for damage to Mr and Mrs Khans’ house at 68 Dennis Lane, Stanmore, Middlesex alleged to have been caused by tree roots encroaching from Mrs Kane’s neighbouring property and trees at 62 Dennis Lane.

An important issue in this case was whether the damage was reasonably foreseeable.

In a leading tree root Court of Appeal decision in Berent v Family Mosaic Housing [2012] Tomlinson LJ observed that:

“It is well known that shrinkage subsidence may occur where trees extract moisture from the soil causing it to shrink – clay based soils are particularly prone to moisture-related shrinkage.”

Applying that the court found that a reasonably prudent landowner with trees on their land ought to have been aware, in the period leading up to 2006, that there is a risk of subsidence damage to property caused by tree roots, particularly on clay sub-soils.

In the present case the judge accepted that Mrs Kane had no actual subjective knowledge about the risk of damage to Mr and Mrs Khans’ property caused by the trees.

Her knowledge was irrelevant. The question was whether the risk of damage by the trees ought to have occurred to the mind of a reasonably prudent landowner in the position of Mrs Kane.

A reasonably prudent landowner would have appreciated that there was a real risk, not just a mere possibility, that subsidence damage might be caused by the dominant hedge of Cyprus Trees, Mrs Kane had close to the Khans’ house.

Mrs Kane contended she was only put on notice of the risk of damage caused by the hedge in June 2009 by receipt of the letter from the Khans’ solicitors.

However since the risk of damage from the Cyprus tree hedge was foreseeable, Mrs Kane was liable whether or not she received notice.

Had the damage not been foreseeable, notice would have made the landowner liable for the continuing nuisance based on that actual knowledge.

Telling the tree owner to take any necessary steps to tackle the root encroachment may also be an important precursor to “self help”, otherwise the expense of the aggrieved landowners’ remedial works may not be recoverable.

However it would have been reasonable for Mr and Mrs Khan to have communicated with Mrs Kane and inform her of the risks of damage and of damage to their property. Their/their representatives’ failure to do this effectively sooner resulted in a 15% reduction in the damages payable to Mr and Mrs Khan for the additional damage caused by that failure.