Monthly Archives: March 2014

Factors may cause Planning Sequential Test to bring forward Out of Centre Retail Sites consistently with Core Strategies

The sequential test, currently in paragraph 24 of the Government’s National Planning Policy Framework, has been a major part of government retail development policy for a long time.

The sequence is town centres first, edge of centre sites second, and out of centre sites third.

Out of centre sites can be considered only if “suitable sites” in the town centre or on the edge of a centre are “not available”.

Suitability and availability are matters of planning judgment. They are not areas where the court will swap its own view for the view of the decision-maker.

The decision-maker’s judgment will not be challengeable except on “Wednesbury” grounds that no reasonable tribunal properly constituted could have come to that decision.

In the High Court Judicial Review case of CBRE Lionbrook (General Partners) Ltd on the application of) v Hammerson (Rugby) Ltd [2014] the Council was concerned about the loss of retail spending from the Borough of Rugby and the need to retrieve it had made the Council’s application of the sequential test more urgent in this case.

Upholding the Council’s planning decision to grant Hammerson permission for an out of town site the court said the Council had not ignored the possibility that development might eventually come forward on the closer to centre sites, at Evreux Way and North Street, allocated in the Core Strategy.

It knew that CBRE Lionbrook had objected to Hammerson’s proposal on the grounds that the Evreux Way site was suitable and available and could be viably developed. But on its officer’s advice it had been entitled to conclude, as it did, that neither of those two sites was capable of being developed soon enough to be regarded as an “available sequentially preferable” site.

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

Police seek judicial review of housing development planning re extra policing

In Police and Crime Commissioner v Blaby District Council (2014) the PCC have taken judicial review proceedings over a planning permission for 4,250-homes.

They said the development would increase the requirement for policing in that area.

The council and developer agreed that a financial contribution should be made towards policing in Leicestershire, but the planning agreement postponed the funding for some time. Nor did the agreement contain any definite obligation to contribute towards the buildings needing expansion to accommodate the extra officers and staff required to both maintain current levels of policing elsewhere in the area and police the development.

The outcome of the case and the reasoning behind it will be of interest.

Implied inclusion of airspace in leases prevented Landlord extending upwards

With the pressure on land there is a trend towards building underground and on top of existing buildings.

In H Waites Ltd v Hambledon Court Ltd & Ors [2014] the landlord of a residential flat complex wanted to build some more flats on some leased garages.

The court found that the letting of the garages included the rooves of the garages. Therefore the likelihood was that the letting also included the airspace above the garages.

The other interpretation, which the landlord argued for, was to view the garage letting as the lower tier of a layer cake property structure with the upper tier of airspace being excluded from the tenants’ leases

The court might have been more inclined to conclude that was the position with the garages being let than would have been the case had they been possessed on a freehold basis. However, there was insufficient in the circumstances to infer that the airspace above the garage was excluded from the tenants’ leases.

As the airspace above the garages was let to the tenants the landlord could not build upwards into it without trespassing against the tenants and breaching the covenants the landlord had given the tenants in the leases for the quiet enjoyment of the let property.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Mere intensification of use did not amount to breach of planning control

Where there is a change of emphasis as between two permitted planning uses the mere intensification of the particular use will not necessarily amount to a material change of use requiring planning permission. The test is whether there had been a material change in the character of the mixed site use.

In Reed v The Secretary of State for Communities and Local Government & Anor [2014] a 2007 planning permission was for a caravan site for one gypsy family. There was a condition limiting the number of caravans to not more than two caravans, as defined in the Caravan Sites and Control of Development Act 1960.

An enforcement notice alleged mixed use for equestrian purposes and the stationing of two number static mobile homes for residential use, touring caravans and one number storage container.

Bearing in mind the condition it should have alleged the breach of condition but, it had not, and the inspector, on appeal, limited themself to considering whether adding an additional residential caravan did or did not amount to a material change of use.

The court ruled that a caravan site with four caravans rather than two caravans upon it still has the character of a caravan site. That had been the very reason for the imposition of conditions relating to the numbers of caravans such as were imposed in the 2007 permission.

Had it been desired to rely on the breach of condition it should have been raised in the enforcement notice to satisfy Section 173 of the Town and Country Planning Act 1990.

The inspector had erroneously concluded that there had been a material change in the nature of the mixed use on the site, on the sole basis that the additional caravan amounted to a “doubling of the number of caravans”.

However this was wrong. “Mere intensification” alone could not amount to a material change of use unless it materially changed the definable character of the use of the land i.e. of the mixed equestrian and caravan site use that had been authorised by the 2007 planning permission.

In summary the Court of Appeal concluded that the inspector had applied the wrong test, namely a mere “intensification” test, and that therefore the appeal should be allowed.

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

Lease Guarantor clause could be validated by being cut down to apply only to current tenant and not its successor.

Section 25 of the Landlord & Tenant (Covenants) Act 1995 says agreements are void to the extent that they exclude modify or otherwise frustrate the operation of the Act.

In Pavilion Property Trustees Limited and another -v- Permira Advisers LLP [2014] the italicised words saved a poorly drafted guarantee of an assignee’s obligations under a commercial lease from total invalidation by the rest of that section.

The assignor entered into a guarantee in favour of the Landlord.

The guarantee appeared to extend beyond the obligations of the assignee to guarantee the obligations of the next assignee after that.

The court held that the italicised words meant they could sever off and discard the liability of the guarantor for that next assignee.

Thereafter the obligation that remained was a guarantee that extended only to the obligations of the first assignee. As such it was valid and effective.

This is a good decision for investors as it means a guarantee clause which is over ambitious in terms of the successive lease tenants, that the guarantor is purportedly required to guarantee, is not necessarily fatal. As the scope of the clause may be cut down by the court to what the court is able to enforce.

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

Claimant to pay indemnity costs and desist from making fresh property claims and related Land Registry Applications

The criteria for the making of an extended civil restraint order stopping unmeritorious property proceedings under the statutory scheme in force since the 1 October 2007 depend on the leading case of R (Kumar) v Secretary of State for Constitutional Affairs [2007] . The requirement of “vexatiousness” has gone and it is sufficient to establish only that the previous claims and/or applications were totally without merit and that the litigant persisted in making them. The requirement of “persistence” was defined by Lord Phillips MR in Bhamjee v Forstick & Ors [2004]:

“There has to be an element of persistence in the irrational refusal to take “no for an answer before an order of this type can be made”.

In Karim v Charkham & Ors [2014], the claimant, a former solicitor, and her husband were in considerable debt to numerous creditors who included Furness Mortgages and the Solicitors Indemnity Fund. Eventually these were pared down to one mortgage in favour of the second defendant secured on their home, Courtlands, Courtlands Avenue, Esher (“the property”).

When the second defendant put receivers in to sell the property at auction the claimant submitted various allegations of fraud, illegality and misrepresentation but the Particulars of Claim were not properly or sufficiently pleaded.

The claimant’s claims were on the underlying factual basis that the property should not have been sold and that the defendants and each of them had been dishonest in one way or another.

In 2012, Norris J ordered the claimant and her husband to withdraw Land Registry Applications challenging the validity of the mortgage and the sale and restrained them from making further applications save on notice to the claimants in those proceedings. He also refused their applications to prevent completion of the auction contract.

3rd proceedings were brought. There was clear and abundant evidence that there were no reasonable grounds for bringing this fresh action when all the issues which it raised could be determined in the existing proceedings.

Applying the Lord Phillips MR criteria, the court was satisfied that the conduct of the claimant required the making of an extended civil restraint order.

It should include an order forbidding the claimant for a period of two years from the date of the order, whether personally or through any intermediary from issuing new proceedings against all or any of the defendants arising out of any of the events without first obtaining court permission.

Moreover the conduct of the claimant in bringing the 3rd proceedings justified an award of costs against the claimant on the more onerous “indemnity” basis.

This blog is posted out of general interest. It does not replace the need for bespoke legal advice in individual cases.

Earlier Findings Consistent with Whole Site having Established Planning Use against Enforcement Action

In Gazelle Properties Ltd, R (on the application of) v Bath and North East Somerset Council & Ors [2014] fuller’s earth had been extracted from a large area of land at Combe Down, Bath.

The processing of fuller’s earth in the buildings on the site began in the 1890s. The mineral was extracted on Combe Down. No working took place under the buildings. How close it came to the buildings was unclear. Until the 1960s all of the material processed in the buildings was extracted locally and carried to the buildings on trams. After that fuller’s earth extracted elsewhere in England and abroad was brought in by road (but also locally from Sow Hill). In about 1980 mineral extraction was suspended and in 1986 the buildings’ use for processing stopped. The machinery was removed, but the buildings remained.

The site was owned by Gazelle Properties Ltd. (“Gazelle”). It was Green Belt, in the setting of a World Heritage Site.

So the application site had always been used for some form of industrial process and since the early 60s had formed a separate and distinct planning unit in its own right.

It was common ground that the extraction operation under Sow Hill did not form part of the same planning unit and this was based on its physical separation from the application site.

The current claim for judicial review required the court to interpret several passages in a decision letter issued by the Secretary of State on 1 August 2003. He had then refused Gazelle’s application for planning permission for the redevelopment of its site by adapting and extending the buildings for office use and “work at home” accommodation but had also considered whether Gazelle could, as a fallback, resort to general industrial use.

The current claim challenged a later planning inspector’s ruling on Gazelle’s appeal against three enforcement notices subsequently issued by Bath and North East Somerset Council (“the Council”) against an alleged unauthorized change of use. In his ruling the inspector rejected Gazelle’s contention that the Secretary of State’s decision had concluded that the fallback applied to the whole of its site. Gazelle said the inspector had got it wrong.

So the issue was “the extent of the land considered by [the Secretary of State] in August 2003 to be covered by Use Class B2 of the Town and Country Planning (Use Classes) Order 1987 (as amended) as a fallback position on a proper construction of the 2003 [decision letter].”

The preceding inspector had found that a fallback position could be relied upon if there was a real likelihood that the B2 (general industrial use) would continue. It was Gazelle’s firm intention to continue and intensify that use in the event (which we have seen occurred) that planning permission was refused. An aggregates re-processing operation occupied part of the site. A number of potential occupiers had an interest in using the site for various industrial purposes, including a concrete batching plant. There was a continuing demand in the Bath area for sites for the dirtier type of industrial use.

Such dirtier type of industrial use would have an appreciably greater impact than the proposed office and residential use.

However the Secretary of State’s consideration of the lawful use of the site arose in the context of the “very special circumstances” put forward both by Gazelle and the Council in urging him to grant planning permission, as a justification for permitting “inappropriate development” in the Green Belt.

The Secretary of State had neither needed nor purported to make, any formal determination of the lawful use of any of the application site which might have been final and binding here.

The High Court’s task in this case wasn’t to decide whether the Secretary of State was right in what he said about the lawful use of the site, but only to work out what he meant.

Without determining this question formally, the Secretary of State had not doubted the existence of a lawful Class B2 use on the whole of the site. To that extent Gazelle were right.

It follows that the enforcement appeal inspector’s ruling on the preliminary issue had to be quashed.

However the extent of “the [Class] B2 fallback” was not finally determined by the decision of the Secretary of State but would be at Gazelle’s enforcement appeal.

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

Housing planning decision took insufficient account of bat ecological considerations

A local planning authority has a statutory duty under Regulation 9(3) of the Conservation of Habitat and Species Regulations 2010 (“the 2010 Regulations”) to have regard to the requirements of the Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”).

Paragraph 99 of the Biodiversity and Geological Conservation: Circular 06/205 (“the Circular”) states:

“It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before planning permission is granted…”

It is for the local planning authority to establish whether the proposed development is likely to offend against Article 12(1) of the Habitats Directive. If so the planning authority should consider whether the proposal would be likely to be granted a licence.

In Bagshaw & Anor v Wyre Borough Council [2014] the site was land at Hall Lane, Great Eccleston, Preston. The claimants were village residents.

Planning permission was granted for the “the erection of 18 dwellings together with associated infrastructure…”

The ground for seeking judicial review concerned protected bats.

The claimants said the council’s reasonings were inadequate in their treatment of the protected species issue and consultation responses.

The Lancashire County Council ecologist produced a report whose recommendations included a requirement that it be shown that the development could deliver adequate mitigation and compensation for the loss of Habitat of Principal Importance (hedgerow), ideally including “the retention of a significant length of the existing roadside hedge in addition to the creation of a new hedgerow elsewhere in the development.”

The claimants’ main contention was that the ecologist had requested further information on bats before the planning committee could reach a judgment in accordance with the relevant legal tests.

As no further information had been provided, and the ecologist had not changed her opinion on bats, the claimants said the planning officer’s report to the planning committee misled the planning committee in respect of the actual stance of the ecologist.

She had required that further information on the impact on bats to be submitted prior to determination.

Furthermore the council’s Head of Planning had failed to explain to the committee why the ecologist was incorrect and how it was that adequate information had in fact been submitted as to the amount of hedgerow required to be removed and the impact of such a removal on bats.

The planning officer’s report highlighted confusion as to the amount of hedgerow to be removed. What went before the planning committee could hardly be described as “the retention of a significant length of the existing roadside hedge”.

The combination of the reduction in height and length meant the committee and the court simply could not assess the ecological impact of the reduction in hedgerow.

So the Decision Notice was directed to be quashed as:

(a) The planning officer’s report significantly misled the planning committee on the position of the county ecologist.

(b) The council had not engaged with the requirements of the Regulations, the Habitats Directive and the Circular.

This blog is posted as a matter of general interest. It does not remove the need for bespoke legal advice in individual cases.

Exclusions of Strategic Sites from Neighbourhood Planning Area Lawful

In Daws Hill Neighbourhood Forum & Ors v Wycombe District Council [2014] a local residents’ association applied successfully to become the Daws Hill Neighbourhood Forum (“DHRA”). At judicial review the High Court had upheld the council’s decision to refuse the application made by DHRA for the designation of a neighbourhood area.

The council designated a smaller neighbourhood area excluding two strategic sites which had been included in the area specified in the application: the former RAF Daws Hill site, and the Handy Cross Sports Centre site.

The council had adopted a detailed Daws Hill Development Hill Brief and committed to a Planning Performance Agreement to progress a planning application for a major residential centred redevelopment. The association had objected to aspects of the Development Brief and the planning application, mainly seeking to reduce the development on the site.

Planning permission had already been given to Handy Cross.

Much of the case turned on sections 61F and 61G which were inserted into the Town and Country Planning Act 1990 (“the 1990 Act”) by the Localism Act 2011 (“the 2011 Act”).

On the face of it the council’s decision fell fully within the terms of the sections. The council had refused DHRA’s application because it considered that the area specified in that application (including the Daws Hill and Sports Centre sites) was not an appropriate area to be designated as a neighbourhood area, but it exercised its power of designation so as to secure that some of the specified area (excluding the Daws Hill and Sports Centre sites) became a neighbourhood area.

The association mainly submitted that the council had acted unlawfully because in exercising its power of designation so as to exclude the two strategic sites from the designated neighbourhood area the council had acted so as to frustrate the purposes of the 2011 Act.

At the appeal the association contended that the discretion conferred by subsection 61G(5) – to decide what is an appropriate area to be designated as a neighbourhood area – was not a discretion to decide whether a given area should or should not be designated as a neighbourhood area, but was limited to deciding what neighbourhood area any given site was to be included in.

With those limitations the council had been wrong to have regard to the wider planning context and circumstances. The residents’ association thought particularly irrelevant the strategic nature of the Daws Hill and Handy Cross sites, their advanced planning status and the council’s view that preparing a neighbourhood plan for such areas would be a further source of expense and of frustration for local residents.

Lord Justice Sullivan ruled that the language used in section 61G did not support the existence of such a limitation.

A power given to a local planning authority to decide whether a specified area was “an appropriate area” to be designated as a neighbourhood area conferred a broad discretion.

The designation of an area as a neighbourhood area was to define the area in which a neighbourhood forum was authorised to use certain planning powers namely: the making of a neighbourhood plan and/or a neighbourhood development order.

A wide range of planning considerations needed taking into account when determining the issue of appropriateness.

The court accepted that if the authority rejected the application on the grounds that the specified area was inappropriate to be designated as a neighbourhood area, subsection (5) then required that the power of designation to be exercised in a particular way.

However, it did not require the power to be used to secure that all of the specified area went into the area that was being designated as a neighbourhood area.

Had Parliament intended that the local planning authority should just decide what designated neighbourhood area any specified area should be included in, it would have required the power of designation to be exercised so as to secure that all of the specified area formed part of a neighbourhood area.

However when laying down how the designation power was to be exercised under subsection 61G(5), Parliament clearly envisaged that a local planning authority might exercise the power so as to designate a smaller area as a neighbourhood area leaving part or parts of the specified area outside that or any other neighbourhood area.

In passing the court mentioned that where the “relevant body” making the application for designation of the area was a Parish Council, the mere fact that the local planning authority was required to consider the desirability of designating the whole of the Parish Council’s area as a neighbourhood area (subsection 61G(4)(a)), did not mean it had to designate the whole, and may exclude part, of the Parish Council’s area, thus ensuring that it would not be included in any neighbourhood area: subsection 61G(3)(b).

The court accepted that the council had been entitled to have regard to that existing planning context and had done what s.61G required of it by designating an area in which the forum could undertake neighbourhood planning without reopening existing strategic sites potentially, requiring a public referendum over a wide area of High Wycombe.

Ironically the National Planning Policy Framework, expects neighbourhood planning to back up strategic development. Developers, will like this decision as constraining how far local residents can use neighbourhood planning to restrict it.

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

Failed Construction Assignment Might Work as Declaration of Trust for Lender

Where a contract prohibits assignment without consent, the contract cannot be effectively assigned without the consent of the other party.

In any event the other party should be given written notice of any assignment to perfect it in the legal sense.

In Stopjoin Projects Ltd v Balfour Beatty Engineering Services (HY) Ltd [2014] a struggling sub contractor Brunel had assigned the benefit of its debts to a lender. The main contractor, then called Haden Young, was now applying to get the lender’s claim against it, under the sub contract, ruled out summarily on the basis the lender had no arguable claim for any debt.

The court found that HY had never waived the prohibition against the benefit of the sub contract being assigned. Firstly it had written taking issue with the lender’s position as a stranger (i.e. non party) to the construction sub contract. Secondly HY had never thereafter paid the lender or corresponded with it.

So the lender argued that Brunel held the benefit of the sub contract on trust for the lender.

The court appeared unconvinced by the idea that a failed assignment could amount to a declaration of trust of the sub contract benefits it was supposed to have assigned legally. After all trying to assign your legal rights to something is hardly a promising basis for later holding those same benefits on trust for the intended assignee of those legal rights. The two things are mutually inconsistent. An assignment of a legal right is an attempt to clothe the assignee with legal ownership of that right and entirely at variance with a trust where the person making the disposition retains legal ownership of the contract and merely clothes the other person with the right of enjoyment i.e. beneficial ownership.

The court also pointed out that the assignment clause might expressly or impliedly prevent the benefit of the sub contract being held on trust.

However the court thought that the lender’s argument was sufficiently arguable to refuse HY (since renamed Balfour Beatty) summary judgement leaving the issue to go to a full hearing.

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