Monthly Archives: April 2014

Local plan offended NPPF and exceptional test for redefining Green Belt

Where land is in Green Belt any application for planning permission for housing would almost inevitably be refused, as inappropriate in Green Belt unless there are “very special circumstances” that warrant such development there.

In the High Court case of Gallagher Homes Ltd & Anor v Solihull Metropolitan Borough Council [2014] the Claimants had two sites in Solihull, (“the Sites”), which they wished to put housing on. But the Defendant local planning authority (“the Council”) adopted the Solihull Local Plan (“the SLP”) which put the Sites in Green Belt.

The Claimant applied under section 113(3) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”), to establish that the Council had acted unlawfully in adopting the SLP, and its allocation of the Sites to Green Belt, on three grounds which included:

Ground 1: The adopted plan was not supported by a figure for objectively assessed housing need, inconsistently with the requirements to (i) have regard to national policies issued by the Secretary of State (section 19(2)(a) of the 2004 Act), and (ii) to adopt a sound plan (sections 20 and 23 of the 2004 Act).

The Council had sought to justify its housing provision figure of 11,000 by what it described as a “bottom up” approach, i.e. it began with available housing supply. However that clearly fell very far short of the approach advocated and required by the National Planning Policy Framework (“the NPPF”), which involved starting with housing need and requiring justification for any requirement falling short of full and objectively assessed need. The “bottom-up” approach appeared to start with the number of homes that, in the light of relevant policies, could be delivered during the period. That was the wrong way round.

When the case had gone to appeal, the Inspector had been required to assess, fully and objectively, the housing need in the area. He made no attempt to do so. Neither the SLP nor the Inspector provided any full and objective assessment of housing need, as required by the NPPF, before considering constraints on meeting that need.

As was the practice under the pre-NPPF regime, they went straight to policy on figures for the region in a conventional planning balancing exercise, with all material factors in play, and then proceeded to carve up that policy on requirement between the various areas within the region.

That did not comply with the NPPF requirements.

Contrary to the NPPF, for the Inspector, the issue of housing need had not been a driver – in terms of the housing requirement target – it had, at best, been a back-seat passenger. So the Inspector’s approach to the policy requirements of the NPPF in relation to housing provision was neither correct nor lawful.

So the SLP with the modifications that the Inspector endorsed and the Council adopted, was unsound because it was not based on a strategy which sought to meet objectively assessed development requirements nor was it consistent with the NPPF.

Ground 2: The adopted plan paid no regard to the test for revising Green Belt boundaries in national policy, inconsistently with the requirements to have regard to national policies and adopt a sound plan.

The Sites had previously been white, unallocated land. The Court found that the Inspector had taken the wrong approach to the proposed revision of the Green Belt boundary to include them. He had simply balanced the various current policy factors, and, using his planning judgement, concluded it was unlikely that either of the two Sites would be found suitable for development, under current policies.

That, might be so, but what the Inspector had applied fell very far short of the stringent test of “exceptional circumstances” that any revision of the Green Belt boundary must satisfy.

Nothing in this case suggested that any of the assumptions upon which the Green Belt boundary had been set had proved unfounded, nor had anything occurred since the Green Belt boundary was set that might have justified the boundary being redefined.

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.

Day’s delay serving cost budget excused by construction court

If a party to litigation is late in serving their costs budget then the potential consequence is set out in the rules of court (here CPR rule 3.14), namely, they will be treated as having filed a budget comprising only the applicable court fees.

The issue has again come up in the Technology and Construction Court. In the previous case reported here the court showed a healthy common sense in tempering the rigours of the rule,

In Wain v Gloucestershire County Council & Ors [2014] at the first case management conference and costs management hearing the fourth defendant was one day late in filing her costs budget, so that instead of having been served seven clear days before the hearing, it was served six clear days before.

The court concluded that this breach was. having regard to all the circumstances, a trivial breach.

i) The delay was of one day in the context of a time frame of seven days.

ii) The claimants had not suffered any prejudice by reason of the delay of one day. Though it does not necessarily follow that the same position would apply in another case where there was a similar delay of one day.

iii) Here, the parties had been perfectly able to deal with the costs management at that hearing, though the fourth defendant had served her costs budget only six rather than seven clear days before the hearing.

iv) Unlike in the Andrew Mitchell Case, no disruption had been caused to the court by the delay in serving her costs budget.

Indeed, the only additional burden on the court had been the need to take time out to consider the point, and prepare that ruling.

In Mitchell the Court of Appeal said:

“It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial the court will usually grant relief provided that an application is made promptly. The principle de minimis non curat lex, namely that the law is not concerned with trivial things, applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms”.

Applying those principles this was an instance where the fourth defendant, had only narrowly missed the requirement to file and serve a costs budget seven clear days before the hearing of that case management conference and costs management hearing.

The court concluded that the fourth defendant would be entitled to rely upon her costs budget as served late.

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.

Examiner had wide discretion to approve Community Infrastructure Levy Charging Schedules for Developments

The Community Infrastructure Levy (“CIL”) enables a local planning authority to levy on development in its area to fund infrastructure. It stems from Part 11 of the Planning Act 2008 (“the 2008 Act”), as amended by the Localism Act 2011.

Regulation 14 of the CIL regulations requires the charging authority to make judgments setting rates in a charging schedule. It must strike “an appropriate balance” between:

– the desirability of funding necessary infrastructure and

– the possible effects of CIL on the viability of development.

Other questions to be considered are whether:

– it is desirable to fund the total cost of infrastructure wholly from CIL, or only in part;

– what infrastructure is required “to support the development of [the charging authority’s] area”, and when it will have to be provided;

– what other sources of funding there are likely to be; and

– the likely ability of development to bear the burden of CIL and still provide enough profit for developers to make it worthwhile.

These questions require judgment by the charging authority.

In Fox Strategic Land and Property Ltd, R (on the application of) v Chorley Borough Council & Ors [2014] the claimant, Fox Strategic Land and Property (“Fox”) was a large landowner in the north-west. It was promoting housing development and wanted to ensure CIL did not unduly reduce the value of the land.

Here it challenged the CIL charging schedule for residential development adopted by Chorley Borough Council (“Chorley”), and two neighbouring authorities.

The three councils consulted on their proposed CIL charges and then submitted their revised draft charging schedules for examination.

Fox objected to the proposed CIL rate which was £65 per square metre.

An examination into the submitted charging schedules was held by an examiner appointed by the councils.

Fox argued that if CIL were charged at that level it would threaten the viability of housing development in Central Lancashire.

The examiner concluded that the charge of £65 was justified.

Fox sought an order to quash Chorley’s charging schedule for residential development.

In rejecting that application the court said that was a claim for judicial review.

In such proceedings the court did not hear an appeal against the conclusions the examiner had reached.

A claimant could not:

– re-argue a case presented and rejected at a CIL examination, or

– pursue a case on the merits put forward for the first time, or

– pursue enhancements, in evidence and submissions made before the court but not made at the examination.

The court could not interfere with the examiner’s judgment on matters of valuation or planning merit. Its jurisdiction is confined to the ambit of public law i.e. whether the decision was within the range that a reasonable tribunal properly constituted could have made based on material considerations.

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.

Deliverability of uncertain proposals in Core Strategy upheld due to inclusion of Plan B

A local planning authority’s draft Development Plan Document may fail to be passed on examination by a Government Inspector on the ground that particular proposals are not deliverable within the life of the plan.

Even if undeliverable proposals got passed an Inspector (unlikely) the fact they are undeliverable is likely to make the plan challenged by disgruntled developers and landowners.

What if certain proposals may be deliverable if certain contingencies and tests may be satisfied after the plan is adopted?

In No Adastral New Town Ltd v Suffolk Coastal District Council & Anor [2014] the amount of housing proposed in the draft Core Strategy (“CS”) for the SP20 Site depended on the outcome of a future “appropriate assessment” (“AA”).

Upholding the Inspector’s passing of the CS the High Court said:

“The precise amount of housing on the SP20 site may well be uncertain until the AA has been completed but, as the council had committed to an early review of the CS starting in 2015, it had sufficient flexibility to carry out a further search across the district for any shortfall in housing numbers should one be occasioned as a result of any adverse conclusions of an AA. In that way the council’s strategy remained intact and was deliverable at the time of adoption of the CS. There was also, as the claimant contended there should be, a plan B, through the early review, in place to take up any likely shortfall of housing on the SP20 site.”

The availability of that early CS review and plan B were crucial in rescuing the CS from challenge on the deliverability ground.

The deliverability requirement is deterring local authorities from protecting projected routes of railway reopenings in Local Development Frameworks.

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.

Bad Landlord -Tenant relations may justify cheaper refusal of lease renewal

One of the “fault” grounds on which a landlord can resist a tenant’s application for a new business tenancy (section 30(1) (c) of the Landlord & Tenant Act 1954 (“the 1954 Act”)) is that the tenant ought not to be granted a new tenancy because it has committed some other substantial breaches of obligations or for some other reason connected with the tenant’s use or management of the property.

In Horne & Meredith Properties -v- Cox and another (2014) the Court of Appeal recently held that “some other reason” may not need to be breaches of covenant. The two sub grounds stood independently of each other. The reason could be some other behaviour which has led to a breakdown in the landlord-tenant relationship.

In that particular case there had been 16 years of dispute and litigation between the landlord and the tenant, incurring huge costs, concerning two rights of way and six parking spaces at the rear of a shop at Bridgnorth.

The court also rejected the tenant’s claims that those areas were not part of the “tenant’s holding” that it was applying to get a new lease of. The court cited authority including Neville Long – v – Firmenich Boards as authority for the proposition that rights attaching to a tenancy form part of that holding and those rights were what the litigation had historically been about.

This decision has clearly widened the scope for landlords finding fault grounds for resisting new tenancy applications.

Fault grounds carry the advantage for a landlord that, once established, they preclude the tenant getting “disturbance compensation” from the landlord under section 37 of the 1954 Act.

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.

No preventative representations could get round failure to execute deeds properly

Where documents were not in fact executed in accordance with the Law of Property (Miscellaneous Provisions) Act 1989 (“the 1989 Act”), does the fact that documents were described as deeds and meant to be such prevent (“estop”) the signatories from denying that the defective deeds were validly executed?

Briggs & Ors v Gleeds (Head Office) & Ors [2014] concerned a pension scheme (“the Scheme”) for employees of partnerships and companies within the Gleeds group (“Gleeds”).

As will be seen later the case is an important one on the 1989 Act and estoppel and deeds – all of which play an important role in property law.

The Scheme’s case that the signatories could be prevented (estopped) from denying that the defective pension deeds were validly executed failed on factual and legal grounds.

The Facts

Gleeds argued that:

1. By supplying the draft deeds and, perhaps, instructions as to how they should be executed, the Scheme’s Pension Adviser (“Aon”) impliedly represented to Gleeds and Scheme members that, legally speaking, execution in the manner indicated by the drafts would suffice; and

2. Gleeds and Scheme members relied on the representations to their detriment; and

3. Aon were acting on instructions from the Scheme trustees at the relevant times and so the representations should be attributed to the trustees; and

4. In the circumstances, an estoppel had arisen precluding both the trustees and Gleeds and Scheme members from challenging how the deeds were executed.

Fatally to Gleeds case the court found that Aon could not be said to have made such representations for the trustees, or on the trustees’ behalf, to the Gleeds and Scheme members in relation to the execution of the defective deeds.

Main Legal issue

The main legal issue was “how far could the principle of estoppel be invoked to prevent a party from asserting that the statutory requirements for a deed (under the 1989 Act) have not been satisfied?”

The court concluded that estoppel cannot be invoked where a document does not even appear to comply with the 1989 Act on its face or, in any event, could not be so invoked in the particular circumstances of that case. For the following reasons:

i) Parliament had imposed the evidential requirement that an individual must sign “in the presence of a witness who attests the signature” otherwise his deed was not validly executed as such; and

ii) The “deeds” at issue here were not “apparently valid”. It could be seen from each document that it had not been executed in accordance with the 1989 Act.

Had it been otherwise a person can sometimes be estopped (or prevented) from denying due attestation.

But if estoppel could be invoked in relation to documents that were not “apparently valid” people would not know where they stood with them and there would be uncertainty. The validity of a deed may remain important for many years. In relation to older “deeds” people without personal knowledge of the circumstances in which they were executed would not know whether they were valid or not.

A party to a “deed”, who had not himself executed the document in compliance with the 1989 Act, would have an election as to whether the document should be regarded as valid. If the document turned out inconvenient to him he could deny its status as a deed. But if it proved advantageous he could invoke estoppel.

So, if a “deed” provided for a pension scheme to change to money purchase instead of a final salary scheme, an employer who had not had his signature to the document witnessed could wait and see whether the change had actually been favourable to him; and

iii) if estoppel could be invoked in circumstances such as these Parliament’s and the Law Commission’s aims, behind the 1989 Act, to address those kinds of issues would be seriously undermined.

So, the members of the Scheme were not estopped (prevented) from refuting that the defective deeds had been validly executed since (a) Aon could not be said to have made representations on the Scheme trustees’ behalf to Gleeds or Gleeds Scheme members as to the execution of the defective deeds; and (b) estoppel could not be invoked to get around the 1989 Act in circumstances where it was quite apparent that the documents were not validly executed as deeds.

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.

Squatter occupation too discontinuous resulting in Land Registry rectification of possessory title

Balevents Ltd & Anor v Sartori [2014] concerned an unadopted pavement, registered freehold to Birmingham City Council, in front of a club property leased to Balevents and its predecessors.

It raised interesting issues concerning the capacity in which “Squatters” occupied land and whether any freehold possessory title resulting from such occupation accrued:

– to the “squatter” Mr Sartori; or

– (by some alleged fiduciary duties he owed) to the club companies which “employed” him; or

– to the landlord of the club, by being treated as an accrual to the club lease, for which the landlord received rent off the club, who “occupied” the land, either:

– directly themselves; or

– through Mr Sartori; or

– a Mr Timms who for a long time had paid the club (not Mr
Sartori) a rent for use of the land.

In 2009 Balevents could have argued that it and its predecessors in possession of the land had been in possession of it since 1996.

Based on that argument, Balevents could then have applied to the Land Registry for a possessory title to the freehold of the land under schedule 6 para. 1 to the Land Registration Act 2002 (“the 2002 Act”). However, the previous freehold registered proprietor, the City Council had an unqualified right to block that application under reforms to more recently based claims introduced by the 2002 Act.

However Mr Sartori had a longer association with the land.

Due to the commencement date of his alleged “occupation” of the strip being 1974, the previous registered proprietor, the Council did not, as against him, qualify for an unqualified right to block his application and the other objections they raised failed to prevail over Mr Sartori’s claims to the Land Registry. So Mr Sartori had managed to get himself registered as the freehold proprietor of the land with possessory title.

The court found that those claims were “largely based on false allegations of fact which emphasised his alleged possession of the land in his personal capacity.” In fact for most of the period his and “his tenants” occupations of the land had ceased every night leaving it as a clear pavement making that occupation too discontinuous to count for adverse possession.

The court further found that Mr Sartori’s registration had been the result of a “mistake” within schedule 4 para 2 of the 2002 Act.

For the purposes of schedule 4 para 3(2)(a) of the 2002 Act, that Mr Sartori, had by fraud and/or by lack of proper care, caused and/or substantially contributed to the mistake. There were no exceptional circumstances in the case justifying a refusal to order rectification.

So the court made an order for rectification of the register removing Mr Sartori as the registered proprietor of the land, and restoring Birmingham City Council, even though the application for rectification had originally been made by Balevents to get themselves on the register instead of him.

In the course of the proceedings the court found insufficient evidence that Mr Sartori had owed Balevents any relevant fiduciary duty any way.

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.

Tribunal kept power to hear case & award costs even after Company withdrew right to manage flats application

Where a right to manage (“RTM”) company withdraws an application made to acquire the right to manage a building containing self contained flats under the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”):

– is the applicant’s communication of its intention sufficient to effect the withdrawal and end the proceedings or

– does the withdrawal kick in only when the tribunal consents to the withdrawal so that, until then, the tribunal continues to have jurisdiction over the matter to enable it to determine the substantive dispute and order costs?

In O Twelve Baytree Limited, R (On the Application Of) v The Rent Assessment Panel [2014] Beckett House RTM Co. Ltd., (“the RTM”), served a claim notice seeking to acquire the right to manage the property with effect from 11 February 2013.

On 2 April 2013, the RTM wrote to the tribunal ” we … withdraw the Claim Notice, and therefore …the hearing listed for 4 April is cancelled and [the RTM] application is withdrawn.” The tribunal treated that communication as a withdrawal of the application and a cancellation of the hearing. The Claimant contended that the RTM could not unilaterally withdraw its application. It was concerned that the Claimant had incurred costs in preparation for the hearing. It wanted to ensure that the tribunal retained jurisdiction to deal with the application and make any orders including on costs.

The High Court said the legislation contemplated that an application may be withdrawn. That was implicit in section 87(1) of the 2002 Act which recognised that if an application is withdrawn, the claim notice is also deemed to be withdrawn. Section 87(2) of the 2002 Act also provided for “the date of the withdrawal of the application” to be the date upon which the claim notice is deemed to be withdrawn (section 87(2)(b) of the 2002 Act).

The provisions of the 2002 Act were, however, silent on the question of what steps or procedures must be followed in order to bring about a withdrawal of the application. The 2002 Act was also silent on the question of whether a withdrawal is effected solely by the RTM giving notice to the tribunal (or the other parties) of its wish to withdraw the application or whether the tribunal must agree to the withdrawal.

The 2002 Act contained indications that the RTM would not be able to bring about the end of the proceedings simply on giving notice of withdrawal especially in the provisions relating to costs i.e. that the RTM would be liable for the reasonable costs incurred by the giving of the claim notice. Also under section 88(3) of 2002 Act the RTM would be responsible for the costs incurred in proceedings before a tribunal.

However the RTM’s liability for costs incurred as a party to proceedings before the tribunal only arose, if the tribunal dismissed the application.

Since:

– section 89(2) of the 2002 Act said liability for costs continued down to the withdrawal of the application and

– such liability would only arise if the tribunal dismissed the application

the Court took this to indicate that the tribunal retained jurisdiction over an application even where the RTM had given notice that it intended to withdraw. So the withdrawal would only be effective when accepted by the tribunal and when the tribunal dismissed the application, e.g. by dismissing the application on withdrawal.

This sounds like an expedient to make good a deficiency in the legislation by artificially protracting proceedings beyond the RTM’s withdrawal to enable the tribunal to dismiss the application and trigger its own jurisdiction to award costs. The court acknowledged that the tribunal would have no duty to hear and determine the underlying merits of the case in those circumstances.

So the tribunal had been wrong to believe that the notice of withdrawal ended its jurisdiction including to award costs.

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.

Lease break clause conditions had to be complied with

Siemens Hearing Instruments Ltd v Friends Life Ltd (2013) was a High Court Decision that contradicted the orthodoxy that a Tenant’s break right in a lease is an option clause and (as such) must be adhered to strictly. The clause said the notice must be expressed to be given under Section 24(2) of the Landlord and Tenant Act 1954 and it wasn’t.

That requirement was an old one designed to stop tenants coupling a break with a statutory request for a new tenancy to secure a reduced rent for the same premises in a falling market.

Lease break clause conditions had to be complied with

The High Court ruled that the break clause’s draftsman should have spelt out the consequences of non compliance with the condition if they were intended to be fatal. Since he had not the Court felt it was left to it to decide the result of non compliance and it decided that it was not fatal to the Tenant’s break notice being effective.

The case offered hope to Tenants but the Court of Appeal has now dashed that hope. Finding against the Tenant, it said the break clause imposed a mandatory requirement that the notice must be expressed to be given under Section 24(2) of the Landlord and Tenant Act 1954 and it wasn’t. The fact that the draftsman had not spelt out the consequences of non compliance with the condition did not give the court latitude to spell them out in any other way. The notice had to comply with the requirements of the clause. There was no such thing as “substantial compliance”.

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.

Lawful use authorised by certificate frustrated by condition on operational planning permission

A grant of an operational planning permission may be a material change in circumstances affecting the efficacy of a certificate of established use.

Regardless of the certificate, if planning permission were applied for and granted for operational purposes, conditions can be attached to the permission in order to regulate the consequences arising from a combination of the existing use with those operations. This may mean the law taking back with one hand what it has just given with the other.

In Nisbet, R (On the Application Of) v Secretary of State for Communities & Local Government & Anor [2014] 37 Belgrave Mews, North London formed part of a terrace of mews houses. The claimant wished to utilise a roof space at 37 Belgrave Mews as a roof terrace for sitting out and for other amenity purposes. Applications for planning permission for a roof access hatch were refused.

The claimant then got a certificate of lawfulness of a proposed use under section 192 of Town and Country Planning Act 1990 for use of the flat roof as an amenity space as the use of the flat roof for amenity space purposes would not constitute a material change of use as it would be incidental to the enjoyment of the single family dwelling house and so did not require planning permission. The certificate said “For the avoidance of doubt this certificate does not include the unauthorised roof works including the air conditioning unit, the roof lights or any balustrade.”

The claimant then applied for planning permission for permission to retain the roof access hatch. That was granted but subject to a condition that the flat roof could not be used for sitting out as it invaded neighbour’s privacy.

An appeal against that condition concluded that the planning permission would be unacceptable without that condition as the living conditions of neighbours would be seriously harmed. At the appeal the inspector said the removal of the condition would conflict with the relevant local policies.

The High Court said, given the existing use of the flat roof space for amenity purposes, there had to be a planning need to justify the imposition of the condition. In fact it was the inspector’s lawful entitlement to consider the effect on neighbours.

Although the certificate existed it could not be relied on as the use could not be instituted without an operation for which no planning permission had existed namely the installation of the access hatch. The certificate was not conclusive as to lawfulness of the use that it proposed, in the changed circumstance that the claimant was applying for planning permission for the roof hatch and other items.

Would it have made a difference if the claimant had made some use of the roof space, before getting the planning permission e.g. by means of a ladder, thereby instituting the use and making the certificate conclusive?

The court said it would not have made a difference. Whether the certificate was there or not, the use was a lawful use. An authority could impose a condition on a certificate restricting a lawful use if there is a planning need to do so.

Secondly, the certificate made it clear that it was granted on the basis that it did not include the unauthorised roof works. There would have had to be an application for planning permission for the roof works otherwise there would be a breach of planning control.

The certificate was not intended to restrict the ability of the local planning authority to impose a condition on the use which they considered necessary in planning terms. It was the planning permission for the operational development of the roof access hatch, combined with the use of that flat roof for amenity purposes, which would result in new and undesirable affects that needed to be lawfully addressed by the imposition of a condition such as that condition if the authority or the inspector considered it necessary in planning terms.

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.