Monthly Archives: November 2014

Insufficient express weight given to harm to designated heritage asset

Where a local planning authority is deciding a planning application, section 72 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, says:

“special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.”

Section 72 (1) means that when deciding whether harm to a conservation area is outweighed by the advantages of the proposed development the decision-maker should give special weight to the desirability of avoiding that harm.

Paragraphs 133-134 of the National Planning Policy Framework say:

“133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:…

134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.”

Even if the harm would be less than substantial, so that paragraph 134 applied instead of paragraph 133, the harm must still be accorded a lot of importance.

Once it is found that there would be some harm to a conservation area, considerable weight must be given to that harm in the planning balance.

The mere fact that paragraph 134 on its own is apparently followed will not save the planning decision from being quashed – even where there is express reference to those presumptions militating against permission being granted in those circumstances. The decision must also give clear and express recognition – and application – of those presumptions. It becomes, and must explicitly be, more than a “simple balancing exercise”.

Where paragraph 134 applies, the fact of harm to a heritage asset must be given more weight than if it were simply a factor to be taken into account along with all the other material considerations. This needs to be “demonstrably applied”.

However, where non-designated heritage assets are being considered, paragraph 135 will apply and the potential harm should simply be “taken into account” in a “balanced judgment”.

In the High Court case of Hughes, R (On the Application Of) v South Lakeland District Council [2014] the site, an old brewery in Ulverston, was located within a heritage asset i.e. the local Conservation Area. The proposed Development included demolition of the Brewery Tower.

The court said it was not enough that the impact was mentioned in the Council Planning Officer’s Report. A mere acknowledgment of the harm was insufficient.

The decision makers needed to address how it was to be dealt with and show that they were applying the presumptions. In this case there was no evidence of this at all. The planning decision had to be quashed.

It was not appropriate for the court to exercise its discretion against quashing the planning decision because the decision was passed by such a slender majority of Councillors that it was impossible to say that it would have gone the same way, anyway, had the presumptions been properly addressed and applied.

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

Information omitted from Collective Enfranchisement notice was fatal to it

Where a notice is served under section 13 of the Leasehold Reform, Housing and Urban Development Act 1993 (“the 1993 Act”), claiming the right to acquire the freehold of a residential block, using the collective enfranchisement provisions of the 1993 Act, the information on the Section 13 notice is intended to include and disclose:

– the number of qualifying tenants in the premises (section 3(1)(b)),
– whether the total number of flats held by the qualifying tenants is not less than two-thirds of the total number of flats in the premises (section 3(1)(c)) and:
– whether the section 13 notice has been given by qualifying tenants of not less than half of the number of flats contained in the premises (section 13(2)(b)).

In the Court of Appeal case of Natt & Anor v Osman & Anor [2014] the Section 13 notice failed to comply with section 13(3)(e) of the 1993 Act because it did not give:

– the names of one of the qualifying tenants in the building,
– the address of the flat of that qualifying tenant, and,
– the particulars of that qualifying tenant’s lease as specified in section 13(3)(e)(i).

The Court of Appeal said that for the reasons in the preamble to this blog the omitted information was fundamental to the collective enfrancisement process.

Furthermore:

1. Paragraph 15 of schedule 3 to the 1993 Act had specifically said which inaccuracies in Section 13 notices would not invalidate them and the circumstances in which they could be amended, and,

2. Since the Landlord challenged the validity of the original Section 13 notice, there would have been nothing to prevent the immediate service of a fresh Section 13 notice “without prejudice” to the tenants’ contention that the original notice was valid. Section 13(9)’s restriction on the service of a new Section 13 notice within 12 months after the withdrawal or deemed withdrawal of a Section 13 notice only applies if the original notice was valid.

The invalidity of the notice was upheld and the applicant’s appeal was dismissed.

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

Registered Social Landlord enjoyed same status as Local Authority on eviction

Registered Social Landlords (“RSLs”) are important in helping local authorities to carry out their statutory housing policies, including the allocation of houses in certain priorities.

The law requires local authorities to make an allocation scheme, and RSLs are the only body that statute requires them to consult before adopting a scheme.

Section 170 of the Housing Act 1996 says, if requested, RSLs must co-operate with local authorities “to such extent as is reasonable in the circumstances” by offering accommodation to people with priority under the local authority’s allocation scheme.

That co-operation is usually implemented by the local authority and the RSL entering into nomination agreements.

In the Court of Appeal case of Lawal & Anor v Circle 33 Housing Trust [2014] the issue arose whether making a possession order against Mr Lawal had been proportionate under Article 8 of the European Convention on Human Rights incorporated into English Law by the Human Rights Act 1998.

The leading Supreme Court case of Manchester City Council v Pinnock [2010], stated that where the person seeking possession is a local authority, the proportionality of making an order for possession will be supported by:

1. the fact that it would serve to vindicate the authority’s ownership rights; and,

2. (normally) by the fact that it would enable the local authority to comply with its duties in relation to the distribution and management of its housing stock including, for example, the fair allocation of its housing, the re-development of the site, the refurbishing of substandard housing stock, the need to move people who are in accommodation that is more than they need, and the requirement to get vulnerable people into sheltered or warden monitored housing.

Where a local authority is entitled to possession it should be assumed to be acting in accordance with its duties, unless there is cogent evidence to the contrary. The fact that it’s a local authority that is entitled to possession will also strongly support the proportionality of making an order for possession.

So, in most cases involving a local authority landlord and any residential occupier who has no contractual or statutory protection, the onus will be on that occupier to bridge the high threshold involved in satisfying the court that an order evicting the occupier is not a proportionate means of achieving a legitimate aim.

In this case Mr Lawal contended that Circle 33 was not a local authority and so could not benefit from those principles. So Circle 33 bore the burden of establishing the proportionality of evicting Mr Lawal from the house in question.

Rejecting this the court said Circle 33 was a social landlord and a non-profit organisation whose aim was to provide low cost housing for people who might not be able to afford private sector rents.

As such it was a public authority for the purposes of the Human Rights Act 1998 (“HRA 1998”).

In Pinnock, the Supreme Court stated that the foregoing principles applied equally to other social landlords to the extent that they were public authorities under the HRA 1998.

Having found that Mr Lawal faced the high threshold of proving that Circle 33 had acted disproportionately in having him evicted, the court found that he had failed to discharge that evidential burden.

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

Charging Fees incidental to Charity so Construction Work VAT Zero Rated

Construction supplies will be zero rated if the new building is to be used solely for a charitable purpose otherwise than in the course or furtherance of a business.

The test to be applied as to whether the building is to be used ‘in the course or furtherance of a business’ is the same test as applies to determine whether an activity is an economic activity conducted by a person such as to make that person a taxable person for VAT purposes.

That test is in Article 9 of the Principal VAT Directive:

” 9(1) “Taxable person” shall mean any person who, independently, carries out in any place any economic activity, whatever the purpose or results of that activity.”

In the Upper Tribunal (Tax and Chancery Chamber case of HMRC – v – Longridge on the Thames [2014], the First Tier Tribunal had found that by far the greater part of Longridge’s activities were ‘directly to carry out its charitable objectives’ and a lesser part was to raise funds to subsidise the charitable activities.

There was a dividing line to be drawn between a situation where:

– the activities do amount to the furtherance of a business even though the activities are not aimed at making a profit; and

– a situation where the activity is not conducted as a business even though a payment is made by the recipient of the services for the services provided.

It had been for the First-tier Tribunal to decide, on the facts, which side of the line the case fell.

Many businesses depend on donations as well as income from charges for goods or services and many small businesses rely on the free provision of labour by family members to keep going.

The mere fact that volunteers were used or activities were funded from a mix of sources, did not mean there was no “economic activity”.

Conversely an activity whereby a supply is made for a price is not necessarily an economic activity.

It is necessary to ignore the activities’ purposes or results, and look at the totality of the activities’ ‘observable terms and features’ and the context in which they are carried out.

The First TierTribunal had done this in respect of Longridge’s activities at its new training centre for educating young people in waterborne activities, and decided that Longridge’s activities were not economic.

The First Tier Tribunal was well placed to make that sort of evaluation of the facts and the appellate tribunal or court, as here, should not interfere with it.

The Tribunal had correctly considered the scale of the payments made, how they were calculated and how Longridge’s finances were handled in terms of donations and the use of volunteers.

The First-tier Tribunal had applied the correct test. Longridge’s predominant concern was not to make taxable supplies to consumers for a consideration, but to carry out its activities in a way that furthered its charitable objectives.

The making of supplies for a consideration was merely incidental to its predominant concern of furthering its charitable objectives in that it was just one way (admittedly important) in which its predominant concern was achieved.

Longridge’s charges were determined by the trustees annually with the aim of providing those facilities, courses and activities at the lowest cost possible whilst maintaining financial prudence for the long-term viability of Longridge for future generations.

Key factors were:

1. charges were aimed at affordability for the young;

2. charges were set to cover those areas of operational expense not covered by donations and volunteer contributions;

3. discretion was available to reduce or waive charges where pursuit of the charitable objects was especially desirable;

4. after Longridge acquired the site (partly funded by loan), all further capital projects were financed by donations and grants. No part of the charges levied were directly or indirectly spent on the acquisition or funding of capital assets; and,

5. the many volunteers amounted to a significant subsidy to the cost of Longridge’s operations.

So the First Tier Tribunal had been entitled to conclude that Longridge did not carry on an economic activity at the site.

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

NPPF and other material considerations outweighed local development plan protection

Section 38(6) of the Planning and Compulsory Purchase Act 2004 says an application for planning permission has to be determined, “in accordance with the policies of a development plan unless material considerations indicate otherwise.”

The National Planning Policy Framework (“NPPF”) lays out the Government’s planning policy. A key principle is:

“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 though both plan-making and decision-taking.”

The NPPF says the presumption in favour of sustainable development should be considered on housing planning applications.

Para 49 of the NPPF just relates to policies on housing supply and says:

“Relevant policies for the supply of housing should not be considered up to date if the local authority cannot demonstrate a five-year supply of deliverable sites.”

In Ash Parish Council, R (On the Application Of) v Guildford Borough Council [2014] the applicants sought judicial review of Guildford Borough Council’s planning permission for a 46 hectare 400 dwelling Greenfield residential development.

The Council did not have a five-year housing land supply so Para 49 of NPPF was engaged.

The application site fell entirely within ‘Countryside beyond the Green Belt’ (CBGB) Policy RE4 of the Guildford Local Plan which therefore applied to the application.

Policy RE4 provided that no development was to be permitted upon such land unless it was within one of four categories, none of which applied.

The officer’s report wrongly advised the planning committee that no weight should attach to RE4 because it pre-dated the NPPF. The main issue was whether the officer’s report significantly misled the Council into granting the planning permission.

However the High Court said the officer’s report had to be construed as a whole and in the light of oral advice given at the committee meeting.

It had been right to give policy RE4 reduced weight on the basis of paragraph 215 of the NPPF.

This said:

” 215. In other cases …….. due weight should be given to relevant policies in existing plans according to their degree of consistency with [the NPPF] (the closer the policies in the plan to the policies in [the NPPF], the greater the weight that may be given).”

The weight to be attached to policy RE4 was reduced because of its non-conformity, in part, with the national policy in the NPPF.

Later parts of the officer’s report had correctly advised:

1. A material consideration was the need to provide an adequate supply of deliverable housing land when there was a substantial and historic shortfall in that supply.

2. That was capable of outweighing policy RE4 and it outweighed the harm to the character of the land.

So, the officer had correctly advised the committee that they could attach significant weight to the substantial shortfall in housing land supply.

As a classic matter of planning judgement, the decision makers were entitled to say those other material considerations outweighed the breach of the development plan.

The planning decision makers had been entitled to conclude that the application should be granted permission as the adverse impacts of the proposed development did not significantly and demonstrably outweigh the benefits.

The land was outside the Green Belt so it was in one of the least resticted areas of the borough.

The advice that no weight be given to policy RE4 had been corrected by points 1 and 2 above.

Even if RE4 should have been given greater weight it would have made no difference to the eventual decision. The High Court would have exercised its discretion and refused to quash the planning permission.

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

Secretary of State had insufficient evidence to reject appeal inspector’s findings

On an Appeal the Secretary of State is not entitled to disagree with the Planning Inspector’s assessment of the facts unless there is a sound evidential basis for the Secretary of State doing that.

If the Secretary of State does take a different view from an Inspector on issues of fact where there is no sound evidential base for doing that the Secretary of State will be exposed to challenge under the “Wednesbury principle”.

That’s to say, the Secretary of State must not act perversely. His decision may be overturned by the court if the court considers that:

“no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion that he did reach.”

In the High Court case of O’Connor v Secretary of State for Communities and Local Government & Anor [2014] the claimant challenged the Secretary of State’s decision:

– to dismiss his appeal against the refusal of planning permission for residential caravans; and,

– to uphold an enforcement notice to stop them.

The High Court found that the Secretary of State’s decision was due to:

– his view that the Inspector hearing the appeal had failed to take account of the Sequential Test. However the High Court found that this did not “stand scrutiny”; and,

– the Secretary of State’s failure to take any account of the Inspector’s factual conclusions and judgment about flood risk at the appeal site. Nothing in the decision letter explained why the Secretary of State did not accept that the whole of the appeal site should be treated as being within Flood Risk Zone 2 or why the Secretary of State took a different view of the flood risk from his Inspector.

So, the Secretary of State’s conclusion about the flood risk on the appeal site was unreasonable and/ or it failed to take account of material considerations namely the factual conclusions made by the Inspector and the Inspector’s judgment as to the flood risk based upon those factual conclusions. Therefore the Secretary of State’s decision to refuse the planning appeal was tainted by illegality and had to be quashed.

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

Environmental impact of link road not integrated with proposed development

In Larkfleet Ltd, R (on the Application of) v Lincolnshire County Council [2014] the Claimant applied for judicial review of the Defendant council’s grant of planning permission to Lincolnshire County Council for the Grantham Southern Quadrant Link Road (“the Link Road”).

The Claimant claimed that the Environmental Statement (“ES”) submitted with the application for planning permission failed to make an adequate assessment of the Link Road, jointly or cumulatively with Grantham’s proposed Southern Quadrant Sustainable Urban Extension (“SQSUE”), as required by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations”). In short that the ES should have considered the impact of the Link Road jointly with the proposed SQSUE, not as a single project.

However the High Court ruled that the council were entitled to judge that:

1. the Link Road was an “infrastructure project” within the definition in paragraph 10(f) of Schedule 2 of the EIA Regulations: “construction of roads”; and

2. the Link Road was not an integral part of the SQSUE such as to require both developments to be considered jointly, as if they comprised a single development within Schedule 2 of the EIA Regulations, in large part because the SQSUE was a different category of infrastructure project – namely, an urban development project within the definition in paragraph 10(b). Its purpose was to provide housing and ancillary facilities.

This was not a case where the council had circumvented the regulations by artificially splitting projects to avoid environmental assessments.

The council had always accepted that both developments required a full ES. The developments were subject to assessment and the Regulations were not being circumvented because:

– there had been a Strategic Environmental Assessment of the proposals in conjunction with the original Masterplan; and,

– the council had accepted that the effects of the SQSUE would need to be considered cumulatively with the Link Road.

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

Flats Manager could be appointed over land outside complex

Part II of the Landlord and Tenant Act 1987 (“the Act”) applies to “premises consisting of the whole or part of a building if the building or part contains two or more flats” (section 21(2)), i.e. the leaseholders of such premises can apply for the appointment of a manager (section 21(1)).

Such a manager may be appointed “to carry out in relation to any premises to which this Part applies… functions in connection with the management of the premises…” (section 24(1)).

That requires “a causal link or nexus between the functions to be carried out by the manager and the premises defined in section 21(1)”.

In Cawsand Fort Management Company Ltd, R (on the Application of) v Kane & Ors [2014] the High Court pointed out that this does not confine the manager’s functions to the buildings and curtilages that go to make up those premises.

Rights granted over the amenity land in that case, were also “in relation to” the premises consisting of the building which contained the lessees’ flats.

So the order section 24(1) empowered the tribunal to make appointing a manager to carry out functions “in relation to” the premises may extend to land over which such rights ran, even though outside the boundaries of “the premises buildings and curtilages” of the flats complex, e.g. the amenity land in this case.

Where, there is no such nexus – because a tribunal order gives the manager functions in respect of land over which the leaseholders have no rights, the aggrieved landowner should apply to the First-Tier Tribunal under section 24(9) to vary the management order to exclude that land from those functions.

In this case functions in respect of the underground chambers and insuring land in which the lessees had no interest fell into this category. Paragraph 19 of the management order expressly permitted such a variation application to be made.

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

Section 106 contribution obligations ousted by later planning permission and agreement

The High Court case of Robert Hitchins Ltd, R (on the Application of) v Worcestershire County Council & Ors [2014] concerned the Claimant’s obligation under section 106 of the Town and Country Planning Act 1990 (“section 106”), to pay a contribution per dwelling in its proposed development towards the Worcester Transport Strategy.

The Claimant had made a second application. The second application was identical to the first, except that that particular section 106 obligation to make the transport contribution was omitted.

The issue was whether the obligation to contribute that arose from the first application had survived:

1. the Secretary of State’s grant of planning permission on the second application; and,

2. the steps that had been taken to implement that second permission.

The court held that where two planning permissions exist in relation to the same land, a developer may chose between them.

When the grant of the second planning permission had been completed by the grant of reserved matters approval, the developer had two extant planning permissions in respect of the site.

Nothing had been done under the first planning permission that precluded the second planning permission being implemented or the carrying out of the development under that second planning permission.

So, as a matter of law, the developer was entitled to chose which permission it wished to proceed under.

Furthermore in the Section 106 Agreement, which imposed the transport contribution obligation in relation to the first planning permission, the Claimant had reserved the right to apply for further planning permissions for the same development, but without the transport contribution.

This was because the first Section 106 Agreement expressly provided that nothing in that Agreement prohibited or limited any right to develop the site in accordance with another planning permission.

The scheme envisaged that, if and when planning permission were granted without the transport contribution obligation, the developer would take effective steps to ditch the first planning permission in favour of the second planning permission.

Indeed, recital (G) of the Section 106 Agreement entered into in relation to the second planning application said:

“[the developer] intends to implement the Second Planning Permission and the Reserved Matters Approval. [the developer] enters into this Undertaking in order to dispense with the implementation of the First Planning Permission and to dispense with the discharge of the obligations under the First Section 106 Agreement and to implement the Second Planning Permission and the reserved Matters Approval and comply with the terms of the Second Section 106 Agreement.”

Paragraph 1.2 of Schedule 1 to the Section 106 Agreement entered into for the second planning permission made it clear that the developer “intend[ed] to implement the second planning permission…” and since implementation of the second planning permission excluded any possibility of also implementing the first planning permission in relation to the same site, the developer was undertaking to “dispense with the implementation of the first planning permission” as well.

Looked at objectively against the relevant background, those words were intended to mean that, as soon as the second Section 106 Agreement took effect on 18 September 2014, reliance on the first planning permission would be given up, and any material operations thereafter to implement a planning permission could only have been carried out under, and implement, the second planning permission.

So the trigger for payment of the second and third instalments of the transport contributions under the first Section 106 Agreement never arrived, before the developer started to rely on the second planning permission instead, and that second planning permission was not accompanied by any such contribution obligation.

So, on the evidence, from 18 September 2014, the developer elected to continue and complete the development under the second planning permission and therefore had no further obligation to make the transport contributions.

The High Court’s decision here was upheld, by the Court of Appeal, when unsuccessfully appealed against in Robert Hitchins Ltd, R (on the application of) v Worcestershire County Council & Anor [2015].

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

Political party’s powers over composition of planning committees

Is the composition of a planning committee a political decision or one for the council?

In the High Court case of Carnegie (On Behalf of the Oaks Action Group), R (On the Application Of) v Ealing [2014] Rule 24 of the local planning authority’s Council and Committee Procedure Rules said:

Where any member of a committee, was unable to attend a meeting for a reasonable reason, a representative of that member’s political group could give notice to the proper officer to authorise the proper officer to change the standing appointments of the committee to substitute an alternative member for the duration of that meeting.

Councillor Gulaid was substituted by Councillor Varma who, in turn, was substituted by Councillor Kang. Councillor Kang voted in favour of the proposed development.

Councillor Gulaid was able to attend the meeting of the planning committee but was told not to by the whip of his political party.

The claimant, challenging the planning permission for a shopping centre redevelopment, contended that:

– Councillor Gulaid was substituted to obtain a vote in favour of the development proposed; and,

– When, as here, a substitution is made in conflict with a council’s own rules the result was an improperly constituted committee. So, the planning permission for the development must be quashed.

Councillor Gulaid said that he had been told that he should not sit on the committee as that would give rise to a risk of a challenge to its decision on the basis of “predetermination” because he had been making statements indicating a commitment to supporting the objectors. The claimant said Councillor Gulaid had made no such statements and so had been improperly removed.

However the court said committee membership was determined by the council to reflect the political balance of the elected members.

Where elected members could not physically attend committee meetings their political party would then substitute another of its party to make sure that the political balance of the committee was retained.

Here, all three councillors were duly appointed Labour Party members of the planning committee and it had been a political decision as to who attended the meeting to vote on the planning application.

Whether a reason for any member being unable to attend a committee meeting was “reasonable” within the above rule was a matter to be determined by the political party.

An inability to attend may extend beyond a physical inability to attend to cases where there were concerns that the member, due to attend, did not have an open mind on the decision needing to be taken.

The relevant political party may be reasonable to be concerned – whether or not the relevant councillor actually had an open mind.

Either way that decision making process was part of the democratically elected political process and could not be reviewed by the courts.

The court’s decision is a useful reminder of the political basis of planning decisions and how those politics interface with the law.

The court was clearly right to think inability to attend extended beyond mere physical inability to attend to include cases of predetermination.

The case for predetermination having occurred here was open to question but the court’s decision as to the political party’s powers to regulate composition on that ground appear to accept that a political party is the final arbiter if one of its councillors be substituted on that ground.

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