Category Archives: Regeneration

CPO Valuation: Tribunal deletes Affordable Housing assumption

Where land is compulsorily acquired the owner can apply under section 17 of the Land Compensation Act 1961 (“the 1961 Act”) for a certificate of appropriate alternative development (“CAAD”).

In the Upper Tribunal (Lands Chamber) case of Mintblue Properties Ltd, Re: Car Park of former E-Mag Factory [2016] the Welsh Government had made a compulsory purchase order against the Car Park of the former E-Mag Factory Brynmawr, Blaenau Gwent (“the appeal site”). The appellant, Mintblue Properties Ltd, made a section 17 application to Brecon Beacons National Park Authority (“BBNPA”) as the local planning authority. The application specified that in the appellant’s opinion residential development would be appropriate alternative development in relation to the appeal site for the purposes of section 14 of the 1961 Act.

BBNPA issued a CAAD certifying that various classes of development would have been granted planning permission if the acquiring authority had not proposed to compulsorily acquire the appeal site.

The appellant appealed to the Tribunal against the CAAD. The only dispute was about the limitation which BBNPA had imposed on the C3 residential use. The appellant said there was no justification for limiting that use to 100% affordable housing which would have massively depreciated the compulsory purchase valuation of the land.

So the Tribunal was required to determine whether, on the balance of probabilities, planning permission for the residential development of the appeal site, with no requirement for any affordable housing, could reasonably have been expected to be granted on the relevant date in the circumstances known to the market on that date and on an application decided on that date or at a time after that date (section 14(4) of the 1961 Act). That issue had to be determined in accordance with the development plan unless material considerations indicated otherwise.

The Tribunal said at the relevant date:

(i) The development plan was the Brecon Beacons National Park Local Development Plan (“the LDP”);

(ii) The appeal site was shown as countryside in the LDP but adjoined a site identified as a residential commitment (the former E-Mag factory site); and,

(iii) The former E-Mag factory site had planning permission for residential development subject to an affordable housing element of 20%.

The Tribunal said the existence of an extant residential planning permission on the adjoining E-Mag factory site was a material consideration to which significant weight should be given.

BBNPA had seemingly failed to accord any weight to this planning permission, relying instead upon an interpretation of Policy 29 of the LDP: “Affordable Housing Exceptions”.

BBNPA’s reliance upon this policy was misdirected for a number of reasons:

(i) The appeal site adjoined and formed a logical extension to the settlement of Brynmawr which was not in the Brecon Beacons National Park but in the neighbouring authority of Blaenau Gwent County Borough Council;

(ii) There was no proven need for affordable housing that could not be met in any other way;

(iii) There was no housing needs survey; and,

(iv) Policy 28 of the LDP said that no affordable housing contributions were required in the Heads of the Valleys and Rural South Submarket in which the appeal site was located.

The appeal site was in a sustainable location and, the Tribunal was satisfied on the balance of probabilities that if the road scheme was cancelled, the appeal site could reasonably have been expected to be granted planning permission for residential development without dependence upon Policy 29, which the Tribunal did not consider to be applicable.

The 20% affordable housing policy that was in force when planning permission was granted for the former E-Mag factory site in 2012, no longer applied at the relevant date. Instead Policy 28 had been introduced and it expressly required no affordable housing for developments, such as could have been expected at the appeal site.

The Tribunal varied the CAAD issued by BBPNA so as to delete the parenthesis “(as a 100% affordable housing development on an exception site in the countryside)” as it applied to C3 -residential use.

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

Pointe Gourde Rule: Value to Owner not Acquirer what matters

The “value” of rights over land (or land) being acquired by compulsory purchase is their value to the claimant as owner, and not their value to the acquiring authority (“the Council”).

So when assessing the claimant’s compensation there must be disregarded:

– any premium value, or value increase, which is entirely due to the scheme for which the Council are acquiring the rights over land (or land); or

– any key or ransom value of the rights over land (or land) attributable to the scheme.

The fact that rights over land (or land) are being acquired for a particular purpose might have evidential value showing that alternative development schemes for the same purpose are not fanciful but might have a degree of probability.

If such premium value or value increase existed prior to the acquisition it must be taken into account. If it were to be disregarded the Council would be expropriating that pre-existent value without compensation.

Being based on the price rights over land (or land) might reasonably be expected to fetch on the open market at the valuation date. The claimant’s compensation, would be expected to reflect that pre-existent value.

What is required is to identify what proportion of the current value of the land (or the land over which rights are exercised):

– relies solely on, and is wholly attributable to, the Council’s scheme? That proportion must be disregarded in assessing any compensation; or,

– is attributable to events which would have increased value anyway independently, and regardless, of the scheme? That proportion will count towards the compensation.

In the Upper Tribunal (Lands Chamber) case of Hanbury -Tenison v Monmouthshire County Council [2014] a retail scheme required the relocation of a livestock market.

The scheme required the extinguishment of the claimant’s shooting rights to the extent they affected the new livestock market site the Council had identified.

The Tribunal accepted that:

– there might be factors apart from the existence of the Council’s scheme that added to the value of the rights (or land) even if

– that additional value was purely a ransom value that the rights (or land) might have in relation to a similar scheme (other than the Council’s).

In valuing any rights over land (or land) the development potential of that land for some alternative use was clearly relevant.

If the land (or land over which rights are exercised) was more valuable due to the land’s “potential” for some alternative more lucrative use which was:

– not attributable solely to the Council’s scheme, but

– would have existed even in the absence of the scheme,

then that “potential” need not be left out of account when that land is valued.

So in this case the principle mentioned in my opening paragraph did not necessarily require the compensation value of the rights to be “restricted to their intrinsic value as shooting rights”.

Any additional value in the rights must depend on their capacity to inhibit, or ransom, the use of the land over which the rights were exercisable for some more profitable purpose.

The land over which the rights were exercisable was suitable for development as a market and the prospect that it would be likely to be developed as a market was a matter which might enhance its value and therefore any ransom value of the rights.

The purpose the Council was going apply to the land should not be taken into account i.e. the specific scheme should be disregarded.

However where there was potential for the land, that the rights were exercised over, to be used by a scheme, other than the Council’s, as a livestock market, the owner of the rights should be paid higher compensation by the Council to take that potential into account.

It follows that in arriving at the value to the owner it was necessary to distinguish between:

– any enhancement in value attributable solely to the presence of the Council in the market as a purchaser of the land for the Council’s scheme in exercise of its statutory powers; and

– the value which already existed and would therefore have continued to exist but for the Council’s scheme.

It was only the latter value which is relevant for the assessment of compensation.

Here the test was: whether there existed in the rights, or the land they were exercised over, an enhanced value which existed independently of the Council’s need to find an alternative site for the livestock market?

In fact two factors demonstrated that there was nothing outstanding about the relevant land:

1. There had been a number of alternative sites which attracted more immediate attention and obtained favourable planning treatment. The land had not originally featured in the list of fourteen such sites identified.

2. There was no competition for the land from supermarket operators or other developers seeing it as providing a potential foothold on the town centre site. When it did come on to the market it was sold as part of a larger site at an agricultural value.

In conclusion the Tribunal said any significant increase in the value of the rights, above their intrinsic value as shooting rights, was to be disregarded because that increase was solely attributable to the Council’s scheme for the redevelopment of the existing livestock market site for retail purposes and for the construction of the replacement livestock market on the land over which the shooting rights had been exercised.

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

Loss of “community facility” did not require like for like replacement

The Court of Appeal case of Chalfont St Peter Parish Council v Chiltern District Council [2014] concerned a proposal to grant planning permission for a disused private convent school and playing fields to be redeveloped.

One major issue was whether the District Council’s Core Strategy Policy CSF2 required a like-for-like replacement of the school use. The District Council and the High Court Judge had interpreted them as not doing as did one Court of Appeal Judge.

The majority of the judges found Policy CSF2 to establish the following priorities:

1. Consideration must be given to the existing community facility or service which would be lost under the proposed development. The Council must ask itself whether there is a continuing need for that facility (or service).

If there is, then it cannot be sacrificed to the proposed development, unless a “like for like” replacement is provided.

2. If there is no ongoing need for the existing facility or service, but the same building or land is needed for some other community use, then the existing facility cannot be sacrificed to the development unless, again, a suitable replacement is provided. That replacement would have to be suitable for the alternative community use, but need not be “like for like” since that would unnecessarily build in suitability for the previous now redundant use.

3. If the facility is not needed EITHER for its existing community use, OR for any alternative community use, then it may be sacrificed to the proposed development, without any need for replacement, whether:

3.1 “like for like”; or

3.2 by a non identical facility for alternative community use.

The planning committee had not been advised to adopt this interpretation of Policy CFS2.

But the majority of judges found that the outcome of the planning application would have been no different if the planning committee had proceeded on a correct interpretation of the policy.

The convent and school buildings were no longer required for their former use and nothing suggested that any of them, apart from the retained chapel, could be put to any other community use. Nor had it been suggested that the playing fields were required for community use. Redevelopment of one kind or another was the only realistic option. If there were any doubt about whether the existing facility could have been put to community use the matter would have to be sent back to the planning committee to enable them to consider the question.

The requirements of sub-paragraph (ii) of Policy CSF2 were therefore satisfied even if the Committee had based its actual decision on an incorrect interpretation of that policy.

The minority judge on this issue thought the Council had been right to conclude that Policy CSF2 would not, in any event, have required a like-for-like replacement of a community service or facility on the site where a particular community use would be lost.

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

Shortcomings of intermediate subcontractors no excuse

If a person gets an indemnity against the results of certain acts, the indemnity will not be interpreted to include the results of that person’s own negligence unless those results are, expressly, or by inevitable implication, covered by the indemnity: Canada Steamship Lines v The King [1952].

Necessary implication would apply if there is no other subject-matter on which the indemnity could operate.

As with most rules of interpretation, this rule depends upon the presumed intention of the parties. No one is likely to agree to indemnify some other person for the results of that other’s own negligence. So he is presumed not to have intended to do so unless express words, or inevitable implication, indicate that they agreed to do that.

The case of Greenwich Millennium Village Ltd v Essex Services Group Plc & Ors [2014] , which I blogged some time ago, has just been through the Court of Appeal. The case involved a main contract and a chain of sub contracts culminating in a company called Robson. The problem related to a new high rise residential development at Greenwich Village. The apartments received cold water from rising mains. These were fitted with surge arrestors. But there were some instances where these had an isolation valve that had been left closed or a non return valve beneath them rendering them ineffective and causing a flood which caused £4.5m damage.

Robson sought to avoid liability under the indemnity provisions of its sub-sub-sub-contract by relying on the principle in Canada Steamship Lines v The King on the ground that the superior contractors appointing it should have known of and spotted the defects.

However the Court of Appeal said in applying that rule the court must have regard to the commercial context of the contract under consideration.

There may be workmanship breaches which would not be detectable upon even a reasonably careful inspection.

The workmanship breaches at Core 3 level 2 probably fell into that category. They consisted of over-tightening a nut and allowing metal particles to be present in the thread of that nut.

On the other hand to confine the indemnity (whose content was typical of many indemnity clauses) to defects undiscoverable upon reasonable inspection would substantially limit its effect.

If a sub-contractor (or as here a sub-sub-sub-contractor) does defective workmanship, contractors and sub-contractors higher up the chain might be criticised for failing to notice the mistakes.

But it would largely defeat the commercial purpose of the contractual chain if a “failure to notice” prevented the indemnity clauses from operating.

In a chain of building contracts, it isn’t unlikely that each party will agree to be liable for shortcomings in its own work, even if other parties in the chain fail to detect those shortcomings.

Indeed, those who participate in building projects arrange their affairs and take out insurance cover on the basis that they are likely to be held liable for shortcomings in their own work.

In the case of a construction contract a failure by the beneficiary of the indemnity to spot defects in the work of its own contractor or sub-contractor should not ordinarily defeat the operation of an indemnity clause, even if that clause isn’t expressly extended to damage caused by the negligence of the beneficiary of the indemnity.

The court distinguished the construction cases, where the Canada Steamship principle had been successfully invoked in defence, by saying that in those cases the beneficiary of the indemnity had committed a positive act of negligence which had caused the damage. For example carelessly leaving a drum containing highly explosive vapour near where the subcontractor’s works were taking place or sending its employees to work on a suspended staging put up by a sub-sub-contractor without ensuring that it was safe or inviting an independent contractor to bring valuable property onto the site when there was an obvious risk of flood damage.

Here there had been design and inspection failings by superior subcontractors including those contractually responsible to their superior subcontractor and the contractor for designing the mechanical works and the inspections ought to have detected the problems.

On the other hand, it was Robson’s workmanship errors, rather than the design errors or deficient inspections, which had been the principal cause of the Core 2 flood.

It could not presumed that the parties had intended the Robson indemnity to be confined to workmanship breaches which were invisible upon reasonable inspection. The clause did not say that.

So the effect of the indemnity clause was to require Robson to indemnify the superior subcontractor against its liability to the subcontractor above it.

Even if the court was wrong about that, and the negligence by the superior subcontractor employing Robson was such as to prevent the operation of the indemnity clause, that need not shut out an alternative claim by that superior against Robson for breach of contract.

The superior subcontractor employing Robson could recover an equivalent sum from Robson as damages for breach of sub-sub-sub-contract due to Robson’s workmanship failures.

That analysis enabled liability to pass down the contractual chain of contractor and subcontractors to Robson, whose breaches were the principal cause of the Core 2 flood. Those breaches caused the loss to each superior subcontractor and contractor in the chain: namely their respective liabilities in damages and costs to their superior subcontractor or contractor and, in the case of the contractor to the Employer. That chain of causation remained intact notwithstanding the intervening design failures or inspection failures which had, in fact, been insufficient to break the chain of causation at any stage.

Robson’s liability to HSE was contractual. Therefore this was an all or nothing case. It was not possible to apportion liability between Robson and the immediate subcontractor who employed them. As might be expected, there was no contractual provision for this.

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

Non payout highlights need for lawyer negotiated provision for payout deadline extensions in property Joint Venture Agreements

If there are circumstances that might justify the extension of a Joint Venture, Option or Conditional Contract Period it is very important that they be spelt out in the Agreement and that these be backed up by appropriate dispute resolution mechanisms.

Nordic Insulated Doors Ltd v Land Resources Ltd [2014] was a dispute between the parties under a Joint Venture Agreement (“the JVA”) of 31st August 2011 for the development of a property at St Lukes Court Willerby Hull (the “Property”). the Claimant wanted £160,000 damages for the Defendant’s failure to pay the amount due under the JVA.

The Claimant’s Mr Finn provided the expertise to renovate and/or improve properties and the Defendant’s Mr Maguire would put in the finance.

The JVA had been drawn up by the parties without legal advice.

Initially there was an dispute about the split of any profits on the sale of the Property with the Defendant claiming the first £600,000 of profit i.e. after repayment of the considerable sums that it had put in to JVA’s expenses.

The Claimant’s case was that the Defendant was entitled to a fixed sum of £600,000 on account of its expenditure after which the profits were to be split 50/50. Thus the Claimant was entitled to £150,000 plus a modest figure in respect of rental income.

clause 6 of the JVA was the major reason for non payment:-

“6. This agreement will finish on 01/08/2012 and after that date [the Claimant] will have no vested interest in the site.”

This passed a high risk to the Claimant. As this case illustrated, it could do a lot towards a sale only then to be denied any entitlement because the £900,000 sale only completed after 1st August 2012. Nevertheless, the Claimant’s Mr Finn had worded this clause and had conceded he knew and understood that, without any extension, the JVA came to an end after 1st August 2012 and that the Claimant would have no claim in respect of the JVA after that.

The sale did not take place until after 1st August 2012. So the Defendant contended that the Claimant was not entitled to anything.

The court found that there had been no point agreeing another 3 months extension in the hope that something might turn up. Neither Mr Finn nor Mr Maguire were willing to put any more money into the project. The Defendant had reached or exceeded the £600,000 allowed for deduction of expenditure. Nor would 3 months have been anything like long enough to obtain necessary planning permissions and building regulation approval.

Although the Defendant’s relationship with the Claimant had broken down, the Defendant was willing to stand by the letter of the JVA but nothing more. It did so.

Completion was 2 days too late for the Claimant to get a share for reasons that were not the Defendant’s fault. Had the Defendant wanted to block the Claimant getting the monies there were any number of things it could have done to slow the progress of exchange and completion whilst avoiding appearing to be thwarting the completion. In fact the sale would have exchanged and completed within the JVA time limit but for the fact that the buyer did not have sufficient funds.

The Claimant’s misfortune here arose from the freely agreed penal nature of clause 6 of the JVA and not from any default on the part of the Defendant.

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.

Electricity Wayleave compensation included reduced value caused by loss of residential development contract

The Court of Appeal case of National Grid Electricity Transmission Plc v Arnold White Estates Ltd [2014] will make power utilities think twice about holding onto the existing routes of their power lines where these impede development.

The respondent had contracted to sell two parcels of land for residential development.

One of these related to a strip and was conditional on the removal of an overhead power line. Due to indexation the price had risen to £5.82m.

When the respondent gave notice terminating the current wayleave, the appellant electricity company applied for and got a statutory wayleave to retain the power line so the conditional contract lapsed.

Planning permission had been got for the land but the conditions precluded development with the power lines still there.

The sole issue was how much compensation was payable to the respondent under para 7 of Schedule 4 to the Electricity Act 1989.

The respondent said it ought to be the value of the land under the contract at the date of the new wayleave notionally free of the new wayleave minus the nominal value of the land at the date of the new wayleave as it actually was i.e. encumbered by that new wayleave.

The date was critical as by 2010 the value of residential land was much less than the contract had provided for.

The Court of Appeal, held that the respondent had been correct in the basis upon which it had claimed compensation.

AWE had crystallised the development value by the two sale contracts made in July 2007, by reference to development values then prevailing.

Nothing in paragraph 7 of schedule 4, precluded compensation for the loss of contractual rights caused by the grant of a wayleave from the compensation afforded by the 1989 Act. In fact, the right to compensation under paragraph 7(1) was conferred in the most general terms.

The only limitation was that the loss claimed for must be loss suffered by the claimant in his capacity as owner or occupier of the land, rather than in some wholly unrelated capacity.

So there would be no compensation for loss suffered betting on the outcome of an application to the Secretary of State under paragraph 6 for the grant of a wayleave, even if the bet was placed and lost by the owner or occupier of the land.

The loss of this contractual right to proceeds of the sale under a conditional contract for the sale of the land, where the contract lapsed because of the grant of the wayleave, was a loss suffered by AWE in its capacity as owner of the land.

It was a right inseparable from the seller’s status as owner of the land in question.

Compensation was to be based upon the special value of the land to the owner rather than its objective market value.

The court commented that future tribunals would be astute to detect and defeat any collusive attempts to manufacture artificially high land contract prices ahead of the grant of wayleaves for the purposes of generating an inflated level of compensation.

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.

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.

Planning Inspector’s Housing Decision Upheld in Face of Conflicting Emerging Core Strategy

Barrow Upon Soar Parish Council v Secretary of State for Communities & Local Government & Ors [2014] concerned in part the weight to be given to the emerging Core Strategy.

In that case it had said that to prevent deterioration in the quality of life new housing in settlements such as Barrow upon Soar should not exceed 200 houses.

However under the current application alone the Planning Inspector had granted permission for 300 in Barrow upon Soar.

It was argued that this should open the Core Strategy up for further representations.

The Court refused this saying that Rule 17 (5) of the Town and Country Planning Inquiries Procedure) (England) Rules 2000 (2000 No.1624) required the Secretary of State to notify those persons who were entitled to appear at the inquiry and receive further representations or, if asked to do so, consider reopening the inquiry if minded to disagree with the Inspector on the relevant issues.

Here the Secretary of State did not disagree with the inspector’s recommendation. Thus the Rules did not oblige the Secretary of State to seek further representations let alone a reopening of the inquiry.

In Paragraph 5 of the Inspector’s decision letter, this was said:-

“The Secretary of State ….. has also had regard to the fact that the Council is progressing work on its Core Strategy. However, as that is at an early stage in its preparation, he gives it little weight.”

It follows that Ground for Judicial Review also failed.

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