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Issue 67 – November 2009

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News

Cases

  • Stadium Capital Holdings (No 2) Ltd v St Marylebone Property Company Plc and another
    Trespass to land – Air space. In awarding the claimant property company damages for trespass to the airspace above their land, the Chancery Division found that the defendant leaseholder had not acquired title to the advertisement hoarding by adverse possession as permission had been granted by a previous freeholder for its erection
  • Bello v Idealview Ltd
    Landlord and tenant – Rent. The Queen's Bench Division dismissed the defendant's appeal against an order for possession based upon forfeiture for non-payment of rent
  • *Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Ltd
    Building contract – Adjudication. The Queens Bench Division, Technology and Construction Court, held that the defendant would not be successful in its application to set aside the second determination of an adjudicator as the adjudicator had not exceeded his jurisdiction, there had been no breach of natural justice, there had been no bias and the adjudicator had given sufficient reasons for his decision
  • Brentwood Borough Council v Ball and others
    Town and country planning – Enforcement of planning control. The Queen's Bench Division dismissed the claimant local planning authority's application for an injunction restraining breaches of planning control and enforcement notices pursuant to section 187B of the Town and Country Planning Act 1990.
  • *The River Club v Secretary of State for Communities and Local Government and another
    Town and country planning – Permission for development. The Administrative Court gave a ruling on the meaning which was to be attributed to the words 'and any other harm' in paragraph 3.2 of Planning Policy Guidance 2 and arrived at a judgment in respect of the question of whether the approach of the Secretary of State's inspector to the claimant's planning appeal was flawed
  • *Historic Buildings and Monuments Commission for England (English Heritage) and others v Secretary of State for Communities and Local Government and others
    Town and country planning – Permission for development. The Queen's Bench Division, Administrative Court, dismissed the appeal of the claimants against the Secretary of State's decision that a proposed development in London would be granted planning permission. In the course of its judgment, it addressed the nature of an 'aggrieved' person for the purposes of section 288 of the Town and Country Planning Act 1990, under which a person had the necessary standing to challenge the planning decision.
Legislation


Journals
  • Gaps in the framework
    Building, 2 October 2009: The problem of project-specific terms yet to be agreed in framework arrangements
  • Win first, pay later
    Building, 2 October 2009: How potential litigants can reduce their exposure to risk and share the costs
  • Mutual interests
    Estates Gazette, 26 September 2009: How a new practice direction could significantly reduce the frequency and extent of dilapidation disputes
  • Put the bases to the test
    Estates Gazette, 26 September 2009: The importance of selecting the correct type of yield
    Summary: The second in a series of three articles on valuation discusses the concept of yields
  • Recession leads to more litigation
    Estates Gazette, 26 September 2009: The implications for landlords and tenants dealing with dilapidations in a recession
  • A fine balance
    Trust and Estates Law & Tax Journal, September 2009: How businesses can maximise their property relief
  • A landlord's liability for the Acts of its Tenants: Back to Where We Started - X v Hounslow LBC Revisited
    Journal of Housing Law, September 2009: X v Hounslow LBC will have a large effect on a landlord's liability for the acts of its tenants
  • On the threshold
    Taxation, 1 October 2009: The key when buying a property is said to be "location, location, location", but "taxation, taxation, taxation" is what is levied against many employees provided with living accommodation by their employer
Articles
  • HMRC edges closer to major construction industry change
    HMRC is preparing to overturn a century of employment law through new proposals for the construction industry, says David Heaton of Baker Tilly. It is "poorly thought-out", he tells Neasa MacErlean
  • Landlord must compensate former business tenant
    The landlord was liable to compensate its former business tenant because he had made a continuing representation that had become false says Malcolm Dowden, solicitor and LexisPSL property author. He tells Evelyn Reid why a tenant was awarded compensation for misrepresentation in Inclusive Technology v Williamson
  • Repossessions at only half of 1991 levels
    A far more positive analysis can be made of our current record on repossessions, says the Building Societies Association. Its economist Andrew Gall talks to Neasa MacErlean
Events


Discounts

Cases 

 
Stadium Capital Holdings (No 2) Ltd v St Marylebone Property Company Plc and another

Citation: [2009] All ER (D) 166 (Oct)
Hearing date: 15 October 2009
Court: Chancery Division
Judge: Rattee J (judgment delivered extempore)
Representation: John Furber QC (instructed by Thring Townsand Lee and Pembertons) for the claimant. Kirk Reynolds QC (instructed by Susan Sivapazan) for the first defendant.
Keywords: Trespass to land – Air space – Invasion of air space of another – Advertisement sign on adjoining building – Registered freeholder proprietor of land seeking damages for trespass of hoarding belonging to leaseholder of adjoining premises – Leaseholder seeking to resist claim on basis of adverse possession – Whether hoarding erected pursuant to permission – Whether claimant entitled to damages.
 
Summary: The claimant property company was the registered freeholder proprietor of a site of land which it had purchased in 2008 and which it intended to redevelop. The first defendant was the registered leasehold proprietor of premises adjoining the claimant's land. In 1956, the owners of the freehold reversion of the land and the premises had been the same company. It had given the then leaseholders of the premises permission to erect a hoarding on the southern flank wall of the premises, the boundary wall between the two holdings. The first defendant had purchased the leasehold interest in the premises in 1975. With the benefit of planning permission, a hoarding was erected in 1976 on the boundary wall for the purpose of displaying advertisements.

The first defendant granted various licences to advertising companies to display their advertisements. The second defendant was a licensee using the hoarding but took no part in the proceedings. A platform was erected in 1986 to service the hoarding. By 2004 there were different and separate freeholders of the land and premises. The freehold owner of the land gave the first defendant notice to remove the hoarding and platform which it considered to be encroaching onto the airspace of the land and constituting a trespass. In due course the hoarding and platform were removed. The claimant sought damages for trespass from the date of the expiry of the notice to remove and the actual day that the hoarding and platform were removed, calculated by reference to the sums received by the first defendant during that period pursuant to the licences granted by it.
The first defendant submitted, inter alia, that it had acquired the use of the air space by adverse possession as it had had the use of the air space continuously since 1976 and therefore no trespass had occurred and no damages were payable. The claimant submitted, inter alia, that as permission had been granted in 1956, adverse possession did not apply.

The claim for damages would be allowed.

In the instant case, the claim of adverse possession was no defence to the allegation of trespass. A case based on adverse possession could only be established if the first defendant could show that it had taken factual possession of land or airspace with the intention to possess, without the consent of the owner of the title to that land. Consent had been given in 1956 for the erection of an advertisement hoarding further, the freeholder of the land in 2004 considered that the hoarding was present with consent and therefore revoked that consent.

The claimant would receive damages in the sum of £313,972.

Tara Psaila, barrister
Published date: 16/10/2009


Bello v Idealview Ltd

Citation: [2009] All ER (D) 140 (Oct)
Hearing date: 14 October 2009
Court: Queen's Bench Division
Judge: Flaux J (judgment delivered extempore)
Representation: Carl Fain (instructed by Kingsley Napley) for the claimant. Nick Macleod-James (instructed by Direct Access) for the defendant.
Keywords: Landlord and tenant – Rent – Review – Limitation – Defendant acquiring leasehold interest in property of which claimant company subsequently acquiring freehold interest – Defendant referring disputes concerning rent review to arbitrator – Sale of lease excluding seller's liability for arrears of rent – Arbitrator increasing rent – Claimant issuing notice for non-payment of rent and successfully applying for order for possession based upon forfeiture for non-payment of rent – Whether claim statute-barred - Limitation Act 1980.

Summary: By a lease dated 5 May 1969, the residential property in question (the property) was let for a term of 50 years (the lease). By clause 1 of the lease, the rent payable for the first 25 years was £60 per annum. By clause 2, the lease contained a rent review clause. It provided: ' [...]  until such new rent shall have been determined the rent firstly hereinbefore reserved shall continue to be payable and any difference between that and the said new rent during such period as this last proviso operates shall be added to and be payable with the next installment of rent due after the said new rent has been determined.' The first 25 years expired on 24 March 1994. No rent review took place.

The defendant acquired the leasehold interest in the property on 14 July 2005. The sale of the lease excluded the seller's liability for arrears of rent over and above £60 per annum. The claimant company acquired the freehold interest in the property on 3 August 2007. The claimant subsequently raised the question of rent review with the defendant. The defendant referred those issues to an arbitrator pursuant to clause 2 of the lease. On 22 August, the arbitrator increased the rent from £60 per annum to £1,700 per annum. The claimant notified the defendant of the rent due following the arbitrator's award. It indicated that the defendant was liable for rent from 25 March 1994 to 29 September 2007 (less the rent assumed to have been paid prior to the claimant's freehold acquisition). On 21 December, the claimant issued a default notice for non-payment of the sum claimed. The judge granted, inter alia, an order for possession based upon forfeiture for non-payment of rent. The defendant appealed.

He submitted, inter alia, that the claimant was statute barred from demanding rent arrears from 25 March 1994 to 29 September 2007, as that was a period of over thirteen years, which was longer than any limitation period.

The appeal would be dismissed.

The complaints about the delay in seeking the rent review were all matters which the defendant should have put before the arbitrator. It was accordingly not open to him to raise them on the instant appeal.

Tunde Gbadamosi, barrister
Published date: 14/10/2009

 
*Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Ltd

Citation: [2009] All ER (D) 125 (Oct)
Alternative citations: [2009] EWHC 2218 (TCC)
Hearing date: 1 September 2009
Court: Queen's Bench Division, Technology and Construction Court
Judge: Akenhead J
Representation: Martin Bowdery QC (instructed by Mayer Brown International LLP) for the claimant. Stephen Furst QC (instructed by Hawkswell Kilvington) for the defendant.
Keywords: Building contract – Adjudication – Jurisdiction to make award – Sub-contract for mechanical and electrical services – Claimant failing to meet planned completion date – Defendant deducting liquidated damages from contract price pursuant to contract – Claimant referring dispute to adjudication blaming delay on defendant – Claimant's adjudication unsuccessful – Claimant bringing second adjudication – Claimant successful – Defendant claiming adjudicator acting outside jurisdiction – Defendant claiming breach of natural justice – Defendant claiming bias on part of adjudicator.

Summary: The judgment is available at: [2009] EWHC 2218 (TCC)

The defendant was the main contractor on a project to design and construct oncology and haematology facilities at Castle Hill Hospital, Hull. By a contract dated 23 April 2007 the defendant sub-contracted the mechanical and electrical work on the project to the claimant. The original completion date under the contract was 18 February 2008. Among the provisions of the contract was a mechanism to provide, on agreement and in certain circumstances, an allowance for an extension of time in the event of a delay to the works (see [4] - [8] of the judgment for relevant contractual provisions). The actual completion date of the works was 10 June 2008. In accordance with the contract, the defendant deducted liquidated damages from the sums due to the claimant. Issues arose between the parties as to whether extensions of time had been due to the claimant. On 19 September 2008, the claimant served a notice of adjudication on the defendant and an adjudicator was appointed (the first adjudicator).

The adjudication notice limited the dispute to the defendant's right to make deductions and the claimant's entitlement to an extension of time because of the defendant's failure to provide the claimant with access to commence the works in accordance with the agreed project programme. The notice specified that, although the claimant believed that it had had other grounds upon which it was entitled to an extension of time, the adjudication concerned only the defendant's delay in granting access to a specified part of the site. The relief sought by the claimant was a declaration that, by reason of delayed access to the site, it was entitled to an extension of time until 22 September 2008. On 4 November, the first adjudicator dismissed the claimant's case. In December, the claimant produced a document attempting to demonstrate that it was entitled to an extension of time until, at least, 10 June 2008. The parties exchanged correspondence on the issues raised. On 9 April 2009, the claimant issued its second notice of adjudication on the defendant regarding the extension of time as set out by the claimant in its analysis and challenging the defendant's right to deduct monies and a new adjudicator was appointed (the second adjudication).

The claimant again sought a declaration that the completion date should have been extended. The claimant's submissions excluded the delay event that formed the basis of the first adjudication. The defendant challenged both the factual and legal basis of the claims and asserted that the delays were caused by the claimant. There was some discussion between the parties regarding disclosure. The claimant wanted access to files held by the defendant but the defendant complained and accused the claimant of embarking upon a fishing expedition at a late stage in the proceedings. The second adjudicator wrote to the parties regarding the issue of disclosure and said 'It looks good when you make all and everything available [...]  bad when you don't'.

The defendant requested clear directions on the matter, the second adjudicator refused to make such a direction and expressed his intention to proceed with the determination on the basis of the materials available to him. The second adjudicator issued his decision on 2 July 2009 and determined that the claimant had been entitled to an extension of time by virtue of the earlier delays for which the defendant was responsible and which resulted in late access being granted to the relevant zones of the project. Further, the defendant was not entitled to have made the deductions it had from the monies owed to the claimant. Subsequently, the claimant applied to enforce the second decision. The defendant brought proceedings resisting the enforcement of the second adjudication decision: (i) on jurisdictional grounds because the second adjudicator had decided a matter which was not expressly referred to him and which had already been decided in the first adjudication; (ii) on the basis that the second adjudicator was biased; and (iii) on the ground that he had acted in breach of the rules of natural justice in making an adverse inference in relation to the non-production of documents by the defendant.

The application would be dismissed.

(1) Whether an adjudicator had jurisdiction to hear a dispute was governed by reference to established case law principles. A party could have asserted an entitlement to an extension of time on one specific basis which was disputed; that specific dispute could have been referred to adjudication; likewise a party could bring its complaint, complaining of everything that did or did not happen that caused delay entitling that party to an extension of time. If a party had referred a dispute to adjudication based on the narrower dispute then it was not barred from taking the broader dispute to adjudication. However, there was one caveat to that: once an adjudicator had decided the first dispute, that dispute could not be referred to adjudication again because it had already been resolved. The second adjudicator had to take care not to decide anything that might override or undermine the first decision. If the later adjudicator did decide the later dispute in a way which was materially inconsistent with the binding earlier decision, the later decision might be unenforceable if it materially purported to decide anything that had already been effectively and validly adjudicated upon (see [41] of the judgment).

The defendant's submission that the second adjudicator had decided a matter which was not expressly referred to him and which had already been decided by the first adjudicator failed. The second adjudicator had clearly taken into account the decision of the first adjudicator in delivering his determination even though he had not expressly excluded the pleaded grounds of the first adjudication from the second. The second adjudicator was entitled to include, upon a retrospective basis, the late access previously considered in the first adjudication as one of the factors justifying an extension of time in delivering his adjudication. It was not a breach of contract by the claimant to argue in the second adjudication something which was inconsistent with the decision from the first adjudication. Even if there was a breach of contract, it was immaterial and non-causative of anything if the second adjudicator did not decide the second adjudication in a way which was inconsistent with the first adjudication. If the second adjudicator decided the later dispute in a way which was materially inconsistent with the binding earlier decision, the later decision might have been unenforceable. On the evidence, the second adjudicator had not decided the matter in a way which was contrary to the contractual obligation outlined in the first adjudication. It was not for the court to analyse whether the evidence presented to the second adjudicator had been good or reliable (see [61] - [64] and [66] - [70] of the judgment).

The second adjudicator had not exceeded his jurisdiction in delivering the second adjudication in having decided that an extension of time was due by reason of the earlier factors previously heard in the first adjudication.

Cantillon Ltd v Urvasco Ltd [2008] All ER (D) 406 (Feb) applied.

(2) Pursuant to established case law, the rules of natural justice required that the person affected had the right to prior notice and an effective opportunity to make representations before a decision was made and that person had the right to an unbiased tribunal. Adjudicators were not bound by the rules of evidence applicable in the courts. Therefore, the question as to whether it was acceptable to draw an adverse inference against a party as a result of its non-production of documents was not one which necessarily, or at all, impacted upon an adjudicator. Consequently, an adjudicator could have drawn such an inference and not then have been subjected to criticism for doing so. It might have been appropriate in many adjudications for an adjudicator to have given advance notice of at least the possibility of drawing such an adverse inference (see [44] and [72] of the judgment).
The second adjudicator had acted fairly in that he had warned the defendant that an adverse inference might have been drawn against its non-production of documentation. Given that warning, he could not then have been subjected to criticism (see [72] of the judgment).

Multiplex Constructions (UK) Ltd v West India Quay Development Co (Eastern) Ltd [2006] EWHC 1569 (TCC) applied.

(3) It was established law that there were two types of bias: actual and apparent. The test for apparent bias was whether the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased. Actual bias existed: (i) where a judge had been influenced by partiality or prejudice in reaching his decision; and (ii) where it had been demonstrated that a judge was actually prejudiced in favour of or against a party (see [43] of the judgment).

A finding in an adjudicator's decision which was adverse and criticised one party's, or its witness's, behaviour did not give rise to a valid charge of bias of either sort (see [74] of the judgment).
There was no actual or apparent bias in the instant proceedings.

Glencot Development and Design Co Ltd v Ben Barrett & Son (Contractors) Ltd [2001] All ER (D) 384 (Feb) applied; Director General of Fair Trading v Proprietary Association for Great Britain [2000] All ER (D) 2425 applied.

(4) Under established case law the reasoning behind an adjudicator's decision required that:
(i) the decision needed to be intelligible so that the parties, objectively, knew what the adjudicator had decided and why;

(ii) a decision which was wholly unreasoned but which was required to be reasoned was not a decision for the purposes of the scheme for construction contracts or under contractual machinery which required a reasoned decision. It would therefore not have been enforceable as such;
(iii) because the courts have repeated that a decision could not have been challenged on the grounds that the adjudicator answered the questions which he was required to address wrongly, the fact that the reasons given were, demonstrably or otherwise, wrong in fact or in law or even in terms of emphasis would not have given rise to any effective challenge;

(iv) the fact that the adjudicator had not dealt with every single argument of fact or law would not have meant that the decision was necessarily unreasoned. He should have dealt with those arguments which were sufficient to establish the route by which the decision had been reached;
(v) the failure to give reasons was not a breach of natural justice;

(vi) the reasons could have been expressed simply. If the reasons were so incoherent that it was impossible for the reasonable reader to make sense of them, it would not have been a reasoned decision;

(vii) adjudicators were not obliged to be judged too strictly, such as by the standards of judges or arbitrators, in terms of the reasoning. That reflected the fact that decisions often had to be reached in a short period of time and adjudicators were often not legally qualified. That reflected the fact that there was not a full judicial or arbitral type process; and

(viii) the fact that the reasoning in a decision was repetitive, diffuse or ambiguous did not mean that the decision had been unreasoned (see [44] -[48] of the judgment).

The fact that in the second adjudication the decision failed to reach the standard of an average court judgment did not mean that it had not been reasoned. In the instant proceedings, the second adjudicator had given sufficient reasons on the key issue that fell to be determined. It was not necessary for the court to agree with that reasoning (see [75] - [77] of the judgment).
The second adjudicator gave a reasoned decision which was not necessarily, or at all, inconsistent with the decision in the first adjudication (see [78] of the judgment).

Multiplex Constructions (UK) Ltd v West India Quay Development Co (Eastern) Ltd 111 ConLR 33 applied; Balfour Beatty Construction Northern Ltd v Modus Corovest (Blackpool) Ltd [2008] All ER (D) 157 (Dec) applied; Thermal Energy Construction Ltd v AE & E Lentjes UK Ltd [2009] EWHC 408 (TCC) applied.

Charlotte Hennessey, solicitor
Published date: 13/10/2009
 
Brentwood Borough Council v Ball and others

Citation: [2009] All ER (D) 89 (Oct)
Alternative citations: [2009] EWHC 2433 (QB)
Hearing date: 8 October 2009
Court: Queen's Bench Division
Judge: Stadlen J
Representation: Robin Green (instructed by Sharpe Pritchard) for the authority. Michael Paget (instructed by Bramwell Browne Odedra) for the defendants.

Keywords: Town and country planning – Enforcement of planning control – Civil remedy – Unauthorised development – Unauthorised caravan site – Local authority applying for injunction against defendants requiring them to remedy alleged breaches of planning control and enforcement notices – Whether court should grant injunction restraining alleged breaches – Town and Country Planning Act 1990, section 187B.

Summary: The judgment is available at: [2009] EWHC 2433 (QB)
The defendants were English Gipsys who purchased a plot of land (the site) in the area of the claimant local planning authority. The site consisted of agricultural land and was situated in the Metropolitan Green Belt. It was also the subject to two enforcement notices dated 5 February 2001 and upheld on appeal on 3 August, one of which required, inter alia, the removal of all touring caravans from the site, the permanent cessation of the use of the site for residential purposes and reinstatement of the site to a condition suitable for agriculture. That notice was recorded on the claimant's register of enforcement notices kept under section 188 of the Town and Country Planning Act 1990. On 10 April 2009, the defendants together with their families moved on to the site. They placed 14 caravans and 30-50 loads of road planning and earth moving equipment which was used to create an encampment with a new continuous roadway laid down the middle of the site with six pitches, three on either side.

Earth works were carried out to create an artificial mound or screening mound along parts of the northern and southern boundaries of the site and to level parts of the site. Timber panel and concrete fencing were erected both along the boundaries of the site and within the site dividing it into six pitches. It was common ground that neither the various operations that were carried out by the defendants nor the use of the site as a caravan site had planning permission. In addition, the use of the site as a caravan site was a breach of the change of use enforcement notice dated 5 February 2001. The authority applied for an injunction against the defendants and unnamed defendants, pursuant to section 187B of the Act, requiring them to remedy alleged breaches of planning control and enforcement notices, in particular by bringing to an end their use of agricultural land as a residential caravan site.

It submitted, inter alia, that by placing the caravans and vehicles on the site, erecting extensive fencing and covering the ground in plannings, the defendants were causing harm to the openness of the Green Belt and its character and appearance. They argued that the defendants had engaged in a substantial well organised deliberate and criminal breach of planning control. The defendants accepted that they were in breach of planning law and the enforcement notice dated 5 February 2001; however, they challenged the authority's characterisation of their conduct as a cynical and calculated breach of criminal law and an attempt to pre-empt them from taking effective pre-emptive measures.

The court ruled:

In all the circumstances, it was not proportionate to grant an injunction requiring the defendants to cease their residential use of the site and return it to agricultural use (see [120] of the judgment).
Accordingly, the application would be dismissed.

South Bucks District Council v Porter, Chichester District Council v Searle, Wrexham County Borough Council v Berry [2003] All ER (D) 312 (May) considered.

Tunde Gbadamosi, barrister
Published date: 08/10/2009
 

*The River Club v Secretary of State for Communities and Local Government and another

Citation: [2009] All ER (D) 66 (Oct)
Hearing date: 7 October 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Frances Patterson QC sitting as a deputy judge of the High Court (Judgment delivered extempore)
Representation: Stephen Whale (instructed by Seddons) for the claimant. Katherine Olley (instructed by the Treasury Solicitor) for the Secretary of State. The authority did not appear and was not represented.
Keywords: Town and country planning – Permission for development – Metropolitan open land – Appropriate development – Planning policy requiring regard to be given to harm by reason of inappropriateness 'and any other harm' – Claimant applying for planning permission to make alterations to fitness studio lying within metropolitan open land – Local planning authority rejecting application – Secretary of State's inspector upholding authority's decision on appeal - Meaning of 'and any other harm' – Whether inspector's decision flawed – Town and Country Planning Act 1990, section 288.

Summary: The claimant submitted an application for planning permission to make alterations to its fitness studio, which was located within its club grounds. Those grounds were, for planning purposes, within the 'Metropolitan Open Land' (MOL). The application was refused by the development control committee of the second defendant local planning authority. In essence, the committee had stated that the development proposal was contrary to planning policy, and, further, that it was in an unsuitable location. The claimant subsequently appealed to the first defendant Secretary of State, making representations, inter alia, regarding the use to which the new fitness studio would be put, and, the effect, in financial terms, which the development would have on its club. An inspector, who was appointed by the Secretary of State to consider the appeal, found, following a site visit, that there were no 'very special circumstances' in the claimant's case sufficient to outweigh the harm - including harm to the green belt and harm in terms of the lack of sustainable transport – which would be caused to the MOL.

Accordingly, the planning permission sought was refused. The claimant consequently applied to the High Court under section 288 of the Town and Country Planning Act 1990, seeking an order quashing the inspector's decision on the basis that it was flawed, having regard to authority, and on the ground that the inspector had misapplied planning policy, particularly paragraph 3.2 of Planning Policy Guidance 2 (PPG2), which so far as material read: 'Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations [...] ' Consideration was given, in particular, to the meaning which was to be attributed to the words 'and any other harm' in paragraph 3.2 of PPG2.
The application would be allowed.

(1) The words 'and any other harm' in paragraph 3.2 of PPG2 was not to be constrained to harm which affected the green belt only, but included both harm which was by definition 'inappropriate harm' and some other harm. That would then enable a decision-maker to clearly measure the level of 'harm' which might be caused to the green belt by a particular development against the benefits of the same, for the purposes of concluding whether 'very special circumstances' existed to enable a grant of planning permission.

Doncaster Metropolitan Borough Council v Secretary of State for Transport, Local Government and the Regions [2002] All ER (D) 17 (Apr) considered.

(2) The inspector's decision to refuse planning permission was flawed to the extent that he had not stated that he had considered the cumulative position in respect of the circumstances which had been relied upon by the claimant as amounting to 'very special circumstances' to justify the grant of planning permission.

Accordingly, the decision under challenge would be quashed.

Wychavon District Council v Secretary of State for Communities and Local Government [2008] All ER (D) 286 (Jun) considered.

Robert Chan, barrister
Published date: 07/10/2009
 
 
*Historic Buildings and Monuments Commission for England (English Heritage) and others v Secretary of State for Communities and Local Government and others

Citation: [2009] All ER (D) 118 (Sep)
Alternative citations: [2009] EWHC 2287 (Admin)
Hearing date: 17 September 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Judge Mole QC sitting as a judge of the High Court
Representation: Neil King QC and Reuben Taylor (instructed by Bircham Dyson Bell LLP) for the first and second claimants. Richard Harwood (instructed by Richard Buxton) for the third claimant. James Maurici (instructed by the Treasury Solicitor) for the Secretary of State. David Forsdick (instructed by SJ Berwin) for the fourth defendant. The second and third defendants did not appear and were not represented.
Keywords: Town and country planning – Permission for development – Appeal – Aggrieved person – Challenge to grant of permission on grounds of irrationality and taking into account immaterial considerations – Third appellant being resident of local area – Whether sufficiently involved in planning permission process to count as aggrieved person for purpose of challenge to planning permission – Town and Country Planning Act 1990, section 288.

Summary: The judgment is available at: [2009] EWHC 2287 (Admin)
In June 2007, the fourth defendant, C, applied to the second defendant local planning authority for planning permission to undertake redevelopment of a site in London to provide a 8,292 square metre multi-purpose community sports centre and swimming pool, 902 square metres of retail/commercial/restaurant/bar floor spaces, 329 residential units and underground part car parking for 56 cars contained within a 43 storey tower block measuring 144.3 metres in height and part seven, part eight storey block with roof terraces and courtyard.

The height of the proposed tower and its visibility from and impact upon a number of sensitive locations, including Somerset House and the Royal Parks, constituted major issues in the consideration of the planning application. The viability of the project was a related matter, both in terms of the need for such a high tower and in terms of the possibility that it might be sought to amend the proposed development, once the principle of its development was established. The claimants objected to the development. The first defendant Secretary of State called in the application for decision. In February 2008, a public inquiry appointed before an inspector appointed by the Secretary of State. C, the authority and the Greater London Authority, G, presented major cases for the application.

The first claimant, as well as Westminster City Council and the Royal Parks, led the opposition to the planning application. Both sides had support from a substantial number of objectors and interested persons. The third claimant, W, was a local resident who lived 260 metres from where it was proposed to build the tower. It would be in full view of his flat. W was a member of the Waterloo Community Development Group (WCDG), which was an objector at the inquiry. W also attended the inquiry in person. The inquiry closed in March 2008, following which the inspector issued a report on 22 May 2008. In that report, he recommended that planning permission should not be granted. However, by a decision dated 19 August 2008, the Secretary of State disagreed with the inspector's recommendation and granted planning permission subject to conditions. The claimants challenged that decision before the High Court under section 288 of the Town and Country Planning Act 1990.

The first and second claimants submitted, inter alia, that the Secretary of State's decision in relation to the Royal Parks, the Royal National Theatre and the Royal Festival Hall had been irrational.
A further issue arose, inter alia, as to the setting of Somerset House. The first claimant submitted that the special nature of Somerset House was that both the architecture and, largely, the setting of that building had remained unaltered since it was constructed and that the Secretary of State's conclusion in respect of the effect on Somerset House was irrational and had taken into account immaterial considerations. All claimants submitted that the Secretary of State had neglected to deal with the issue of alternative means of securing the benefits of the proposed development, whereas all the main parties had made submissions on that issue. Amongst other issues was the status of W as an 'aggrieved person' for the purpose of section 288 of the 1990 Act. W submitted that a broad view should be taken of the meaning of 'aggrieved', consistent with its natural and ordinary meaning, and that it should not be confined to those who objected formally, nor should it be limited to those who took a direct part in the inquiry.

The application would be dismissed.

(1) When the Secretary of State's decision letter was read fairly and in context, it was plain that she was not equating 'impact' or 'intrude' with 'harm' any more than those words necessarily meant or implied harm in normal English usage. Impact on its own was not inevitably harmful; it could be good or bad. The same was true for intrusion. The Secretary's of State's view as to the Royal Parks, the Royal National Theatre and the Royal Festival Hall disclosed no error of law and she had been perfectly entitled to disagree with the value judgment of the inspector as to harm if she saw fit (see [47]-[49] of the judgment).

(2) As to Somerset House, the Secretary of State had made it quite sufficiently clear that what she was doing was simply reaching a different judgment about the degree of harm, significant though she agreed that it was. It was probably one of those instances where it would have been enough for the Secretary of State to say no more than 'I agree with what the inspector said but reach a different conclusion'. On a fair reading of the decision letter, it was plain that that was what she had meant. There was nothing irrational about such a conclusion and she had not taken into account any immaterial consideration, but rather it was a planning judgment which had been open to her (see [58] of the judgment).

(3) Whatever the parties might have thought and argued, it was for the decision-maker to decide what considerations were important and what were peripheral and insignificant. It was not unknown for a tribunal to decide that some matter upon which the parties had expended a great deal of time and effort was, in the end, unimportant. The inspector had plainly been of the view that the issue of alternative means of securing the benefits was one which he did not have to resolve for the reasons he had sketched out. That was a decision which was entirely open to him. The Secretary of State had been entitled to adopt his approach and to do so without expressly saying in her decision letter that she agreed with him, and though she did not have to resolve it either (see [66] of the judgment).

(4) For the purpose of section 228, to determine whether a person was 'aggrieved', the question was whether the person in question had taken a sufficiently active role in the planning process. That meant considering whether the person claiming to be aggrieved had played a substantial role in the process, for example, as an active objective or possibly as an active interested person. Whether a challenger would meet that test would always be a matter of fact and degree depending on the circumstances (see [111] of the judgment).

There was a temptation to equate the test of standing in judicial review and the test of being a person aggrieved. However, that would be wrong. Parliament had chosen to use the word 'aggrieved' as setting the threshold for being able to bring a statutory challenge to certain planning acts or orders. There were sound reasons for setting the threshold higher than on judicial review. The right of statutory challenge came at the end of a complex and formal series of opportunities for consultation, objection and hearing. It was understandable that Parliament should intend to limit the right to appeal to those who had played an active part in the process that was designed to ensure that the important issues were identified and properly examined as early in the process as possible. The nature of the grounds on which an appellant claimed to be aggrieved might also be relevant (see [110] and [113] of the judgment).

In the instant case, W had been neither an objector nor an interested person in the technical sense. He had not sought to make oral submissions at the inquiry, nor did he make written representations. Taking the evidence at its highest in W's favour, it could not be said that he had played any part in the presentation of the WCDG case, nor any significant part in its preparation. While the genuineness of W's interest in the outcome of the decision-making process could not be doubted, he had not played a sufficiently active role in the planning process properly to be described as 'aggrieved' within section 288 of the Act (see[112]-[114] of the judgment).

Buxton v Minister of Housing and Local Government [1960] 3 All ER 408 considered; A-G of Gambia v N'Jie [1961] 2 All ER 504 considered; Maurice v LCC [1964] 1 All ER 779 considered; Turner v Secretary of State for the Environment 72 LGR 380 considered; Times Investment Ltd v Secretary of State for the Environment and London Borough of Tower Hamlets [1990] 3 PLR 111 considered; Lardner v Renfrewshire Council [1992] SLT 1027 considered; R (on the application of Kides) v South Cambridgeshire District Council [2002] 42 EGCS 160 considered; Morbaine Ltd v First Secretary of State [2004] All ER (D) 313 (Jul) considered; Eco-Energy (GB) Ltd v First Secretary of State [2004] All ER (D) 135 (Nov) considered.

Vanessa Higgins, barrister
Published date: 21/09/2009

Legislation

Planning (Listed Buildings and Conservation Areas) (Amendment) (England) Regulations 2009

LNB News 13/10/2009 28
Published date: 13 October 2009
Jurisdiction: England
Enactment citation: SI 2009/2711
Commencement date: 2 November 2009
Legislation affected: SI 2005/1085 revoked; SI 1990/1519 amended
Enabling power: Planning (Listed Buildings and Conservation Areas) Act 1990, sections 2(3), 93(1), (7)

Summary: Amend the Planning (Listed Buildings and Conservation Areas) Regulations 1990, SI 1990/1519, to update the prescribed forms of notice to be served by local authorities on owners and occupiers of buildings that have been included in or excluded from one of the statutory lists of buildings of special architectural or historic interest. Reflect the fact that the Secretary of State is now responsible for approving the lists of buildings of special architectural or historic interest.
Revoke the Planning (Listed Buildings and Conservation Areas) (Amendment) (England) Regulations 2005, SI 2005/1085.
 

Planning Act 2008 (Commencement No 3) Order 2009

SI 2009/2573: Inserted references to Infrastructure Planning Commission brought into effect from 1 October 2009

LNB News 30/09/2009 50
Published date: 30 September 2009
Jurisdiction: England; Scotland; Northern Ireland; Wales
Enactment citation: SI 2009/2573
Enabling power: Planning Act 2008, section 241(3), (8)
Summary: Brings into force the Planning Act 2008, Schedule 1, paragraphs 24-27 on 1 October 2009. These paragraphs combine with section 240(6) to insert references to the Infrastructure Planning Commission into relevant legislation.

Legislation having this reference inserted:

- Parliamentary Commissioner Act 1967;
 - House of Commons Disqualification Act 1975;
 - Northern Ireland Assembly Disqualification Act 1975;
 - Public Records Act 1958; and
 - Freedom of Information Act 2000
 
Business Rate Supplements (Rateable Value Condition) (England) Regulations 2009

LNB News 24/09/2009 21
Published date: 24 September 2009
Jurisdiction: England
Enactment citation: SI 2009/2542
Commencement date: 15 October 2009
Enabling power: Business Rate Supplements Act 2009, section 12(1)

Summary: The Business Rate Supplements Act 2009 gives certain local authorities the power to levy a supplement – a business rate supplement or "BRS" – on the national business rate. BRS will only be payable in respect of non-domestic properties which have a rateable value that exceeds a prescribed amount. These Regulations prescribe that amount as £50,000 for non-domestic properties in England.
 
Journals
 
Gaps in the framework

LNB News 16/10/2009 3
Published date: 16 October 2009
Author: Ian Yule
Journal name: Building
Journal date: 2 October 2009
Journal citation: Building, 2 October 2009, 43
Jurisdiction: England; Wales

Summary: Looks at what happens if vital clauses are missing from framework arrangements. The recent decision of BAA to turn its back on framework agreements has caused a stir in the procurement sector. If this is part of a larger trend away from partnering, parties may encounter a legal problem with their framework agreements. 
 
Win first, pay later

LNB News 16/10/2009 5
Published date: 16 October 2009
Author: Bob Maynard
Journal name: Building
Journal date: 2 October 2009
Journal citation: Building, 2 October 2009, 44
Jurisdiction: England; Wales

Summary: Looks at three methods of making legal representation more affordable. Since the decline in the availability of civil legal aid, the courts have relaxed the historical restrictions on alternative methods of funding litigation. There are now a variety of methods for potential litigants who want to share the costs and risks of litigation. 
 
Mutual interests

LNB News 15/10/2009 28
Published date: 15 October 2009
Author: Patrick Stell and Keith Firn
Journal name: Estates Gazette
Journal date: 26 September 2009
Journal citation: Estates Gazette, 26 September 2009, 100
Jurisdiction: England; Wales
Related legislation: SI 1998/3132

Summary: Suggests that the introduction of a new practice direction on pre-action conduct may mean dilapidation disputes would become less frequent and contentious. The resolution of all dilapidation issues is governed by the Civil Procedure Rules 1998 (CPR). Since their introduction, the CPR continue to evolve in ways that have a positive effect on dilapidation disputes. 
 

Put the bases to the test

LNB News 15/10/2009 31
Published date: 15 October 2009
Author: David Mackmin
Journal name: Estates Gazette
Journal date: 26 September 2009
Journal citation: Estates Gazette, 26 September 2009, 106
Jurisdiction: England; Wales

Summary: Property incorporates a number of important characteristics that distinguish it from other forms of investment. These factors are reflected in the yields that property investors expect to receive from property compared to those from stocks and shares.

  
Recession leads to more litigation

LNB News 15/10/2009 30
Published date: 15 October 2009
Author: Simon Edwards
Journal name: Estates Gazette
Journal date: 26 September 2009
Journal citation: Estates Gazette, 26 September 2009, 105
Jurisdiction: England; Wales

Summary: Looks at how claims by landlords for dilapidations are increasing as the downturn continues. Since the start of the downturn and the values of residential properties and hotels started to wane, landlords have been less inclined to seek alternative uses for their office buildings. Tenants are therefore facing a higher number of claims from landlords no longer seeking to change the use of their premises.
 
 
A fine balance

LNB News 08/10/2009 46
Published date: 8 October 2009
Author: Matthew Hansell
Journal name: Trusts and Estates Law & Tax Journal
Journal date: 1 September 2009
Journal citation: Trust and Estates Law & Tax Journal, September 2009, 20
Jurisdiction: England; Wales

Summary: Looks at examples of how businesses can be structures to avoid the pitfalls associated with business property relief (BPR). If BPR applies it will, in most cases, reduce the value of the business asset for inheritance tax (IHT) purposes by 100%. In effect, this means that the business property will be completely free of IHT.

 
A landlord's liability for the Acts of its Tenants: Back to Where We Started - X v Hounslow LBC Revisited

LNB News 05/10/2009 45
Published date: 5 October 2009
Author: Faisel Sadiq and Justin Bates
Journal name: Journal of Housing Law
Journal date: 1 September 2009
Journal citation: [2009] JHL 86
Jurisdiction: England; Wales
Related legislation: Human Rights Act 1998
Related cases: X v Hounslow London Borough Council Positive treatment indicated
[2009] EWCA Civ 286, [2009] All ER (D) 29 (Apr)

Summary: Explains the judgment in X v Hounslow LBC still left open to an aggrieved tenant the prospect of a claim in damages where the landlord was under a statutory duty in some other capacity, such as a social services authority. X v Hounslow LBC was appealed to the Court of Appeal and that court overturned the decision. The basis of the claims in negligence and under the Human Rights Act 1998 was that Hounslow, through its social services and housing department, should have foreseen that X and Y were in imminent physical danger if they remained accommodated at their flat.

 
On the threshold

LNB News 02/10/2009 9
Published date: 2 October 2009
Author: Penny Bates
Journal name: Taxation
Journal date: 1 October 2009
Journal citation: Taxation, 1 October 2009, 316
Jurisdiction: England; Wales

Summary: Returns to first principles with an explanation of the tax charges relating to accommodation and related assets provided by an employer. All living accommodation provided by an employer is taxable. However, this is not always the case.

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