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Issue 69 – February 2010

News
 Cases
  • R (on the application of Wye Valley Action Association Ltd) v Herefordshire Council
  • Town and country planning - Development. The Administrative Court held, in allowing the claimant's judicial review application, that the defendant local authority had erred in granting planning consent to the interested party for the usage of polytunnels on its farm; the development in question came within schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 1999/293, concerning 'projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes'. Particular consideration was given to the term 'semi-natural'.
  • R (on the application of Perrett) v Secretary of State for Communities and Local GovernmentTown and country planning
  • Town and country planning - Enforcement Notice. The Civil Division of the Court of Appeal held, in dismissing the instant appeal, that when a matter was remitted to the Secretary of State under section 289 of the Town and Country Planning Act 1990, there was no obligation on the Secretary of State to consider the whole of the enforcement notice appeal (under section 174 of the 1990 Act) de novo: there was power to limit the scope of the matter which was remitted for redetermination.
  • Anglo Swiss Holdings Ltd and others v Packman Lucas Ltd
  • The Technology and Construction Court held that an application by the defendant to stay proceedings would be granted because, on the facts, the court was satisfied that there had been unreasonable and oppressive behaviour and some elements of bad faith on the parts of the claimants in having pursued the claims without first honouring the adjudicator's decisions and the court judgments that enforced them.
  • Barratt Developments plc v City of Wakefield Metropolitan District Council and another
  • Town and country planning - Development. The Administrative Court dismissed the claimant's appeal on the basis that whilst current economic conditions had, at least for the time being, undermined policy, it could not be concluded that the solution in respect of affordable housing made by the first defendant local authority had been irrational
  • Coventry Scaffolding Company (London) Limited v Lancsville Construction Limited
  • Practice Building contract - Technology and Construction Court Adjudication. The Technology and Construction Court held that an application for summary judgment would be allowed which entitled the claimant to enforce the decisions of an adjudicator. Guidance was given to practitioners that where a defendant has failed to file an acknowledgement of service on time, the claimant should consider the desirability of seeking judgment in default.
  • Secretary of State for the Environment, Food and Rural Affairs v Meier and others
  • Land - Summary proceedings for possession. The Supreme Court held that a court had no power to grant an order for possession, in favour of a claimant, in respect of land not yet occupied or possessed by a defendant, even in circumstances in which it was found that the Drury criterion (see Drury v Secretary of State for the Environment, Food and Rural Affairs[2004] 2 All ER 1056) was satisfied, and that the decision whether an injunction should be granted restraining a defendant from trespassing on such land would have to turn on the facts of each individual case. The Court also commented that there might be a need to reform the remedies currently available in the area of law at issue in the instant case.
  • R (on the application of Metro Construction Ltd) v Barnet London Borough Council
  • Town and country planning - Conservation area. The Administrative Court held, in allowing the claimant's application for judicial review: (i) that the word 'solely', in the last sentence of paragraph 3.14 of the guidelines on the management of conservation areas, governed both the alternatives which followed it, and was not limited to the first alternative only; and (ii) that in the instant case the defendant local authority's decision to designate the site in question as a conservation area was unlawful.
Legislation
Journals
  • Showing Interest
  • Trusts and Estates Law & Tax Journal, November 2009: To what extent may the court impose its own sense of justice when determining parties' beneficial ownership of the family home?
  • Property/Landlord and Tenant Contracting Out
  • New Law Journal, 11 December 2009: How a recent case has potentially wide-reaching consequences for agreements purporting to exclude the Landlord and Tenant Act
  • Vat and Commercial Property
  • Tax Journal, 23 November 2009: How the basic rules for the VAT treatment of property are applied in commonly encountered commercial property transactions
  • Property: Searching Questions
  • New Law Journal, Issue 7394: Have Home Information Packs worked?
  • Property: Beyond Repair?
  • New Law Journal, Issue 7394: How does chancel repair liability affect the modern day conveyancer?
  • Property: Expensive Mistakes
  • New Law Journal, Issue 7394: How undertakings, overage clauses and the 'exclusionary rule' continue to be problematic in property transactions
Articles
  • Mortgage Defaulters Supported in 2009 but Repossession Levels Uncertain for 2010
  • Since 1 January 2010 new voluntary mortgage instructions have been made available by the BSA. Greg Bousfield talks to Victoria Barnard, mortgage policy advisor with the BSA about how lenders are working with mortgage defaulters to find alternatives to repossession and not rushing to repossess
  • Landlords May Now Add Clauses Stopping VAs in Lease Agreements
  • The decision in Clarence House v Natwest where a VA breached the covenant not to share or part with possession was overturned 8 December 2009. Duncan Wood talks with Simon Brilliant (a barrister at Lamb Chambers), James Knox (a partner at Linklaters) and Penny McClaren (an associate at Linklaters) about the health of the VA
  • Eco-Town Projects Limp Ahead as Recession Bites
  • As the government presses ahead with eco-town announcements about nine new schemes, questions remain over when such plans will become a reality. Richard George of the Campaign for Better Transport talks to Neasa MacErlean about progress
  • Extensions for Possession Orders Need to Be Legitimate
  • The Supreme Court has ruled in Secretary of State for Environment etc v Meier courts cannot make a possession order for land not yet occupied by trespassers but can order an injunction to prohibit future occupation of other land. Malcolm Dowden, solicitor and LexisPSL property author tells Evelyn Reid why the Supreme Court has reversed the decision of the Court of Appeal
Events
 Discounts
Members are entitled to 20% off selected titles from Law Society Publishing (quote promotion code PROPR) online or by telephone orders on 0870 850 1422). Recent titles include:
  • Conveyancing Checklists
  • New edition providing a comprehensive range of checklists that follow the steps of a transaction. Also contains an accompanying CD-ROM
  • Conveyancing Handbook 16th Edition
  • 16th Edition, including amendments to the Solicitors’ Code of Conduct 2007, the revised TransAction forms, and the introduction of the Land Registry's 'early completion' policy
  • Housing Law Handbook
  • Practical and concise outline of housing law and procedure covering homelessness rights, the allocation of social housing, possession proceedings, and other routes into housing
Cases 
 

R (on the application of Wye Valley Action Association Ltd) v Herefordshire Council

Citation: [2010] All ER (D) 44 (Jan)
Alternative Citations: [2009] EWHC 3428 (Admin)
Hearing Date: 18 December 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Ian Dove QC sitting as a deputy judge of the High Court
Representation: James Pereira and Paul Stookes, solicitor advocate (instructed by Richard Buxton Environmental and Public Law) for the claimant. Richard Kimblin (instructed by Herefordshire Council, Legal Services) for the authority.
Abstract: Town and country planning - Development. The Administrative Court held, in allowing the claimant's judicial review application, that the defendant local authority had erred in granting planning consent to the interested party for the usage of polytunnels on its farm; the development in question came within schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 1999/293, concerning 'projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes'. Particular consideration was given to the term 'semi-natural'.
Keywords: Town and country planning - Development - Development consent - Environmental impact assessment - Use of semi-natural areas for intensive agricultural purposes - Interested party applying for consent to use polytunnels on its farm for purposes of stimulating cultivation of soft fruit - Defendant local authority deciding that no environment impact assessment required and granting consent - Claimant complaining about decision - Meaning of 'semi-natural' - Whether authority erring - Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 1999/293, schedule 2.

Summary: The judgment is available at: [2009] EWHC 3428 (Admin)
The interested party ran a farm business at Homme Farm, Herefordshire. The farm was located within an area of outstanding natural beauty (AONB). The business employed 33 persons on a full-time basis and up to 450 at harvest time. For several years, 'polytunnels' were used to stimulate the cultivation of soft fruit. In March 2008, the interested party applied for planning permission for the usage of polytunnels (a recognised form of 'development') at the farm. The application was supported by a business appraisal, which recorded that 152 hectares of the 377 hectares of farmland would never be subject to polytunnel farming (forming an 'exclusion zone') and that no more than 54 hectares of the remaining 225 hectares would be covered by polytunnels at any one time, and that no more than 10 hectares would be covered by a single block of polytunnels. In August, the defendant local authority adopted a screening opinion which asked whether the development required an 'environmental statement' (or 'environmental impact assessment'). The screening opinion stated that the application involved 'the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that was already cultivated (mixture of arable and turf production)'. It concluded that an environmental statement was not required. In due course, and in consequence of the screening opinion, the application was approved; planning consent was granted. The authority's view was that the application was not within schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 1999/293, which covered 'projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes'. The claimant, a company which was formed to promote the preservation and improvement of the AONB, applied for judicial review.

An issue arose as to whether the authority was correct to hold that the development in question was not schedule 2 development. The claimant submitted that the screening opinion was unlawful on the ground that the term 'semi-natural' in schedule 2 to the Regulations had not been properly construed. An argument was also raised on the issue of whether the authority had erred in respect of its findings that the farm was 'being cultivated' and that therefore no environmental impact assessment was required.

The application would be allowed. In the context of environmental impact assessment development, 'natural' meant untouched by man. 'Semi-natural land' was land where there had been some interference with the landscape, but the natural qualities which preceded or continued alongside man's activities were still clearly and obviously evident in the natural environmental capital of the area. Man's intervention in such 'semi-natural' areas might well be evident, but it would not have been spoilt, and might even have complemented, the natural qualities which gave the area its environment value. Those matters could be gauged by the statutory and other designations to which the land might have been made subject.

In the instant case, the area within which the development proposal was sited was a semi-natural area. That was the case as a matter of law. The area in question was one within the AONB. Further, the area had within it a significant number of designated sites, or areas, some of which were overlapping, and which were redolent of the high quality natural environment of the kind required for an area to be 'semi-natural'. For those reasons, and notwithstanding the finding of cultivation and that the interested party were proposing a project concerned with intensive agricultural purposes, the authority was wrong to conclude that the polytunnel development was not within schedule 2 to the Regulations. Accordingly, the authority had erred and its decision to grant planning consent had to be quashed. An environmental impact assessment should have been undertaken.

Kraaijeveld v Zuid-Holland: C-72/95 [1997] All ER (EC) 134 considered; Berkeley v Secretary of State for the Environment [2000] 3 All ER 897 considered; R (on the application of Goodman) v Lewisham London Borough Council [2003] All ER (D) 202 (Feb) considered; Alford v Department of Environment, Food and Rural Affairs [2005] All ER (D) 47 (May) considered; Ecologistas en Accion-CODA v Ayuntamiento de Madrid: C-142/07 [2008] All ER (D) 328 (Jul) considered.

Barrister: Robert Chan
Published Date: 13/01/2010
 
R (on the application of Perrett) v Secretary of State for Communities and Local Government

Citation: [2009] All ER (D) 175 (Dec)
Alternative Citations: [2009] EWCA Civ 1365
Hearing Date: 18 December 2009
Court: Court of Appeal, Civil Division
Judge: Pill, Wilson and Richards LJJ
Representation: James Findlay QC and Ryan Kohli (instructed by Battens Solicitors) for the claimant. Mark Beard (instructed by the Treasury Solicitor) for the Secretary of State. The interested party did not appear and was not represented.
Abstract: Town and country planning - Enforcement notice. The Civil Division of the Court of Appeal held, in dismissing the instant appeal, that when a matter was remitted to the Secretary of State under section 289 of the Town and Country Planning Act 1990, there was no obligation on the Secretary of State to consider the whole of the enforcement notice appeal (under section 174 of the 1990 Act) de novo: there was power to limit the scope of the matter which was remitted for redetermination.
Keywords: Town and country planning - Enforcement notice - Appeal against notice - Re-hearing of appeal against enforcement notice - Re-hearing ordered following successful appeal to High Court albeit disposed of by way of consent order - Secretary of State's inspector refusing to reopen appeal in relation to any other ground than that giving rise to successful appeal - Claimant unsuccessful in his judicial review of inspector's refusal decision - Whether permissible to limit scope of re-hearing - Town and Country Planning Act 1990, sections 174, 289 - Civil Procedure Rules, SI 1998/3132, rule 52.20, PD 52, paragraph 22.6C(14) - Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002, SI 2002/2685, rule 21.

Summary: The judgment is available at: [2009] EWCA Civ 1365
Section 174 of the Town and Country Planning Act 1990, so far as material, provides: '(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. [(2) An appeal may be brought on any of the following grounds - (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; (b) that those matters have not occurred; ... (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters; ... (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.'

From the mid-1990s, the claimant engaged in the gradual conversion of the use of his farm from agricultural to non-agricultural. The interested party local planning authority granted lawful use certificates and planning permissions in respect of some of the uses, but served enforcement notices requiring other uses to cease. The claimant subsequently appealed against nine of the notices, relying on section 174(2) of the Town and Country Planning Act 1990, namely grounds (a), (b), (d), (f) and (g). The Secretary of State's planning inspector allowed two of the appeals; the remainder were dismissed. The claimant then brought a section 289 appeal [on 'Appeals to High Court relating to enforcement notices[...]'] in respect of five of the notices. The appeal was disposed of by way of consent, with the result that the relevant section 174 appeals were to be 'remitted for re-determination' (see [3] of the judgment for the terms of the schedule appended to the consent order). A dispute then arose between the parties as to the method and scope of the re-hearing. The authority sought to have the appeals redetermined under ground (a) alone; the claimant sought to rely on other grounds, including, in particular, ground (d). The Planning Inspectorate's position was, according to its letter of 13 January 2007, 'to limit the scope of the inquiry to the matter to the successful challenge, i.e. ground (a)'. It then went on to state that new evidence/submissions on a change of circumstances could be made in relation to grounds (b), (d), (f) and (g) 'if either party proposes'. The claimant's position was that the Secretary of State had to start again 'de novo with a clean sheet'. The Planning Inspectorate accepted, in a subsequent letter dated 15 January 2008, that the decision on the appeals needed to be taken de novo, but that that did not mean that all matters, which had been previously rehearsed, had to be examined again. In April 2008, the formal decision on the scope of the re-hearing was communicated to the claimant. Essentially, the inspector decided that there had to be a redetermination of the appeals under ground (a) in their entirety, but that ground (d) was to be excluded from the scope of the re-hearing. The claimant applied for judicial review, arguing that the inspector's exclusion of ground (d) was wrong in law. The judge in the Administrative Court dismissed the application, following which the claimant appealed to the Court of Appeal.

Two grounds of challenge were submitted. By the first ground, the claimant contended that when a matter was remitted to the Secretary of State for redetermination following a successful appeal under section 289 of the 1990 Act, the Secretary of State had an obligation to reconsider the whole of an enforcement notice appeal de novo, including the grounds which had not been the subject of the further appeal under section 289, such that the inspector, in the instant case, had erred in law in excluding ground (d) from the scope of the re-hearing. By the second ground, the claimant contended that the letter of 15 January 2008 amounted to a decision by the Secretary of State that all the enforcement notice appeals were to be held de novo, such that the inspector had had no power thereafter, having regard also to principles of legitimate expectation and abuse, to exclude ground (d) from the scope of the re-hearing. So far as the relevant legislative framework was concerned, particular consideration was given to rule 52.20 of the Civil Procedure Rules 1998, SI 1998/3132, which dealt with section 289 appeals, and paragraph 22.6C(14) of Practice Direction 52 which provided 'Where the court is of the opinion that the decision appealed against was erroneous in point of law, it will not set aside or vary that decision but will remit the matter to the Secretary of State for re-hearing and determination in accordance with the opinion of the court', and rule 21 of the Town and Country Planning (Enforcement) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002, SI 2002/2685, which dealt with the procedure following remittal of an enforcement notice appeal.

The appeal would be dismissed.
(1) When a matter was remitted to the Secretary of State under section 289 of the 1990 Act, there was no obligation on the Secretary of State to consider the whole of the enforcement notice appeal de novo (see [31] of the judgment).

To impose an obligation on the Secretary of State to consider a remitted case entirely afresh would give rise to too inflexible a position and derive an absurd result. The statute and rules did not compel such a result. On the contrary, the existence of a discretion on the part of the Secretary of State, to decide what matters should be considered at a 're-hearing', was consistent with the statute and rules and was supported by authority. All that had to happen was that the Secretary of State had to remedy the error identified by the court on the section 289 appeal; the situation was not akin to that where a Secretary of State had to reconsider following a successful planning appeal under section 288 of the 1990 Act. In the latter case, de novo was more akin to a fresh decision in its fullest sense. Context, therefore, was important (see [17], [18] and [23]-[27] of the judgment).

In those circumstances, the appellant's first ground of challenge failed. The judge in the Administrative Court had been correct to find in the Secretary of State's favour on the issue of what matters had to be considered on the re-hearing of the section 174 appeals. It also followed from that that the decision to exclude ground (d) from the scope of the inquiry could not be successfully impugned (see [17], [27] and [31] of the judgment).

Newbury District Council v Secretary of State for the Environment [1988] JPL 185 applied; Kingswood District Council v Secretary of State for the Environment [1988] JPL 248 explained; DK (Serbia) v Secretary of State for the Home Department [2007] 2 All ER 483 considered.

(2) On its proper construction, the letter of 15 January 2008 did not have the effect for which the claimant contended. The terms of the letter were muddled; however, its overall effect was more in line with what had been said in the letter of 13 November 2007 than with the submissions made by the claimant, and it did not amount to a substantial departure from the position set out in the earlier letter. In any event, it was not clear enough to give rise to a legitimate expectation that the claimant could reopen ground (d) at the inquiry, or to make it otherwise unlawful for the inspector to rule against the reopening of ground (d). In that light, the judge in the Administrative Court had been right to reject the second ground of challenge (see [33]-[35] of the judgment).
Decision of Mitting J [2009] All ER (D) 120 (Apr); affirmed.

Barrister: Robert Chan
Published Date: 18/12/2009
 
Anglo Swiss Holdings Ltd and others v Packman Lucas Ltd

Citation: [2009] All ER (D) 125 (Dec)
Alternative Citations: [2009] EWHC 3212 (TCC)
Hearing Date: 9 December 2009
Court: Queen's Bench Division, Technology and Construction Court
Judge: Akenhead J
Representation: Michael Taylor (instructed by Berrymans Lace Mawer LLP) for the claimants. David Sears QC (instructed by Mischon de Reya) for the defendant.
Abstract: The Technology and Construction Court held that an application by the defendant to stay proceedings would be granted because, on the facts, the court was satisfied that there had been unreasonable and oppressive behaviour and some elements of bad faith on the parts of the claimants in having pursued the claims without first honouring the adjudicator's decisions and the court judgments that enforced them.
Keywords: Building contract - Adjudication - Award - Enforcement of award - Adjudicator's award unpaid by claimant - Defendant obtaining default judgment to enforce award - Claimant seeking reimbursement of alleged overpayment - Defendant seeking stay of proceedings - Whether proceedings should be stayed pending compliance by claimant with Technology and Construction Court pre-action protocol - Whether proceedings should be stayed pending compliance with default judgments - Whether claimant should pay security for costs.

Summary: The judgment is available at: [2009] EWHC 3212 (TCC). The claimants were companies registered in Jersey that were owned by an unidentified family trust. The companies were formed with the apparent intention of acquiring and developing properties in London and Buckinghamshire. In April 2005, the defendant was engaged by the first claimant to provide engineering services in connection with a project to develop a 'six star' hotel and spa in London. In June 2006, the second claimant retained the defendant in connection with a separate, but nearby, property that was to be part of the first development. Also in 2006, the third claimant employed the defendant in connection with the development of a hotel at the Buckinghamshire property. Work on the projects ceased and in mid-2007, payments to the defendant ceased. In April 2009, an adjudication took place in which the defendant sought payment of outstanding fees. The claimants had argued that not only was nothing due, but that there had been overpayments. In June, the adjudicator decided that because notices called for under sections 110 and 111 of the Housing Grants, Construction and Regeneration Act 1996, as reflected in the engagement contracts, had never been served within time or at all, it was not open to the claimants to argue that no sum was due or that there had been overpayments. The adjudicator ordered the claimants to pay specified sums to the defendant. Contrary to contractual arrangements and the 1996 Act, the claimants did not honour that decision. The defendant issued proceedings to enforce the adjudicator's decision. The court gave permission for the proceedings to be served out of the jurisdiction. Copies were sent to the claimants' solicitors in London. No acknowledgements of service were filed in August 2009 and judgments were entered for the full amounts owed. Later that month, interim charging orders were made over the respective properties owned by the claimants following their failure to pay in accordance with the judgments. The Bank of Scotland had a priority charge over the first claimant's London properties and on 2 October, the bank appointed a receiver in effect to sell the premises. On 16 October, the court made a final charging order over the three sets of premises owned by the claimants. The day before, the claimants each issued proceedings claiming recovery of alleged overpayments made by them to the defendant. After court hours, the claimants sent a fax to the court inviting it to defer finalising the charging orders until the disputes that they had issued that day were resolved. The final charging orders were made. In November, the defendant's solicitors asked for security for the costs of the proceedings because the claimants were registered in Jersey, all of the properties in question were charged with receivers appointed over some of those properties and further the claimants would not be able to pay the costs of the proceedings if required so to do. The defendant issued an application which sought, inter alia: (i) a stay of proceedings pending compliance with the TCC pre-action protocol; (ii) a stay pending compliance with the court's default judgments; and (iii) orders for security for costs.

The court ruled:
(1) Paragraph 1.2 of the TCC pre-action protocol provided that a claimant was not required to comply with that protocol before commencing proceedings to the extent that the proposed proceedings '... (iv) relate to the same or substantially the same issues as had been the subject of recent adjudication under the 1996 Act ...'. That was because the parties would have exchanged information about their claims or defences during the adjudication process. It would have been unnecessary and burdensome for the parties to have to go through the process of submitting claim and response a second time through the protocol process (see [14] of the judgment).
The claimants had not followed the pre-action protocol process laid down for the TCC. However, the parties had exchanged evidence regarding the issues of whether or not there had been an overpayment or how much was actually due to the defendant during the adjudication. The defendant had therefore been made aware of what the claimants were asserting (see [15] of the judgment).

It would have been inappropriate and disproportionate to have stayed the instant proceedings to have enabled the pre-action protocol process to have taken place. The claimants fell within one of the accepted exceptions to the requirement that the protocol was to be followed (see [16] of the judgment).

(2)(i) CPR 3.1(2) gave the court wide powers to 'stay the whole or any part of any proceedings or judgment either generally or until a specified date or event' and to 'take any other step or make any other order for the purpose of managing the case in furthering the overriding objective'. The overriding objective was to 'deal with cases justly' and to ensure 'that the parties are on an equal footing' (CPR 1.1). The court had the power and discretion to stay any proceedings if that was required by justice. In exercising that power and discretion, the court had to have in mind the right of a party to access to justice and to issue and pursue proceedings. That power was to be used sparingly and in exceptional circumstances. Those circumstances included bad faith and where the claimant had acted particularly oppressively or unreasonably (see [18] and [21] of the judgment).
(ii) The statutory framework, under sections 108 - 111 of the 1996 Act, which applied to construction professionals engaged to provide engineering services, amongst others, was: (a) there were to be staged payments; (b) there were to be contractual procedures for determining what was due in respect of each of those stage payments; (c) no sums were to be set off or withheld unless the s 111 procedure had been followed; (d) a party to a construction contract might at any time refer a dispute to adjudication; and (e) the adjudication decision was binding until the dispute was finally determined by the final dispute resolution process chosen by the parties.

The effect was that an adjudicator's decision which required payment by one of the parties involved a requirement to 'pay now, argue later' (see [22] and [23] of the judgment).

On the facts, the court was satisfied that there had been unreasonable and oppressive behaviour and some elements of bad faith on the parts of the claimants in having pursued the claims without first honouring the adjudicator's decisions and the court judgments that enforced them (see [25] of the judgment).

There would be a stay of the proceedings until the claimants had paid what they were contractually required to do, that being to pay on the adjudication decisions (see [26] of the judgment).
Oury v Reed [2002] All ER (D) 218 (Mar) considered; Ali v Hudson (trading as Hudson Freemen Berg (a firm)) [2003] All ER (D) 225 (Dec) considered.
(3) The basic principles as to security for costs were set out in CPR 25.13. It had to be just to have made the order and one of a number of conditions would have to be satisfied (see [27] of the judgment).

At least one of the conditions, under CPR 25.13(2)(a), was satisfied in the instant proceedings, namely that the claimants were companies resident out of the jurisdiction and were not resident in either a Brussels contracting state, a Lugano contracting state or a regulation state. In addition, CPR 25.13(2)(c) was satisfied as, on the evidence, the claimants were companies in respect of whom there was a reason to believe that they would be unable to pay the defendant's costs if ordered to do so (see [27] and [28] of the judgment).

Security for costs would be ordered in favour of the defendant (see [29] of the judgment).
Per curiam: If claimants are permitted to ignore adjudicators' decisions and seek to pursue the final resolution of the underlying disputes which have been temporarily resolved by the adjudicators, the 1996 Act or its impact would be seriously undermined (see [26] of the judgment).

Non-practising Solicitor: Charlotte Hennessey
Published Date: 14/12/2009
 
Barratt Developments plc v City of Wakefield Metropolitan District Council and another

Citation: [2009] All ER (D) 113 (Dec)
Alternative Citations: [2009] EWHC 3208 (Admin)
Hearing Date: 10 December 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Pitchford J
Representation: Peter Village QC and David Loveday (instructed by Macfarlanes LLP) for the claimant. Vincent Fraser QC instructed by and appearing for the authority. The second defendant did not appear and was not represented.
Abstract: Town and country planning - Development. The Administrative Court dismissed the claimant's appeal on the basis that whilst current economic conditions had, at least for the time being, undermined policy, it could not be concluded that the solution in respect of affordable housing made by the first defendant local authority had been irrational.                                     
Keywords: Town and country planning - Development - Permitted development - Planning policy - First defendant local authority adopting core strategy setting out development strategy of district - Before adoption of strategy second defendant Secretary of State planning inspector considering authority's policy on affordable housing - Claimant stating target not achievable in 'foreseeable future' but inspector disagreeing - Whether authority's adoption of authority's policy outside appropriate power - Town and Country Planning (Local Development) (England) Regulations 2004, SI 2004/2204, regulation 6 - Planning and Compulsory Purchase Act 2004, section 19, 24, 34, 38, 113(3)-(7C).

Summary: The judgment is available at: [2009] EWHC 3208 (Admin)
Section 19(2) of the Planning and Compulsory Purchase Act 2004, so far as material, provides: '(2) In preparing a [development plan document or any other] local development document the local planning authority must have regard to -- (a) national policies and advice contained in guidance issued by the Secretary of State; (b) the RSS [the regional strategy] for the region in which the area of the authority is situated, if the area is outside Greater London; (c) the spatial development strategy if the authority are a London borough or if any part of the authority's area adjoins Greater London; (d) the RSS [the regional strategy] for any region which adjoins the area of the authority; (e) the Wales Spatial Plan if any part of the authority's area adjoins Wales; (f) the [sustainable community strategy] prepared by the authority; (g) the [sustainable community strategy] for any other authority whose area comprises any part of the area of the local planning authority; (h) any other local development document which has been adopted by the authority; (i) the resources likely to be available for implementing the proposals in the document; (j) such other matters as the Secretary of State prescribes.'

Section 24(1) of the Planning and Compulsory Purchase Act 2004, so far as material, provides: '(1) The local development documents must be in general conformity with (a) the RSS [the regional strategy] (if the area of the local planning authority is in a region other than London); (b) the spatial development strategy (if the local planning authority are a London borough).'

On 15 April 2009, the first defendant local authority adopted a Core Strategy (CS), pursuant to regulation 6 of the Town and Country Planning (Local Development) (England) Regulations 2004, SI 2004/2204, which set out the development strategy for the district until 2026. The consequence of the CS was that the authority would have to have regard to the provisions of the development plan when considering local planning applications. By section 38(3) of the Planning and Compulsory Purchase Act 2004 (PCPA), the development plan comprised the Regional Spatial Strategy (RSS) and the development plan documents of which the CS formed part. In preparation of the CS, the authority had to have regard to section 19(2) and 24(1) in Part II of the PCP4. Further, before the development plan document could be adopted, it had to be submitted, under section 20 of the PCPA, for independent examination by a planning inspector on behalf of the second defendant Secretary of State. In addition, the authority would have to, under section 34 of the PCPA, in the exercise of any function under Part II of the PCPA conferring, among other things, a power of adoption, have regard to any guidance issued by the Secretary of State. The two relevant national planning policy guidance documents were PPS 3 and PPS 12. The relevant RSS was Policy H4 of the Yorkshire and Humberside Plan (Regional Spatial Strategy to 2026) of May 2008. In the light of the requirements, the second defendant Secretary of State's planning inspector considered those documents and was not satisfied that the CS was sound, because, inter alia, there was no robust economic viability testing to justify the authority's affordable housing policy.

Subsequently, DTZ were instructed as experts to carry out an evaluation of economic viability of the CS for affordable housing. The DTZ report, which set about creating models of hypothetical sites for new build development, of a sufficient size to sustain affordable homes, in five geographical areas of the district known to vary considerably in land value and profitability, concluded, inter alia, that the economic viability assessment (EVA) demonstrated that a range of between 0 % and 30 % affordable housing could be delivered across the district depending upon market cycles/variables and affordable housing tenure splits. In October 2008, the authority sent an email to the interested persons in order to obtain responses to the DTZ report in preparation for a resumed public meeting. The claimant house builders and developers did not accept that there was an overall shortage of affordable housing in the district and did not agree with a 30 % affordable housing requirement. The claimant stated that it should be a target, but 30 % was not achievable in the 'foreseeable future'. The claimant had also written to DTZ setting out the variety of respects in which they challenged the assumptions made to product DTZ's conclusions as being too optimistic. At the meeting of the interested persons in December, the conclusions were discussed further, and the authority's policy, namely, Policy CS6 'Housing Mix, Affordability & Quality' was adopted and published (see [26] of the judgment). The inspector concluded, inter alia, that the percentages for affordable housing delivery met the requirements (see [27] of the judgment). The claimant brought a claim under section 113(3)-(7C) of the PCPA.

The claimant contended that the authority's adoption of Policy CS6 in its CS was outside the appropriate power, because it failed to conform with sections 19 and 24 of the PCPA, and should be quashed. The claim raised the practical question of what the legitimate approaches were, which authorities and inspectors formulating local development plans might adopt, when national policy for the provision of affordable housing was temporarily undermined by current economic conditions.

The application would be dismissed.

Policy CS6, whilst having the capacity to confuse, was capable of giving the impression that: (i) all but the smallest sites, even those below the trigger thresholds, should make an affordable housing contribution; (ii) all those sites over the trigger thresholds would between them meet identified affordable housing needs across the district; (iii) all proposals for sites over the trigger thresholds would provide 30 % affordable housing unless the authority agreed a lower, or a higher, figure; and (iv) the actual amount of affordable housing would be negotiated on a site by site basis depending upon abnormal costs, economic viability and other requirements (see [78] of the judgment).

The policy had to be read as a whole in order to understand its meaning and purpose (see [82] of the judgment).

In the instant case, the policy adopted by the authority had paid due regard to national policy and the relevant RSS. The policy, as adopted, had set a justifiable target for sites above a workable threshold limit. It had recognised, however, that the target would only be achievable in certain economic conditions. Application of the policy that affordable housing should be provided where possible, meant that provisions would have to depend upon the exigencies both of the site and of market conditions at the time the application for permission had been made. The policy provided the flexibility required by making the target subject to negotiation. Having regard to the need for affordable housing that had been the best that the inspector could have done in unusual and unstable economic times. It was an undeniable consequence that, while national policy wished to provide both improved targets to deliver affordable housing and developers with the requisite degree of certainty for the purposes of planning development, current economic conditions had, at least for the time being, undermined policy. However, it could not be concluded that the solution adopted had been irrational (see [83] of the judgment).

South Bucks District Council v Secretary of State for Transport, Local Government and the Regions [2004] All ER (D) 09 (Jul) distinguished; Persimmon Homes (North East) Ltd v Blyth Valley Borough Council [2008] All ER (D) 269 (May) considered.

Barrister: Avneet Baryan
Published Date: 11/12/2009
 
Coventry Scaffolding Company (London) Limited v Lancsville Construction Limited

Citation: [2009] All ER (D) 93 (Dec)
Alternative Citations: [2009] EWHC 2995 (TCC)
Hearing Date: 12 November 2009
Court: Queen's Bench Division, Technology and Construction Court
Judge: Akenhead J
Representation: James Leabeater (instructed by Goodman Derrick LLP) for the claimant. The defendant did not appear and was not represented.
Abstract: Practice Building contract - Technology and Construction Court Adjudication. The Technology and Construction Court held that an application for summary judgment would be allowed which entitled the claimant to enforce the decisions of an adjudicator. Guidance was given to practitioners that where a defendant has failed to file an acknowledgement of service on time, the claimant should consider the desirability of seeking judgment in default.
Keywords: Practice - Technology and Construction Court - Case management - Disputes between parties under building contract - Claimant seeking enforcement of decision of adjudicator - Defendant failing to lodge acknowledgement of service - Claimant seeking summary judgment - Whether court should enforce decision of adjudicator - Guidance on desirability of claimants seeking default judgment in similar circumstances.

Summary: The judgment is available at: [2009] EWHC 2995 (TCC)
The claimant sub-contractor provided scaffolding for works being carried out by the defendant contractor. Various disputes arose between the parties which resulted in two separate adjudication decisions being issued. The first adjudication decision was given in August 2009. The adjudicator decided that, in principle, the defendant was at fault for its failure to make an interim payment and the parties were each ordered to pay half of his fees. The second adjudication related to a dispute as to whether the amount declared to be due by the adjudicator in the first adjudication should be paid. The decision was given in September, in which the adjudicator declared that payment was to be made by the defendant, along with interest and an order was made in relation to payment of his fees. The defendant failed to make payment in accordance with either adjudication. The claimant issued proceedings in October and immediately sought directions to bring on a prompt application for summary judgment. Directions were issued and the claimant was ordered, inter alia, to serve upon the defendant, as soon as practicable, a claim form and summary judgment application with supporting evidence. The time for acknowledgement of service was abridged from 14 days to five. The claimant complied with the directions but the defendant did not file an acknowledgement of service or lodge any documentation with the court. There was some without prejudice correspondence between the parties and it was clear that the defendant was aware of the hearing date. The instant proceedings went ahead with a hearing of the claimant's application for summary judgment.

The application would be allowed.

On the evidence, the decisions of the adjudicator were enforceable (see [11] of the judgment).
Per curiam: When it becomes clear that it is likely that a defendant is not going to participate for one reason or another, or indeed for no obvious reason, then a claimant should consider carefully the desirability of proceeding by way of obtaining a judgment in default. The fact that the time for the lodging of the acknowledgment of service is abridged to five days (or such other period as the court may order) does not mean that a claimant cannot obtain judgment in default of the filing of the acknowledgment of service, when that abridged time has elapsed. Once it is clear that there has been service of the claim form and the other documents called for by the TCC's order, there is no procedural reason why judgment in default should not be obtained (see [13] of the judgment).

Per curiam: If an acknowledgment of service is lodged before any judgment in default is obtained, then matters may have to proceed along the usual course, but the TCC would encourage claimants and those advising them to apply administratively for judgment in default, where the acknowledgement is not served within any abridged time (see [14] of the judgment).

Per curiam: The other step which a claimant can take to save time and money is, where it becomes very clear that the defendant, although it may or may not have put in an acknowledgement of service, is unlikely to participate in any hearing, an application on notice to the defendant can be made to bring forward the hearing; the advantage is that less time may be needed, costs will be reduced, court time will be saved and the claimant will get its judgement quicker (see [16] of the judgment).

Non-practising Solicitor: Charlotte Hennessey.
Published Date: 10/12/2009