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Issue 43 - May 2007

Contents

Cases

Statutory Instruments

Features

Articles

News

Events

Discounts (how to book and claim discounts)

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Cases

1. Ge Bowra Group Ltd v Thanet District Council

Citation: [2007] All ER (D) 184 (April)
Hearing date: 23 April 2007
Court: Queen's Bench Division (Administrative Division)
Judge: Irwin J
Relevant legislation: Town and Country Planning Act 1971; Non-Domestic Rating (Unoccupied Property) Regulations 1989, rr 2(5)(a), 2(2)(d)
Summary: rates — exemption — listed building — hereditament

The appellant was the owner of a listed property consisting of two hereditaments; the basement and ground floors, and the first and second floors. The hereditament consisting of the basement and ground floors was occupied by a tenant, and the second hereditament was unoccupied. The respondent authority demanded that the owner pay non-domestic rates for the unoccupied hereditament. The owner refused to pay the non-domestic rates. Proceedings were brought by the authority, in the magistrate's court, against the owner, submitting that the owner was liable to pay non-domestic rates for the unoccupied hereditament for a period of three months, in the sum of £373.79.

The owner claimed that, under rr 2(5)(a) and 2(2)(d) of the Non-Domestic Rating (Unoccupied Property) Regulations 1989, a hereditament could constitute part of a property, and that the unoccupied hereditament was exempt from paying non-domestic rates. The justices held that the owner had misinterpreted the 1989 Regulations; that r 2(5)(a) of the 1989 Regulations simply provided a definition of a non-domestic hereditament; that the hereditament had not been listed in accordance with the Town and Country Planning Act 1971; and that the owner was obliged to pay rates for the unoccupied hereditament for the period specified. The owner appealed by way of case stated.

It contended that the justices had erred in law in finding that it was liable to pay non-domestic rates for the unoccupied hereditament; and had erred in concluding that r 2(2)(d) of the 1989 Regulations could not be interpreted such that where a listed building contained more than one hereditament, the individual hereditament could not be regarded as listed for the purposes of exemption from non-domestic rates.

The appeal would be allowed.

There was no reason why the two hereditaments could not be treated as separate units, when one of the hereditaments was unoccupied. Through common sense and policy, where a hereditament had been wholly included in the listed building, exemption from paying rates had to follow. In the instant case, the factor that had influenced the justices in reaching their decision, that the owner had to pay non-domestic rates, had been that if a building was listed with a number of units, then none of the units could be rate free. The decision of the justices would be quashed. Debenhams plc v Westminster City Council [1987] 1 All ER 51 applied.

Case annotations in other services: Ge Bowra Group Ltd v Thanet District Council [2007] All ER (D) 184 (April)
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2. Connolly Ltd v Bellway Homes Ltd

Citation: [2007] All ER (D) 182 (April)
Hearing date: 23 April 2007
Court: Chancery Division
Judge: Stephen Smith QC sitting as a deputy judge of the High Court
Summary: contract — rectification — written contract

The claimant company entered into a contract with the defendant company for the sale of a piece of land for mixed commercial and residential development. The defendant was the purchaser of the land. The claimant appointed an agent company to assist it with its plans for the site. The agent was represented by PD. Following discussions between PD and D, the defendant's senior land manager, it was proposed that the price to be paid for the site should be “indexed” in the sale contract. PD was keen to ensure that, pending completion of the sale, the claimant would share in any increase in the value of the land. D was agreeable to the idea, provided that allowance would be made against the increase in the value of the land for any increase in building costs. In the event, an indexation provision in the contract was included, which provided for additional consideration to be paid in respect of both the residential and commercial land, in certain eventualities. Inflation adjustment was defined by the contract with reference to a formula. In particular, the formula provided that the sales price per net square foot of the development at the date of the grant of planning permission would be determined by an average of the views of three valuers; the comparable figure as at the date of the agreement was specified as £212, which represented the estimated average sales price per net square foot of the residential development at the date of the agreement.

That figure was the base figure for determining the rate of any increase in the value of the land. The figure of £212 had been agreed on as a result of the earlier discussions between PD and D leading up to the completion of the contract. Some years later, the additional consideration was calculated, but the outcome was not what the claimant had expected and resulted in the spotlight being thrown on the definition of the inflation adjustment. The claimant brought proceedings and claimed that (i) the £212 figure be rectified to £173 because of the claimant's unilateral mistake, encouraged by the defendant; (ii) the formula for indexation should be rectified on the ground of the parties' mutual mistake; and (iii) damages for deceit. In relation to the claim for deceit, the claimant alleged that D had falsely represented to DP that an appropriate estimate net sales price per square foot based on that comparable was £210 and that it was on that basis that DP suggested to D the figure of £212.

In relation to the unilateral mistake claim, issues arose as to whether (i) the claimant erroneously believed that the document sought to be rectified contained a particular term or provision; and (ii) the defendant was aware of the omission or the inclusion and that it was due to a mistake on the part of the claimant. In relation to the claim for deceit, the following issues fell to be resolved, whether there had been (i) a clear, false representation of fact or law; (ii) a fraud by the maker, in the sense that he knew that the representation was false, or had no belief in its truth, or was reckless as to whether it was true or false; (iii) an intent by the defendant that the representation should be acted upon by the claimant; (iv) action by the claimant in reliance on the representation; and (v) damage suffered by the claimant by reliance on the representation.

The court ruled:

1) The court could not remake the parties' bargain just because it had turned out to be significantly to the detriment of one party, and significantly to the benefit of the other.

The instant case was one where one party had subsequently come to appreciate that it should not have agreed to the inclusion of a particular term. However, that was not the sort of error that allowed for the agreement to be rectified. Accordingly, the claim for rectification on the ground of unilateral mistake would be rejected because it did not satisfy the elements of the test set out in the relevant case law.

Rowallan Group Ltd and Edgehill Portfolio No 1 Ltd [2007] All ER (D) 106 (January) and Thomas Bates & Son Ltd v Wyndham's (Lingerie) Ltd [1981] 1 All ER 1077 applied.

(2) On the evidence, it had not been satisfied that the contract did not give effect to the parties' common intention as to what the formula for indexation should have been.

George Wimpey UK Ltd v V I Construction Ltd [2005] All ER (D) 37 and Swainland Builders Ltd v Freehold Properties Ltd [2002] All ER (D) 314 (April) (February) applied.

(3) The claimant had to prove that D's opinion as to the estimated average sales value was an opinion that he did not in fact believe, or that, given the facts known to him, he could not have honestly held. Given the subject matter of the alleged representation, namely an opinion as to valuation with all the subjective factors that it involved, what that had to mean in practical terms in the context of the dispute was that D's figure was so far wide of the mark that dishonesty or deceit could be unequivocally inferred by the court. On the evidence, the figure £210 per square foot was so far wide of mark that dishonesty could be inferred. That figure proposed by D had been beyond the bounds of any genuine estimate of the average achievable sale price, and when he had put that figure forward, he knew that it was not a genuine estimate. Moreover, D had intended DP to believe that the view he had expressed was a genuine estimate.

Case annotations in other services: Connolly Ltd v Bellway Homes Ltd [2007] EWHC 895 
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3. Handf Acceptances Ltd v Russell

Citation: [2007] All ER (D) 136 (April)
Hearing date: 19 April 2007
Court: Queen's Bench Division
Judge: Judge Hickinbottom
Summary: mortgage — debt — repayment — defendant re-financing property with different lender

The claimant was a small finance company. The claimant had been involved in a lending transaction with D since 2001, and, in 2004, he approached the claimant to lend him money for a property. Matters moved quickly, and during the negotiations it subsequently transpired that the finance for the property was to be for the defendant, who would renovate the property and sell it at a profit with D acting as her broker. The claimant provided £1,094,234.35 to the defendant for the purposes of purchasing the property. The advance was made pursuant to a facilities letter signed by the defendant. She took a further loan from a third party in the sum of £60,000. The loan was not repaid, and possession proceedings were threatened. The defendant re-financed the property by way of a bank loan of £1,100,000. The third party loan was redeemed in full, and £1,020,000 was paid to the claimant. £252,931.70 was outstanding on the defendant's account with the claimant; however, the claimant agreed that that sum should be rounded down to £250,000. To protect its position, the claimant sought a formal acknowledgment of debt for the outstanding sum that the defendant owed, which was duly drawn up by the defendant's solicitor, M, and signed by the defendant on 17 December, 2004. The claimant subsequently issued proceedings claiming the sum of £250,000 plus contractual interest, totalling £357,125. At trial, evidence was given by a number of persons, including M, who stated that all letters to the defendant had been written contemporaneously; that correspondence had been posted to her; and that she had signed the acknowledgement of debt after he had explained to her the reasons for signing it. In evidence, the defendant denied having signed a fully completed version of the acknowledgement of debt, and asserted “fraud”, averring that it had been improperly or unlawfully obtained. Moreover, she asserted that she had not received certain documents, including documents from M, and could not remember details of the sale price of the property.

The court ruled:

In the instant case, there was a plain conflict of evidence between the witnesses and the defendant, who was an unimpressive witness. It was apparent that M had kept the defendant informed of all the details, and it was inconceivable that so many documents had been lost in the postal system. The defendant appeared to be a person who was careless of paper and detail, and, when asked about the sale of the property, had been unable to give any particulars about the date of sale or the proceeds, and that was a serious fault. There was no rationale behind the asserted “fraud”, and M's evidence that he had explained the acknowledgement of debt had to be accepted. Moreover, the defendant had not denied the debt until late 2005.

Judgment would be entered for the claimant in the sum of £357,125, including contractual interest.

Case annotations in other services: Handf Acceptances Ltd v Russell [2007] All ER (D) 136 (April) 
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4. London and Quadrant Housing Trust v Ansell

Citation: [2007] EWCA Civ 326
Hearing date: 19 April 2007
Court: Court of Appeal, Civil Division
Judge: Chadwick, Lloyd LJJ and Stanley Burnton J
Relevant legislation: Housing Act 1988
Summary: landlord and tenant — recovery of possession — order for possession

The defendant occupied a property owned by the claimant registered social landlord under a secure tenancy. She was in arrears of rent, and, in February 2001, the landlord obtained a possession order in respect of the property, suspended on condition that the defendant pay the landlord £1,049 unpaid rent and £120 costs by weekly instalments. In March 2001, the defendant was in breach of the order, with the effect that the secure tenancy came to an end. The defendant, however, remained in occupation of the property. Housing benefit was paid, and between October and December 2004, because one month's housing benefit had been paid in advance, the defendant's account was in credit. The landlord commenced proceedings against the defendant in February 2006, seeking, inter alia, possession of the property on the ground that the defendant, her family and associates had behaved in a manner which had caused nuisance and annoyance to her neighbours and others in the vicinity of the property.

Possession was sought on the basis that the defendant had occupied the property as a trespasser since the termination of the secure tenancy or, alternatively, that, if by reason of the conduct of the parties since the termination of the secure tenancy, the defendant had acquired a new tenancy, that new tenancy was an assured shorthold tenancy that the landlord was entitled to determine, and had determined, by notice under the Housing Act 1988. The district judge ordered the trial of a preliminary issue, namely whether the defendant was a tolerated trespasser and, if not, what was her status as occupier of the property. The defendant did not dispute that she was a tolerated trespasser, but denied that the landlord was entitled to possession, and contended that its claim was misconceived, as it was seeking to bring an action on the judgment in the earlier proceedings. She argued that, although the sum of unpaid rent she had been ordered to pay in February 2001 had been paid when her account had gone into credit in October 2004, the sum of costs had not, and that it was therefore open to the landlord to proceed to enforce the earlier order by the issue of a warrant for possession. The judge held that the payments had been made in respect of both rent and costs, that the order of February 2001 had therefore been fully complied with so that it was not enforceable by the issue of a warrant for possession, and the landlord was entitled to bring a fresh claim for possession. He went on to make an order for possession. The defendant appealed, but did not challenge the judge's finding that the whole sum ordered in February 2001 had been paid.

The appeal would be dismissed.

Absent an appeal against the judge's finding that the entire amount ordered to be paid in February 2001 had been paid, it could not be said that the judge was wrong to hold that the order had ceased to be enforceable. In those circumstances, he was correct to hold that the landlord was entitled to bring a fresh claim for possession.

Case annotations in other services: London and Quadrant Housing Trust v Ansell [2007] All ER (D) 149 (April)
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5. Polarpark Enterprises Inc v Allason

Citation: [2007] All ER (D) 118 (April)
Hearing date: 18 April 2007
Court: Chancery Division
Judge: Briggs J
Relevant legislation: Protection from Eviction Act 1977 section 3; County Courts Act 1984 section 21
Summary: possession — landlord — action for possession

Following an earlier decision of the court (see [2007] All ER (D) 130 (January)), the claimant was granted a writ of possession that was subsequently executed on 27 March, 2007. The defendant sought an order setting aside that part of the earlier order pursuant to Civil Procedure Rules, SI 1998/3132, 3.1(7), on the ground that the court had lacked jurisdiction to grant the writ of possession, thereby rendering its execution unlawful. The defendant submitted, inter alia, that it was clear from the provisions of clause 10(e) of the settlement agreement that his wife had been a licensee for money's worth, and that, therefore, the provisions of section 3 of the Protection from Eviction Act 1977 had applied. Accordingly, pursuant to section 9 of the 1977 Act, the High Court had lacked the jurisdiction to order the writ of possession. The claimant submitted, inter alia, that the instant proceedings were an abuse of process on the part of the defendant. The case advanced was inconsistent with that advanced on the merits, and it was not open to him to rely upon a wholly different case to that previously put forward. Moreover, no facts capable of demonstrating the existence of a licence for money's worth had been proven at the earlier hearing.

The application would be allowed.

In the instant case, notwithstanding the fact that the defendant's case was inconsistent with that previously advanced, the correct approach involved an assessment of whether the facts proven by the claimant at the previous hearings supported the case advanced by the defendant. On the facts, it was clear that the licence had been for money's worth and that the defendant had continued to occupy the premises following its termination. In those circumstances, the defendant had fallen within the protection afforded by section 3 of the 1997 Act, and, pursuant to section 9 of that Act, the High Court had had no jurisdiction to order the writ of possession. Accordingly, the writ of possession would be revoked, and the matter transferred to the appropriate county court. West Wiltshire District Council v Snelgrove (1997) 30 HLR 57 distinguished.

Case annotations in other services: Polarpark Enterprises Inc v Allason [2007] All ER (D) 130 (January) 
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6. McCabe and others v Secretary of State for Communities and Local Government

Citation: [2007] All ER (D) 75 (April)
Hearing date: 4 April 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Goldring J
Relevant legislation: Leasehold Reform, Housing and Urban Development Act 1993, section 159(2)(b); Acquisition of Land Act 1981 section 23
Summary: compulsory purchase — compulsory purchase order — validity
 
The claimants owned retail units in a building complex situated at the front of Lime Street Station in Liverpool. The interested party, the Urban Regeneration Agency, operating under the name, “English Partnerships”, sought the acquisition of the complex for urban regeneration purposes. It made an order (the Urban Regeneration Agency (Lime Street Gateway, Liverpool) Compulsory Purchase Order 2005) for the compulsory purchase of the complex pursuant to its powers under section 162(1) of the Leasehold Reform, Housing and Urban Development Act 1993. The claimants objected to that order. In July 2006, an inspector appointed by the defendant Secretary of State held a public inquiry. In his report, the inspector recognised that the claimants would lose their businesses should the order be made, however, the order was recommended for confirmation without qualification. In October, the Secretary of State confirmed the order. The claimants challenged the validity of the order under section 23 of the Acquisition of Land Act 1981.

An issue arose as to whether the inspector was entitled to apply the criteria in section 159(2)(b) of the 1993 Act, and consequently whether the Secretary of State was entitled to rely on the inspector's findings in confirming the order of English Partnerships.

The application would be dismissed.

In the circumstances, the inspector had been entitled to conclude that the complex was under-used, or ineffectively used, pursuant to section 159(2)(b) of the 1993 Act, and the Secretary of State had been entitled to rely on that approach. Accordingly, the order was a valid one. Dicta of Forbes J in Pascoe v Secretary of State for Communities and Local Government [2006] 4 All ER 1240 at [34] to [36], [41] and [43] considered.

Case annotations in other services: McCabe and others v Secretary of State for Communities and Local Government [2007] All ER (D) 75 (April)  
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7. St Martin's Property Investments Ltd v Cable & Wireless UK plc

Citation: [2007] All ER (D) 68 (April)
Hearing date: 4 April 2007
Court: Chancery Division
Judge: Thomas Ivory QC sitting as a deputy judge of the High Court
Summary: landlord and tenant — lease — construction
 
The claimant company leased premises to G. The buildings on the premises were to be built pursuant to the agreement, which provided that the claimant would construct the buildings and other structures. The lease contained various rent review provisions (see [8] – [10]), which meant that the open market rent had to be assessed on various stated assumptions. In particular, clause 1.5.2 of schedule 4 to the lease provided that “the demised premises comprise High Class Professional or Commercial Offices with a net internal area of 124,019 square feet”. The lease was assigned by G to the defendant, and subsequently varied by a deed of variation between the claimant and the defendant. The deed substituted a new clause 2 of schedule 4 (see [12]). The effect of the amendment was first, instead of determining the open market rent on one basis only, namely that the demised premises comprised high class professional or commercial offices, it was to be determined on two alternative bases: that the demised premises comprised either high class professional or commercial offices (as previously); or a computer centre. Secondly, only 90 per cent of the open market rent under the high class offices assumption was to be taken; so that the new rent would be either 90 per cent of the open market rent for high class offices or, if greater, the open market rent for a computer centre, provided that, in either case, it was greater than the current rent. A third change was to remove the disregard of fixtures in schedule 6 in applying the high class offices assumption in clause 1.5.2, while retaining it for a different assumption. A dispute arose between the parties as to the proper construction and application of the assumption in clause 1.5.2 of the lease. The claimant applied to the court for determination of the true construction of the rent provisions in the lease.

The claimant submitted the assumption clause 1.5.2 provided for a hypothetical building on the site comprising high class professional or commercial offices with a net internal area of 124,019 square feet to be valued. The defendant submitted that clause 1.5.2 provided for the actual building site to be valued, but on the assumption that they were to be used as high class professional or commercial offices and converted as necessary for that use. An issue arose as to whether the meaning of the high class offices assumption was altered by the deed of variation.

The court ruled:

(1) In the instant case, the defendant's construction was not consistent with the wording of clause1.5.2. The assumption prescribed by the clause was not that the demised premises were to be used as high class professional or commercial offices, but rather that the demised premises comprised or were high class professional or commercial offices. The assumption had gone to what the demised premises were deemed to comprise, not the use to which they were deemed to be put. Accordingly, clause 1.5.2 contemplated a hypothetical building that comprised high class professional or commercial offices with a net internal area of 124,019 square feet.

(2) The deed of variation had not altered the meaning of the high class offices assumption in clause 1.5.2.

Case annotations in other services: St Martin's Property Investments Ltd v Cable & Wireless UK plc [2007] EWHC 582 (Ch)
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8. Wembley National Stadium Ltd v Wembley (London) Ltd and others

Citation: [2007] All ER (D) 74 (April)
Hearing date: 4 April 2007
Court: Chancery Division
Judge: Sir Andrew Morritt C
Relevant legislation: Landlord and Tenant (Covenants) Act 1995, sections 3(1)(3), 6(2)
Summary: landlord and tenant — covenant — service agreement

The claimant (WNSL), a wholly owned subsidiary of the Football Association Ltd, was formed for the purpose of acquiring the Wembley Stadium (the old stadium) and building a new stadium on the same site. The site of the old stadium, and much of the surrounding land, comprising a conference centre, car parks, merchandising booths, roads and footpaths, was owned by the first defendant (WLL). By a transfer and a lease both dated 15 March, 1999, WLL sold the old stadium and the land on which it stood to WNSL and leased (the lease) certain parking, access and other rights over its retained land to WNSL for a term of 125 years. The consideration for the lease included payment of a service charge. On 13 July, 2001, WLL transferred the freehold of land, including land over which it had demised rights by the lease and subject to the lease to the second to fifth defendants (together Gideon). In both the transfer of the freehold of that property and in separate documents executed by each of those defendants, Gideon declared that they held the same as nominee and trustee for WLL absolutely and would deal with the same in accordance with the directions of WLL. The transfer to Gideon was registered on 7 June, 2002. The building of the new stadium proceeded. The car parks were used by the builders' employees, and the necessary contact was maintained between employees of WLL and WNSL. The building of the new stadium was practically completed on 9 March, 2007. In the meantime, by a letter dated 17 November, 2006, WLL sought payment by WNSL of six invoices for sums allegedly due under the lease in respect of the service charge. An action was commenced by WNSL by which it sought declarations to the effect that it was not liable to pay any of the amounts sought. The defendants served a defence and counterclaim. Permission was subsequently given to WLL and Gideon to amend their defence and counterclaim so as to abandon any claim based on the invoices but to claim declarations instead.

One of the issues to be determined was which of WLL and Gideon was to be treated as the lessor for the purposes of the lease. The question arose, inter alia, whether WLL ceased to be the lessor under the lease on the assignment of the freehold of the surrounding land subject to the lease in July 2001 or on its registration on 7 June, 2002.

In determining that question, WNSL relied on the terms of section 3(1) and (3) of the Landlord and Tenant (Covenants) Act 1995 and submitted that the proper application of those provisions entailed the result that Gideon alone was entitled to claim and sue for the service charge or advance payments in respect of the service charge because it was entitled to the benefit of the covenants to pay them. It also submitted that the burden of the landlord's covenants passed to Gideon. If that was correct, then the consequence would be that the expenditure incurred by WLL would not be recoverable at all because it would not comply with the definition of “expenditure” contained in clause 7.1.1. WLL disputed those propositions and relied on the provisions of sections 6(2), 15(1), 23 and 28(1) of the Act. It claimed that the terms of section 6(2) showed that absent a release under section 8, and there was none in the instant case; WLL remained liable under the lessor's covenants and entitled to the benefit of the tenant's covenants. As the absolute beneficial owner of the reversion pursuant to the declarations of trust contained in the transfer to Gideon and in the separate documents executed by each of the second to fifth defendants, WLL was, and remained at all times, entitled to enforce the tenants' covenants as the equitable assignees of the person entitled to the reversion at law.

The court ruled:

It was plain from the description of the parties to the lease and the definition of lessor contained in clause 1 that the word lessor referred to WLL, whether or not it included anyone else, so that WLL was contractually bound to WNSL to perform the lessor's services as provided by clause 4.3.1. Whether or not the burden of that covenant passed to Gideon on the assignment, it was clear that WLL was not released from it, for that was plainly implicit in section 6(2) of the Act. It followed that both before and after the assignment of the reversion to Gideon, WLL was bound to provide the lessor's services, and the expenditure incurred by WLL to that end was expenditure falling within clause 7.11. The question whether WLL was entitled to the benefit of the tenant's covenants, specifically those contained in clause 7 to pay the service charge and advance payments elicited more than one answer. First, the original contractual entitlement of WLL was not discharged by the Act because in the circumstances of the instant case section 6(2) so provided. Second, as the absolute beneficial owner of the reversion, WLL had always been entitled to sue for the service charge and advance payments either in its own name, if necessary joining Gideon as a defendant or in the name of Gideon. The first defendant was, and had been at all times since July 2002, the lessor for all the purposes of the lease.

Case annotations in other services: Wembley National Stadium Ltd v Wembley (London) Ltd and others [2007] EWHC 756 (Ch)
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9. Oxford City Council v Secretary of State for Communities and Local Government and another

Citation: [2007] All ER (D) 67 (April)
Hearing date: 4 April 2007
Court: Queen's Bench Division (Administrative Court)
Judge: George Bartlett QC sitting as a deputy judge of the High Court
Relevant legislation: Town and Country Planning Act 1990 section 174(2)
Summary: town and country planning — permission for development — material consideration

The claimant local authority granted the second defendant planning permission for the use of the lower ground floor of a building as a restaurant. The building stood next to a bridge on an island between two branches of a river. A pontoon adjoined the restaurant. There was a mix of commercial and residential premises on the rest of the island. Planning permission was granted subject to a number of conditions, one of them being that the restaurant should be confined to the lower ground floor and the use should be confined within the building. In particular, the use should not take place on any outside areas or the pontoon. The reason for the conditions was the protection of the amenity of neighbouring or nearby residential properties. The second defendant, however, began to use the pontoon as an extension of the restaurant, and subsequently applied for planning permission in respect of, inter alia, that use. Planning permission was granted, but limited to a period of six months to enable the local authority to assess the impact on the surrounding area. Conditions were imposed requiring, inter alia, the use of the pontoon as an extension of the restaurant to cease by a specified time. None of the conditions were complied with. The second defendant made another application for planning permission. That was refused, and the second defendant appealed against the refusal. The planning inspector considered that, since the time condition in the temporary permission had not been complied with, the restriction had not been tested, and she could not be satisfied that it would overcome the problems that had been encountered. She also concluded that it would not be reasonable to impose a time condition in any event, given that the second defendant was not seeking one. She therefore refused planning permission because she was not satisfied, on the basis of the trial run, that the use of the pontoon could be satisfactorily controlled and managed in such a way as not to cause nuisance at night to local residents. Accordingly, the local authority issued an enforcement notice requiring the cessation of use of the pontoon as a bar restaurant.

The second defendant appealed against the enforcement notice pursuant to section 174(2)(a) of the Town and Country Planning Act 1990, contending that planning permission should be granted for the use. A second planning inquiry was held. By that time, the operator of the restaurant had changed, although the second defendant remained the party appealing against the enforcement notice. The new operator was prepared to accept a time condition. The second planning inspector regarded that, as a highly material change of circumstances, given the new operator's experience in the restaurant business. He allowed the appeal; quashed the enforcement notice; and granted planning permission for the use subject to, inter alia, a time condition. He considered that any harm to local residents could be sufficiently overcome through the imposition of conditions. The local authority challenged under section 288 of the Act the second inspector's grant of planning permission.

It submitted, inter alia, that the second inspector had taken account of an irrelevant consideration, namely, the fact that the restaurant had a new operator. It also submitted, inter alia, that second inspector's reasons for departing from the first inspector's decision were unintelligible.

The application would be refused.

The advent of the new operator was material in two respects: (a) it removed the inhibition to imposing a time condition because he was agreeable to one being imposed; and (b) as an experienced restaurateur he was of the opinion that such a condition was workable. The inspector had been entitled to take those matters into account, and he had not decided that the use should be permitted because it would be carried on by the new operator. Furthermore, he had made it sufficiently clear that he had disagreed with the views of the earlier inspector and why he had done so. He had come to the conclusion that any harm to local residents could be sufficiently overcome through the imposition of conditions. It was evident that he had not considered that such a judgment could only be reached if the use had been the subject of a trial, with a time condition being complied with over the period of the trial, and it was not necessary that he should have said that expressly.

Case annotations in other services: Oxford City Council v Secretary of State for Communities and Local Government and another [2007] EWHC 769 (Admin)  
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10. R (on the application of Orange Personal Communications Services Ltd) v Birmingham City Council

Citation: [2007] All ER (D) 65 (April)
Hearing date: 4 April 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Wilkie J
Summary: town and country planning — development — material change of use

The claimant owned a small industrial site, which was known as the switch site, and housed an important telecommunications switch that had operated on the site since 1992. It was said that the loss of the switch site's operation, either temporarily or permanently, would have a severe impact on the claimant's ability to provide mobile telephone coverage to the Birmingham area, on the continued expansion of its network and on its ability to achieve its third generation licence obligation and meet its statutory obligations on coverage and continuous service. Immediately adjacent to the switch site was a site owned by S. The two sites shared a privately maintained access road. The switch building contained highly sensitive equipment, and also air conditioning units, the majority of which were adjacent to the access road and were employed to maintain a sterile environment within the switch. Any significant increase in general dust and pollution within the air conditioning units or the building environment, increased the risk that the building's defences would be breached and that the environmental integrity essential to the claimant's operation would be prejudiced, leading to equipment failure. S applied for planning permission to change the use of its site from vacant industrial land to a vehicle depot for up to 14 lorries and six construction vehicles (sui generis). The claimant objected to the application, with concerns that vehicles travelling past the switch site on the access road to the S site were particularly likely to generate increased resuspension of dust on the roadway; and further that any significant volume of HGV traffic using the access road would create a risk of an accident that could lead to damage to the air conditioning unit, to the switch building itself or to the sensitive equipment within the switch building. The defendant local planning authority's planning committee granted the permission. The claimant sought judicial review of its decision.

The claimant submitted (i) that a misdirection by a planning officer to the planning committee, to the effect that there was an extant planning permission for a similar use more severe in its potential impact than the one they were considering, in the course of the meeting at which it had made the decision constituted a material error of fact; and (ii) that in the report to the committee the author had irrationally advised the committee to give no weight to certain submissions of the claimant; alternatively, having advised the committee to ignore the only evidence on a particular issue, she had irrationally advised them none the less that they could grant planning permission subject to certain conditions, and that she did not anticipate that the problem alluded to by the claimant would arise sufficiently to warrant refusal.

The application would be allowed.

Case annotations in other services: R (on the application of Orange Personal Communications Services Ltd) v Birmingham City Council [2007] EWHC 760 (Admin) 
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11. R (on the application of Catt) v Brighton and Hove City Council

Citation: [2007] All ER (D) 54 (April)
Hearing date: 4 April 2007
Court: Court of Appeal, Civil Division
Judge: Pill, Maurice Kay and Wilson LJJ
Summary: town and country planning — development — permission

Brighton and Hove Albion Football Club played football under a temporary planning permission at a stadium within the urban fabric of Brighton as a temporary measure until it obtained an alternative home. The local defendant planning authority granted the club permission in July 2005 to continue to use the stadium until 30 June, 2008, and for the provision of new stands and extension of existing stands to provide an additional 1,966 seats, increasing the capacity of the stadium to about 9,000. Replacement and relocation of a hospitality unit was permitted, as were the addition of purpose-built changing rooms and the addition of a stewards' room, club office and new turnstiles. Permission was granted to the club to play the first match in December on a Saturday (other Saturdays in December excluded), to play up to nine evening matches and up to three matches per season on a Sunday. Permission was also granted with respect to the existing athletics' clubhouse and facilities at the stadium. Application for planning permission was made in February 2005. In March 2005, prior to granting permission, the authority decided that an environmental impact assessment was not required for the proposed development. It was common ground that the development was schedule 2 development within the meaning of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, SI 1999/293. The authority gave a screening opinion pursuant to regulation 2(1) to the effect that the development was not “EIA development”, namely schedule 2 development “likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. The claimant, a local resident, applied for judicial review of the authority's decision to grant permission, on the ground that it was unlawful because it was granted without an EIA having first been made. The application was dismissed, and the claimant appealed.

He submitted that the screening opinion was unlawful because it unlawfully relied on prospective mitigation measures when considering whether the development was likely to have significant effects on the environment. He argued that the correct approach was to consider the development described in the application, and not the development subject to proposed mitigation measures.

The appeal would be dismissed.

A decision maker was not obliged to shut his eyes to the remedial measures submitted as a part of a planning proposal. In making his decision, the Secretary of State (the planning authority) was not required to put into separate compartments the development proposal and the proposed remedial measures and consider only the first when making his screening decision.
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12. R (on the application of the Heath and Hampstead Society) v Camden London Borough Council

Citation: [2007] All ER (D) 47 (April)
Hearing date: 3 April 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Sullivan J
Summary: town and country planning — planning permission — Metropolitan Open Land
 
The interested party applied for planning permission to erect a replacement dwelling on a plot of land located within the Metropolitan Open Land (MOL) of Hampstead Heath in North London. The replacement dwelling was proposed to fulfil a floorspace of 626 square metres; the extant dwelling was 186 squared metres, with the inclusion of a garden shed. A planning officer from the defendant local authority considered the interested party's application. In his report to the authority's planning committee, the officer took into account qualitative factors, such as the visual intrusion on the character and setting of the MOL, and the demonstrable harm that might be caused from such a proposal. The inspector went on to conclude that the interested party's proposal constituted “appropriate” development, which was capable of maintaining the openness of the MOL, in accordance with the relevant development plan. He accordingly recommended the grant of permission. The authority thereafter granted permission, adopting the officer's reasoning. The claimant, a society that sought, as one of its aims, to protect the amenity and appearance of Hampstead Heath, applied for judicial review, seeking an order quashing the permission that had been granted. Issues arose as to (i) whether the instant MOL was to be given the same protection as green belt land; and (ii) whether the planning officer, and consequently the authority, had applied the correct test in its grant of permission.

The application would be allowed.

When forming its screening opinion, the authority was not required to ignore either the conditions proposed to limit the scope of the development or the conditions providing for ameliorative or remedial measures. The consequences of providing the additional seating, and other changes, could not be predicted with certainty, but the authority had extensive knowledge and experience, supported by surveys, of the impact of existing football league and cup matches upon the environment. On the basis of that and the studies into future impact, they were entitled to assess the likely impact of the additional capacity proposed in the context of the continuing ameliorative measures also proposed, and to form the screening opinion they did. Gillespie v First Secretary of State and others [2003] All ER (D) 407 (March) applied.

Case annotations in other services: R (on the application of the Heath and Hampstead Society) v Camden London Borough Council [2007] All ER (D) 47 (April)

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