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Issue 45 – July 2007

Contents

Cases

Statutory instruments

Features

Articles

News

Events

Discounts (how to book and claim discounts)

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Cases

1. R (on the application of Norton) v London Borough of Lambeth Council

Citation: [2007] All ER (D) 270 (June)
Hearing date: 22 June 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Sir Michael Harrison
Summary: town and country planning – development – permission

The interested party made various unsuccessful applications for planning permission in relation to the erection of two houses (the development). The claimant was one of a number of objectors to the development. Following that the interested party sought to overcome the objections by making various amendments to the design of the development. The interested party made a further application for planning permission. The application was decided by officers on a delegated authority. The report from the delegated authority stated that the property complied with its policies and satisfied a particular rule known as “the 45 degree rule”, which was concerned with the sighting of windows in relation to the other buildings within the development. After various applications, the defendant was granted planning permission. The claimant applied for judicial review of that decision. The claimant submitted that the 45 degree rule was the wrong rule to have applied and that the defendant should have applied the “25 degree rule”, which would have necessitated a more detailed assessment.

The court ruled:

On the evidence, the 45 degree rule was not applicable, and the delegated authority had been wrong to apply it. The decision would be quashed.

Case annotations in other services: R (on the application of Norton) v London Borough of Lambeth Council [2007] All ER (D) 270 (June)

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2. Reinwood Ltd v L Brown & Sons Ltd

Citation: [2007] All ER (D) 228 (June)
Hearing date: 21 June 2007
Court: Court of Appeal, Civil Division
Judges: Mummery, Arden and Dyson LJJ
Summary: building contract – standard form contract – construction

The parties entered into a contact for the construction of 59 apartments. The contract was in the form of a JCT Standard Form of Contract, 1998 Edition, with quantities incorporating Amendments 1 of 1999, 2 of 2000 and 3 of 2001. The agreed completion date was 18 October 2004 “or any date fixed under either clause 25 or in a confirmed acceptance of a 13A quotation.” Liquidated ascertained damages (LADs) were agreed at the rate of £13,000 per week or part thereof. There were considerable delays on the project. On 7 December 2005, the contractor made an application for an extension of time. On 14 December 2005, the contract architect issued a certificate of non-completion under clause 24.1. On 11 January 2006, the architect issued interim certificate number 29 showing the net amount for payment as £187,988. The final date for payment was 25 January.

On 17 January, the employer issued two notices. One was a notice under clause 24.2 of “intention to deduct from monies due to you under Interim Certificates issued after 14 December 2005 liquidated and ascertained damages […] for the period from 14 December 2005 up to the date of Practical Completion of the Works”. The second notice confirmed the employer's intention to withhold £61,629 LADs from monies due under interim certificate number 29 and stated in accordance with clause 30.1.1.3 that the employer proposed to pay £126,359. On 20 January, the employer paid that sum. On 23 January, the architect granted an extension of time until 10 January 2006. On 24 January, the contractor wrote to the employer stating that the effect of the extension of time and revision of the completion date was that the employer was now entitled to withhold no more than £12,326 in respect of LADs. The amount due under interim certificate number 29 was, therefore, £175,662. The employer did not make any further payment before 26 January, when the contractor purported to serve notice of default purportedly under clause 28.2.1.1. On the following day, the employer replied to the letter of 24 January saying that payment of the further sum of £49,303 would be made by 2 February. On 28 June, the employer should have paid £39,981 pursuant to certificate number 34. That sum was not paid. On 4 July, the contractor served notice of determination relying, inter alia, on the notice of 26 January as the notice specifying the previous default. It ceased work and left the site.

On 6 July 2006, the employer wrote to the contractor purporting to accept its repudiatory breach of contract in leaving the site and refusing to return. The employer issued proceedings claiming declarations that the contractor had unlawfully terminated the contract and was in repudiatory breach. The judge held that that the notice of determination was valid. The employer appealed. It was common ground that as at 17 January the three conditions for deduction of LADs from certificate number 29 had been satisfied, namely: (i) the architect had issued a certificate of non-completion under clause 24.1; (ii) the employer had informed the contractor in writing that it might deduct LADs (second bullet point in clause 24.2.1); and (iii) no later than five days before the final date for payment of the interim certificate the employer had given notice pursuant to clause 30.1.1.4 so as to satisfy the requirement of clause 24.2.1.2. The sole question that arose on the appeal was whether the cancellation of the certificate of non-completion under clause 24.1 by the grant of an extension of time had the effect that, as at 25 January 2006, the employer could no longer rely on the earlier certificate as its justification for deducting LADs in respect of the period between 14 December 2005 and 10 January 2006, and that any such deduction would be wrongful and not authorised by the contract.

The appeal would be allowed.

If the conditions for the deduction of LADs from a payment certificate were satisfied at the time when the employer gave notice of intention to deduct, then the employer was entitled to deduct the amount of LADs specified in the notice, even if the certificate of non-completion was cancelled by the subsequent grant of an extension of time. There was no additional requirement that the underlying condition for giving a notice (the issue of a certificate of non-completion) had to continue to subsist at the final date for payment.

Where the three conditions were satisfied, the right to deduct the amount of LADs specified in a notice given pursuant to clause 30.1.1.4 crystallised on the giving of the notice. If it had been intended that the subsequent grant of an extension of time should defeat the right to deduct the amount of LADs specified in a valid notice, it was likely that that would have been expressly provided by the contract. The contract made express provision for a certificate of non-completion to be cancelled upon the fixing of a later date for completion. It was significant that there was no similar provision for the cancellation of a notice under clause 30.1.1.4 where a certificate of non-completion had been cancelled. Bell (A) & Son (Paddington) Ltd v CBF Residential Care and Housing Association (1989) 16 Con LR 62 distinguished.

Case annotations in other services: Reinwood Ltd v L Brown & Sons Ltd [2007] EWCA Civ 601; Bell (A) & Son (Paddington) Ltd v CBF Residential Care and Housing Association (1989) 16 Con LR 62
 
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3. R (on the application of Godmanchester Town Council) v. Secretary of State for the Environment, Food and Rural Affairs and one other action – R (on the application of Drain) v. Secretary of State for the Environment, Food and Rural Affairs and one other action

Citation: [2007] All ER (D) 201 (June)
Hearing date: 20 June 2007
Court: House of Lords
Judges: Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Relevant legislation: Highways Act 1980 section 31(1)
Summary: highway – dedication – presumption

In both appeals applications were made to the surveying authority to modify the definitive map and statement by adding a right of way not shown on the map. In both cases an inspector found that there had been qualifying user for upwards of 20 years before the right had been called into question. The chief issue in each case was whether the proviso in section 31(1) of the Highways Act 1980, which provided that the way was deemed to have been dedicated as a highway unless there was sufficient evidence that there was no intention during that period to dedicate it, had been satisfied. The inspector found sufficient evidence of intention not to dedicate in each case and did not confirm the modification orders. The claimants unsuccessfully applied for judicial review of the inspector's decisions. Their appeals to the Court of Appeal were dismissed, and they subsequently appealed to the House of Lords. The issue arose as to the nature of the evidence that would be sufficient to demonstrate there was no intention to dedicate.

The appeals would be allowed.

(1) On the true construction of section 31(1) of the Act “intention” meant what the relevant audience, namely the users of the way, would reasonably have understood the landowner's intention to be. The intention had to be communicated contemporaneously to members of the public using the way. The test was objective: not what the owner subjectively intended nor what particular users of the way subjectively assumed, but whether a reasonable user would have understood that the owner was intending to disabuse him of the notion that the way was a public highway.

Section 31(1) did not require the tribunal of fact simply to be satisfied that there was no intention to dedicate but required “sufficient evidence” that there was no such intention. In other words, the evidence had to be inconsistent with an intention to dedicate. That contemplated evidence of objective acts, existing and perceptible outside the landowner's consciousness, rather than simply proof of a state of mind. Once that element of objectivity was introduced it was an easy step to say that, in the context, the objective acts had to be perceptible by the relevant audience. Further, such a construction was supported by reading section 31 as a whole. Fairey v Southampton County Council [1956] 2 All ER 843 and Secretary of State for the Environment v Beresford Trustees [1996] NPC 128 applied.

(2) On its true construction the phrase “during that period” in section 31(1) meant “at some point during that period”. Both decisions would be quashed and the cases remitted to the Secretary of State. Decision of Court of Appeal [2006] All ER 960 reversed.

Case annotations in other services: R (on the application of Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs R (on the application of Drain) v Secretary of State for the Environment, Food and Rural Affairs [2007] UKHL 28; Fairey v Southampton County Council [1956] 2 All ER 843; Secretary of State for the Environment v Beresford Trustees [1996] NPC 128

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4. Leicestershire County Council v Secretary of State for Communities and local government and another

Citation: [2007] All ER (D) 264 (June)
Hearing date: 18 June 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Burton J
Relevant legislation: Town and Country Planning Act 1990 section 288
Summary: town and country planning – permission for development – refusal

The interested party submitted an application for planning permission for opencast coal mining on a green field site. The claimant mineral planning authority refused the application on the ground that the presumption against development set out in paragraph 8 of the Mineral Planning Guidance Note 3 had not been rebutted on the evidence. The authority pointed to the cumulative environmental impact (which comprised noise, dust, vehicle movement, landscape loss and visual amenity), which would be caused to those that lived, worked or pursued leisure activities in the area. It emphasised that those impacts would not be outweighed by the proposal's benefits, nor would they be overridden by the need for the development. The application was therefore refused. The interested party subsequently appealed to the defendant Secretary of State. An inspector appointed by the Secretary of State conducted an inquiry into the matter. The inspector revisited the authority's reasoning for refusing the application, but recommended, pursuant to the advice contained in Mineral Planning Statement 2 (which was issued after the authority had refused the application, but before the inquiry had taken place), and of which called for an objective assessment of all the relevant impacts; that any adverse impact that might be caused could be mitigated by the imposition of planning conditions. The Secretary of State agreed with the inspector, and granted conditional planning permission to the interested party. The authority challenged that decision under section 288 of the Town and Country Planning Act 1990. The authority submitted that the inspector had applied the wrong approach in reaching its decision to grant conditional planning permission.

It argued that the correct approach should have been for the inspector to have had acknowledged that although the appeal by the interested party constituted a rehearing (or a “fresh look”), the fact that permission had originally been refused on the ground of unacceptable environmental effects, that that was a material consideration which should have been weighed into the balance. In addition, the authority argued that the inspector should have had recognised that that material consideration constituted a rebuttable presumption, and lastly, if the inspector had recognised that fact, and believed that the presumption was rebutted, the inspector had failed to give clear and adequate reasons as to why the presumption had been rebutted and why the authority's assessment should not have prevailed.

The application would be dismissed.

In the circumstances, it was plain, first, that the inspector had not simply given a “fresh look” to the matter, secondly, that she had not ignored the conclusions of the authority, and thirdly, that she had recognised that there was a presumption against mining development. Further, given her application of the new planning statement, which had not been available before the authority when it had made its decision, the inspector could not be criticised for any failure to provide clear and adequate reasons. Accordingly, the Secretary of State's decision would stand.

Save Britain's Heritage v Secretary of State for the Environment and others [1991] 2 All ER 10, South Buckinghamshire District Council v Porter and another [2002] LGR 443 and Dunster Properties Ltd v First Secretary of State and another [2007] All ER (D) 366 (Feb) considered.

Case annotations in other services: Leicestershire County Council v Secretary of State for Communities and Local Government and another [2007] EWHC 1427 (Admin); Save Britain's Heritage v Secretary of State for the Environment and others [1991] 2 All ER 10, South Buckinghamshire District Council v Porter and another [2002] LGR 443; Dunster Properties Ltd v First Secretary of State and another [2007] All ER (D) 366 (February)

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5. City Inn (Jersey) Ltd v Ten Trinity Square Ltd

Citation: [2007] All ER (D) 164 (June)
Hearing date: 15 June 2007
Court: Chancery Division
Judge: Alan Steinfeld QC sitting as a deputy judge of the High Court
Summary: landlord and tenant – restrictive covenant – covenant benefiting demised land

By a transfer dated 8 May 1962 (the transfer), the Port of London Authority (PLA) transferred some land to a company. The transfer contained a covenant in the following terms: “The transferee for itself and its successors in title covenants with the Transferor and its successors in title […] to the intent that the burden of the covenant may run with the land and bind the land hereby transferred and every part thereof to observe and perform the covenants and stipulations set forth in the Third Schedule hereto”. The Third Schedule to the transfer stipulated, in paragraph 1 that the transferee was not allowed to erect or make external alteration or addition to any building or other erection of any sort upon the land hereby transferred or any part thereof without obtaining written approval to the detailed plans and elevations from the “Estate Officer for the time being of the Transferor”. Paragraph 2 of the Third Schedule stipulated that change of use of the land could not be undertaken without obtaining the written consent of “the Transferor”. Subsequent to the transfer, the land was developed to form a building known as MH, which was later acquired by the claimant company. The defendant company later acquired the neighbouring property which had been the former head office of the PLA. Thereafter, the claimant secured a resolution from the City Corporation to grant detailed planning permission for the demolition of MH and the construction of a hotel on the site. The PLA also gave consent to the works involved in that exercise. The defendant denied the validity of the consent obtained by the claimant, arguing that the reference to “the Transferor” in each of those paragraphs in the Third Schedule was intended as a reference to the successor in title of the PLA at the time of the application for consent, in the instant case, being the defendant itself, with the result that the claimant required the defendant's consent as well. Consequently, the claimant issued proceedings, seeking a declaration that upon the true interpretation of the covenant, the defendant had no right to insist that the proposed works were subject to its consent.

The application would be allowed.
On the true construction of the transfer, the term “the Transferor” meant what the transfer said it was to mean, namely, the PLA, and it alone. Accordingly, the declaration would be granted in the terms sought in the claim form. Mahon v Sims [2005] All ER (D) 169 (June) distinguished. Howard Pryor v Christopher Wren Ltd (unreported, 24 October 1995) and Crest Nicholson Residential (South) Ltd v McAllister [2003] 1 All ER 46 considered.

Case annotations in other services: City Inn (Jersey) Ltd v Ten Trinity Square Ltd [2007] All ER (D) 164 (June); Mahon v Sims [2005] All ER (D) 169 (June); Howard Pryor v Christopher Wren Ltd (unreported, 24 October 1995); Crest Nicholson Residential (South) Ltd v McAllister [2003] 1 All ER 46 

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6. R (on the application of Heffernan) v Rent Service

Citation: [2007] All ER (D) 111 (June)
Hearing date: 13 June 2007
Court: Court of Appeal, Civil Division
Judges: Pill, Rix and Longmore LJJ
Summary: social security – housing benefit – assessment

On an appeal against a decision on an application for judicial review by which the judge quashed housing benefit redeterminations made by the defendant relating to premises of which the claimant was the assured tenant, the issue arose as to the meaning of the word “locality” in part 1 of schedule 1 to the Rent Officers (Housing Benefit Functions) Order 1997, as amended, in determining a local reference rent (LRR). In two circulars issued by the defendant in June and December 2001, “locality” was defined as “Meaning a broad geographical area comprising a number of neighbourhoods with a mix of property types and tenure, where a tenant could, as an alternative to the dwelling in question, reasonably be expected to live and benefit from similar amenities.”

The December circular also provided: “This again confirms existing practice and continues to mean that a locality is made up of a number of rental markets; a locality has got to be at least as large as two adjoining neighbourhoods, and will usually be more; 'two or more' is not a limiting or arithmetic factor- it is purely a direction to use more than one neighbourhood. For example, a locality, which is made up of a city and its immediate area, could easily comprise 20 to 30 neighbourhoods.”

The appeal would be allowed.

The defendant was entitled to define the relevant locality as it had. While reasonably compact, the locality was, in terms of population, undoubtedly large but, having regard to the assessment made on the redetermination in the instant case, it was not too large to enable rent officers to perform, in accordance with the wording and intention of the statutory scheme, their duty to determine LRR. The use of the word “locality” contemplated a broader geographical area, especially now that the hierarchy of “vicinity”, “neighbourhood”, “locality” appeared in the Order. The requirement for “two or more neighbourhoods”, and for a variety of types of premises and a variety of tenancies, imposed a minimum requirement in terms of size and variety but did not suggest a maximum. The reasonable expectation in paragraph 4(6)(b) was related to accessibility to services and facilities, including by means of public and private transport, and did not favour a narrow geographical restriction. While no maximum was expressed, having regard to an obvious parliamentary intention to create a workable and manageable scheme for assessing LRR, an area might be too large to constitute a locality within the meaning of the Order.

The definition in the circulars broadly reflected the statutory intention, and paragraph 4(6) should be construed accordingly. The concept of constraining localities to areas in which services and facilities were of a similar quality would have the effect of segregating, for the purposes of assessing housing benefit, the more deprived from the more prosperous areas. That did not appear to be within the purposes of the statute. It would put a premium on tenants going to more prosperous areas where higher housing benefit would be paid, and that was unlikely to have been Parliament's intention. A variety of types was contemplated within a locality. In context, the use of the word “standard” for educational and medical services could be construed as meaning services which met the requirements of the law and the appropriate public authorities.

As to shopping, for example, comparisons between a city centre and a suburb were meaningless, for present purposes, though the possibility of access to city centre facilities could be a factor in determining boundaries. Moreover, city centre, small town, suburban and rural areas were obviously different from each other and a blueprint for assessment in all parts of the jurisdiction was inappropriate and, indeed, impossible.

R (on the application of Sadaat) v Rent Service [2001] All ER (D) 383 (October) considered. Decision of Judge Gilbart QC [2006] All ER (D) 117 (October) reversed.

Case annotations in other services: R (on the application of Heffernan) v Rent Service [2006] All ER (D) 117 (October); R (on the application of Sadaat) v Rent Service [2001] All ER (D) 383 (October)

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7. Aribisala v St James Homes (Grosvenor Dock) Ltd

Citation: [2007] All ER (D) 101 (June)
Hearing date: 12 June 2007
Court: Chancery Division
Judge: Alan Steinfeld QC sitting as a deputy judge of the High Court
Relevant legislation: Law of Property Act 1925, section 49(2)
Summary: sale of land – deposit – forfeiture

The claimant purchaser entered into two identical contracts for the sale of two leasehold properties with the defendant vendor. Clause 1.2 of the contract purported to exclude section 49(2) of the Law of Property Act 1925. In accordance with the contract, the claimant paid a deposit. The claimant did not complete the sale by the date specified in the contract. The defendant gave notice to the claimant to complete within ten days, but the claimant did not do so. The defendant elected to rescind the contract and forfeit the claimant's deposit. The claimant brought an action against the defendant seeking, inter alia, a return of the deposit under section 49(2) of the Act. The defendant applied for summary judgment on the ground that the claim had no real prospect of success. The defendant submitted, inter alia, that the claimant's claim for a refund of his deposit under section 49(2) was bound to fail because clause 1.2 of the contract had excluded that provision. The issue arose as to whether it was open to parties of a contract for sale of land to agree to exclude section 49(2) of the Act.

The application would be dismissed.

It was not possible for parties to agree between themselves to exclude the courts' jurisdiction under section 49(2) of the Act. Section 49(2) did not confer a right or benefit upon parties. What it did was to confer jurisdiction upon the courts to exercise its discretion in favour of a purchaser. A provision in a contract which purported to exclude section 49(2) was a provision which purported to oust the jurisdiction of the courts and was on grounds of public policy void. In the instant case, it was not possible to say that claimant's application for relief under section 49(2) of the Act had no realistic prospect of success. Clause 1.2 of the contract was ineffective for excluding the claimant's right apply for relief under section 49(2). Schindler v Pigault (1975) 30 P & CR 328, Universal Corporation v Five Ways Properties Ltd [1979] 1 All ER 552, Maktoum v South Lodge flats Ltd (1980) The Times, 22 April, Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd [1997] 1 All ER 254 and Swain v Hillman [2001] 1 All ER 91 considered.

Case annotations in other services: Aribisala v St James Homes (Grosvenor Dock) Ltd [2007] All ER (D) 101 (June); Schindler v Pigault (1975) 30 P & CR 328; Universal Corporation v Five Ways Properties Ltd [1979] 1 All ER 552; Maktoum v South Lodge flats Ltd (1980) The Times, 22 April; Country and Metropolitan Homes Surrey Ltd v Topclaim Ltd [1997] 1 All ER 254; Swain v Hillman [2001] 1 All ER 91

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8. First Mortgage Securities Ltd v Smith

Citation: [2007] All ER (D) 100 (June)
Hearing date: 12 June 2007
Court: Court of Appeal, Civil Division
Judges: Mummery and Arden LJJ
Summary: mortgage – order for possession of mortgaged property – counterclaim

The claimant company had been granted two mortgages over the defendant's property in respect of loans made to him. It subsequently obtained a possession order on the basis of alleged arrears, the execution of which was suspended on conditions which included the defendant paying those alleged arrears. A few years later, the arrears had not been paid and the claimant obtained a warrant for possession of the property. The defendant did not appeal against either the possession order or the warrant. Thereafter, the claimant, as mortgagee in possession, sold the property to R. Following that sale, it was alleged that an amount of arrears remained outstanding. The claimant brought an action seeking payment of that amount. The defendant obtained expert reports which indicated that there had been errors in the claimant's calculations in respect of the mortgage loans.

By his defence, he contested the action and counterclaimed seeking a sum in damages and to set aside the order for possession. During that period R had sold the property to, inter alia, B. They were later joined as the part 20 defendants. Thereafter the claimant was struck off the Register of Companies. Although it was later restored to the Register by court order, it took no active part in the proceedings. The defendant sought summary judgment or judgment in default against the claimant. The part 20 defendants sought summary judgment in respect of the defendant's claim to set aside the possession order. The judge granted the part 20 defendants summary judgments in respect of the defendant's claim to set aside the possession order, on the basis, inter alia, that the part 20 defendants had obtained good title to the property. He refused to rule on the defendant's application for summary judgment or judgment in default, on the basis that the claimant company had no money, and that the defendant should join the claimant's directors to the proceedings. The defendant appealed against the judge's refusal to give him summary judgment or judgment in default against the claimant. In the course of argument, the defendant sought to reopen the issue of the whether the possession order should be set aside. He also informed the court that he had recently discovered that the claimant had engaged B bank and a company, MSL, to carry out the mortgage calculations, and that the defendants intended to commence negligence proceedings against those parties, as well as to rely on the money claims against the claimant.

The appeal would be dismissed.

It had been necessary for the judge below to deal with the application for summary judgment and default judgment against the claimant. Non-joinder of the directors had not been a good ground for declining to rule on the application for summary judgment. A judgment on the money claims against the claimant might be useful in any negligence claims against the bank and the MSL. The matter would be remitted back to the High Court. The defendant could not, however, re-open the issue of whether the possession order should be set aside. At most, he could seek a decision on the money claims, or perhaps a declaration that but for the sales to third parties after the possession order, the possession order would have been set aside. Nothing in those proceedings, or in the instant judgment, cast any doubt on the title of the part 20 defendants. Decision of Park J [2005] All ER (D) 361 (June) reversed in part.

Case annotations in other services: First Mortgage Securities Ltd v Smith [2005] All ER (D) 361 (June)

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9. Johnson v Secretary of State for Communities and Local Government and others

Citation: [2007] All ER (D) 58 (June)
Hearing date: 8 June 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Ouseley J
Relevant legislation: Town and Country Planning Act 1990, section 79(1); 288
Summary: town and country planning – permission for development – planning inspector making split decision

The claimant applied for planning permission to redevelop a site which comprised two separate buildings: a large building that accommodated two dwellings, and a detached double garage. He wanted permission to convert the large building to one detached dwelling with an integral garage and to extend the existing double garage to create a separate detached dwelling. The local planning authority had no objection to the conversion and alterations of the existing large building, but objected to the new dwelling being built as an extension to the double garage. However, permission was refused for the entire application. The claimant appealed against the refusal of the permission to the Secretary of State, who appointed an inspector to hear and determine the appeal. The inspector upheld the local planning authority's objections but agreed that there could be no objection to the conversion of the large building. He found that the two parts of the proposal were severable and gave a split decision under section 79(1) of the Town and Country Planning Act 1990. The inspector dismissed the claimant's appeal in relation to the creation of a new detached dwelling on the basis that the proposed new house would not be an appropriate addition to the existing pattern and form of the development and that it would harm the character and appearance of the area; however, allowed the appeal insofar as it related to the alterations and extensions of the existing large building. The claimant challenged that decision under section 288 of the 1990 Act.

He submitted, inter alia, that it was unlawful for the inspector to grant permission for part of the development and refuse permission for another part. Moreover, he submitted that he wanted the planning permission that had been granted to be quashed as that permission was not capable of being implemented as intended because of a difference in proposed and existing levels, which could only be overcome by further planning permission.

The application would be dismissed.

(1) In the circumstances, no level plans had been produced and none of the written material produced by the claimant or the local planning authority had referred to the levels as being the reason why planning permission for the conversion of the large house and for the creation of a new dwelling house had to be granted together. There had been nothing that would have alerted the inspector to a levels problem resulting from the split decision. It had been incumbent on the claimant to raise the fact that there could have been a problem. In the instant case, the inspector had had no reason to suppose that permission for the conversion of the large building could not be implemented, and there was accordingly no reason why a split decision could not be made.

(2) The context in which the claimant had applied for the planning permission had not been significantly different to what the inspector had contemplated so as to lead to the conclusion that the permission had to be quashed; the precise permission that had been sought had in a very real sense been granted. The fact that the planning permission had not been what the claimant had intended did not mean that the planning permission had to be quashed.

Kent County Council v Secretary of State for the Environment and Burmah Total Refineries Trust [1976] 33 P & CR 70, Bernard Wheatcroft Ltd v Secretary of State for the Environment and another [1981] 1 EGLR 139, Care Link and Trustees of the Formby Settlement v Secretary of State for the Environment [1989] 2 PLR 47 considered.

Case annotations in other services: Kent County Council v Secretary of State for the Environment and Burmah Total Refineries Trust [1976] 33 P & CR 70; Bernard Wheatcroft Ltd v Secretary of State for the Environment and another [1981] 1 EGLR 139; Care Link and Trustees of the Formby Settlement v Secretary of State for the Environment [1989] 2 PLR 47

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10. Berkeley Community Villages Ltd and another v Pullen and others

Citation: [2007] All ER (D) 36 (June)
Hearing date: 7 June 2007
Court: Chancery Division
Judge: Morgan J
Summary: land – development – agreement for development

The defendants were the freeholders of a farm. By an agreement dated 12 December 2003, the defendants agreed with the first claimant that the first claimant would use its property development expertise to maximise the potential of a substantial part of the defendants' land for development, in return for which the first claimant would receive a fee in certain specified circumstances. The third schedule contained the obligations of the parties. Paragraph 2 referred to the defendants co-operating and using all reasonable endeavours to promote the property for development through the planning process in order to achieve the consent. Paragraph 7 referred to the defendants rendering all reasonable assistance necessary to the first claimant in connection with the first claimant's efforts to obtain a consent, and paragraph 8 referred to the defendants not doing anything in relation to the land which might directly prejudice the first claimant achieving the consent. Paragraph 33 imposed on the parties an obligation to act with the utmost good faith towards one another. The first claimant was very active in carrying out its side of the agreement and the prospects of the land obtaining a planning consent of considerable value had been enhanced by the first claimant's efforts. Thereafter, the defendants wished to sell their land, which was the subject of the agreement, to a third party. The claimants commenced proceedings to prevent the defendants from selling the land. The particulars of claim sought, inter alia: (i) a declaration that the defendants were not entitled to sell or otherwise dispose of any interest in the land the subject of the agreement or any part thereof before the earlier of the grant of consent or a specified date. The defendants counterclaimed seeking a declaration that there was no express or implied or other restriction upon their entitlement to sell or otherwise dispose of their interest in the land subject to the agreement prior to the grant of planning consent for development. The first claimant submitted, inter alia, that: (i) it was self evident that if the defendants sold the land at the time they proposed to do so they would necessarily break their obligations in paragraphs 2, 7 and 8, and (ii) the obligation imposed on the parties in paragraph 33 of the third schedule required the defendants to be faithful to the agreed common purpose of promoting the land for development purposes and was consistent with the justified expectations of the first claimant as to its ability to promote the land, and if successful, to receive a fee.

The court ruled:

Pursuant to the terms of the agreement, the prospects of the first claimant and the defendants obtaining a consent as defined in the agreement would be impaired if the defendants were not in a position to enter into an arrangement with adjoining land owners (a collaborative arrangement). If the defendants sold the land they would cease to be owners of the land and would not be able to enter into a collaborative arrangement as land owner. In those circumstances, the intended sale by the defendants would place them in breach of paragraphs 2, 7 and 8 of the third schedule to the agreement. A sale of the kind envisaged by the defendants would also break the obligation of good faith in paragraph 33 of the third schedule. It did not observe reasonable commercial standards of fair dealing, nor did it observe faithfulness to the agreed common purpose. It was not consistent with the justified expectations of the first claimant.

Case annotations in other services: Berkeley Community Villages Ltd and another v Pullen and others [2007] EWHC 1330 (Ch) 

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