Back to e-alerts                                                                               Download PDF [PDF 116KB]

Issue 46 – September 2007

Contents

Cases
Statutory Instruments
Features
Articles
News
Events
Discounts (how to book and claim discounts)
Back to top

Cases

1. R (on the application of Powell and others) v Secretary of State for Communities and Local Government and another

Citation: [2007] All ER (D) 137 (August)
Hearing date: 22 August 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Sullivan J
Relevant legislation: Town & Country Planning Act 1990 section 226(1)(a); Land Acquisitions Act 1981 section 23
Summary: compulsory purchase – compulsory purchase order – application to quash order

The claimants were various freeholders. The local authority planned to carry out redevelopment to the relevant area and sought a compulsory purchase order in respect of land owned by the claimants. The authority delegated its power to make the compulsory purchase order to its cabinet. Thereafter, a compulsory purchase order was made under section 226(1)(a) of the Town & Country Planning Act 1990. Objections were made to the order, and an inspector was appointed to hold a local public inquiry. He recommended to the Secretary of State that the order be confirmed in the same terms. The Secretary of State confirmed the order.

The claimants applied to quash the decision, pursuant to section 23 of the Land Acquisitions Act 1981. The claimants submitted, inter alia, that the decision to confirm the compulsory purchase order was void in law because the cabinet of the local authority did not have the jurisdiction to make the order. It was further submitted that the Secretary of State in confirming the order failed to have regard to its housing policies.

The application would be dismissed.

In the instant case, the local authority undoubtedly had the power to delegate its powers of decision making to the cabinet, and the cabinet clearly had the delegated authority to make a compulsory purchase order. Furthermore, the submission that the Secretary of State had failed to take into account its own housing policies without finding, having been reason to suppose that the Secretary of State had failed to have regard to its policies.

In reality, the complaint appeared to be a challenge to the rationality of the Secretary of State's policies. It was an impossible point to argue that the policy itself was irrational. In those circumstances, there had been no legal or procedural defects in the confirmation of the compulsory purchase order.

Case annotations in other services: R (on the application of Powell & others) v Secretary of State for Communities and Local Government & another [2007] All ER (D) 137 (August)
Back to top

2. Harrison v George

Citation: [2007] All ER (D) 117 (August)
Hearing date: 20 August 2007
Court: Chancery Division
Judge: Warren J
Relevant legislation: Taxation of Chargeable Gains Act 1992 section 62; Inheritance Tax Act 1984 section 142
Summary: deed – construction – construction as valid rather than invalid – deed of variation

The testator and the defendant, his wife, purchased a property in 1972. Following the testator's death in January 2003, he left a will that provided that the defendant inherited his estate absolutely. The claimant, a solicitor who had been contacted by the defendant's son, drew up a deed of variation to take advantage of section 142 of the Inheritance Tax Act 1984 and section 62 of the Taxation of Chargeable Gains Act 1992 to minimise the amount of tax paid by the defendant. The deed was effected despite the fact that no inheritance tax would have been payable. The deed purported to deem that immediately prior to the execution of the will the testator and defendant's joint tenancy in equity had been severed, and the testator and defendant had become beneficial tenants in common with the interest in the property divided nine-tenths, one-tenth respectively. Issues concerning the validity and effect of the deed of variation arose. The defendant contended that she had failed to appreciate the effect of the deed and had never intended to divest herself of her half-share in the property. It was argued on her behalf that the effect of the deed was to simply sever the joint tenancy in equity, leaving her with an equal share of the property.

The court ruled: on the true construction of the deed, it was deemed that immediately prior to the execution of the testator's will, the joint tenancy in equity in respect of the property in issue was severed. At the material time, the testator and the defendant were beneficial tenants in common with an equal share in the property. Any contention that the beneficial interest in the property was divided nine-tenths to one-tenth was based on an erroneous understanding of the effect of the deed.

Case annotations in other services: Harrison v George [2007] All ER (D) 117 (August) 
Back to top

3. Staffordshire County Council v Challinor & another

Citation: [2007] EWCA Civ 864
Hearing date: 17 August 2007
Court: Court of Appeal, Civil Division
Judges: Rix, Keene and Hughes LJJ
Relevant legislation: Town & Country Planning Act 1990, sections 191, 285(1)
Summary: town and country planning – enforcement notice – non-compliance

The defendants' father owned an area of land that was in agricultural use. When he died, the defendants became the executors of his estate. In 1985, the county local authority served an enforcement notice requiring, inter alia, the cessation of importation of waste material to the site. However, in 1994, the borough local authority issued a certificate of lawful use (CLU) under section 191 of the Town and Country Planning Act 1990, which certified as lawful the use of the land for, inter alia, the storage, distribution and general trading of materials recovered from demolition and construction sites for recycling, such storage materials of materials not exceeding four metres in height. The borough local authority subsequently wrote to the first defendant pointing out that waste disposal, including recycling, was a planning function of the county local authority and that the borough local authority had no power to grant a CLU for a waste process.

In 1997, the county local authority issued another enforcement notice, stating that there had been a breach of planning control by a change of use to use as “a waste transfer station”. It required the cessation of the importation of all waste onto the land, and the cessation of the handling, sorting, screening, storage, treatment and disposal of waste materials and soils. The first defendant appealed against the notice to the Secretary of State, who appointed a planning inspector to determine the appeal. The first defendant did not, however, rely on the CLU. He only relied on one ground of appeal, namely, that there had been no change of use to a waste transfer station. While the inspector was not convinced that the term “waste transfer station” was a misnomer, he thought it better to correct the wording of the notice. Subject to that amendment, he dismissed the appeal. He did, however, consider the CLU as part of the site's planning history. He commented on the absence of any evidence to suggest that the certified use was still ongoing when the enforcement notice was issued. He found that the CLU only related to materials already recovered from waste, and not to the sorting, treatment or processing of waste materials, and there was, therefore, no need to vary the requirements of the notice to make a saving in that respect. No further appeal was brought against the inspector's decision.

The county local authority brought civil proceedings seeking an injunction against the first defendant to restrain further breaches of the enforcement notice. It also brought proceedings against both defendants seeking to recover expenses of direct action it had taken to remove waste materials from the land. The judge held that the prohibition in section 285(1) of the 1990 Act on challenging an enforcement notice that was in force did not suffice to override the conclusive nature of the CLU. She found that any operations carried out in the area affected by the CLU and that fell within the scope of the activity permitted by the CLU were not in breach of the enforcement. She adopted a wider interpretation of the scope of the CLU than that adopted by the planning inspector. She concluded that the first defendant was entitled to bring onto the CLU area any material obtained from demolition and construction sites. She held that the county local authority could not recover its costs of the direct action because it could not distinguish between the costs it had incurred in respect of its direct action found by her to be related to breaches of the enforcement notice and those costs incurred in doing work that fell outside the enforcement notice because of the CLU. She refused to grant a permanent injunction, since she found on the basis of her findings on the CLU that the first defendant had only been in breach of the enforcement notice twice since the direct action. The county local authority appealed.

It submitted, inter alia, that it was well established that if existing use rights were not relied on as a ground of appeal to the Secretary of State against an enforcement notice, they could not subsequently be invoked in proceedings for, inter alia, an injunction sought in support of an enforcement notice, pursuant to section 285(1) of the 1990 Act. The first defendant submitted, inter alia, that section 285(1) did not apply when one had a CLU in existence. He argued that enforcement notice could not take away legally permitted rights.

The appeal would be allowed.

It was an oversimplification and a misinterpretation of the authorities to contend that an enforcement notice could not take away lawful use rights. It had long been established that such lawful rights would be lost if an enforcement notice was served and the rights were not then raised as a ground of appeal. That was the result of section 285(1) of the 1990 Act. Such rights had to be asserted at the time of appeal against the enforcement notice. If the landowner slept on those rights, he would lose them. The position was no different when existing use rights had been certified in a CLU.

There was a sound practical reason for that, in that any other course would require the courts, including magistrates' courts, to delve into the planning history of a site and into the use made of it over a number of years. On the face of it, one would not expect the existence of a CLU to make any difference to the effect of section 285(1). The use in question was “lawful” at a particular time, whether a CLU existed or not. Such a certificate might have had the practical effect of reducing the amount of investigation into the past use of the land required of a court in subsequent proceedings. However, a CLU only certified that the use in question was lawful on the specified land at a particular point in time, namely the date of the application for the CLU. The conclusiveness of the presumption on section 191(6) related only to the lawfulness of the use at that date. It would not always be an answer to a subsequent enforcement notice, even if it was raised on appeal, because the use might not have continued until the date of the issue of the notice. It followed that the purpose of section 285(1), namely to resolve issues such as existing use rights as part of the process of appeal to the Secretary of State, could still be undermined if a CLU could be relied on at a later stage.

In the instant case, the judge had erred in regarding the activities covered by the CLU as exempt from the 1997 enforcement notice. The enforcement notice would prevail if there were any conflict between the two. Furthermore, in upholding the enforcement notice, the inspector had had to construe the CLU. He had expressly declined to vary the notice because he saw no conflict, and that decision was not now open to challenge in the courts because the only statutory avenue had not been followed. In the circumstances, a permanent injunction against the first defendant appeared to be necessary if his compliance with the enforcement notice was to be secured, and it was in the public interest that such compliance should be secured. The defendants would also be liable for the expenses of the local authority's direct action to remove the waste materials from the land.

Vale of the White Horse District Council v Parker [1997] JPL 660 and North West Estates plc v Buckinghamshire County Council [2003] All ER (D) 304 (May) applied. Mansi v Elstree RDC (1964) 62 LGR 172, R v Harfield [1993] 2 PLR 23 and Duguid v Secretary of State for the Environment [2000] 4 PLR 107 considered.

Case annotations in other services: Staffordshire County Council v Challinor & another
[2007] All ER (D) 103 (August); Vale of the White Horse District Council v Parker [1997] JPL 660 and North West Estates plc v Buckinghamshire County Council [2003] All ER (D) 304 (May) applied. Mansi v Elstree RDC (1964) 62 LGR 172, R v Harfield [1993] 2 PLR 23; Duguid v Secretary of State for the Environment [2000] 4 PLR 107
Back to top

4. Turner v Secretary of State & another

Citation: [2007] All ER (D) 84 (August)
Hearing date: 14 August 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Ouseley J
Relevant legislation: Housing Act 1981, section 17; Acquisition of Land Act 1981 section 23
Summary: compulsory acquisition of land – compulsory purchase order – land acquired by local authority

The applicant was the son of the freehold owner of the property in question. The freeholder had suffered from illnesses, which had made him unable to live or manage the property. In that regard, a receiver was appointed to manage the property. The applicant alleged that he had resided in the property and carried out various repair and maintenance works to the property. The local authority alleged that they had corresponded with the applicant on numerous occasions asking him to carry out voluntary repair works to the property. They alleged that the applicant had not carried out those repair works and that the property was inhabitable. In that vein they sought to obtain a compulsory purchase order (CPO) under section 17(1)(b) of the Housing Act 1985. By a decision of the first defendant Secretary of State's inspector, a CPO was recommended to be confirmed. The inspector had found that there was a great deal of work to be done to the property, and that, due to the limited amount of resources, voluntary action on the part of the applicant was not practicable. He remarked in particular that he had considerable doubt that the applicant could fund the work to the property, and that the property would provide a quantitative and qualitative gain to the community. The Secretary of State accepted the inspector's recommendation and confirmed the order. The claimant appealed under section 23 of the Acquisition of Land Act 1981.

The court ruled: in the instant case, the inspector had the opportunity to hear the evidence as to the state of the property and the opportunity to make a conclusion. Furthermore, there had been no legal basis for a challenge to the decision of the Secretary of State, where much of what the applicant sought to base his challenge on had been subsequent endeavours to bring the property to the appropriate conditions. Those endeavours could not create a basis of an error of law by the Secretary of State. An error of law in the instant case would be if the Secretary of State had confirmed an order out of its powers or if it had failed in a substantial procedure. Such errors had not occurred. In all the circumstances, it had not been appropriate to quash the decision of the Secretary of State, and the application would accordingly be dismissed.

Case annotations in other services: Turner v Secretary of State and another [2007] All ER (D) 84 (August)
Back to top

5. Commissioners for HM Revenue and Customs v Tallington Lakes Ltd

Citation: [2007] EWHC 1955 (Ch)
Hearing date: 10 August 2007
Court: Chancery Division
Judge: Richards J
Relevant legislation: Value Added Tax Act 1994, schedule 9, group 1; Town & Country Planning Act 1990, section 171B
Summary: value added tax – exempt supply – land

The taxpayer company operated a leisure company that granted licences to owners of static caravans to occupy concrete pitches. In July 2004, the taxpayer made a voluntary disclosure for a repayment of VAT amounting to £128,613, paid in respect of pitches rents for the period 1 January to 31 December, 2003, and an assessment to tax of £16,083 and interest for the period 2003 to 2004. The basis for the voluntary disclosure was that the taxpayer considered that the nature of the supply of the caravan pitches was an exempt supply of land and, therefore, that no VAT was payable in respect of the pitch rents. Proceedings came before the VAT & Duties Tribunal in which the Revenue contended that the pitch supplied by the taxpayer fell within the definition of seasonal pitches under group 1 of schedule 9 to the Value Added Tax Act 1994 because of both clause 7 (see [13]) of the terms and conditions on which they were supplied and because of the terms of relevant planning permissions. Both of those provisions prevented occupation by living in the caravans or mobile homes on the pitches for the whole of February each year. The tribunal held that the planning condition was not enforceable on the basis that the enforcement action was subject to a four-year limitation period pursuant to section 171B of the Town & Country Planning Act 1990. It further held that clause 7 was dependant on the existence of an enforceable planning condition, by reason of the words, “In accordance with the planning permission”. It therefore held that, as the planning condition had ceased to be enforceable, clause 7 was not enforceable. The tribunal also held that in respect of clause 7 the repeated renewals of pitch licences without any enforcement by the taxpayer of the February restriction over many years meant that the February restriction had, as a result of the parties conduct, ceased to apply by the time of the renewals in the relevant period. The tribunal found that, accordingly, the licensees had not been prevented by either the planning condition or clause 7 from occupying the pitches throughout the year. The tribunal concluded that the supplies of caravan pitches were, for VAT purposes, exempt supplies of land and not standard-rated supplies of seasonal pitches for caravans. The Revenue appealed against that decision. The issue arose as to whether or not the February restriction would have been enforceable during the year of a licence or whether some estoppel might have prevented its enforcement.

The appeal would be allowed.

(1) In the instant case, breach of the planning condition, which prohibited occupation during February in any year, did not fall with section 171B(1) or (2) of the 1990 Act and was, therefore, subject to the 10-year period specified in section 171B(3). It followed that, during the period relevant to the instant case, the planning condition had remained enforceable as concerned those areas of the site to which it applied. It also followed that the tribunal's conclusion that clause 7 was not enforceable because planning condition was not enforceable could not stand.

(2) Changes to standard terms and conditions could be inferred from a course of conduct by the parties. Essentially the court had to identify the parties' common intention and, when the only reasonable inference from their conduct was an unspoken decision or assumption that a particular term should not apply, the term would not form part of the contract. It would not, however, be a reasonable inference if the deletion of the clause would be prejudicial to one party, and their prior conduct had been explained on some other basis.

In the instant case, it would have been highly prejudicial to the taxpayer to lose the benefit of the February restriction in clause 7, while still being subject to the planning condition. Accordingly, both the contractual and planning restrictions on occupation during February had applied during the relevant period, with the result that the taxpayer had been providing “seasonal pitches”. VAT had therefore been chargeable on the grant of the pitch licences and the tribunal's decision could not stand.

Colaingrove Ltd v Customs & Excise Commissioners [2004] STC 712 and North Devon District Council v First Secretary of State [2004] EWHC 578 (Admin) applied.

Case annotations in other services: The Commissioners for HM Revenue & Customs v Tallington Lakes Ltd [2007] All ER (D) 64 (August); Colaingrove Ltd v Customs & Excise Commissioners [2004] STC 712 and North Devon District Council v First Secretary of State [2004] EWHC 578 (Admin)
Back to top

6. Parti v Al-Nassir Al Sabah & others

Citation: [2007] EWHC 1869 (Ch)
Hearing date: 31 July 2007
Court: Chancery Division
Judge: Peter Smith J
Summary: practice – summary judgment – specific performance

The first and second defendants were sisters and members of the ruling family of Kuwait, resident in Kuwait. They inherited a property (the property) from their mother who died in November 2005. She had owned the house for many years, but it had been unoccupied except by a caretaker for more than 10 years. It appeared to be in a dilapidated state. The third defendant was some sort of protégée of the sisters' family. The first and second defendants arranged for the third defendant to sell the property through an agent for the best price and that he should get a valuation. For that purpose, he was given power of attorney to act in the sale on 3 December 2005. On 5 December, the third defendant sent the first defendant a fax of a letter signed by the claimant offering to pay £1.6 million for the property, subject to contract. On the belief that £1.6 million was a fair reflection of the true value of the property, the first defendant agreed that he should proceed with the sale. Consequently, the third defendant signed the agreement on 9 December. The third defendant instructed H, a solicitor, to act in the sale to the claimant. H served a completion notice on 13 April 2006. However, following discussions with the third defendant, H made enquiries and discovered that nearby properties had been sold for substantially more than the sale price in the agreement. On learning of H's concerns, the first defendant refused to execute new powers of attorney, and H returned the claimant's deposit. When the first and second defendants refused to comply with the claimant's new completion date of 12 May 2006, the claimant issued proceedings, seeking summary judgment against the defendants and an order for specific performance of the agreement. The master acceded to the claimant's application. He granted the first and second defendants permission to appeal and a stay of execution of the implementation of the order for specific performance pending determination of the appeal. The first and second defendants submitted, inter alia, that the evidence and findings of the master showed that there was a real prospect of success of establishing that the third defendant was acting in breach of his duties and that the claimant knew that.

The appeal would be allowed.

The disregard of the motivation and breach of duty by the agent was only relevant in the case of apparent authority. When dealing with express authority, if the agent acted in breach of his duty he was not acting in the principal's interest and was, therefore, acting without authority. The master's findings at that stage showed that the first and second defendants had raised a defence that had a real prospect of success. The master had fallen into error in concluding that the express agreement to the sale somehow overrode the fact that the consent and authority for him to effect the sake had been procured by the third defendant in breach of his duty. It was artificial for the master to look at the bare fact that the first and second defendants had agreed to the sale without also looking at the circumstances in which their agreement had been procured. If they did not know that the third defendant was seeking to obtain confirmation for a sale in breach of his duties then that vitiated any consent.

Underwood Ltd v Bank of Liverpool and Martins [1924] All ER Rep 230 and Hopkins v TL Dallas Group Ltd [2004] All ER (D) 135 (June); [2005] 1 BCLC 543 considered.

Case annotations in other services: Parti v Al-Nassir Al Sabah & others [2007] All ER (D) 4 (August); Underwood Ltd v Bank of Liverpool & Martins [1924] All ER Rep 230; Hopkins v TL Dallas Group Ltd [2004] All ER (D) 135 (June); [2005] 1 BCLC 543
Back to top

7. Worrall & another v Topp

Citation: [2007] EWHC 1809 (Ch)
Hearing date: 31 July 2007
Court: Chancery Division
Judge: Kitchin J
Summary: judgment – order – consent order

A dispute arose between the parties in relation to the boundary of their respective properties. The claimants issued proceedings against the defendant. Those proceedings were settled on terms embodied in a consent order. As part of the settlement it was ordered that, in default of agreement, the issue as to the position of the boundary should be determined by an independent expert surveyor (the surveyor). The agreement further stated that the parties would be at liberty to set out their factual evidence in support of their contentions and that the decision of the surveyor would be binding between them. In due course a surveyor was appointed to make a determination. He was provided with various documents. All of the documents supplied to the surveyor by one party were supplied to the other, save for an email (the email), together with four attachments sent to the surveyor by the solicitor acting for the defendant. Those attachments included certain plans of the properties. In reaching his determination, the surveyor referred to various documents, which included the plans sent in the email, and found in favour of the defendant. Following receipt of the determination, the claimants' solicitors wrote to the surveyor seeking clarification of various points. The surveyor then proceeded to revise the opinion given in his earlier determination. The defendant issued proceedings seeking a declaration that the original determination of the surveyor was binding and that he had no power to revise it. The defendant also argued that if the surveyor had been entitled to make the second determination, then it should not have stood because of unfairness. The claimants responded by contending that the first determination had been unfair because the surveyor had taken into account information gleaned from the documents sent by the e-mail. The judge held that the surveyor had no power to revise his original determination and that the original determination had to stand, as it had been arrived at fairly. The claimants appealed that decision. The issue arose as to whether the original determination had been arrived at unfairly.

The appeal would be dismissed.

In the instant case, the decision reached by the surveyor had been made in accordance with the terms of the contract. It was unfortunate that the email and the various plans attached to it had not been copied to the claimants. However, in all the circumstances, that had not been a serious lapse, and it had no effect on the decision making process.

Case annotations in other services: Worrall & another v Topp [2007] All ER (D) 496 (July)
Back to top

8. Harris v First Secretary of State and others

Citation: [2007] EWHC 1847 (Admin)
Hearing date: 31 July 2007
Court: Queen's Bench Division (Administrative Court)
Judge: Lloyd Jones J
Relevant legislation: Town & Country Planning Act 1990 section 288
Summary: town and country planning – permission for development – planning policy guidance

The claimant had to be fed intravenously through a machine. The third defendant sought to erect a radio base station for its mobile phone service some 600 metres from her home. The second defendant local planning authority refused permission, and the third defendant appealed to one of the Secretary of State's planning inspectors. The claimant's concerns that the electromagnetic interference from the mast might affect her health directly, and indirectly through interference with her medical equipment, were before the inspector. The inspector granted permission. He was of the opinion that paragraph 98 of Planning Policy Guidance 8 (PPG8) was determinative of the claimant's concerns. Paragraph 98 provided, inter alia, that “the planning system is not the place for determining health safeguards […] in the Government's view, if a proposed mobile phone base station meets the ICNIRP guidelines for public exposure it should not be necessary for a local planning authority … to consider further health aspects and concerns about them”. The claimant applied to quash that decision under section 288 of the Town & Country Planning Act 1990.

The claimant submitted, inter alia, that the policy in paragraph 98 of PPG8 was not directed to someone in her position, namely someone of particular vulnerability to electromagnetic radiation living in close proximity to proposed masts, that the inspector had failed to have regard to the indirect impact of the emissions on her health as a result of the effect they might have on her medical equipment and her fears of such indirect effect, and that PPG8 potentially contravened the obligation on public authorities in article 2 of the European Convention on Human Rights to take positive action to protect life if it required a decision-maker to leave out of consideration the particular vulnerability of an individual to director indirect effects on her health. The Secretary of State replied, inter alia, that the ICNIRP guidelines had been set not only by reference to the general population, but also to those who might be particularly vulnerable to electromagnetic radiation. He also submitted that since paragraph 102 of the appendix to PPG8 provided that there would “generally” only be any justification for taking interference with “other electrical equipment of any kind” into account where there was “clear evidence that significant electromagnetic interference will arise”, and there was no practicable remedy available, there was a threshold of relevance that the claimant had failed to cross in relation to interference with her medical equipment such that the inspector had not been required to consider the matter. The claimant responded, inter alia, that paragraph 102 of the Appendix did not apply to medical equipment having regard to paragraph 96, which provided that “specific advice on interference with medical devices can be obtained from the Medical Devices Agency”.

The application would be dismissed.

(1) Applying settled principles, where PPG8 applied, public concerns about the health implications of the creation of a radio base station could be a material consideration only if there were exceptional circumstances that justified a departure from the policy, which had been formulated after taking account not only of the effect of electromagnetic radiation on the general population, but also of its effect on those who were particularly vulnerable.

In all the circumstances, there was no evidence to support the view that the claimant's case was exceptional so as to fall outside those of persons with a particular susceptibility to electromagnetic radiation, of which full account had already been taken in the setting of the policy. Accordingly, the inspector had been entitled to conclude that the policy in paragraph 98 of PPG8 had not been displaced on the facts.

Phillips v First Secretary of State [2003] All ER (D) 362 (October) not followed; T-Mobile (UK) Ltd v First Secretary of State [2004] All ER (D) 208 (November) applied.

(2) Paragraph 102 of the appendix to PPG8 was of general application and created a threshold of relevance. There was nothing to suggest that fears of an effect on electrical equipment, which lacked such an objective justification, were nevertheless relevant planning considerations.

The language of paragraph 102 was extremely and deliberately wide. The provision was clear on its face, and the words “of any kind” made it clear that that it was intended to include all types of electrical equipment. Paragraph 96 of PPG8 was not left without a purpose; it identified a source of expert advice. The threshold of relevance had not been crossed. The evidence presented to the inspector amounted to no more than a statement of concern and an assertion that there was a risk. There were no exceptional circumstances that required the inspector to address the matter outside of the policy.

Vicarage Gate Ltd v First Secretary of State [2007] EWHC 768 (Admin) applied.

(3) The scheme of PPG8 was compatible with article 2 of the Convention.

So far as possible direct impact on health was concerned, paragraph 98 of PPG8 required compliance with the ICNIRP guidelines, which were set not only by reference to the general population, but also to those who might be particularly vulnerable to electromagnetic radiation. Further, there was the possibility of departing from that policy in an exceptional case. So far as the possible indirect effect of electromagnetic radiation on health through interference with electrical equipment was concerned, the policy in paragraph 102 of the appendix to PPG8 was also not an immutable rule.

Having regard to the way the guidelines had been set, full and appropriate account had been taken of the position of individuals in a comparable situation to that of the claimant. Moreover, in the absence of evidence of a real risk of indirect interference with her health, the inspector's approach, in conformity with the policy, did not give rise to any violation of article 2 of the Convent ion.
Oneryildaz v Turkey [2004] ECHR 8939/99 considered.

Case annotations in other services: Harris v First Secretary of State & others [2007] All ER (D) 478 (July); Phillips v First Secretary of State [2003] All ER (D) 362 (October); T-Mobile (UK) Ltd v First Secretary of State [2004] All ER (D) 208 (November); Vicarage Gate Ltd v First Secretary of State [2007] EWHC 768 (Admin); Oneryildaz v Turkey [2004] ECHR 8939/99
Back to top

9. R (on the application of Horner) v Lancashire County Council & another

Citation: [2007] EWCA Civ 784
Hearing date: 30 July 2007
Court: Court of Appeal, Civil Division
Judges: Auld, Sedley and Hughes LJJ
Summary: town and country planning – Development consent – Cement works

The interested party was a cement manufacturer. In January 2004, it obtained planning permission from the defendant local authority for the erection of machinery to handle animal waste derived fuel comprising a tanker off-loading area, storage silo and extraction system to feed the fuel into the kiln. The claimant owned and ran two livestock farms. She was concerned about contamination of her pasture land by airborne emissions of animal waste derivatives from the works, including and in particular from accidents such as “blowouts” and emissions from low-level sources, such as in the discharge of the fuel into the silo. She applied for judicial review of the grant of planning permission.
 She complained that the authority had erred in (i) not requiring an environmental impact assessment (EIA) or undertaking a “screening” process to establish whether one was required, pursuant to the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, statutory instrument 1999/293, implementing Council Directive (EC) 85/337; and (ii) not complying with its duties in taking account of the principles of a policy known as “Best practical Environmental Option” (BPEO) derived from a national waste plan, made in part implementation of EU obligations under Council Directive (EEC) 75/442 (the Waste Framework Directive). Regulation 2(1) of the 1999 Regulations provided that an evaluation had to be made as to whether an EIA was required for a planning application where the application was listed in schedule 2 to the Regulations as a “development likely to have significant effects on the environment by virtue of factors such as its nature, size or location” and exceeded any threshold or met any criteria there specified as applicable to it. The judge dismissed the application and upheld the planning permission. He held that the proposed development did not fall within schedule 2 because either the silo had “floorspace” that did not exceed the specified 1,000 metres squared threshold. If it did fall within schedule 2, the authority would have been bound to conclude that the development required a screening option as to the need for an EIA. He further held that the authority did not expressly consider BPEO, but did so in substance by reference to its local waste plan, but that, even if it fell short in that respect, full consideration of BPEO could not have led it to refuse permission. The claimant appealed.

The issues were (i) whether the judge had erred in finding that the proposed floor space, being 1,000 metres squared, did not exceed 1,000 metres squared and was therefore not within the threshold requirement of the Regulations; and (ii) whether, if the authority had in fact erred in law in failing to give proper consideration to the principles of BPEO, it was relevant that the authority would have made the same decision whether or not it had given proper consideration to those principles.

The claimant submitted that the proposed installation of a silo and supporting pipe-work did not, as a matter of law, involve any new floor space within the meaning of that term in the Regulations, but whether it did nor not, given the form of the development, a threshold by reference only to size was not, having regard to the fundamental objective of the EIA Directive, an apt threshold or criterion to apply. Accordingly, the authority should have considered in the individual circumstances of the case, and regardless of the schedule 2 threshold, whether an EIA was required.

The appeal would be dismissed.

(1) The judge had not erred in his interpretation of floor space as the measurable base or floor area of the silo. There was no basis, as an exercise in interpretation, for introducing a wider case-by-case approach, than already provided to meet any perceived lack of appropriateness or adequacy of the size threshold to the potential of the proposed development for environmental harm. It was not open to the claimant to go behind the regulatory scheme.

(2) A judge, when considering the lawfulness of a planning permission against the exercise of the local authority's balance of material planning considerations was entitled to form a view as to whether in the circumstances the omission or inadequate consideration by the authority of BPEO would have made any difference. If, as in the instant case, the judge held that it would not, that was a relevant consideration to his decision that the permission was legally valid.

Decision of Ouseley J [2005] All ER (D) 374 (November) affirmed.

Case annotations in other services: R (on the application of Horner) v Lancashire County Council & another [2007] All ER (D) 468 (July); Ouseley J [2005] All ER (D) 374 (November) affirmed

Back to top

10. Raglan Housing Association Ltd v Southampton City Council & another

Citation: [2007] EWCA Civ 785
Hearing date: 30 July 2007
Court: Court of Appeal, Civil Division
Judges: Sir Andrew Morritt C, Lloyd and Toulson LJJ
Summary: water and watercourses – flooding – nuisance

The Bitterne Stream was once a natural stream running westward from Humm Hole to the River Itchen. What now existed, from the same starting point, was a channel through which water flowed, passing though Bitterne, effectively a suburb of Southampton, and eventually flowing out into the Itchen. For much of its length it was covered over, and the whole bed of the stream was lined with concrete. Part of one of the open stretches ran along the southern boundary of the claimant's property. The claimant contended that several occasions of flooding had occurred, and he brought proceedings seeking to establish that one or other of the defendants was responsible for the maintenance of the channel and for making good any damage caused by failure to maintain it properly. It contended that the damage to its property caused by the flooding gave rise to a claim in nuisance against the party responsible for the section of the channel that was adjacent to its property. A preliminary issue was ordered to be tried to determine whether the section of the channel adjacent to the claimant's property (the culvert) was a sewer and whether the second defendant, as sewerage undertaker, had statutory responsibility to maintain it. The judge decided that the culvert had become a sewer, but not a public sewer. The second defendant appealed. It contended that the only relevant matter was the nature of the flow: piping or lining a flow of water did not affect its status: adding more surface water to a watercourse made no difference; and the presence of foul sewage was not sufficient to change a watercourse into a sewer unless the quantity of sewage was very substantial, which it was not in the instant case.

The appeal would be allowed (Toulson LJ dissenting).

The culvert was still a watercourse, not having become a sewer. The only relevant change that had occurred was the addition of a great deal more surface water to the flow, along that part of the channel. Nothing had happened to change the status of the culvert in terms of works done under statutory authority. The sewerage undertaker had done nothing to that stretch of the channel that could affect its status. Therefore, if there had been a change, it had to be by virtue of the change in the flow, because the fact that the flow was now channelled and partly piped was not sufficient. Viewed in that light, and by reference to the culvert itself, there was no sufficient change to constitute the flow a sewer rather than a watercourse. There was no relevant discharge of foul sewage, and though there was an increased discharge of surface water, something very much more than that was needed. On the true analysis of the facts concerning the culvert, there was nothing more than that increased discharge on which could be relied. Accordingly, the status of the stream as it flowed through the culvert as a watercourse had not changed however much its appearance might have changed in that part, and whatever changes there might have been to its character, and even its status elsewhere in the channel, both upstream and downstream.

British Railways Board v Tonbridge & Malling District Council (1981) 79 LGR 565 applied.

Case annotations in other services: Raglan Housing Association Ltd v Southampton City Council & another [2007] All ER (D) 461 (July); British Railways Board v Tonbridge & Malling District Council (1981) 79 LGR 565
Back to top

11. Swords v Secretary of State for Communities & Local Government & others

Citation: [2007] EWCA Civ 795
Hearing date: 27 July 2007
Court: Court of Appeal, Civil Division
Judges: Smith, Lloyd and Wilson LJJ
Relevant legislation: Housing Act 1985 section 32
Summary: housing – local authority houses – voluntary transfer

Following the housing Green Paper in 2000, local authorities had to find the means by which their properties could be brought up to the “decent homes standard”. The first interested party, a local authority, introduced its policy, in which it concluded in relation to certain land that a large-scale voluntary transfer was the only viable option. The proposed transfer was to be carried out pursuant to the authority's power to dispose of its housing land under section 32 of the Housing Act 1985, for which the consent of the Secretary of State was required. In addition, the consent of the Secretary of State was required under section 43 of the Act, insofar as the proposed transfer involved the disposal of houses belonging to the authority on which had been let, inter alia, secure tenancies. The second interested party, a charity and housing association, was selected as the preferred transferee. The claimant was a secure tenant of a dwelling owned by the authority and included in the transfer. In due course, following the consultation exercise under schedule 3A of the Act, a proposal document sent to tenants, and a ballot, conducted by an independent organisation, the Secretary of State granted consent to the transfer. The claimant applied for judicial review of the Secretary of State's decision on the basis that, inter alia, it was unreasonable to conclude that there was not a majority opposition to the transfer. The judge refused to quash the decision of the Secretary of State finding, inter alia, that the Secretary of State was under no statutory duty to have regard to the views of the leaseholders or otherwise to take them into account, which was reflected in the terms of the Housing Transfer Manual (the manual). The claimant appealed against that decision. She submitted that on the evidence, it was clear that in reaching the decision to grant consent, the Secretary of State had omitted to take account of the views of the leaseholders, that such an omission had rendered her consent unlawful, and that the Secretary of State had failed to consider whether the proposal document attained the standards of balance and neutrality.

The appeal would be dismissed. It was plain that the Secretary of State had taken account of the views of the leaseholders but, having taken account of them, she had resolved to give them no weight. It was not, therefore, perverse or unreasonable of the Secretary of State to resolve to attach no weight to the objections of some of the leaseholders. The judge's ruling on the consideration given by the Secretary of State to the adequacy of the pre-ballot consultation with tenants and leaseholders had been correct. There was no ground for concluding that, prior to granting her consent, the Secretary of State had failed to have regard to both the adequacy of the pre-ballot consultation of tenants and the extent to which it had followed the guidance in the manual. The Secretary of State's consent had not been invalidated by her failure to require the local authority to further explore the complaints attributed to it. In all the circumstances, the complaints brought to the Secretary of State's attention had been treated by her with a degree of attention at least equivalent to that which the law required as a condition of the validity of her consent.

Gransden & Co Ltd v Secretary of State for the Environment [1985] 54 P & CR 86, [1986] JPL 519, R v Secretary of State for the Environment, ex p Walters [1997] 30 HLR 328, R (on the application of Beale and another) v Camden London Borough Council [2004] All ER (D) 52 (January) considered. Decision of Forbes J [2007] All ER (D) 63 (April) affirmed.

Case annotations in other services: Swords v Secretary of State for Communities & Local Government & others [2007] All ER (D) 447 (July); [2007] All ER (D) 63 (April); Gransden & Co Ltd v Secretary of State for the Environment [1985] 54 P & CR 86, [1986] JPL 519; R v Secretary of State for the Environment, ex p Walters [1997] 30 HLR 328; R (on the application of Beale and another) v Camden London Borough Council [2004] All ER (D) 52 (January)
Back to top