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Issue 49 – January 2008

Contents

Cases
Statutory Instruments

Features
Articles
News

Events
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Cases

1. Belfields Ltd and others v Secretary of State for Communities and Local Government and another

Citation: [2007] EWHC 3040 (Admin)
Hearing date: 21 December 2007
Court: Queen's Bench Division, Administrative Court
Judge: George Bartlett QC sitting as a deputy High Court judge
Relevant legislation: Acquisition of Land Act 1981, s 23; Town and Country Planning Act 1990, section 226(1)
Summary: compulsory purchase – compulsory purchase order – application to quash order

Following a period of consultation and an inspector's inquiry, a cabinet of the second defendant local planning authority decided to make the Sefton Metropolitan Borough Council (Klonsdyke and Hawthorne Road) Compulsory Purchase Order 2005 (CPO), pursuant to section 226(1) of the Town and Country Planning Act 1990. The land, which was the subject of the CPO, consisted principally of disused industrial sites and a terraced housing estate. The first and second claimants owned parts of the disused industrial sites, and the third claimant owned and occupied a shop premises in the estate. In May 2007, the first defendant Secretary of State confirmed the CPO, with one small modification. Subsequently, the claimants each applied under section 23 of the Acquisition of Land Act 1981, for an order quashing the CPO as it affected their ownerships. The applications were heard in a single hearing.

The grounds of the first claimant's application included the following: first, that the Secretary of State had taken into account a matter that had not been part of the case at the inquiry as justifying the acquisition of their land; second, that she had failed to apply the correct test in determining whether there was a compelling case in the public interest for the acquisition; and third, that she had given inadequate reasons for concluding that the acquisition was justified. The grounds of the second claimant's application included the following: first, that the Secretary of State had failed to properly consider the issues and evidence regarding its intention or ability to develop the land, or alternatively, that she had failed to give adequate reasons for her conclusion on that point; second, that she had failed to apply the correct legal and policy test for determining whether there was a compelling case in the public interest for the CPO; and third, that she had erred in law in concluding that an agreement, the “Overarching Development Agreement”, which had been made between the authority and their preferred developer, was lawful and would not inhibit the former from deciding that it should not exercise its compulsory powers in relation to a particular site if the owner was capable of developing it itself. The third claimant advanced, inter alia, two technical points, namely, that the CPO had not been made pursuant to the correct statutory provision, and that the authority's cabinet had no power to make the CPO.

The applications would be dismissed.

In the circumstances, none of the grounds of challenge was well founded. The Secretary of State's approach to the legal tests to be applied, policy matters and the interpretation of the Overarching Development Agreement could not be criticised, and her decision to confirm the CPO was justified given that the case for confirmation had been so compelling.

Accordingly, the CPO would stand.

Case annotations in other services: Belfields Ltd and others v Secretary of State for Communities and Local Government and another [2007] All ER (D) 367 (December)
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2. Commission for the New Towns v Terrace Hill (Stockton) Ltd

Citation: [2007] EWHC 3094 (Ch)
Hearing date: 21 December 2007
Court: Chancery Division
Judge: Blackburne J
Summary: land – development – option to develop land

On 30 May 2001, the parties entered into an agreement relating to two parcels of land to the east of Stockton Town Centre, owned by the claimant commission. The land was the subject of a regeneration scheme, and the commission was the national regeneration agency of England. Pursuant to the agreement, the commission agreed that the defendant developer should have an option to develop the land. The defendant could not exercise the option until it had submitted the relevant plans to the commission, and the commission had carried out certain works. The option period was of three years from the date of the service of the commission's notice, or the date on which the commission's notice ought to have been served. On 5 October 2004, the solicitors for the commission sent a letter to the defendant, making it aware that the conditions that had to be satisfied by the commission to trigger the obligation to serve the commission notice had been satisfied. Specifically, the letter indicated that “the commission must serve the commission notice under the agreement as soon as the commission had complied with [...] the agreement and construction of the [...] works [...] we say that [the agreement] has been satisfied”. The commission's case was that that letter was the commission notice and that, from the receipt of that letter, the option period commenced. The defendant argued that an estoppel by convention had arisen out of correspondence between the parties, the effect of which was to stop the commission asserting that the option period had commenced.

The issues for determination included the following: (i) whether the option period had commenced at the date stipulated by the commission, and, if so, (ii) whether the commission had been estoppel by convention from asserting that the option period had commenced.

The court ruled:
On the facts, with the service of the 5 October letter, the option period had commenced, and it had done so notwithstanding the fact that the defendant might not have understood that the option period had commenced. Further, the defendant had failed to establish an estoppel in defence of the commission's reliance on its letter as marking the commencement of the option period.

The option period was the period of three years from 5 October 2004 or, more strictly, from the time of the receipt of the commission's letter of that date.

Case annotations in other services: Commission for the New Towns v Terrace Hill (Stockton) Ltd [2007] All ER (D) 393 (December) 
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3. Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and another

Citation: [2007] EWCA Civ 1372
Hearing date: 21 December 2007
Court: Court of Appeal, Civil Division
Judges: Pill, May and Smith LJJ
Summary: building contract – terms – construction

The claimant contractor engaged the first defendant as steelwork sub-contractor for the new national stadium at Wembley. The second defendant was the latter's parent company. Disputes between the parties were settled by an agreement. Clause 3.1 of the final form of that agreement provided that the sub-contract works would be varied only by the omission of the fabrication and supply to the site of the items specified in schedule 3, part A, and clause 3.2 provided that, notwithstanding clause 3.1, the first defendant would retain responsibility under the sub-contract for all design and fabrication drawings. Schedule 3 included a reference to “Temp works – Roof Props”. Paragraph (b) of schedule 1 specified a lump sum for the completion of all remaining works under the sub-contract, and paragraph (c) provided for the payment of costs reasonably and properly incurred in connection with “erection and site works”. Further disputes arose, and the claimant brought proceedings, alleging that the first defendant had wrongfully repudiated the sub-contract. A preliminary issue arose as to the extent to which work in relation to the temporary steelwork to support the roof as it was being erected came within the sub-contract and thus the extent to which the claimant could recover from the defendants the cost of having that work completed by another company. There was expert evidence that temporary works were generally inseparable from “erection methodology”. The judge found that temporary works were generally inseparable from permanent works, and that the design, drafting and fabrication of those temporary works did not come within the sub-contract works, but within paragraph 1(c) of schedule 1. The claimant appealed.

The appeal would be allowed.

In all the circumstances, “Temp works – Roof Props” referred to all temporary works for the roof. However, neither the evidence, not intrinsic common sense dictated as an imperative that whoever erected the roof also had to be responsible for the design and fabrication of the temporary works. Although the evidence was that temporary works were generally inseparable from the erection methodology, there was no intrinsic reason why the fabrication and supply of the temporary steelwork should not be done by another person. On the true construction of clause 3.1 and clause 3.2, the fabrication and supply of the temporary roof steelwork was omitted from the sub-contract works, but design and fabrication drawings remained under paragraph (b) of schedule 1.

Decision of Jackson J [2007] All ER (D) 288 (January) reversed in part.

Case annotations in other services: Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and another [2007] All ER (D) 358 (December)
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4. Lingfield Properties (Darlington) Ltd v Padgett Lavender Associates

Citation: [2007] All ER (D) 237 (December)
Hearing date: 17 December 2007
Court: Queen's Bench Division
Judge: Tugendhat J
Summary: negligence – professional person – duty to exercise reasonable skill and care

By a judgment delivered on 10 December 2004 [see [2004] EWHC 3185 (QB)], a declaration was made that a planning permission granted to the claimant, in respect of land in Darlington, had lapsed. The judge found that, at the time when operations on the development commenced, conditions precedent to the development had not been discharged, with the result that the operations were not lawful and so were not effective to preserve the planning permission. It was common ground that reserved matters approval was given on 14 December 1994, and that permission was due to lapse unless development commenced by 14 December 1996.

The claimant brought proceedings against the defendant, its planning consultant, seeking damages for professional negligence. It contended that one of the defendant's partners was negligent in failing to submit for approval by 14 December 1994, a scheme of landscaping as required by the conditions precedent. It further contended that up to 11 October 1996, the defendant orally informed it on several occasions that all necessary consents and approvals required by the permission had been obtained, but that in a telephone conversation on 11 October 1996, for the first time informed it that scheme of landscaping required by the conditions had not been submitted.

The defendant denied that the retainer required it to ensure that all necessary consents and approvals were in place by the December deadline, unless it was instructed to do so specifically. It argued that it had not been instructed to do so and denied informing the claimant that all conditions had been satisfied or that all approvals were in place. Both parties submitted evidence.

The court ruled:
In the instant case, it was common ground that the defendant had owed the claimant a duty of care to exercise reasonable skill and care in the provision to the claimant of his services as a planning consultant. However, on the evidence, the claimant had given no instructions to the defendant to submit a scheme of landscaping on or after 11 October 1996 and that, absent such instruction, the defendant had owed no duty to the claimant to do so.

Accordingly, the claim would be dismissed.

Case annotations in other services: Lingfield Properties (Darlington) Ltd v Padgett Lavender Associates [2007] EWHC 2989 (QB)
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5. Musawi v R E International (UK) Ltd and others

Citation: [2007] All ER (D) 222 (December)
Hearing date: 14 December 2007
Court: Chancery Division
Judge: David Richards J
Relevant legislation: Contracts (Applicable Law) Act 1990
Summary: arbitration – award – validity

On 15 July 1987, the claimant and the second defendant signed an agreement to the acquisition and development of a piece of undeveloped land adjoining Wembley Stadium. By that agreement, the claimant was to provide funds, and the second defendant was to provide project management expertise, on the basis of an equal division of the profits. In 1988, the land was purchased. The first defendant, a company owned by the family of the second, third and fourth defendants, was the registered proprietor of the land. A dispute as to the size of the claimant's beneficial interest in the land was the subject of correspondence between the parties, the claimant contending that he was entitled to a 60.4 per cent interest. In light of a refusal by the defendants to register that alleged interest, the claimant registered a caution against dealings with the land. In September 2003, he entered into an arbitration agreement with the third and fourth defendants, who were described as the director and shareholder of the first defendant, respectively. On 20 February 2004, the land was made the subject of a compulsory purchase order, and, on 14 September, the London Development Agency took possession of the site. The final arbitration award determined that the claimant held a 60.4 per cent interest in the land. Although the award referred to the dispute as being between the claimant and the third and fourth defendants, the arbitrator had been made aware of the first defendant's involvement during the course of the parties' submissions and had addressed his letters to that defendant, as well as to the individuals. In response to an indication from the defendants' solicitors that they would not honour the award, the claimant applied for a declaration that he held a 60.4 per cent interest in the land and any proceeds of sale. By their counterclaim, the defendants applied for a declaration that the claimant held a 47.7 per cent interest therein.

An issue arose as to the law applicable to, inter alia, the arbitration agreement, in light of the parties' intention that agreements relating to the land be governed by Shia Sharia law. The claimant submitted that, at common law, the proper law of a contract did not need to be the law of a country, but could be any system of law provided it was sufficiently certain. An issue consequently arose as to the applicability of the Rome Convention, incorporated into English law by the Contracts (Applicable Law) Act 1990. The defendants resisted the enforcement of the arbitration award on the basis that the matters ruled therein were outside the scope of the arbitration agreement, which had allegedly been confined to the issue of management charges. They further submitted that the award was not binding as a relevant party, namely the first defendant, had not been a party to the arbitration.

The claim would be allowed and the counterclaim dismissed.

(1) Although the Rome Convention did not apply to arbitration agreements, the common law required the applicable law to be the law of a country.

In the case of the arbitration agreement in the instant case, there was no country, other than England, whose law could arguably apply to it. Accordingly, issues concerning the arbitration agreement itself were governed by English law.

(2) The entire dispute relating to ownership of the land and related matters had been the subject of the arbitration agreement. There were a number of reasons for that. First, the terms of the arbitration agreement had made no reference to the management charges. Second, the context of the agreement had been the dispute about the existence and size of the claimant's interest in the land, which had been the subject of correspondence and had escalated with the registration of a caution by him. Third, it was clear from the submissions made by the parties to the arbitrator that they had seen the scope of arbitration as including primarily the dispute about the claimant's interest in the land.

(3) Given that the principal purpose of the arbitration had been to determine the claimant's interest (if any), it had been essential that the parties should include the first defendant and/or those able to control it. In the circumstances, it was clear that the first defendant had been a party to the arbitration. The third and fourth defendants had signed the agreement as agents for the first defendant, who had fully participated in the arbitration through the third defendant, and, accordingly, the first defendant was bound by the award.

Case annotations in other services: Musawi v R E International (UK) Ltd and others [2007] EWHC 2981 (Ch)
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6. Shah and others v Colvia Management Company Ltd

Citation: [2007] All ER (D) 217 (December)
Hearing date: 14 December 2007
Court: Chancery Division
Judge: Anthony Elleray QC sitting as a deputy judge of the High Court
Summary: landlord and tenant – lease – construction

The claimants occupied units on an industrial park in Barking. The claimants traded as, inter alia, vehicle repairers and thereby needed space to park various amounts of cars. Some of the cars needed to be parked overnight. The defendant was the management company run by the unit holders for the unit holders, which owned the parking spaces and access-ways at the industrial park. The claimants occupied their units on the basis that they would be allowed to use the car parks and amenity land “subject to such reasonable rules and regulations for the common enjoyment thereof as [the defendant] may from time to time prescribe”. The industrial park suffered from problems in relation to car parking space. In 2006, the defendant received a demand for payment of business rates from the local authority in respect of the car park at the industrial park. A meeting was called to discuss the ins and outs of recent rates bill. It was suggested at the meeting that the rates bill should be charged out in accordance with how the car park was used and that no overnight parking should be allocated unless people paid for it. It was also suggested at the meeting that charging for overnight parking would mean that the car park could be managed at no cost, and there would be enough money from the overnight parking to cover the rates bill. A plan was accordingly introduced by the defendant to implement a parking scheme. That scheme was intended to charge those tenants who wanted to leave cars overnight. The defendant gave notice of the scheme, which was to be operated by ISTM Ltd. ISTM Ltd then issued notice of the scheme in similar terms. The claimants applied for an injunction, which sought to restrain the defendant from implementing the scheme. The claimant submitted that the scheme was not reasonable, inter alia, because the principal motivation in introducing the scheme had been to raise revenue.

The court ruled:
On the evidence, the scheme was an unreasonable regulation. The scheme would not have been unreasonable if the company had researched the proper market value for the car parking spaces. That exercise had not been carried out. The price had only been seized upon by reference to meeting the ISTM Ltd management costs and the rates charges. Those two items were inherently matters to be raised by all of the tenants and not a particular group of tenants. However, an overnight ban could be reasonably adopted if the relevant points of concern were addressed.

Wednesbury Corpn v Ministry of Housing and Local Government [1965] 1 All ER 186 considered; International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] 1 All ER 321 considered; Montrose Court Holdings Ltd v Shamash [2006] All ER (D) 272 (February) considered.

Case annotations in other services: Shah and others v Colvia Management Company Ltd [2007] All ER (D) 217 (Dec); Wednesbury Corpn v Ministry of Housing and Local Government [1965] 1 All ER 186; International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] 1 All ER 321; Montrose Court Holdings Ltd v Shamash [2006] All ER (D) 272 (February)
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7. South Cambridgeshire District Council v Gamell and others

Citation: [2007] All ER (D) 115 (December)
Hearing date: 7 December 2007
Court: Queen's Bench Division
Judge: Andrew Edis sitting as a deputy Judge of the High Court
Relevant legislation: Town and Country Planning Act 1990, section 187B
Summary: town and country planning – enforcement of planning control – unauthorised development

The claimant was the local planning authority. The defendants were a group of Irish travellers. They occupied land used as a gypsy caravan site. An enforcement notice was issued in respect of various parts of the site. The defendants applied for planning permission to use the land as a caravan site. The Secretary of State's inspector recommended that the applications be refused. That recommendation was upheld by the Secretary of State. The enforcement notices were not complied with. The claimant local planning authority issued proceedings seeking an injunction under section 187B of the Town and Country Planning Act 1990, requiring the defendants to remove caravans stationed on the land.

Those defendants who were represented contended, inter alia, that they had occupied the land as their homes, and that it would not, therefore, be appropriate to grant the relief sought in light of their rights under article 8 of the European Convention on Human Rights.

The court ruled:
The defendants had undoubtedly occupied the plots as their homes and that had fully engaged the protection of article 8 of the European Convention on Human Rights. The land had remained the defendants’ home of the purposes of article 8 of the Convention. However, the granting of the remedy sought was proportionate to the legitimate aim of the local planning authority. The decision of the local planning authority was entitled to considerable weight and, furthermore, the personal circumstances of the defendants had not outweighed the need to enforce planning control.

It followed that it was appropriate to grant injunctive relief sought.

Case annotations in other services: South Cambridgeshire District Council v Gamell and others [2007] EWHC 2919 (QB)
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8. Wright v Secretary of State for Communities and Local Government and another

Citation: [2007] All ER (D) 107 (December)
Hearing date: 7 December 2007
Court: Queen's Bench Division, Administrative Court
Judge: Sir George Newman sitting as a judge of the High Court
Relevant legislation: Town and Country Planning Act 1990, section 288
Summary: town and country planning – permission for development – refusal

The second defendant local planning authority refused to grant the claimant planning permission to extend a dwelling, and he appealed to one of the Secretary of State's planning inspectors. The inspector found that no significant changes had been permitted to dwellings in the area since 1996, that the proposed development would dominate the existing building, rather than respect its scale, and that it would have an adverse effect on the surrounding area, contrary to local policies FBE1, 6 and 7. The inspector dismissed the appeal, and the claimant applied under section 288 of the Town and Country Planning Act 1990 to quash that decision. The claimant argued, inter alia, that, as the inspector had not referred to specific dwellings and had not listed any earlier permission in the list of documents submitted appended to his decision, he had paid insufficient regard to earlier applications for permission for the dwelling in question and other nearby dwellings. He also contended that the inspector had erred in not referring to policy FH19 and PPS7. Although it was accepted that policy FH19 was not strictly relevant, as it only applied to development within a defined settlement, the claimant maintained that the inspector should have considered it because his dwelling was close to such a settlement and because the authority had referred to that policy in determining past applications for his dwelling.

The application would be refused.

Although the inspector had not mentioned the names of the properties that were the subject of the other applications for planning permission and had not listed those documents, it was perfectly clear that his decision that there had been no permitted changes of significance since 1996 had been made on the basis of information as to what changes had, in fact, been made since 1996. Furthermore, the fact that the authority had erred in the past in applying policy FH9 to the property in question could not make the present case one in which that policy was relevant and applicable. PPS7 was implemented by the local policies relied on by the inspector and added nothing to them.

Case annotations in other services: Wright v Secretary of State for Communities and Local Government and another [2007] All ER (D) 107 (December)
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9. Daniel Contractors Ltd v Construction Industry Training Board

Citation: [2007] All ER (D) 52 (December)
Hearing date: 5 December 2007
Court: Queen's Bench Division, Administrative Court
Judge: Kenneth Parker QC sitting as a deputy High Court judge
Summary: industrial training – levy – activities of industry – construction industry

The respondent Board issued a levy notice against the appellant in respect of its work on the rehabilitation of the water or distribution mains that made up a water distribution network on the basis that such work came within paragraph 1(a)(iii) of schedule 1 to the Industrial Training (Construction Board) Order 1964 (Amendment) Order 1992, Statutory Instrument 1992/3048, as being relevant work on a “pipe-line”. The mains were small diameter pipes that formed a reticulation system. The appellant appealed to an employment tribunal. The tribunal, starting with the broad Oxford English dictionary definition of “pipe-line”, had regard to trade definitions, and concluded that water mains were a kind of “pipe-line” and that it made no difference that they had smaller pipes branching off them.

The appellant argued, inter alia, that the tribunal had erred in adopting the Oxford English dictionary definition as a starting point; that the assets in paragraph 1(a)(iii) of the schedule 1 were grouped by reference to functional categories such that “pipe-line” was intended to refer to a conduit for supplying oil and to the definition of “pipe-line” contained in section 65(1) of the Pipelines Act 1962; and that paragraph 1(a)(iii) specifically includes assets for the distribution of electricity to the end user, whereas there was no analogous provision for water-based assets. It also relied on the definition of “pipe-line” by the British Standards Institute (BSI), which expressly did not include distribution and service mains.

The appeal would be dismissed.

It was entirely correct for the tribunal to conclude that a water distribution network comprising water or distribution mains was a “pipe-line” for the purposes of paragraph 1(a)(iii) of schedule 1 to the Order.

The appellant's construction would be inconsistent with the ordinary understanding of “pipe-line”, and would necessitate a very substantial gloss on the unqualified expression in schedule 1 to the Order, for which there would be no justification in the plain language or layout of paragraph 1(a)(iii), or in any relevant legislative policy. It could more plausibly be argued that “pipe-line” had been specifically separated from water-based assets because the concept should be given the widest meaning. Further, if it had been intended to limit “pipe-line” to a pipeline conveying oil, the draftsman could hardly have adopted a more confusing technique. Without a full explanation of the background to and the purpose of the BSI definition, it was of limited value. The experienced and expert tribunal had considered trade definitions and literature and had heard evidence over a three-day hearing before weighing that evidence and coming to a firm conclusion.

Engineering Industry Training Board v Foster Wheeler John Brown Boilers Ltd [1970] 2 All ER 616 applied; Gibbon Equipment Hire Ltd v Construction Industry Training Board [2001] All ER (D) 352 (November) applied.

Case annotations in other services: Daniel Contractors Ltd v Construction Industry Training Board [2007] EWHC 2848 (Admin); Engineering Industry Training Board v Foster Wheeler John Brown Boilers Ltd [1970] 2 All ER 616; Gibbon Equipment Hire Ltd v Construction Industry Training Board [2001] All ER (D) 352 (November)
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10. Simon Patience (New Homes) Ltd v Secretary of State for Communities and Local Government and another

Citation: [2007] All ER (D) 499 (November)
Hearing date: 30 November 2007
Court: Queen's Bench Division, Administrative Court
Judge: Sullivan J
Relevant legislation: Town and Country Planning Act 1990 section 288
Summary: town and country planning – permission for development – refusal

The second defendant planning authority refused the claimant developer permission for a dwelling house at land to the rear of a property in Woldingham, Surrey. In so doing, the authority relied on policies BE1 and BE7 of the Tandridge District local Plan 2001, and specifically BE7(F), where tandem development or developments in depth involving the formation of cul-de-sacs were not permitted. On the claimant's appeal, the inspector found, inter alia, that the planned development would represent development in depth involving the formation of a new cul-de-sac and, accordingly, upheld the authority's decision. The claimant applied under section 288 of the Town and Country Planning Act 1990 challenging the validity of the inspector's decision. It contended that the inspector had wrongly described the access to the proposed dwelling as a cul-de-sac, and, in the alternative, if it was a cul-de-sac, it was not a newly formed one.

The appeal would be dismissed. In the circumstances of the instant case the inspector had been entitled to come to his decision. There was no reason why the access road that led to dead end could not be described as a cul-de-sac, and the claimant's alternative submission was overly legalistic and failed to have regard to the obvious purpose of the development plan policy.

Case annotations in other services: Simon Patience (New Homes) Ltd v Secretary of State for Communities and Local Government and another [2007] All ER (D) 499 (November)
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Statutory Instruments

1. Home Information Pack (Amendment) Regulations 2007

Number: 2007/3301
Enabling power: Housing Act 2004, section 155, 159
Commencement: 14 December 2007
Summary: These Regulations amend the Home Information Pack (No 2) Regulations 2007. Under sections 155 to 159 of the Housing Act 2004, a Home Information Pack must comply with the principal Regulations.
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2. Housing Act 2004 (Commencement No 10) (England and Wales) Order 2007

Number: 2007/3308
Enabling power: Housing Act 2004
Commencement: 14 December 2007
Summary: This Order brings part 5 of (and schedule 8 to) the Housing Act 2004 into force in England and Wales on 14 December 2007. These provisions relate to Home Information Packs. They are being brought into force in relation to residential properties with fewer than three bedrooms, other than properties to which regulation 17C (which imposes minimum energy performance requirements) of the Building Regulations 2000 applies.
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3. Stamp Duty Land Tax (Zero-Carbon Homes Relief) Regulations 2007

Number: 2007/3437
Enabling power: Finance Act 2003
Commencement: 7 December 2007
Summary: These Regulations provide relief from stamp duty land tax on the first acquisition of a dwelling, which is a zero-carbon home in accordance with sections 58B and 58C of the Finance Act 2003.
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Features

1. CLG publishes new Planning Bill

Communities and Local Government (CLG) has announced the publication of a new Bill that it hopes will make the planning system quicker and more transparent. CLG hopes that the Planning Bill will reform the planning system for major infrastructure projects, which are increasingly struggling to deal with challenges such as climate change, protecting the environment and the need for new homes.

It anticipates that the Bill will also "strengthen accountability and ensure decision-making is transparent and fair with sustainable development at its heart. The changes are expected to bring the average time for decisions on major projects down to under a year, ending years of unnecessary delays. It is also envisaged that it will help provide the infrastructure the country needs to tackle the challenges of a modern world and help tackle climate change." CLG predicts that, on average, £300 million per year will be saved, which equates to nearly £5 billion by 2030. The Bill is designed to give communities a greater say, as well. It includes measures that will strengthen public participation in the setting of national infrastructure policy and planning decisions themselves. The government is also keen to simplify the local town and country planning system, improve the appeal process and put a duty on councils in preparing their local plans to take action on climate change.

"It is a false economy to attempt to make the decision-making process more efficient by seeking to reduce important elements of public participation in decisions on nationally significant infrastructure projects," said David Whiting, Environmental Law Foundation’s chief executive. "These issues will probably have to be dealt with by the proposed Infrastructure Planning Commission in any event, but even if they are excluded, the courts will inevitably be asked to review such decisions. Ultimately, decisions that have been subject to full and fair public participation and scrutiny will secure greater public acceptance and will strengthen trust between government and the community."

Whiting believes that essentially the government is looking for a more predictable, efficient and streamlined system, with a “fast track” consent process for major infrastructure projects.

"The development consent regime will, in effect, take the place of any other permitting regime. So, for instance, planning permission will not be needed in addition. The government does not want 'merit issues' being raised in the determination of development consent applications, and the examining authority has power to disregard representations that relate to the merits of policy set out in a national policy statement. In addition, the government wants to avoid protracted participatory processes where concerned groups wish to scrutinise evidence in an adversarial manner: only in exceptional cases can another party cross examine evidence."

So of what do lawyers need to be aware? "The pre-application process does introduce new duties on applicants to consult communities and to take into account responses. The examination process will follow an inquisitorial approach, and adversarial scrutiny will be mostly ruled out. Judicial review applications will need to be made quickly after a notice is published, as there will be a blanket six-week period to make a challenge," said Whiting.

"It also needs to be noted that, in part 9 of the Bill, there are provisions for local planning authorities to make arrangements for decisions on certain planning applications to be taken by planning officers, with a right of review by the authority (rather than an appeal to the Secretary of State)."

(10/12/07)
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2. New greener homes

New measures in the Housing and Regeneration Bill (HRB) require developers to provide a sustainability assessment report, which provides an in-depth green rating showing how near zero carbon they are and how they rate for wider green issues such as water usage and waste.

Nigel Hewitson, Head of Planning at Norton Rose LLP and a contributor to Butterworth’s Planning Law Service said: "It’s the simple things that still count if developers want to improve a building’s green rating – cavity wall, loft insulation and double glazing will all have a significant impact."

He added: "Energy Performance Certificates are included in [Home Information Packs] HIPs, which are now compulsory on all residential sales. I think the government’s idea is that the certificates will raise awareness of the issue and ultimately start to influence people's choice of property. This is likely to mean, through supply and demand, the price of energy efficient properties going up so that it will be an incentive for people to improve their rating."

Housing Minister Yvette Cooper said: "The Housing and Regeneration Bill will help councils and housing associations build more homes, and it will bring together responsibility for land and money for new housing, alongside regeneration." She added: "We need greener homes to tackle the challenge of climate change, and we need a better deal for tenants in social housing."

The HRB was published just days before the Prime Minister Gordon Brown in a wide-ranging speech on the environment promised a new one-stop Green Homes Service (GHS), which includes a single telephone line, a user-friendly website and a network of advice centres. It will be run by the Energy Savings Trust (EST) and will be available from April 2008.

He said: "For every householder who gets an Energy Performance Certificate with an F or G rating for a home being sold or bought, the Green Homes Service will make an offer of discounted or free help with energy efficiency measures."

The proposals will save a typical householder at least £100 per year. The government has said that by 2016 all new houses should be zero carbon.

Mr Hewitson said: "To achieve more energy efficient homes, people should look into micro-generation, for example, solar panels and wind turbines."

He added: "The initial outlay can be significant, but they can save very significantly on energy bills and could increase the value of the property over time. There are proposals to make the installation of a range of micro-generation technologies in residential properties permitted development from April next year."

He continued: "According to ‘Building a Greener Future: Towards Zero Carbon Development’ (Department for Communities and Local Government consultation paper, March 2007), 53 per cent of CO2 emissions attributable to residential property goes on space heating. So reducing the need to heat rooms, for example, by better insulation or orientating new buildings so as to maximise potential for solar gain, will have a big impact."

A spokesman from EST said: "The average household could avoid emissions of around 0.5 tonnes of carbon a year, save energy and lower energy bills by becoming more energy efficient."

Mr Hewitson says: "There are tax breaks or reduced stamp duty for achieving zero carbon but only for the first sale of a new home. This needs to be extended as an incentive to owners."

The Department for Environment, Food and Rural Affairs (DEFRA) is currently reviewing the Home Energy Conservation Act 1995 (HECA) as implemented in England, to assess how well it delivered improvements in energy efficiency. HECA places a duty on all local authorities with housing responsibilities to develop plans to improve energy efficiency of residential accommodation in their area.

Consultation ended 3 January 2008, and responses will be published on DEFRA’s website.

Relevant legislation: Home Energy Conservation Act 1995

(06/12/07)
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