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Issue 50 – February 2008

Contents

Cases
Statutory Instruments

Features
Articles
News

Events
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Cases

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

Citation: [2008] All ER (D) 98 (Jan)
Hearing date: 21 January 2008
Court: Court of Appeal, Civil Division
Judges: Waller, Arden and Toulson LJJ
Summary: town and country planning – permission for development – environmental impact assessment development

The Secretary State determined, having regard to the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999, statutory instrument 1999/293, that an environmental impact assessment (EIA) was not required in relation to the development of a medium secure hospital. He gave no reasons for his decision. The claimant applied for permission to move for judicial review. Permission was refused, but permission to appeal was given by a single Lord Justice. At the hearing of the appeal the parties sought to refer questions to the European Court of Justice. They argued that a reference should be made without the need for a substantive judgment in the case because of the existence of a judgment given by the Court of Appeal in a refused application for permission to appeal, which determined that there was no requirement for reasons. They submitted that as a matter of English law that judgment, although not binding, was persuasive. The Secretary of State further contended that at present there was before the EC Commission a complaint regarding that judgment under art 226(2) of the EC Treaty and the matter in the instant case could be determined in the same set of proceedings.

The court ruled:
In the instant case, the judgment that had been given by the Court of Appeal in a previous case was not binding on the court, but it was clearly a judgment that had been carefully reasoned and a judgment intended from its terms to be one to guide those who sought to challenge a decision of the Secretary of State on the requirement for an EIA. Moreover, it was a judgment on which had been relied for many years and had been regarded as good law. Accordingly, the court would give it very special regard. The court could disagree with it but would be reluctant to do so. In the unusual circumstances of the case, there was no need to conduct a substantive hearing since it was appropriate, convenient and necessary that the proposed questions should be answered by reference to EC law. It was something that needed to be decided as soon as possible without delay.

The following questions were referred to the European Court of Justice: “(1) whether under article 4 of Council Directive 85/337/EEC as mended by directives 97/11/EC and 2003/35/EC the Secretary of State must make available to the public reasons for determination that in respect of an Annex II project there was no requirement to subject the project to assessment in accordance with articles 5 to 10 of the Directive. (2) If the answer to question one is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State. (3) What are the principles governing the requirement to give reasons in this context?”

R v Secretary of State for the Environment, Transport and the Regions, ex p Marson [1998] Env LR 761 considered.

Case annotations in other services: R (on the application of Mellor) v Secretary of State for Communities and Local Government [2008] All ER (D) 98 (Jan); R v Secretary of State for the Environment, Transport and the Regions, ex p Marson [1998] Env LR 761
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2. De Bierre v Secretary of State for Communities and Local Government

Citation: [2008] All ER (D) 105 (Jan)
Hearing date: 21 January 2008
Court: Queen's Bench Division, Administrative Court
Judge: Bean J
Relevant legislation: Acquisition of Land Act 1981, section 23
Summary: compulsory purchase – compulsory purchase order – application to quash order

The 81-year-old applicant owned four properties and lived in a fifth in the area of a local authority. Proceedings seeking a compulsory purchase order (CPO) in respect of two of them were dismissed. When another two had remained vacant for about eight years, the authority brought further CPO proceedings against the applicant. A public inquiry was conducted by one of the Secretary of State's planning inspectors, who recommended that a CPO should be confirmed only in respect of one of the two properties. He was of the opinion, inter alia, that there was evidence of a general need for accommodation in the authority's district and that there would be no timely renovation and occupation of the property if it remained in the applicant's ownership, and concluded that there was a compelling case in the public interest for confirming the CPO. The inspector also found that the acquisition would be a proportionate interference with the applicant's rights under article 1 of the first protocol to the European Convention on Human Rights. The Secretary of State adopted the inspector's recommendations and confirmed one CPO. The applicant applied under section 23 of the Acquisition of Land Act 1981 to quash that CPO.

The applicant contended, inter alia, that although she retained her independence at the moment, she might need the rental income if she needed care in the future, and complained that the compensation paid would be subject to capital gains tax.

The application would be dismissed.

In all the circumstances, the inspector had been entitled to reach the conclusions that he had. It was for him to balance the public good in making the property available in the near future against the effect of its acquisition on the applicant. Income could be provided from the sale proceeds just as well as rental income. The incidence of general taxation was not a relevant factor.

Accordingly, the CPO would stand.

Re Stalybridge (Castle Hall No 7) and (Acres Lane and Lawton Street) Compulsory Purchase Order 1963, Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 applied.

Case annotations in other services: De Bierre v Secretary of State for Communities and Local Government [2008] All ER (D) 105 (Jan); Re Stalybridge (Castle Hall No 7) and (Acres Lane and Lawton Street) Compulsory Purchase Order 1963, Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320
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3. Glenmere plc v F Stokes & Sons Ltd

Citation: [2008] All ER (D) 92 (Jan)
Hearing date: 18 January 2008
Court: Chancery Division
Judge: Stuart Isaacs QC Sitting as a Deputy Judge of the High Court
Summary: contract – construction – contractual term

The defendant was a long-established family company that owned the freehold of the property and land in dispute. It entered into a project coordination agreement (PCA) with L, and an agreement relating to the transfer of part of the defendant's land to L, for L to develop the land. Under a restrictive covenant contained in a 1970 conveyance, the British Railways Board (Network Rail's predecessor) had to provide consent to any plans to carry out work on the land. Pursuant to clause 2.1 of the PCA, it was expressed to be conditional on the developer obtaining planning permission, which was defined, in clause 1.1, as meaning “planning permission for the construction of a building on the office site and a residential development consisting of not less than 16,000 square feet of gross internal floor area and not less than 24 units on the residential site”. Clause 1.1 also defined “requisite consents” as meaning “planning permission, building regulation consents, by-law approvals, and other consents, licences and authorisations required from any competent authority, statutory undertaker, or person either for the carrying out of the development or its intended use”.

L applied for planning for the development of 24 flats and a three-storey office building and assigned the benefit of the PCA and the transfer agreement to the claimant developer. Permission was granted but the claimant sought permission for a more ambitious scheme. The claimant was granted planning permission and obtained consent from Network Rail. The claimant's solicitors wrote to the defendant's solicitors giving formal notice that the planning permission was in a form satisfactory to the claimant for the purposes of clause 2 of the PCA. The planning permission contained nine conditions that, the defendant submitted, were the requisite consents within the meaning of clause 1.1. The defendant wrote to the claimant giving formal notice of its intention to rescind the PCA, under clause 6.5, for the claimant's failure to obtain all “requisite conditions” of the PCA. The claimant issued proceedings seeking a declaration that the defendant's purported termination of the PCA was of no effect and that it was bound by the PCA.

The application would be allowed.

On the proper construction of the PCA, the fulfilment of the planning conditions were not “requisite consents” within the meaning of clause 1.1. Further, as a matter of the language of the definition of “requisite consents”, the Network Rail approval was not a “requisite consent”.

Thus defendant was not entitled, by its solicitors' letter to terminate the PCA and the claimant was entitled to a declaration that the defendant was bound by the PCA.

Investors' Compensation Scheme Ltd v West Bromwich Building Society, Investors' Compensation Scheme Ltd v Hopkin & Sons (a firm), Alford v West Bromwich Building Society, Armitage v West Bromwich Building Society [1998] 1 All ER 98 considered.

Case annotations in other services: Glenmere plc v F Stokes & Sons Ltd [2008] All ER (D) 92 (Jan); Investors' Compensation Scheme Ltd v West Bromwich Building Society, Investors' Compensation Scheme Ltd v Hopkin & Sons (a firm), Alford v West Bromwich Building Society, Armitage v West Bromwich Building Society [1998] 1 All ER 98
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4. Cheshire Building Society v Dunlop Haywards (DHL) Ltd and another

Citation: [2008] EWHC 51 (Comm)
Hearing date: 18 January 2008
Court: Queen's Bench Division, Commercial Court
Judge: David Steel J
Summary: misrepresentation – fraudulent misrepresentation – valuation of building

In February 2005, the claimant building society was asked to make a loan of £10.5 million to a company called Goldgate Properties Ltd (Goldgate) to fund the purchase of a property in Birmingham at a price of £14.5 million. It was the understanding that, following purchase, the property was to be occupied by three business tenants taking new leases at favourable rental rates.

The claimant gave instructions to the first defendant to value the property. M, a director of the first defendant, subsequently produced a valuation of £16 million with the new leases and £10.5 million with vacant possession. In reliance on that valuation, the claimant advanced the sum of £10.5 million to Goldgate in April 2005. In September 2005, the claimant was asked to advance a further £1 million to Goldgate against the security of the property. The claimant, therefore, asked the first defendant to confirm whether or not its valuation still applied. The first defendant through M confirmed that it did, and the claimant, therefore, advanced the money. In due course, the claimant discovered that it had been the victim of a mortgage fraud: the proposed new leases were bogus, and the value of the property was only about £1.5 million with vacant possession. The claimant suffered a substantial loss as a result when Goldgate defaulted on the loan. It brought proceedings in May 2007, claiming damages in deceit, or in the alternative, negligence and / or breach of contract. The first defendant admitted negligence and breach of contract, but also contended that the claimant had been contributorily negligent. It did not admit that M had acted fraudulently. In September 2007, the claimant applied for summary judgment, accompanied by witness statements and an expert's report. In October 2007, the first defendant issued separate proceedings against M, asserting (without prejudice to its defence against the claimant) that M had acted fraudulently in the respects alleged by the claimant. No defence had been served at all material times. The defendant also applied for summary judgment against M.

The court ruled:
The two claims stood or fell together. The first defendant had not vigorously denied the allegation of fraudulent misrepresentation; instead, it merely made “no admission”. M had not filed a defence. The defendant had sought to give full disclosure, and there was little, if any, issue of primary fact. The expert's report had not been challenged in any material respect; indeed, it was common ground that the discrepancy between the true values and the values provided by M were “massive” and the rental levels adopted were well in excess of the market. In all the circumstances, the features of the valuation were only consistent with dishonesty. Even incompetence could not account for the actions. The claimant and the first defendant, in turn, were entitled to summary judgment on their claims in deceit. An interim payment of £10 million would also be ordered.

Case annotations in other services: Cheshire Building Society v Dunlop Haywards (DHL) Ltd and another [2008] All ER (D) 88 (Jan)
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5. Risegold Ltd v Escala Ltd

Citation: [2008] EWHC 21 (Ch)
Hearing date: 17 January 2008
Court: Chancery Division
Judge: Bernard Livesey QC sitting as a deputy judge of the High Court
Summary: easement – right of access – construction

The proceedings concerned neighbouring freehold premises in a court comprising six single-storey industrial units. In 1993, units 3, 4, 5 and 6 were owned by a company, London and Brighton Estates Ltd. It transferred the title to units 5 and 6 to the claimant's predecessors on 18 July, and the title to units 3 and 4 to the defendant on 6 August. The east side of units 5 and 6 abutted a yard contained within the defendant's title. Clause 5 of the transfer to the claimant's predecessor granted it “the right...to enter (without vehicles) upon such part of the yard ... as is necessary for the purpose of carrying out maintenance repair rebuilding or renewal to the property subject to the minimum disturbance and inconvenience being caused to the owners and occupiers of the adjoining property, and to the making good forthwith of all damage caused to the adjoining property in the exercise of such right”. The transfer to the defendant contained, in identical terms, a reservation of that right for the benefit of the claimant's predecessor. On 17 November 2005, the claimant purchased units 5 and 6 with the benefit of planning permission to demolish the existing structure and build a five- or six-storey block containing commercial units on the ground floor and some 24 flats on the upper floors. The claimant applied for a declaration that, pursuant to the grant, it was entitled to enter the yard for the purposes of rebuilding or renewing its property in accordance with the proposed development. An issue arose as to whether the development fell within the scope of the right of access granted by clause 5. The defendant submitted, inter alia, that the project was not, in truth, a rebuilding or renewal of the property, but a comprehensive redevelopment, which was not one of the permitted purposes of the grant.

The application would be dismissed.

The congruence of the internal clues in clause 5 with the normal meaning of the words led to the conclusion that the defendant's submission had to be accepted. Within clause 5 there seemed to be abundant internal evidence that the scope of the claimant's right was intended by the grantor to be strictly limited and to derogate to the minimum possible extent from the enjoyment by the servient owner of his land. There was, first, the requirement that there should be “minimum disturbance and inconvenience” caused to the owner or occupier of the servient tenement; then that the right of access was to be only for the specified purpose and, even then, should be over only “such part of the yard as is necessary” for the specified purpose. In addition to that, there was the important limitation that the right to enter had to be exercised “without vehicles”. A vehicle was defined in the New Shorter English Dictionary as “a means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, etc”. A vehicle might, of course, be motorised or un-motorised. Access for a permitted purpose using either was prohibited. It was possible, therefore, to conclude that clause 5 envisaged that workmen employed to carry out either maintenance, repair, rebuilding or renewal would be entitled to take onto the defendant's property any tools and equipment that they might be able to carry onto it without the benefit of a vehicle, motorised or un-motorised, even a wheelbarrow. That suggested that any rebuilding or renewal of the property, which the parties had intended to come within the scope of clause 5, had been contemplated by them at the date of grant to be severely restricted as to occasion and limited in extent. Therefore, clause 5 did not afford the claimant the rights over units 3 and 4 it sought.

Case annotations in other services: Risegold Ltd v Escala Ltd [2008] All ER (D) 70 (Jan)
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6. UK Coal Mining Ltd v North Warwickshire Borough Council

Citation: [2008] EWHC 23 (Admin)
Hearing date: 17 January 2008
Court: Queen's Bench Division, Administrative Court
Judge: Wyn Williams J
Relevant legislation: Town and Country Planning Act 1990, section 287
Summary: town and country planning – development – local plan

The claimant was a limited company primarily concerned with the winning and working of coal. Its associated interests included land owning and property development. In February 2003, the second defendant local planning authority published and placed on deposit a draft local plan. Objections were made to that plan, and in April 2004, a revised draft was published and placed on deposit. Objections were made to the revised draft and, in consequence, a public local inquiry was convened and presided over by an inspector appointed by the authority.

During the course of the inquiry, the claimant registered an objection in respect of two areas of land it owned (the site), that was within the settlement limits of the plan but had not been allocated for residential development. In August 2005, the inspector produced his report, recommending that the site was suitable for development given the shortfall in residential housing. The authority decided at a meeting of its executive board against accepting the inspector's recommendation, stating that the shortfall identified by the inspector was inconsequential and insignificant. Thereafter, the authority proposed some further modifications to the revised draft. The claimant, again, registered an objection, but that was rejected. Accordingly, in July 2006, the authority adopted the North Warwickshire Local Plan (the plan). The claimant applied under section 287 of the Town and Country Planning Act 1990 for an order quashing those parts of the plan that omitted its site from residential development.

It submitted, inter alia, that the authority had erred in law in light of the fact that adequate reasons had not been given for the rejection of the inspector's recommendation.

The application would be dismissed.

It was settled law that, not only would a planning authority have to give reasons that were, inter alia, “adequate”, in departing from an inspector's recommendation, but also that the failure to give adequate reasons caused genuine and substantial prejudice to an aggrieved party.

In the instant case, the authority made no attempt to explain why the shortfall in residential housing was inconsequential and insignificant. To that end, it had been in error. However, no argument could be sustained by the claimant, as an aggrieved party, that the authority's failure to provide an adequately reasoned decision had caused it genuine and substantial prejudice. Accordingly, the plan would stand.

South Buckinghamshire District Council v Porter (no 2) [2004] UKHL 33 applied.

Case annotations in other services: UK Coal Mining Ltd v North Warwickshire Borough Council [2008] All ER (D) 56 (Jan); South Buckinghamshire District Council v Porter (no 2) [2004] UKHL 33
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7. McDonalds Real Estate LLP v Arundel Corporation

Citation: [2008] All ER (D) 48 (Jan)
Hearing date: 16 January 2008
Court: Chancery Division
Judge: Lewison J
Summary: landlord and tenant – rent – review

On 10 September 1986, the claimant tenant was granted a 50-year lease of a warehouse that it redeveloped into a drive-through restaurant. Pursuant to the lease, the first rent review for the property was scheduled for 29 September 1990 and every five years following that date. There were two means of determining the value of the premises, basing the value on the actual building on site or the value of a hypothetical modern warehouse development. A dispute arose as to the correct formula to apply when determining the value of the property for rent review purposes.

The court ruled:
In the circumstances, notwithstanding the fact that there was no warehouse on the site, the value of the property had to be calculated on the basis that it was a standard warehouse unit. Further, the fact that, upon the grant of planning permission and consent by the landlord, it could be used for the retail trade to be taken into account.

Monomart (Warehouses) Ltd v Secretary of State for the Environment [1977] JPL 524 considered.

Case annotations in other services: McDonalds Real Estate LLP v Arundel Corporation [2008] All ER (D) 48 (Jan); Monomart (Warehouses) Ltd v Secretary of State for the Environment [1977] JPL 524
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8. Barclays Bank plc v Guy

Citation: [2008] All ER (D) 47 (Jan)
Hearing date: 16 January 2008
Court: Chancery Division
Judge: Terence Mowschenson QC sitting as a deputy judge of the High Court
Summary: land charge – registration – charged created by company

The defendant was the registered proprietor of a property estimated to be worth approximately £35 million. On 22 June 2004, the property was transferred to Ten Acre Ltd (Ten Acre). The defendant signed the transfer document, which allegedly bore no date or purchase price, and was delivered to his solicitor subject to conditions upon which it was to be held. On 30 July, the transfer was registered against each of the four registered titles to the property. On 8 March 2005, Ten Acre charged the property as security for the payment or discharge of all monies and liabilities due to the claimant, whether by Ten Acre or Lexi Holding plc (Lexi), a related company. On 11 March, the charge was registered as first ranking security against each of the titles to the property. The claimant demanded repayment of a sum by Lexi, which it failed to satisfy. Joint administrators appointed in respect of Ten Acre and subsequently Lexi consented to the sale of the property by the claimant as chargee. The claimant brought proceedings against the defendant, seeking declarations that it was entitled to sell the property pursuant to the legal charge, and that any purchaser would take the property free of any interest, which the defendant might have therein. The claimant subsequently applied for summary judgment.

It fell to be determined whether the defendant had a real prospect of successfully defending the claim. He submitted, inter alia, that the charge was ineffective as the transfer of the property was void, having been fraudulently procured by Ten Acre. He was, therefore, entitled to rectification of the proprietorship register as against the claimant. Furthermore, he submitted that the claimant ought to have known or been put on notice as to the allegedly fraudulent nature of the transfer.

The application would be allowed.

(1) At the time when the property had been charged to the claimant, Ten Acre had been the registered proprietor. It had, therefore, been entitled to exercise its right to charge the property. The fact that the transfer document might have been delivered to the defendant's solicitor subject to conditions upon which to hold it did not prevent the document from being a deed sufficient to allow the land register to transfer title to the property. It followed that there could have been no mistake in the claimant's registration as chargee.

(2) The issue of actual notice of a competing claim did not outweigh the effect of the proprietorship register.

When the claimant had come to obtain the charge, it had been entitled to look at the proprietorship register and take it at face value. The point of the register was that it was not necessary to go behind it.

Case annotations in other services: Barclays Bank plc v Guy [2008] All ER (D) 47 (Jan)
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9. Roland Bardsley Homes Ltd v Secretary of State for Communities and Local Government and another

Citation: [2008] EWHC 22 (Admin)
Hearing date: 16 January 2008
Court: Queen's Bench Division, Administrative Court
Judge: Michael Supperstone QC sitting as a deputy judge of the High Court
Relevant legislation: Town and Country Planning Act 1990, sections 78, 288
Summary: town and country planning – permission for development – material consideration

In November 2003, the claimant developer was granted planning permission by the second defendant local planning authority for the erection of 18 apartments and a house on a site it owned. About two years later, it submitted an application for planning permission to the authority for the erection of 21 apartments, a house, and associated works that included the formation of a new access road (the proposal), in respect of the same site. The authority refused the application, stating, inter alia, that the proposal would represent a visually intrusive development by reason of its scale and design, which was contrary to policies set out in its unitary development plan and replacement unitary development plan. The claimant appealed against that decision to the first defendant Secretary of State under section 78 of the Town and Country Planning Act 1990 (the Act). The Secretary of State appointed an inspector, who, after conducting an inquiry and site visit, decided that the proposed buildings would be unsuitable for the site in terms of size and appearance, particularly when considered against, inter alia, the wooded surroundings, taking the “predominant” height of the trees. The claimant applied to quash that decision pursuant to section 288 of the Act.

An issue arose as to whether the inspector had misunderstood evidence given at the inquiry relating to the impact that the proposed buildings would have on the existing tree cover to and surrounding the site (the tree survey).

The application would be dismissed.

In the circumstances, the inspector had not erred in his assessment of the evidence. The tree survey contained information about the height of individual trees and the maximum current heights of trees in the surveyed groups. Further, the inspector had had a site visit. He had seen the trees on the site and was entitled to exercise his expert judgment in assessing their “predominant” height. Accordingly, the inspector's decision would stand.

Case annotations in other services: Roland Bardsley Homes Ltd v Secretary of State for Communities and Local Government and another [2008] All ER (D) 29 (Jan)
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10. Homepace Ltd v Sita South East Ltd

Citation: [2008] EWCA Civ 1
Hearing date: 15 January 2008
Court: Court of Appeal, Civil Division
Judges: Waller, Smith and Lloyd LJJ
Summary: landlord and tenant – rent – payment

A 999-year lease, which ran from 10 September 1996, was of land including a disused quarry. The lessor's rights under the lease included, inter alia, rights to quarry and excavate all minerals in or under the land and to dispose of them. The minerals were defined as “all minerals including limestone and clay deposits within the Land excluding […] the Reserved Minerals”. Clause 3.5.4 of the lease provided, inter alia, that the lessee's liability to pay the base rent of £100,000 per annum, referred to as “certain rent”, should cease upon “the exhaustion of all the reserves of minerals in on or under the land or upon those Minerals becoming economically irrecoverable and there being no reasonable prospect of them becoming economically recoverable within the next ten years”, provided that no fewer than 12 months prior to the date on which the liability to pay the certain rent ceased, the lessee served on the lessor a notice in writing of its intention to cease payment of the certain rent, which notice should append a surveyor's minerals exhaustion certificate. The lessee served such a notice, and the lessor approved the appointment of a surveyor to act for the purposes of clause 3.5.4. The surveyor made a report which set out his terms of reference and discussed the mineral reserves. The certificate, which was the last part of the body of the report concluded that the minerals as defined in the lease were not economically recoverable and that there was no reasonable prospect of them becoming recoverable within the next 10 years. In response to a query by the lessor, the surveyor stated that he had not taken account of the reserved minerals, which were dealt with in clause 7 of the lease. The lessor brought proceedings seeking payment of the certain rent on the basis that the certificate issued by the surveyor under the lease was not valid and binding. It argued that the surveyor had not undertaken the task entrusted to him and raised points about the definition of minerals. The judge found that the surveyor had excluded from the scope of his certificate all limestone suitable for building, walling and the other uses specified in the definition of reserved minerals, and that in doing so he had misconstrued the definition of minerals. The judge found for the lessor and the lessee appealed.

Issues arose as to whether the certificate complied with the requirements of the lease, and how far, if at all, that question could be examined by the court.

The appeal would be dismissed.

The first question that had to be determined was what the lease had entrusted to the surveyor; the second was whether that was what he had decided and, if so, the third was whether it could be shown that he had made a mistake that vitiated his decision. In each case, therefore, it was necessary first to consider, as a matter of the true construction of the lease, what it was that was referred to the surveyor, and with what effect, as regards to the scope of certificate. The next issue was whether the approach of the surveyor to the rights of the lessee under the lease was correct or not. A surveyor did not need to respond to the requests for clarification of his certificate, and his report and could not be compelled to explain himself, but if he did respond to requests for clarification, the court had to look at his explanations when considering what was the reasoning that led him to issue his certificate and whether it was prepared on the correct basis.

In the instant case, the structure of the provisions of the lease were such that, despite the absence of any words such as “final and binding”, the surveyor was given exclusive power to determine the questions to which his certificate was directed, whether it was as to the exhaustion of all minerals, or as to their not being economically recoverable. However, since he had done so, and thereby made clear the basis on which he had proceeded, it was necessary to look at his explanations when considering what was the reasoning that led him to issue his certificate, and whether it was prepared on the correct basis. The certificate itself did not disclose any error, but the report of which it formed a part hinted at an error with regard to the exclusion of the Reserved Minerals. Those minerals should not have been left out of account by the surveyor. Under the lease, it was not for him to decide what was meant by the minerals, and his certificate was only effective if it considered the question of economic recoverability by reference to the minerals as correctly understood. As the certificate did not proceed on the correct basis, it was not binding between the parties.

Jones v Sherwood Computer Services plc [1992] 2 All ER 170 applied; Mercury Communications Ltd v Director General of Telecommunications [1996] 1 All ER 575 applied; National Grid Co plc v M25 Group Ltd [1998] All ER (D) 791 applied. Decision of Nicholas Strauss QC [2007] All ER (D) 517 (May) affirmed.

Case annotations in other services: Homepace Ltd v Sita South East Ltd [2008] All ER (D) 18 (Jan); Jones v Sherwood Computer Services plc [1992] 2 All ER 170; Mercury Communications Ltd v Director General of Telecommunications [1996] 1 All ER 575; National Grid Co plc v M25 Group Ltd [1998] All ER (D) 791; Nicholas Strauss QC [2007] All ER (D) 517 (May)
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11. R (on the application of Carroll) v South Somerset District Council

Citation: [2008] All ER (D) 13 (Jan)
Hearing date: 14 January 2008
Court: Queen's Bench Division, Administrative Court
Judge: Collins J
Relevant legislation: Town and Country Planning Act 1990, section 106
Summary: town and country planning – permission for development – consent agreement under statute

The claimant was the leader of the defendant local authority. The applicant applied to the local authority for planning permission for the erection of 212 dwellings. The local authority's regulation committee resolved that planning permission be granted subject to, inter alia, an agreement under section 106 of the Town and Country Planning Act 1990. That requirement was overlooked, and planning permission was granted by the local authority. The claimant, after being informed of the mistake, applied for judicial review and sought to quash the grant of planning permission. An issue arose as to whether the planning permission was granted without authority in that a section 106 agreement was a condition precedent to any grant.

The application would be allowed.

In all the circumstances, the grant of planning permission in the instant case had been unlawful. There was nothing to indicate that there had been an agreement under section 106 of the 1990 Act before the grant of permission. In that context, the sensible and correct approach was to dispose of the section 106 agreement before planning permission was granted.

Accordingly, the planning permission would be quashed, and the application would be remitted to a planning officer for consideration in accordance with section 106 of the 1990 Act.

Case annotations in other services: R (on the application of Carroll) v South Somerset District Council [2008] All ER (D) 13 (Jan)
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Statutory Instruments

1. Real Estate Investment Trusts (Breach of Conditions) (Amendment) Regulations 2007

Number: 2007/3540
Enabling power: Finance Act 2006 section 116, 129(2)(a), (b); section 129(3), 144
Commencement: 7 January 2008
Summary: The Regulations amend the Real Estate Investment Trusts (Breach of Conditions) Regulations 2006 to make provision for the consequences flowing from a breach of the conditions in part 4 of the Finance Act 2006 (chapter 25) as amended by schedule 17 to the Finance Act 2007 (chapter 11).
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2. Land Registration (Proper Office) Order 2007

Number: 2007/3517
Enabling power: Land Registration Act 2002, section 100(3)
Commencement: 1 April 2008
Summary: The Order designates particular offices of Land Registry as the proper office for the receipt of specified descriptions of application under the Land Registration Act 2002. It replaces the Land Registration (Proper Office) Order 2003 and the Land Registration (Proper Office) (Amendment) Order 2005.
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Features

1. New rules for compulsory purchase orders

The new Compulsory Purchase (Inquiries Procedure) Rules 2007 (the Rules) come into force on 29 January. Shabana Anwar, solicitor at Bircham Dyson Bell LLP and contributor to Butterworths Planning Law Service, said: "The government is on a drive to simplify the planning system, and this includes unifying, where possible, differing rules and regulations."

The Rules apply to all inquiries into compulsory purchase orders (CPOs) made in draft by a UK government minister that include land in England and or Wales, as well as inquiries into CPOs made by non-ministerial acquiring authorities in England. Separate Rules to be issued by the Welsh Assembly Government will apply to CPOs made or confirmed by the Welsh ministers. They replace the Compulsory Purchase by Non-Ministerial Acquiring Authorities (Inquiries Procedure) Rules 1990 and the Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1994 and reflect current practices adopted in procedure rules employed in other types of inquiries.

"The two rules, which they replace, are now quite old and needed updating and amending in light of changes introduced by the Planning and Compulsory Purchase Act 2004 (PCPA 2004), it was therefore a good opportunity and made sense to have a single unified set of Rules because, despite the differences in procedure, the mechanics are the same, regardless of whether a CPO is made by a minister or an acquiring authority and confirmed by a minister," said Anwar.

The terminology used in the Rules has been updated to reflect the terms used in the PCPA 2004, such as “confirming authority”, “appropriate authority” and “remaining Objector”.

In addition, the Rules also use the term “authorising authority”, which covers the role of the appropriate minister, both in the case of ministerial orders where a government department or agency seeks to acquire land compulsorily, and the role of the minister who confirms non-ministerial CPOs submitted by the relevant acquiring authority.

Where there were differences in the timescales set in the previous Rules for any particular section, the new Rules propose adopting the longer. This is intended to avoid the risk of infringing the human rights of objectors. However, as both of the previous sets of Rules had always included provision for the minister making or confirming the order to allow extra time for any step in the procedures, its practical input will be minimal.

There are minor procedural changes, for example, the deadline for serving notice of intention to hold an inquiry has been extended to five weeks from the end of the objection period. However, Anwar said: "I do not think that minor changes will make that much difference to the way inquiries are held nor will they have any major impact."

She added: "The Rules will, however, provide consistency and more certainty in relation to such inquiries."

For both ministerial orders and non-ministerial orders, the pre-inquiry meeting called by the authorising authority must be held no later than 16 weeks after the relevant date. These meetings are meant to provide an opportunity for the inspector to identify the main issues likely to arise at the inquiry and any need for additional information. Normally, Ministers will call a pre-inquiry meeting only in exceptional cases.

"Pre-inquiry meetings can be very useful and help to identify the main issues and assist in the smooth running of the inquiry. I think such meetings can save time later and help focus minds early on," said Anwar.

The Rules contains a number of provisions designed to improve participation by interested parties in the inquiry and to save time but can all interests be served?

"I think it is difficult to strike a balance between speeding up the system and at the same time being fair and allowing those interested to have an opportunity to have their say. For example, rule 14(3) states that the inspector will not unreasonably withhold permission for any person to appear at an inquiry, this could cause delay if a number of interested persons wish to appear," says Anwar.

Asked whether the new Rules will be welcomed Anwar said: "I think there will be a mixed response, but I believe that a unified set of Rules is a good idea and makes sense."

Relevant legislation: Planning and Compulsory Purchase Act 2004

(23/01/08)
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2. Changes to the town and country planning regime

The Planning Bill, currently before the Planning Committee, outlines reforms to the planning system at local level, which includes a number of proposed amendments to the Town and Country Planning Act 1990 (TCPA 1990). One proposal is to give planning officers powers to determine some planning applications, which will then be reviewed by the local planning authority’s review body.

Nigel Hewitson, head of planning at Norton Rose LLP and a contributor to Butterworths Planning Law Service, said: "I don’t think, in practice, that an internal review body will be seen as an adequate right of appeal. I can see human rights challenges being made to the proposed system on the basis that it doesn’t provide for a fair trial of the applicant’s civil rights."

The Bill also proposes to amend the TCPA 1990 to give local planning authorities the power to make “non-material” changes to planning permissions, including the power to impose new conditions or remove or alter existing ones.

"This is a useful and sensible provision. Although the legal position is that development will be lawful if it is, in substance, the same as the development for which planning permission was granted," said Hewitson.

He added: "A number of local authorities have recently adopted the position that no changes can be made without a complete new application. This provision will bring clarity."

Other changes to the TCPA 1990 would enable the Secretary of State to determine the most appropriate procedure to be applied to a number of planning appeals such as a local inquiry, a hearing or written representations.

"It will be interesting to see how this plays with developers," said Hewitson. "The perception (supported by the raw statistics), is that an appellant has a better chance of success at an inquiry than using the other two methods. Until now, appellants have, effectively, had the right to insist on an inquiry. Taking that right away may not be popular with developers."

Hewitson welcomes the proposals, which will enable the Secretary of State to make regulations regarding fees for planning appeals.

"I think a standard national application form and fee scale is to be welcomed in the interests of certainty."

Amendments are proposed to the Planning and Compulsory Purchase Act 2004 to simplify the delivery process of the Local Development Frameworks.

The Bill also makes provision for the introduction of a Community Infrastructure Levy (CIL). The purpose of the CIL is to ensure that costs incurred in providing infrastructure to support the development of an area, the value of which increases as a result of the permission for the development, can be funded wholly or partly by landowners. The Bill specifies that the authority that collects the CIL must use the money to fund the infrastructure.

The substantive content of the CIL will be set out in the CIL Regulations to be made by the Secretary of State and will include detailed procedure such as the type of charging authorities that will administer the scheme, the liability of landowners to pay the CIL and the methods and collection of payment.

Each charging authority will be required to publish levy rates for different types of development along with procedures for working out the rate, although the Secretary of State may set a maximum limit on the CIL. The enforcement regime could include imposition of interest and penalty charges, suspension of decisions to grant planning permission and the creation of criminal offences.

In addition, the CIL Regulations may also impose reporting and accounting requirements on charging authorities and specify how powers under section 106 of TCPA 1990 and section 278 of the Highways Act 1980 are to be used.

Hewitson said: "The CIL is to be broadly welcomed. Setting a standard levy will remove the need to negotiate on a case-by-case basis and promote certainty for all concerned." He added: "My only criticism is that the CIL breaks the causal link between the development and the need for infrastructure. Developments in areas where infrastructure is not actually needed would still have to pay."

The Bill had its second reading in the House of Commons on 10 December.

Relevant legislation: Highways Act 1980; Town and Country Planning Act 1990; Planning and Compulsory Purchase Act 2004

(18/01/08)
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