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Issue 54 – June 2008

Contents

Cases
Statutory Instruments

Features
Articles

News

Events
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Cases

1. Canterbury City Council v Hill

Citation: [2008] All ER (D) 273 (May)
Hearing date: 21 May 2008
Court: Court of Appeal, Civil Division
Judges: May, Lloyd and Lawerence Collins LJJ
Summary: Town and country planning – Enforcement of planning control – Enforcement notice

On 25 April 2007, the defendant was made the subject of an order granting injunctive relief to the claimant local authority to remedy breaches of planning control. The order required the defendant to remove certain buildings and structures, and to discontinue certain uses of her land. The defendant did not comply with certain parts of the order by the stipulated date, namely a requirement that she remove internal fencing and pig sheds from her land. As a result a committal order was made in respect of the defendant, which was suspended on the condition that she complied with the order by March 2008. In February 2008, the defendant made an application to set aside the committal order on the basis of, inter alia, additional evidence that the pig sheds were mobile. The judge found as a matter of fact that the pig sheds were not mobile, dismissed the defendant's other application and stayed her application to set aside the committal order so that it could be heard in front of the Court of Appeal. The issue arose as to whether the committal order should be set aside. The defendant submitted that the judge should have accepted her evidence on mobility.

The appeal would be dismissed.

In the instant case, the finding by judge that the sheds were not mobile was a proper finding of fact which the court would not disturb. Moreover, the order of 25 April 2007 had not been complied with more than a year. Accordingly, the defendant's application to set aside the committal order would be dismissed.

Case annotations in other services: Canterbury City Council v Hill [2008] All ER (D) 273 (May)
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2. Red River and another v Sheikh and another

Citation: [2008] All ER (D) 283 (May)
Hearing date: 21 May 2008
Court: Chancery Division
Judge: Henderson J
Summary: Contract – Enforceability – Certainty of terms

The first defendant practised as a sole practitioner in the firm of A & Co. In 2004, the first claimant purchased property and obtained planning permission for its redevelopment. A & Co acted for the first claimant in connection with the purchase. The purchase price was funded in part by a first mortgage with the Bank of Scotland (BOS) and funds invested by the first defendant. The purchase agreement included terms that 35 per cent of the shares in the first claimant would be transferred at par value to the first defendant's mother (the second defendant). Following the purchase of the property, the parties fell out and commenced various proceedings against each other. In June 2007, the parties entered into a settlement agreement between the first claimant, the second claimant (who was the driving force behind the first claimant), and the defendants, in full and final settlement of the disputes between the parties. By that settlement, the claimants agreed to pay the defendants £1.2m, with £300,000 to be paid in July 2007. The first defendant agreed to deliver up appropriate documentation for the removal of two restrictions on the property's title within seven days. The settlement further provided that, upon the satisfaction of those conditions, the first claimant would enter into a legal charge in the second defendant's favour in a form approved by the Bank of Ireland (BOI), which would be reasonably acceptable to the first defendant (the second legal charge). The second legal charge was to be entered as part of a composite transaction between the first claimant, BOI and the defendants, including a first legal charge in favour of BOI, which intended to refinance the first claimant's debts to BOS. Due to the first defendant's failure to deliver up the documentation, the composite transaction did not proceed in time to allow the £300,000 payment to be made, with the result that BOI withdrew from the refinancing agreement. Consequently, the settlement agreement broke down, and efforts by the claimants to obtain refinancing from other sources proved fruitless. The claimants brought proceedings against the defendants, seeking, inter alia, to enforce the settlement agreement. That led to further court proceedings between the parties, including, inter alia, the presentation of a winding up order by the defendants against the first claimant. The various disputes resulted in court hearings and a judgment delivered in November 2007 ([2007] All ER (D) 266 (Nov)). Following that judgment, the defendant made further applications to court, requesting: (i) delivery up of the executed second legal charge, (ii) permission to issue further winding up proceedings against the first claimant for failure to make the payment of £300,000, (iii) confirmation from the court that a judgment in default was entered by the first defendant against the claimants in December 2007, and (iv) that the claimants' outstanding claims against the defendants be struck out.

The applications would be dismissed.

Having considered all the relevant matters, the applications in question were without merit. The request for delivery up of the executed second charge and to present a further winding up petition against the first claimant had been ruled upon in the judgment delivered in November 2007. There had been no change in circumstances since that date to justify the presentation of a further petition against the first claimant. On the evidence, the defendants' attempt to enter default judgment against the claimants had been aborted. The request to strike out the claimants' outstanding claims against the defendants was default of merit in circumstances where the defendants had been in breach of their obligations under the settlement agreement.

Case annotations in other services: Red River and another v Sheikh and another [2008] All ER (D) 283 (May)
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3. Persimmon Homes (North East) Ltd and others v Blyth Valley Borough Council

Citation: [2008] All ER (D) 269 (May)
Hearing date: 20 May 2008
Court: Queen's Bench Division, Administrative Court
Judge: Collins J
Relevant legislation: Planning and Compulsory Purchase Act 2004, sections 19, 20
Summary: Town and country planning – Development plan – Independent examination of development plan
 
In October 2004, the defendant local planning authority commissioned an officer to produce a “housing need study” (HNS). The published study stated, so far as was material, that 83 per cent of housing on sites for which development was to take place within the borough of Blyth Valley, had to be affordable housing. In the event, however, the authorities were of the view that 83 per cent was unrealistic, and that 40 per cent was more appropriate. In April 2006, it maintained that view. Then, following the introduction of a Planning Policy Statement (PPS) in November, which required, inter alia, the issue of “economic viability” to be taken into account in setting targets for affordable housing, the authority revised its view, suggesting that 30 per cent would be appropriate. By that time, an inspector who had been appointed by the Secretary of State had already been in the process of conducting an “independent examination”, as required by section 20(1) of the Planning and Compulsory Purchase Act 2004, of the authority's proposed affordable housing policy of 30 per cent. The inspector found that the authority's proposed policy satisfied the requirements of section 19 of the 2004 Act, and that it was sound pursuant to section 20(2)(b) thereof, on the basis of the “need” for affordable housing which the HNS had identified. The inspector also found that the introduction of the PPS had made no difference to that conclusion. Consequently, in July 2007, the authority adopted the Blyth Valley Core Strategy Development Plan Document. Policy H4 of that document, provided, so far as was material: “A target of 30 per cent of affordable housing will be sought as a proportion of all new housing developments in the borough.” The claimants, housing developers, applied under section 113 of the 2004 Act for an order quashing Policy H4.

They submitted, inter alia, that the inspector had erred in setting a target of 30 per cent on the basis that the issue of economic viability, as required by the PPS, had not been taken into account. The authority submitted that the issue of economic viability was capable of consideration for each and every site which had been designated for new housing development, such that any flaw in the inspector's approach could be remedied.

The application would be allowed.

In the circumstances, two courses of action had been open to the inspector after the introduction of the PPS while the independent examination had been ongoing. The first option was for him to substitute a provision in the final version of the development plan document which made it clear that an appropriate percentage could be considered in respect of each and every planning application for new housing development and that the percentage had to be set as high as was reasonably possible. The other option was for him to adjourn the independent examination to permit the receipt of new evidence that related to the issue of obtaining a reliable percentage for a borough-wide target that was economically viable. In any event, policy H4 did not satisfy the requirements of section 19 of the 2004 Act, and was unsound for the purposes of section 20(2)(b) thereof, insofar as it had required developers to ensure that 30 per cent of housing built on sites within the borough was affordable housing. In setting the target of 30 per cent, the inspector had failed to consider a highly material factor, namely, economic viability. The authority's suggested approach of considering economic viability on a case-by-case basis was wrong as the 30 per cent figure would still be there.

Accordingly, policy H4 would be quashed, and a fresh consideration of it would be ordered.

Case annotations in other services: Persimmon Homes (North East) Ltd and others v Blyth Valley Borough Council [2008] All ER (D) 269 (May)
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4. Dodds v West Register (Public Houses III) Ltd

Citation: [2008] All ER (D) 246 (May)
Hearing date: 19 May 2008
Court: Chancery Division
Judge: David Donalsdon QC (sitting as a deputy judge of the High Court)
Relevant legislation: Arbitration Act 1996, section 68(2)(d)
Summary: Arbitration – Award – Appeal

The claimant was the tenant of public house premises (the property) leased from the defendant landlord. The property was a tied house and the lease contained a beer tie. The lease also contained the mechanism for rent review. An arbitrator was subsequently appointed to determine the rent payable pursuant to the rent review provisions. It was common ground that free of tie tenants obtained benefits by way of discounts on alcohol supplies from wholesalers that were not available to tied tenants. As a preliminary issue the arbitrator was asked by the claimant to determine whether the claimant's personal trading accounts and associated documents were admissible in the rent review determination. The claimant's position was that they were admissible on the basis that a tied tenant should not be worse off than a tenant who was free of tie. The arbitrator accepted that idea, but determined the preliminary issue in the defendant's favour, finding that the claimant's actual trading accounts were inadmissible (the first award). The arbitrator went on to determine the rental value of the property (the second award). The claimant relied on its actual trading accounts for each of the elements in the valuation, whereas the defendant advanced a comparable method of valuation, arriving at the rental value of the property from comparables which were also tied houses. In arriving at the rental valuation for the property, the arbitrator considered each line of entry in the claimant's trading accounts. The claimant's actual trading accounts included an entry by its accountant called “open market discounts”, which showed discounts that the claimant would have been able to obtain if he had not been tied. However, the arbitrator failed to consider that entry, with the effect that he failed to consider the impact on his assessment of the claimant's “open market discounts” on the rental value of the property. The claimant challenged the second award pursuant to section 68(1) of the Arbitration Act 1996, which provided that a party to arbitral proceedings might (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings, or the award. Pursuant to section 68(2), “serious irregularity” meant an irregularity which the court considered had caused or would cause substantial injustice to the applicant, including, as set out in section 68(2)(d), a failure by the tribunal to deal with all the issues that were put to it.

The claimant argued that when making his assessment, the arbitrator had failed to take account of the price differential between the wholesale prices available to “free of tie” tenants and those imposed by the beer tie.

The appeal would be allowed.

In the instant case, the absence of a decision on the claimant's “open market discounts” amounted to a serious irregularity pursuant to section 68(2)(d) of the Act, resulting in substantial injustice to the claimant, which had arisen as a result of the arbitrator's failure to address that entry in the claimant's trading accounts. In the circumstances, the matter should be returned to the arbitrator so that he could address that point and give his ruling on it.

The award would be remitted to the arbitrator for reconsideration.

Case annotations in other services: Dodds v West Register (Public Houses III) Ltd [2008] All ER (D) 246 (May)
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5. Barrett v Barrett

Citation: [2008] All ER (D) 233 (May)
Hearing date: 19 May 2008
Court: Chancery Division
Judge: David Richards LJ
Summary: Trust and trustee – Constructive trust – Brothers entering into sale of property

The claimant and defendant were brothers. In 1977, the claimant purchased a freehold house as sole legal and beneficial owner. He lived at the house thereafter and from time to time the defendant and another brother also lived there. In June 1993 the claimant was declared bankrupt and the property became vested in his trustee in bankruptcy. A possession order was made by consent. The defendant offered to purchase the property at a price which, after discharging a mortgage on the property would leave the trustee with £15,000. The trustee agreed and in due course the defendant became the registered proprietor of the property. In June 1996, the claimant was discharged from bankruptcy. Non-preferential creditors received a dividend of 38.32p in the pound. The claimant continued to live at the property until it was sold in September 2005. The defendant was living at the property at the time of the sale by the trustee and continued to do so until about 2000. After the property was sold in September 2005, the balance of the price (after deduction of certain mortgages) was paid to the defendant. The defendant paid £115,000 to his sister in October 2005.

He claimed that the sister held the sum as his nominee, but she refused to re-pay it, contending that she in fact held it on behalf of the claimant. Proceedings were issued which took the form of an action by the claimant against the defendant for a declaration that the proceeds of sale were held by the defendant on trust for the claimant. The basis of the claimant's action was that an agreement was reached in about October 1994 that the defendant would purchase the property but allow the claimant to remain in occupation. Secondly, there was an express trust in favour of the claimant, on terms that the claimant would pay all expenses relating to the property, including mortgage repayments. No written terms of such a trust existed, rendering the claim one for constructive trust.

The defendant contended that it was implicit in the claimant's pleaded case that the claimant's beneficial agreement was made for an illegal purpose, because it would not be declared to his trustee in bankruptcy as required by section 333(2) of the Insolvency Act 1986. The case therefore had to fail. The judge upheld that submission and the claimant appealed.

He accepted that the purpose of the agreement pleaded was to evade the rules of bankruptcy and was therefore an unlawful purpose. It was however submitted that the claimant did not have to rely on that purpose in order to establish a beneficial interest in the property; on the facts as pleaded, he could prove contribution to the purchase, by way of mortgage payments, as an objective or neutral fact without recourse to the illegal motive. Alternatively, the illegal motive was too remote.

The appeal would be dismissed.

Far from being too remote, the illegal motive behind the transaction was its essence. The only purpose of the trust arrangement, as opposed to the purchase from the trustee in bankruptcy, could have been to conceal the claimant's interest from the trustee in bankruptcy. Moreover, given that the claimant had to rely on the pleaded agreement or arrangement that he was to be the beneficial owner and was to pay the mortgage instalments, he could not avoid reliance on its unlawful purpose. Without that purpose, the agreement or arrangement had no rational explanation. The claimant needed to allege and prove it in order to establish the agreement, but in doing so he relied on his own illegal purpose and thereby rendered his interest unenforceable. That objection defeated all bases on which he argued his case.

Collier v Collier [2002] All ER (D) 466 (Jul) considered; Tinsley v Milligan [1993] 3 All ER 65 applied.

Case annotations in other services: Barrett v Barrett [2008] EWHC 1061 (Ch); Collier v Collier [2002] All ER (D) 466 (Jul); Tinsley v Milligan [1993] 3 All ER 65
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6. Atlantic Housing Ltd v Secretary of State for Communities and Local Government and another

Citation: [2008] All ER (D) 198 (May)
Hearing date: 15 May 2008
Court: Queen's Bench Division, Administrative Court
Judge: Collins J
Relevant legislation: Town and Country Planning Act 1990, section 288; Human Rights Act 1998, schedule1, part 1, article 8
Summary: Town and country planning – Permission for development – Refusal

The claimant was the landowner of an estate in Hampshire providing accommodation for elderly people. The claimants sought to redevelop the estate and made two applications for planning permission to the planning authority for permission to demolish certain existing bungalows and to construct a block of 32 flats and 24 new bungalows. In addition to the claimant conducting a consultation it requested Help the Aged, a charity providing practical support and advice to help older people lead independent lives, to also conduct a consultation. Help the Aged's report indicated that the claimant's consultation had been less than satisfactory and had failed to deal appropriately with its existing residents. The consultation reports were placed before the planning inspector, who considered the issue, inter alia, of whether the human rights of the existing residents would be violated by the granting of permission. The inspector concluded that, on all the material before him, there was insufficient evidence to conclude that the existing residents' rights to private and family life would be safeguarded, contrary to article 8 of the European Convention of Human Rights, as set out in part 1 of schedule1 to the Human Rights Act 1998, as even though the aims of the claimant had been legitimate and necessary, it's planning applications had not been proportionate. After the inspector's refusal to grant permission, the claimant conceded that not all the material facts had been put before the inspector and that he had erred in his conclusions in respect of article 8. Accordingly, the claimant challenged the inspector's decision under section 288 of the Town and Country Planning Act 1990.

The claim would be allowed.

In all the circumstances, the inspector's decision could not stand. In finding that the claimant's plan to redevelop its estate was legitimate and necessary and he had erred in finding that it was not proportionate. Further, the claimant had led the inspector into error by failing to supply him all the relevant materials on which to base his decision.

The inspector's decision to refuse planning permission would be quashed and the claimant's applications remitted for reconsideration.

Case annotations in other services: Atlantic Housing Ltd v Secretary of State for Communities and Local Government and another [2008] All ER (D) 198 (May)
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7. Islington London Borough Council v Secretary of State for Communities and Local Government and another

Citation: [2008] All ER (D) 143 (May)
Hearing date: 12 May 2008
Court: Queen's Bench Division, Administrative Court
Judge: Collins J
Relevant legislation: Town and Country Planning Act 1990, section 288
Summary: Town and country planning — Appeal to Minister against refusal of permission for development — Challenge to decision of inspector

The second defendant developer applied, inter alia, for planning permission to redevelop a site within a conservation area. The proposal was for a building on the site, which was adjacent to a listed building, to be demolished, and for, inter alia, ten residential units of varying sizes to be erected. The claimant local planning authority refused to grant permission, following which the developer appealed to the first defendant Secretary of State. An inspector, who was appointed by the Secretary of State, dismissed the appeal, having concluded: first, that the proposed development “fitted in” with the conservation area, in terms of density, amenity, and the impact that the development would have on the physical nature and the character of the land; secondly, that the development made “efficient use” of the site; and thirdly, that, having regard to various regional and national policies and planning guidance which had been issued by the Secretary of State, permission could be granted without the need for affordable houses to be erected on the site. The authority applied under section 288 of the Town and Country Planning Act 1990 for an order quashing the inspector's decision.

The issue arose as to whether the inspector had erred in respect of his conclusion on affordable housing.

The application would be dismissed.

In the circumstances, the inspector had been entitled to form the view that he had. The question whether affordable housing was to be a part of the residential aspect of the proposal was a matter of planning judgment, which was in the exclusive province of the inspector. Further, the fact that the inspector had found that the proposal fitted in with the conservation area, and that it made “efficient use” of the site, were sufficient grounds for him to then justify the conclusion that he had reached on affordable housing. Accordingly, the inspector's decision would stand.

Case annotations in other services: Islington London Borough Council v Secretary of State for Communities and Local Government and another [2008] All ER (D) 143 (May)
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8. Cubitt Building and Interiors Ltd v Richardson Roofing (Industrial) Ltd

Citation: [2008] All ER (D) 106 (May)
Hearing date: 9 May 2008
Court: Queen's Bench Division, Technology and Construction Court
Judge: Akenhead J
Relevant legislation: Housing Grants, Construction and Regeneration Act 1996, section 108(1)
Summary: Building contract – Arbitration – Stay of arbitration for adjudication to take place

Following correspondence between the parties, and a letter of intent from the claimant to employ the defendant as a sub-contractor in respect of certain works, the claimant placed an order for those works. Disputes arose between the parties and two references to adjudication were made. The first was not effective, but the adjudicator in the second held that the sub-contract between the parties incorporated the claimant's own standard terms and conditions rather than DOM/1 conditions. Thereafter, the defendant served a notice of arbitration on the claimant. The claimant brought proceedings for declaratory relief that its terms had been incorporated into the sub-contract and for an injunction restraining the defendant from continuing with the arbitration so that a further adjudication could take place.

It maintained, inter alia, that, if the DOM/1 conditions, contrary to its primary case, had been incorporated into the sub-contract, it was entitled to adjudicate under article 3.1 of the DOM/1 conditions or under section 108 of the Housing Grants, Construction and Regeneration Act 1996, and invited the court to exercise its inherent jurisdiction in those circumstances to stay the arbitration while an adjudication took place. The defendant replied that the issue of any stay was one for the arbitrator.

The court ruled:

(1) On the evidence, the DOM/1 conditions, rather than the claimant's own standard terms and conditions, had been incorporated into the sub-contract.

(2) The question of whether there should be a stay was entirely a matter for the arbitrator.

If the matter proceeded in arbitration, the arbitrator was entitled to law down a timetable as he saw fit.

Accordingly, the claimant's application for a stay would be dismissed.

Per curiam: As a matter of construction, both of the DOM/1 contract conditions and of [section 108(1) of] the 1996 Act, there is no pre-condition or indeed obligation requiring either party to refer any disputes to adjudication. There is simply a right on a party to proceed to adjudication at any time if it so wishes. It is open to any party to apply for relief to the requisite tribunal to enable it to exercise its right to adjudicate [but there does not have to] be a stay of any legitimately constituted proceedings, whether in arbitration or court proceedings, where there is merely a discretionary right to adjudicate as opposed to a binding pre-conditional adjudication requirement. Having regard to the overriding objective, if the court believes, following representations, that there is a measurably good prospect that adjudication will finally resolve the disputes or some of them the court could well build into its timetable for trial some time to enable a party to adjudicate. That however is different from a stay. A party who has started court or arbitration proceedings is entitled to have those proceedings resolved as reasonably expeditiously as the court could achieve and justice demands; it should not be forced to have those proceedings delayed or stayed by it itself being forced to adjudicate when it does not want to exercise its right to do so.

Case annotations in other services: Cubitt Building and Interiors Ltd v Richardson Roofing (Industrial) Ltd [2008] EWHC 1020 (TCC)
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9. R (on the application of McCarthy and 41 others) v Basildon District Council and linked applications

Citation: [2008] All ER (D) 118 (May)
Hearing date: 9 May 2008
Court: Queen's Bench Division, Administrative Court
Judge: Collins J
Relevant legislation: Town and Country Planning Act 1990, section 178
Summary: Town and country planning – Enforcement notice – Contravention
 
The claimants in the four claims before the court were 40 families of mainly Irish travellers and Gypsies who were resident on unauthorised sites in the defendant local planning authority's district. The land which they occupied was in the Green Belt. The authority had refused the claimants' planning applications in respect of the sites and enforcement notices had been served. Those notices were upheld by the Secretary of State following the completion of the relevant inquiries into the medical, educational and housing needs of the claimant families. Subsequently, the authority took the decision to use section 178 of the Town and Country Planning Act 1990 to enter the land in issue to remove the families' caravans, and the hard standing on which they were placed, in order to restore the land to its natural state. In reaching that decision, the authority had a number of reports before it and reached its decision taking a global view of the situation. The claimants sought judicial review of the authority's decision to use section 178 of the 1990 Act. The Equality and Human Rights Commission were given permission to intervene because of the scope of the obligation to have due regard to the race equality duty under section 71(1) of the Race Relations Act 1976, it being accepted that travellers and gypsies were a particular racial group.

The claimants submitted, inter alia, that the use of section 178 of the 1990 Act, as opposed to seeking injunctive relief under section 187B, had been inappropriate on the basis that it resulted in eviction from their current residences. The intervener submitted, inter alia, that despite having mentioned the duty under section 71(1) of the 1976 Act, the authority had failed properly to comply with that duty. It had failed properly to explain why, in the instant case, planning policy was to be given greater weight than the need to promote good race relations.

The applications would be allowed.

1) It was not in principle disproportionate for a local planning authority to use section 178 of the Town and Country Planning Act 1990 instead of section 187B.

2) Parliament had granted the power to enforce directly and the remedy of judicial review provided adequate protection. The court's discretion under section 187B and its review jurisdiction under section 178 both required consideration of the issue of proportionality.

In the instant case, however, the authority had taken too restrictive an approach to the concept of need. In particular, further consideration should have been given to the question of whether any sites in the district could be found for the claimants and whether any of the families could be allowed to remain for the time being. Moreover, the authority had adopted the approach that the sites had to be cleared rather than considering whether eviction would be disproportionate in the light of the individual needs of each family.

R (on the application of O'Brien) v Basildon District Council; R (on the application of Casey) v Basildon District Council [2006] All ER (D) 197 (Apr) applied.

3) A failure to refer specifically to the race equality duty under section 71(1) of the 1976 Act could not render a decision unlawful provided it was apparent that the decision maker made clear that he had in substance had due regard to the relevant statutory duty. Equally, a reference to the statutory duty did not of itself demonstrate that the duty had been performed.

In the instant case, the reports before the authority had correctly identified the considerations that had to be taken into account in order to comply with the duty. It had not been suggested that the decision to evict was perverse and, in those circumstances, it could not properly be suggested that the authority had ignored the advice contained in those reports.

R (on the application of Smith) v South Norfolk Council [2006] All ER (D) 145 (Nov) applied.

Case annotations in other services: R (on the application of McCarthy and 41 others) v Basildon District Council and linked applications [2008] EWHC 987 (Admin); R (on the application of Smith) v South Norfolk Council [2006] All ER (D) 145 (Nov)
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10. Walbrook Trustees (Jersey) Ltd and others v Fattal and others

Hearing date: 7 May 2008
Court: Chancery Division
Judge: Henderson J
Summary: Action – Dismissal – Abuse of process of the court

In 1989, a substantial property in West London (the property) was acquired by a consortium of four persons or groups of persons under a joint venture agreement (the agreement). The four participants in the agreement were: the Delta trust, the Sofaer trust, an individual, Selim Dangoor (D), and two more individuals, WF and his brother EF (the Fattals). At the date of the agreement, the first claimant was the sole trustee of the Delta trust. Together with two individuals, it was also a trustee of the Sofaer trust. In 1995 a re-organisation took place which was partly driven by tax considerations but was also designed to make a substantial return of capital to the original investors.
 One of the main features of the re-organisation was that the trustees of the D, S and WF and EF Trusts, together with another entity would promote a Manx company to be called Baker Street Ltd. That company would buy the property from the existing investors. The existing investors would use the purchase price to pay off the existing bank borrowing and to finance a loan to Baker Street Ltd by the new investors. The balance of the purchase price would be returned to the existing investors. In March 1998, the first claimant and the fourth claimant had executed a trust instrument establishing a settlement to be known as the Sharet Trust. It was a discretionary trust, set up in order to receive the property representing Selim Dangoor's original one quarter share under the agreement. Two sets of proceedings were issued. The first began in 2003 and concerned, inter alia, whether the property should be sold. Against the contention of the Sharet Trust, which contended that at any of the parties might require the property to be sold in writing, it was held that under the agreement all issues regarding the purchase, holding and realisation of the property could be determined by a 75 per cent majority. The second set of proceedings was issued in 2007, which also sought a direction for the sale of the property and various other related directions. A preliminary issue was heard, namely whether there had been a sale by a company or the personal representatives of Selim Dangoor, to Niazi Dangoor of the beneficial interest in the membership rights of Baker Street Limited. If no sale had taken place, there could be no question of any pre-emption rights having been triggered, and there could be no challenge to the status of the Sharet Trust as a participator and owner of the 25 per cent of the membership rights in Baker Street Limited which represented the original share of Selim Dangoor under the agreement. The court ruled that there had been a sale (see [2007] All ER (D) 458 (Nov)). At a subsequent case-management conference, the issue of whether the Sharet Trust had a 25 per cent interest in the membership rights of Baker St Ltd (and thus, indirectly, in the underlying property) should be determined by way of a separate claim. The Fattals contended that it did not.

The defendants argued, inter alia, that having brought the claim in 2003 in which they had expressly asserted that the Sharet Trust was entitled to a 25 per cent share, and when they had known all material facts upon which they relied in the instant case, it was an abuse of process for them to claim that the Trust had no such interest.

The court ruled:
On the facts, the new claim was an abuse of process and therefore had to be struck out. It would be unfair to the Sharet Trust in particular, but also to all the other non-Fattal parties, to enable the Fattals to litigate in 2008 the question of the Sharet Trust's right to participate in the joint venture, when they could and should have raised that question in the 2003 proceedings.

Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481 applied.

Case annotations in other services: Walbrook Trustees (Jersey) Ltd and others v Fattal and others [2008] EWHC 991 (Ch); Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481
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11. Hart District Council v Secretary of State for Communities and Local Government

Citation: [2008] All ER (D) 21 (May)
Hearing date: 1 May 2008
Court: Queen's Bench Division, Administrative Court
Judge: Sullivan J
Summary: Town and country planning – Permission for development – Development near special protection area

As a matter of principle, the Secretary of State for Communities and Local Government cannot be required to ignore a package of avoidance and mitigation measures that has been submitted by a developer in respect of an application which it has made for planning permission for the development of residential housing, at the initial screening stage before a planning authority, when determining whether that development is likely to have a significant adverse impact upon a nearby European site in Great Britain or “Special Protection Area” (SPA), such as to require an “appropriate assessment” to be carried out, pursuant to section 48(1) of the Conservation (Natural Habitats, &c.) Regulations 1994, SI 1994/2716, which has transposed into domestic law, arts 6(2) and (3) of the Council Directive (EEC) 92/43 (on the conservation of natural habitats and of wild fauna and flora). Anything which can mitigate the harmful effects of residential development to a SPA is to be encouraged as early as possible. Further, it would make no sense should the Secretary of State have to disaggregate the components of measures in a package at an initial screening stage in order for an appropriate assessment to be carried out, when those measures would have to be reassembled again at a later stage for the purposes of assessing whether a development was “likely to have a significant effect” on a SPA. Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/04) [2005] All ER (EC) 353 considered; Gillespie v First Secretary of State [2003] All ER (D) 407 (Mar) considered; R (on the application of Catt) v Brighton and Hove City Council [2007] All ER (D) 54 (Apr) considered.

Case annotations in other services: Hart District Council v Secretary of State for Communities and Local Government [2008] All ER (D) 21 (May); Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/04) [2005] All ER (EC) 353; Gillespie v First Secretary of State [2003] All ER (D) 407 (Mar); R (on the application of Catt) v Brighton and Hove City Council [2007] All ER (D) 54 (Apr)
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