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Issue 56 – September 2008

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Cases

1. Brooks and another V young and another

Citation:[2008] EWCA Civ 816
Hearing date: 22 May 2008
Court: Court of Appeal, Civil Division
Summary: Land – Interest in land – Rights in respect of land

The claimants and defendants were neighbours. Both parties bought their houses from the material borough council under the right to buy legislation. Both properties in the instant case enjoyed ordinary access from the street to their respective front doors. The defendants also had the benefit of a right of way over a footpath leading from the street along the side and across the rear of the claimants” property to a gate into the rear garden of their property. The defendants” right of way had been granted to them by the transfer of ownership by the council and provided, inter alia, “a right of way at all times with or without tools and equipment over and along the footpath [...]for the purposes of gaining access to and egress from the rear of the [the defendants” property] for all proper purposes connected with the reasonable enjoyment of the property causing as little damage as reasonably possible and forthwith making good any damage occasioned in the exercise of the right hereby granted”. The claimants complained that the defendants regularly and consistently used the right of access in a manner that was in excess of what was required for all proper purposes connected with the reasonable enjoyment of their property, and they sought an injunction restraining the alleged unreasonable use, and damages. The defendants argued that they had been using the footpath lawfully in accordance with the terms of the grant. The judge interpreted the terms of the grant and declared that the nature and extent of the right of way granted in favour of the defendants over the footpath was such that it was to be exercised only in circumstances where the use of the front door for entering or leaving the defendants” property was not reasonably practicable. The defendants appealed.

They argued that the judge had erred in his interpretation of the grant and in taking into consideration the supporting documents.

The appeal would be allowed.

Although the task of the court was to ascertain the intentions of the parties as expressed in the language in which they had chosen to frame the grant, the one area of evidence that was wholly inadmissible for that purpose was the direct evidence of what the parties actually intended by it. That was not part of the admissible background evidence, and such evidence was admissible only in a claim for rectification, which the claim in the instant case was not. If, and so far as, the judge placed reliance on supporting documents as to the nature of the grant, he was wrong to do so. They were inadmissible. Further, the judge had erred in interpreting the grant in the restricted way that he had done. The grant plainly gave the defendants, as dominant owners, an unrestricted right to use the footpath for the purposes of access and egress in connection with their ordinary domestic activities as a household.

The judge’s declaration would be set aside.

White v Richards [1993] RTR 318 applied.

Case annotations in other services: Brooks and another v Young and another [2008] All ER (D) 117 (Aug); White v Richards [1993] RTR 318

2. St Edmundsbury Borough Council v Secretary of State for Communities and Local Government and another – town and country planning

Citation: [2008] EWHC 1913 (Admin)
Hearing date: 11 July 2008
Court: Queen’s Bench Division, Administrative Court
Judges: James Goudie QC sitting as a deputy judge of the High Court
Summary: Town and country planning – Permission for development – Condition

Section 117 of the Town and Country Planning Act 1990, so far as material, provides: “(1) On the determination of an appeal under section 174, the Secretary of State may - [(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates;]...”

The second defendant lived in a property which was situated within the claimant local planning authority’s area. In April 2007, she was made the subject of an enforcement notice (the notice) which alleged a breach of planning control, namely the material change of use of her property from a dwelling house to one which was used for the keeping of dogs. The notice required the cessation of such use and that “no more that seven dogs should be kept at the property within four months of the date that the notice took effect”. The second defendant subsequently appealed under s 174 of the Town and Country Planning Act 1990 (the Act) arguing, inter alia, that planning permission should be granted for her to keep dogs at her property pursuant to s 177 of the Act. In the event, an inspector (who was appointed by the first defendant Secretary of State, and instructed to act on her behalf) decided to quash the notice, and to grant conditional planning permission. The conditions were: (i) “the uses hereby permitted shall be carried on by [the claimant...] while one or both of them reside at the property”; (ii) “when the premises cease to be occupied by [the claimant...] its use for the keeping of dogs in excess of that incidental to the use of the dwelling house as such shall cease”; (iii) “this permission authorises the continued occupation by the nineteen dogs present at the date of the site visit...”; (iv) “at any time following the death or other permanent departure of any seven of the nineteen dogs now resided at the premises, but not further or otherwise, that dog may be replaced by another”; (v) “unless any dog bred at the premises continues to be accommodated there under the provisions of the preceding condition, all such dogs shall be permanently removed from the premises within three calendar months of their respective dates of birth”; and (vi) “the keeping and breeding of dogs hereby permitted shall be carried on only for the personal enjoyment of [the claimant...] and not for any trade or business, or otherwise for commercial gain.” The authority brought a challenge under sections 288 and 289 of the Act contending, inter alia, that the Secretary of State had failed to attach any effective conditions to the planning permission.

The court ruled:

In the circumstances, the authority’s challenges had to fail. Conditions (i) and (ii), for instance, were mutually consistent. The undoubted effect of condition (i) was that in the event that neither of the named individuals were resident at the property, the use would have to cease. Condition (ii) was simply a reformulation of the restriction in condition (i) in negative terms. In addition, the purpose and effect of condition (iii) was clear. That condition was intended to operate and did operate so as to restrict the use to the continued occupation by the 19 dogs present at the date of the site visit, subject to the limited exceptions provided for in conditions (iv) and (v). Those conditions allowed for other dogs to be introduced. Furthermore, the effect of condition (vi) was clear when read with the other conditions. At all events, the conditions were neither inconsistent nor inadequate. Moreover, it was not Wednesbury unreasonable not to impose more stringent conditions or differently expressed conditions.

Accordingly, the planning permission would be maintained, and the decision to quash the notice would be upheld.

Case annotations in other services: St Edmundsbury Borough Council v Secretary of State for Communities and Local Government and another [2008] All ER (D) 104 (Aug); Newbury District Council v Secretary of State for the Environment [1980] 1 All ER 731

3. Makers UK Ltd v Camden London Borough Council – building contract

Citation: [2008] EWHC 1836 (TCC)
Hearing date: 25 July 2008
Court: Queen’s Bench Division, Technology and Construction Court
Judge: Akenhead J
Summary: Building contract – Adjudication – Award

The claimant building contractor was employed by the defendant under a JCT Intermediate Form of Building Contract (1998 Edn) to carry out certain works. The contract provided for disputes to be referred to adjudication, and that the adjudicator would be either agreed by the parties or nominated by the Royal Institute of British Architects (RIBA) on the application of either party. A dispute arose and C of the claimant’s solicitors was of the opinion that it would be desirable to have an adjudicator who was legally qualified to deal with the issues that were said to arise. C discovered that H was a solicitor and was also on the RIBA panel of adjudicators. C telephoned H, who returned his call, confirming that he would be available to act in any adjudication. Thereafter, the claimant applied to RIBA to request the nomination of an adjudicator, suggesting that H be appointed if he was available. H was subsequently appointed, but the defendant, concerned at the manner in which he had been appointed, disputed that H had jurisdiction. Nonetheless, H proceeded to determine the dispute, and issued an award in the claimant’s favour. The defendant did not pay the sum awarded, so the claimant brought proceedings to enforce the award and applied for summary judgment.

The claimant maintained that there should be a term implied into any contract conforming with the requirements of s 108(1) to (4) of the Housing Grants, Construction and Regeneration Act 1996, whereby neither party might seek to influence unilaterally the nominator’s determination regarding the identity of an adjudicator by making unilateral representations to the nominator concerning whom he should nominate or otherwise, and that the defendant had been in breach of that term. The defendant also argued that there was an appearance of bias such that the award ought not to be enforced, such bias arising primarily from the telephone contact between C and H prior to his appointment.

The court ruled:

(1) The proposed implied term could not and should not be implied.

The main mischief against which the implied term would guard, namely to prevent unilateral representations by the party seeking a nomination, had no obvious support in commercial and practical terms. There was nothing in the clause that expressly barred the party seeking the appointment from RIBA making representations to RIBA as to the attributes or even the name of the person to be appointed. RIBA was an independent, respectable and respected institution, which held itself out as able to nominate adjudicators, as well as having a very longstanding history of nominating arbitrators in building disputes. There was no suggestion that RIBA would be in breach of its own rules if it listened to and even acted upon representations as to the attributes or identity of the person to be nominated by it. The system of nomination could work satisfactorily even if representations were made by the party seeking nomination; RIBA could take or leave the representations. Further, it was not necessarily wrong or unhelpful for a party to make representations, for instance if the dispute is very technical involving a particular field, or if there would be a conflict on interest with one or other named adjudicators. Finally, if someone who was unwittingly put forward by a party to the nominating body was biased, actually or ostensibly, one or other party could resist enforcement of the subsequent decision on that ground.

(2) While there was no positive encouragement for a party to contact a potential adjudicator to check his availability, there was no discouragement in the contract. Such contact, if limited to checking availability or checking if there was any conflict of interest was, in itself, unexceptionable, and could be a sensible and practical step to take.

In all the circumstances, there was no apparent bias. There was no obligation on the claimant to liaise with the defendant before applying to RIBA for the nomination of an adjudicator, RIBA had selected H, and there was nothing reprehensible in C not mentioning to RIBA or the defendant that he had contacted the person whose name he was putting forward for limited purposes.

Accordingly, judgment would be entered for the claimant.

Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2005] 1 All ER 723 applied.

Per curiam: It is better for all concerned if parties limit their unilateral contacts with adjudicators both before, during and after an adjudication; the same goes for adjudicators having unilateral contact with individual parties. It can be misconstrued by the losing party, even if entirely innocent. If it is felt that any such contact has to be made, it is better done in writing so that there is a full record of the communication. Nominating institutions might sensibly consider their rules as to nominations and as to whether they do or do not welcome or accept suggestions from one or more parties as to the attributes or even the identities of the person to be nominated by the institutions. If it was to be permitted in any circumstances, the institutions might wish to consider whether notice of the suggestions have to be given to the other party.

Case annotations in other services: *Makers UK Ltd v Camden Borough Council [2008] All ER (D) 378 (Jul); Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2005] 1 All ER 723

4. Town Quay Developments Ltd and another v Eastleigh Borough Council – interest in land

Citation: [2008] EWHC 1922 (Ch)
Hearing date: 4 August 2008
Court: Chancery Division
Judge: Etherton J
Summary: Land – Interest in Land – Rights in respect of land

In March 1990, B Ltd transferred a neck-shaped strip of land to the defendant local authority. It reserved to itself and its successors in title of certain adjoining land various easements, including the right to construct a road across the neck, and thereafter to use it with or without vehicles. The exercise of the reserved rights was expressed to be subject to a proviso that their exercise be in accordance with the provisions of a document entitled “the Wildern Area Development Brief, which had been adopted by the authority, and the consent of the authority’s director of planning and development. In about 2001, the first claimant company agreed to purchase the adjoining land and indicated an intention to construct a road across the neck in accordance with the reserved rights. Accordingly, it asked for consent to lay the road. The authority’s chief executive refused to grant consent. The claimants sought various declarations concerning the proper interpretation of the proviso, including that the authority had unreasonably withheld consent and that they were entitled, as of right, to construct a road across the neck.

The authority contended, inter alia, that the proviso had not been satisfied and accordingly the claimants had no entitlement to exercise the reserved rights.

The claims would be allowed.

The language used in the proviso was directed to the manner in which roads and services were to be constructed and used. Moreover, the second part of the proviso was subject to the qualification that consent was not to be unreasonably withheld. In the instant case, the decision to refuse consent had been arbitrary and irrational, and therefore unreasonable.

The claimants would be entitled to the declarations they sought.

Case annotations in other services: Town Quay Developments Ltd and another v Eastleigh Borough Council [2008] All ER (D) 37 (Aug)

5. Greenweb Ltd v Wandsworth London Borough Council – compulsory purchase

Citation: [2008] EWHC Civ 910
Hearing date: 31 July 2008
Court: Court of Appeal, Civil Division
Judge: Buxton, Thomas and Stanley Burnton LJJ
Summary: Compulsory purchase – Compensation – Assessment

Section 14 of the Land Compensation Act 1961 so far as material provides: “(1) For the purpose of assessing compensation in respect of any compulsory acquisition, such one or more of the assumptions mentioned in sections fifteen and sixteen of this Act as are applicable to the relevant land or any part thereof shall [(subject to subsection (3A) of this section)] be made in ascertaining the value of the relevant interest.”

Section 15 of the Land Compensation Act 1961 so far as material provides: “[(3) Subject to subsection (4) of this section, it shall be assumed that, in respect of the relevant land or any part of it, planning permission would be granted—(a) subject to the condition set out in Schedule 10 to the Town and Country Planning Act 1990, for any development of a class specified in paragraph 1 of Schedule 3 to that Act; and (b) for any development of a class specified in paragraph 2 of Schedule 3 to that Act.] (4) Notwithstanding anything in subsection (3) of this section—(a), (b) [...](c) where, at any time before the said date, an order was made under section twenty-six of the said Act of 1947, in respect of the relevant land or any part thereof, requiring the removal of any building or the discontinuance of any use, and compensation became payable in respect of that order under section twenty-seven of that Act, it shall not by virtue of the said subsection (3) be assumed that planning permission would be granted, in respect of the relevant land or that part thereof, as the case may be, for the rebuilding of that building or the resumption of that use.

Paragraph 1 of Sch 3 to the Town and Country Planning Act 1990 provides: “The carrying out of—(a) the rebuilding, as often as occasion may require, of any building which was in existence on 1st July 1948, or of any building which was in existence before that date but was destroyed or demolished after 7 January 1937, including the making good of war damage sustained by any such building; (b) the rebuilding, as often as occasion may require, of any building erected after 1 July 1948 which was in existence at a material date; (c) the carrying out for the maintenance, improvement or other alteration of any building, of works which—(i) affect only the interior of the building, or do not materially affect the external appearance of the building, and (ii) are works for making good war damage, so long as the cubic content of the original building is not substantially exceeded.”

In the 1880”s nine three-storey dwelling houses and a commercial building were constructed on the site in issue. They were all severely bomb-damaged during the Second World War, and, as a result, all of the buildings were cleared from the site at some time before 1 July 1948. Deemed planning permission for use as public open space was granted in June 1979, and that permission was implemented. The site was sold by the London Residuary Body in 1988, and it came into private ownership. In June 2000, the owner of the land failed in its planning application and it was sold to the claimant company the following year. Subsequently, after a public inquiry was held, it was indicated that planning permission would be granted for any development for which the land was being acquired by the defendant local authority but not for any other development. On 10 May 2002, the authority served a purchase notice on the company and a claim for compensation, pursuant to the Land Compensation Act 1961 arose. On 17 September 2007, the Lands Tribunal, assessing the level of compensation to be payable in accordance with, inter alia, s 15 of the 1961 Act, assessed the compensation payable by the authority to the company at £1.6m. The authority appealed.

It contended that in circumstances where the compensation the company was entitled to with the land being treated as a public space only was £15,000, Parliament could not have intended the provisions of s 14 and 15 of the 1961 Act to result in the award of £1.6m to the company. It further argued that there was ambiguity in the use of the word “shall” in those sections.

The appeal would be dismissed.

There was no ambiguity in the word “shall”, or in the phrase “it shall be assumed that [...]”. The assumption was mandatory.

The consequences of the application of the clear statutory words were not so absurd that one could see that Parliament had to have made a drafting mistake. The mandatory directions in, inter alia, sections 14 and 15 of the 1961 Act had to have been given by Parliament quite deliberately. Furthermore, if s 15(3) was to be read as merely directory, in accordance with normal rules of statutory interpretation so must the same words elsewhere. That would defeat, not carry out, the legislative intention as expressed in the Act.

On the true construction of the material provisions of the 1961 Act, there was no ambiguity and there was no contextual support for anything other than a mandatory provision. Any other approach would be to add to the statute words that were not there and would be to legislate and not interpret.

The tribunal”s decision would be upheld.

Stock v Frank Jones (Tipton) Ltd [1978] 1 All ER 948 considered.

Per curiam: In reaching its conclusion the court respectfully endorse the recommendation of the Law Commission in its Final Report on Compensation for Compulsory Purchase at paragraphs 8.39, that s 15(3) and (4) of the Land Compensation Act 1961 should be repealed without replacement.

Case annotations in other services: *Greenweb Ltd v Wandsworth London Borough Council [2008] All ER (D) 420 (Jul); Stock v Frank Jones (Tipton) Ltd [1978] 1 All ER 948

6. Wycombe District Council v Cantrell – land

Citation: [2008] EWCA Civ 866
Hearing date: 29 July 2008
Court: Court of Appeal, Civil Division
Judges: Moore-Bick, Stanley Burnton LJJ and Lewison J
Summary: Local authority – Land – Disposal

Section 609 of the Housing Act 1985 provides, so far as material: “Where—(a) a local housing authority have disposed of land held by them for any of the purposes of this Act and the person to whom the disposal was made has entered into a covenant with the authority concerning the land, or (b) an owner of any land has entered into a covenant with the local housing authority concerning the land for the purposes of any of the provisions of this Act, the authority may enforce the covenant against the persons deriving title under the covenantor, notwithstanding that the authority are not in possession of or interested in any land for the benefit of which the covenant was entered into, in like manner and to the like extent as if they had been possessed of or interested in such land”.

W, a housing association, acquired a house, the purchase of which had been partly funded by the defendant local authority. In return, W had agreed to grant the claimant local housing authority nomination rights, and those were recorded in a written agreement between the two of them. The nomination rights applied to six houses. The agreement extended the meaning of the “association” to its successors in title to the freehold of the properties. The agreement stated that it was made pursuant to s 609 of the Housing Act 1985, and asserted that the association’s covenants would be enforceable without any limit of time against any body or person deriving title from the original covenantor in respect of its interest in the properties, as if that body or person had been an original covenanting party. The agreement obliged the association, inter alia, to carry out essential repairs to the properties. In March 2005, the agreement was registered as a local land charge. The defendant purchaser was provided with the results of a local search on 17 March 2005 which disclosed the existence of the agreement. The defendant then bought one of the six houses (the property) at auction from H, a registered social landlord, which had, in turn, acquired it from W. Following the auction, H transferred the house to the defendant. The housing authority sought to enforce against the defendant the positive obligations contained in the agreement, pursuant to s 609 of the Act. The judge held that s 609 did empower the local authority to enforce those obligations. She ruled that there was no assistance to be gained from the words of s 609 itself because it did not refer to restrictive covenants, nor did it refer to specific and positive covenants; that there was no authority on the proper interpretation of the section; that the weight of academic authority was in favour of the conclusion that s 609 allowed positive covenants to be enforced; that the words “in like manner” and “to the same extent” meant “in the same way” and “to the same degree” as though the housing authority had been possessed or interested in land; that the purpose of s 609 was to benefit the public interest and to ensure that if a local housing authority made an investment in housing stock, it could continue to keep some form of control over that stock; and that, bearing in mind the purpose of the Act and the majority of academic opinion supported the view that s 609 displaced the common law, s 609 allowed positive covenants to run with the land. The defendant appealed.

The issue for determination was the meaning of the concluding part of s 609 of the Act. It enabled a covenant to be enforced by a housing authority in “like manner” and “to the like extent” as if they had been interested in land for the benefit of which the covenant had been entered into.

The appeal would be allowed.

On its true construction, the concluding part of s 609 put a local housing authority into the same position as a landowner who had taken a covenant on a disposal of freehold land for the benefit of retained land and who continued to retain that land. The manner and extent to which a covenant entered into pursuant to s 609 was enforceable against a subsequent purchaser of the freehold was by injunction and damages in lieu; and the extent of enforcement was the extent to which the covenants were negative in substance. It followed that s 609 did not permit the enforcement of positive covenants against a subsequent purchaser of the freehold.

Parliament had to be taken to have legislated against the background of the general law. In the absence of contrary authority, the intention had to have been to disapply the requirement that the covenantee retained land, and the requirement that the covenants were enforceable to the extent that they benefited land of the covenantee. That was the limit of what the section actually said. Parliament could not be taken to have done more. By the concluding words of s 609, it could not have intended to put a local housing authority into a position that no private landowner could achieve, namely, to make the burden of positive covenants run with freehold land, without saying so. Had that been the intention of Parliament, much clearer words would have been necessary. There was no absurdity in the construction of s 609. First, it could hardly be suggested that the whole of the law relating to the running of covenants, in particular, the well entrenched rule that the burden of a positive covenant could not be made to run with the freehold land, was absurd. Second, there were other statutory provisions which would achieve the result of enabling a local housing authority to enforce positive covenants against subsequent purchases of freehold land. Moreover, there were drafting techniques available to the draftsman of s 609 which would have achieved the result of which the housing authority contended.

Case annotations in other services: *Wycombe District Council v Cantrell [2008] All ER (D) 377 (Jul)

7. Blyth Valley Borough Council v Persimmon Homes (North East) Ltd and others – Town and country planning

Citation: [2008] EWCA Civ 861
Hearing date: 29 July 2008
Court: Court of Appeal, Civil Division
Judge: Keene, Lloyd and Hughes LJJ
Summary: Town and country planning - Development plan - Independent examination of development plan

The claimants were housing developers. The defendant was the local planning authority for Blyth Valley (the authority). The authority commissioned an officer to produce a “housing need study” (HNS). The published study stated, so far as was material, that 83% 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, the authority was of the view that 83% was unrealistic, and that 40% was more appropriate. In 2007, as part of a development plan, the authority developed a document called “Core Strategy” which contained a policy (H4) dealing with affordable housing. The HNS had used the earlier and broader meaning of affordable housing, whereas the Core Strategy adopted the new meaning which was narrower and more onerous for developers. Following the introduction of a Planning Policy Statement (PPS), 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% would be appropriate. It meant that developers could no longer achieve any part of a required proportion of affordable housing by building low cost market homes. Following an independent examination, as required by s 20(1) of the Planning and Compulsory Purchase Act 2004, of the authority’s proposed affordable housing policy of 30%, an inspector concluded that the Core Strategy did conform to the PPS. He also found that the 2004 HNS provided a robust and credible base for the policy beyond merely the degree of need for such housing. The inspector further found that a policy such as H4 should be presumed to be sound unless evidence was produced to the contrary. He found that the authority’s proposed policy satisfied the requirements of s 19 of the 2004 Act. The inspector also found that the introduction of the PPS had made no difference to that conclusion. The claimants applied, pursuant to s 113(3) of the Planning and Compulsory Purchase Act 2004, to quash part of policy H4 on the basis that the document was ultra vires. The judge found that policy H4 did not comply with PPS 3 in that it did not base its target for affordable housing on an assessment of the economic viability of the 30% a figure. He quashed policy H4, having found that the document was ultra vires. The authority appealed against that decision.

It fell to be determined whether it had been open to the inspector on the evidence to find that policy H4 had complied with the PPS and was “sound” within the meaning of s 20(5)(b) of the Act and the Secretary of State’s guidance, and whether the judge had erred in quashing policy H4.

The appeal would be dismissed.

In the instant case, the process leading to the adoption of policy H4 had been legally flawed and the core strategy in that respect was ultra vires. It had been a crucial requirement of the PPS that an economic viability assessment of any percentage figure was a central feature of the policy on affordable housing. Upon analysis of the inspector’s report, he had failed to reflect the requirement of the PPS as to the need for an informed economic viability study as part of the process leading to a policy requiring a particular percentage of affordable housing. He had failed to explicitly recognise that requirement in his report or that the 2004 HNS had proceeded on a different concept of affordable housing from that which he had recommended. Further, it had not been open to the inspector find that HNS provided a robust and credible base for the policy beyond merely the degree of need for such housing. His approach had also been vitiated by his erroneous application of a presumption of soundness, and his finding that there was no evidence that sites would not come forward if a 30% requirement had been imposed. Accordingly, the judge had been right to quash policy H4.

Case annotations in other services: Blyth Valley Borough Council v Persimmon Homes (North East) Ltd and others [2008] All ER (D) 379 (Jul)

8. Dinedor Hill Action Association v Herefordshire Council – town and country planning

Citation: [2008] EWHC 1741 (Admin)
Hearing date: 24 July 2008
Court: Queen’s Bench Division, Administrative Court
Judge: Simon J
Relevant legislation: Town and Country Planning Act 1990, sections 215, 217
Summary: Town and country planning – Local plan – Validity

Regulation 28 of the Town and Country Planning (Development Plan) (England) Regulations 1999, SI 1999/3280, so far as material, provides: “(1) Where objections have been made to a plan or proposals in accordance with these Regulations and not withdrawn and the local planning authority do not cause a local inquiry or other hearing to be held, the authority shall prepare a statement of their decisions as respects all the objections and their reasons for each decision.”

In 2002, the Herefordshire Unitary Development Plan (UDP) was placed on first deposit. A revised deposit draft was produced in 2004. Thereafter, a number of objections were made to the various policies contained in the draft UDP; in particular policy H2, which, inter alia, allocated land at Bullinghope (a greenfield site) for housing. Between February and June 2005, a public inquiry was held. A planning inspector from the defendant local authority subsequently published a report. One of the recommendations contained in that report was that the Bullinghope site should not be included into policy H2 of the final UDP. The inspector stated: “development [at Bullinghope] would be a major incursion, physically separated from the built-up limits of the city and harmful to the character and appearance of the area”. He further stated: “ [...]the employment and transport imperatives that influenced [the authority] are no longer material”. The authority rejected the inspector’s view in respect of the Bullinghope site, asserting that its inclusion into policy H2 would “meet [the Dups.] strategic housing requirement [...]provide new housing in a greenfield location to the south of Hereford well related to employment provision at Rotherwas [...]and offers the opportunity to secure funding for a proposed Rotherwas Access Road”. The claimant applied under s 287 of the Town and Country Planning Act 1990 for an order quashing the housing allocation at Bullinghope.

It submitted, inter alia, that the authority had failed to provide adequate reasons for disapproving its inspector’s recommendation in respect of the Bullinghope site, contrary to regulation  28 of the Town and Country Planning (Development Plan) (England) Regulations 1999, SI 1999/3280.

The application would be allowed.

In the circumstances, the authority had failed to provide reasons in accordance with its duty to do so under regulation  28 of the 1999 Regulations. The inspector’s recommendations on the Bullinghope site had simply not been dealt with. Furthermore, substantial prejudice had been caused to the claimant which justified the granting of relief.

Accordingly, policy H2 of the UDP would be quashed insofar as it had required housing to be developed at Bullinghope.

Case annotations in other services: Dinedor Hill Action Association v Herefordshire Council [2008] All ER (D) 317 (Jul)

9. Bradford and another v James and others – boundary

Citation: [2008] EWCA Civ 837
Hearing date: 18 July 2008
Court: Court of Appeal, Civil Division
Judge: Mummery, Jacob and Wilson LJJ
Relevant legislation: Town and Country Planning Act 1990, sections 77, 288
Summary: Boundary – Conveyance– Plan

Mr and Mrs W owned a farmyard which had a barn and a farm on it. They applied for planning permission to convert the barn before ultimately selling off the farm minus the barn and some surrounding land. Planning permission was obtained for change of use of the barn to a dwelling. Plans for the proposed conversion were prepared. By conveyance dated 7 June 1976 (the 1976 conveyance) the farm was vested in N and D. The farmyard was conveyed, but Mr and Mrs W retained the barn along one side of it. The 1976 conveyance did not contain any express reservation of a cobbled area of land 3.7m wide (the cobbled area) along the side of the barn. Annexed to the conveyance was a small scale plan, OS 1:2500. In 1977, by conveyance, Mr and Mrs W vested the barn in Mr and Mrs Fox. The plan referred to in the 1977 conveyance and annexed to it “for the purpose of identification only” clearly showed the cobbled area as included in the land conveyed with the barn. N and D eventually died and the farm passed to the defendants. In the meantime, the barn was purchased by the claimants. A dispute arose between the parties about title to the cobbled area, and its use for parking and access. The claimants brought proceedings seeking a declaration that the defendants were not entitled to enter on or cross the cobbled area or any other part of their land. It was accepted by the parties that if the cobbled area was included in the 1976 conveyance of the farm Mr and Mrs W could not have conveyed it by the 1977 conveyance. The judge held that the 1976 conveyance plan was clear and was not made unclear by the small scale of the plan. He further held that because the plan was clear, that was determinative of the issue. The consequence of his conclusion was that extrinsic evidence was inadmissible to construe the 1976 conveyance. In the event, the judge made a declaration that the cobbled area was within the defendants” registered title. The claimants appealed against that order. They also applied to amend their grounds of appeal in order to admit extrinsic evidence as an aid to construing the 1976 conveyance.

The issue arose as to whether the judge had wrongly construed the 1976 conveyance of the farm as including the cobbled area. The issue further arose as to whether the plan annexed to the 1976 conveyance was sufficiently clear to render extrinsic evidence inadmissible as an aid to construction.

The appeal would be allowed.

(1) In the instant case, there was a lack of clarity in the 1976 conveyance plan about the position of the boundary between the barn and the farm in relation to the cobbled area. Accordingly, permission would be granted to amend the grounds of appeal in respect of the various items of extrinsic evidence relevant to the construction of the 1976 conveyance.

(2) Taking into account the relevant evidence, on the true construction of the 1976 conveyance, it excluded the cobbled area from the farm. Therefore, the cobbled area had passed with the 1977 conveyance of the barn in accordance with its express terms.

Accordingly, a declaration would be made to that effect.

Per curiam: There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based Alternative Dispute Resolution and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both.

Per curiam: More land is becoming available for residential development. More permissions are given to change the use of urban and rural buildings to dwellings. Partition into plots and units increases the potential for this kind of damaging and costly neighbour dispute. The risks can be minimised at much less cost than litigation by the use of surveyors” larger scale, detailed plans showing what is sold and what is retained and recording vital measurements and physical features.

Case annotations in other services: Bradford and another v James and others [2008] All ER (D) 248 (Jul)

10. Landlord Protect Ltd v St Anselm Development Company Ltd – Sale of land

Citation: [2008] EWHC 1582 (Ch)
Hearing date: 8 July 2008
Court: Chancery Division
Judge: Judge Hodge QC sitting as a judge of the High Court
Summary: Sale of land – Leasehold interest – Contract

At an auction sale held on 13 July 2006, the claimant company contracted to purchase the defendant’s head leasehold interest in a block of 26 residential flats. A deposit was duly paid. By clause 2(s) of the head lease, the head landlords” consent was required to the assignment of the claimant. The sale contract incorporated the 1 May 2002 edition of the Common Auction Conditions published by the Royal Institute of Chartered Surveyors (see [3]). The claimant was a dormant company which had never traded and could therefore provide no accounts or bank references. The head landlords were only prepared to give their licence to the proposed assignment if the claimant’s sole director, R, was prepared to guarantee the claimant’s obligations as assignee of the head lease. rule was only willing to offer a guarantee if it was limited to a period of three years. Following proceedings in which it was held that the head landlords had not acted unreasonably in rejecting the offer of a guarantee limited in duration to a period of only three years, the dispute over the precise terms of the guarantee continued. The head landlords” solicitors submitted a draft licence which included a guarantee to be provided by R. By clause 6.6, that guarantee was to be released on a subsequent assignment with the head landlords” consent “provided that a reasonable alternative security is provided by the assignee pursuant to such subsequent assignment”. That formulation was unacceptable to the claimant and, on 27 October 2006, it gave notice to the defendant rescinding the sale contract and requiring the return of its deposit on the footing that the head landlords” requirements as to the form of guarantee to be provided by rule had been unreasonable. On 5 December, the defendant served a notice to complete upon the claimant and, when it refused to comply, on 2 January 2007, the defendant treated the claimant as in repudiatory breach of its obligations under the sale contract and proceeded to forfeit its deposit. The claimant issued the instant proceedings whereby it sought the return of its deposit.

The sole issue for determination was whether the requirement imposed by the head landlords, as a condition of the proposed assignment, that, on a subsequent assignment of the head lease effected with the consent of the head landlords, rule was only to be released from his liability as guarantor if “a reasonable alternative security is provided by the assignee pursuant to such subsequent assignment” was properly made.

The claim would be dismissed.

The “reasonable alternative security” referred to in clause 6.6 was capable of being provided by the covenant of the proposed assignee itself. On that construction, clause 6.6 secured for the head landlords no additional rights than those which they already enjoyed under the lessee’s covenant not to assign without consent. In those circumstances, the requirement in clause 6.6 was a reasonable and proper one and the claimant’s refusal to comply with it had been a breach of the sale contract and it was not entitled to the return of its deposit.

Case annotations in other services: Landlord Protect Ltd v St Anselm Development Company Ltd [2008] All ER (D) 89 (Jul)

11. Associated British Ports v Hampshire County Council and others – town and country planning

Citation: [2008] EWHC 1540 (Admin)
Hearing date: 4 July 2008
Court: Queen’s Bench Division, Administrative Court
Judges: Keith J
Summary: Town and country planning – Development – Core strategy

Section 19 of the Planning and Compulsory Purchase Act 2004 provides: “(1) Local development documents must be prepared in accordance with the local development scheme. (2) In preparing a local development document the local planning authority must have regard to--(a) national policies and advice contained in guidance issued by the Secretary of State; (b) the [Regional Spatial Strategy (RSS)] for the region in which the area of the authority is situated, if the area is outside Greater London [...](d) the RSS for any region which adjoins the area of the authority [...](f) the [sustainable community strategy] prepared by the authority; (g) the [sustainable community strategy] for any other authority whose area comprises any part of the area of the local planning authority; (h) any other local development document which has been adopted by the authority; (i) the resources likely to be available for implementing the proposals in the document; (j) such other matters as the Secretary of State prescribes. (3) In preparing the other local development documents the authority must also comply with their statement of community involvement. (4) But subsection (3) does not apply at any time before the authority has adopted their statement of community involvement. (5) The local planning authority must also--(a) carry out an appraisal of the sustainability of the proposals in each document; (b) prepare a report of the findings of the appraisal. (6) The Secretary of State may by regulations make provision--(a) as to any further documents which must be prepared by the authority in connection with the preparation of a local development document; (b) as to the form and content of such documents. (7) The [sustainable community strategy] is the strategy prepared by an authority under section 4 of the Local Government Act 2000.”

Section 24 of the Planning and Compulsory Purchase Act 2004, so far as material provides: “(1) The local development documents must be in general conformity with--(a) the RSS (if the area of the local planning authority is in a region other than London); (b) the spatial development strategy (if the local planning authority are a London borough).”

The claimant was a statutory undertaking within the meaning of s 262(1) of the Town and Country Planning Act 1990, and was authorised to carry on a dock or harbour undertaking. It operated the port of Southampton and was responsible for the regulation and the safety of navigation in the area under the Pilotage Act 1987. In 2006, the docks at Southampton ceased being the landing port for crushed rock destined for, inter alia, Hampshire. Accordingly, the claimant sought to get the core strategy, as defined by regs 6(1) and (3) of the Town and Country Planning (Local Development) (England) Regulations 2004, SI 2004/2204, to recognise that a part of Dibden Bay, a nearby area of land reclaimed from the sea, could be used as an alternative site for the landing of crushed rock. The first, third and fourth defendant local authorities, together with the second defendant park authority, combined to form the fifth defendant authority. The local authorities had, in 1998, adopted a policy relating to the development of the Port of Southampton and its possible expansion. That policy was, in effect, reiterated in the 2006 core strategy, that established the principle that new wharves would be permitted if they were needed to ensure the sustainable transport of minerals, provided the site was sustainable for that purpose and the planned regeneration of the area was not impeded. The claimant lodged a formal objection to the soundness of the 2006 core strategy on the basis, inter alia, that the crushed rock was largely being imported in deep-draught vessels that could only berth at the docks at Southampton. Accordingly, Dibden Bay should have been safeguarded as a possible site for deep-drought wharfage. The defendants were not prepared to change the wording of the core strategy to reflect the claimant’s point. Following the formal adoption of the core strategy, the claimant challenged its adoption under s 113 of the Planning and Compulsory Purchase Act 2004.

It applied to quash it on the basis that parts of the strategy were not within parts 2 of the 2004 Act, specifically sections 19 and 24(1), and were not sound.

The application would be allowed.

In the instant case, the core strategy had failed to follow departmental guidance that required the core strategy to set out the long-term strategies for ensuring that Hampshire’s anticipated demand for crushed rock would be met. It had also failed to follow national and regional guidance that required the core strategy to safeguard potential sites at which crushed rock could be landed from inappropriate development. Accordingly, the core strategy had not satisfied the requirements of sections 19 or 24(1) of the 2004 Act.

The parts of the core strategy that had not satisfied the requirements of the 2004 Act would be quashed.

Case annotations in other services: Associated British Ports v Hampshire County Council and others [2008] All ER (D) 83 (Jul)