12. R (on the application of Lewis) v Persimmon Homes Teesside Ltd – town and country planning
Citation: [2008] All ER (D) 140 (Jun)
Hearing date: 1 July 2008
Court: Court of Appeal, Civil Division
Judge: Pill, Rix and Longmore LJJ
Summary: Town and country planning – Permission for development – Development by local authority
In 1999, the local authority adopted a local plan under which a common, and the surrounding area, was allocated for major leisure use with a linked housing development. The scheme for the development of the common was prepared in 2002 at the time when the local authority was Labour controlled. The local authority appointed the defendant as development partner. By then, control of the local authority had passed to a coalition comprising Liberal Democrats, Conservatives and East Cleveland Independents. There was an objection to the scheme.
In February 2006, the local authority's cabinet resolved to enter into written heads of terms with the defendant. An application for planning permission was made and public consultation followed. Having taken advice from local authority officers, the committee chairman took the view that the planning application could be considered during the pre-election period. The day before the meeting, concern was expressed over the wisdom and propriety of holding the meeting to determine such a controversial matter during the election period.
However, the meeting proceeded. At the meeting, the councillors had before them a detailed report from the director of area management which concluded with the recommendation that the committee was mindful to grant approval for the development. It was resolved that the development of the common be approved subject to conditions. Thirteen members were present, nine of whom voted in favour, including all coalition members and two Labour members. Two Labour members abstained and one Labour member and an independent member outside the Coalition voted against.
A development agreement between the local authority and the defendant was signed. A notice of planning permission was subsequently issued. The claimant challenged the lawfulness of the grant of permission on the ground that there had been an appearance of bias or predetermination on the part of the coalition members of the committee.
The judge found that having regard to the guidance given in authorities, a fair minded and informed observer would conclude that there was a real possibility of bias or predetermination on the part of the planning committee; and that if there were additional and unusual circumstances which suggested that councillors might have closed minds before embarking upon a decision, then the notional observer would conclude that there was a real possibility of bias or predetermination. He went on to conclude that the local authority's decision to grant planning permission for the development project was unlawful by reason of apparent bias or apparent predetermination, and quashed the grant of planning permission to the defendant. The defendant appealed against that decision.
It submitted that the judge had applied the wrong test to the evidence; and that even on the test he had applied, he had reached the wrong conclusion. It further submitted that while it might be possible to infer from the evidence and circumstances that councillors voting for a proposal had closed minds, the question was whether in fact their minds had been closed. The claimant submitted that there was a failure to produce good reasons for holding the meeting during the pre-election period.
The appeal would be allowed.
Planning committee members were not required to cast aside views on planning policy that they would have formed when seeking election or when acting as councillors. Councillors could properly take part in the debates which led to planning applications made by the local authority itself. It was common ground that in the case of some applications they were likely to have, and were entitled to have, a disposition in favour of granting permission.
Given the role of councillors, clear pointers were required if the state of mind of councillors was to be held to have become a closed, or apparently closed, mind at the time of decision. It would be damaging to the democratic process if the decisions of elected councillors were to be quashed on the basis of additional and unusual circumstances thought to have been decisive. The appropriate approach was for the court to put itself in the shoes of that observer and to make its own assessment of the real possibility of predetermination.
The court had to take on the responsibility of deciding whether there was a real risk that minds were closed. Councillors were not in a judicial or quasi-judicial position but were elected to provide and pursue policies. Members of a planning committee would be entitled, and indeed expected, to have and to have expressed views on planning issues. It was for the court to assess whether committee members did make the decision with closed minds or that the circumstances give rise to such a real risk of closed minds that the decision ought not in the public interest be upheld.
The decision to hold the meeting during the pre-election period, and the consequences which could flow from it, were capable of justifying a decision to quash the grant of planning permission. However, apart from that there was no possible basis for quashing the planning permission. There was no basis on which the absence of dissent by coalition members could amount to unusual circumstances which could contribute to a decision to quash. The notion that a planning decision was suspect because all members of a single political group had voted for it was an unwarranted interference with the democratic process.
The committee which had granted planning permission had consisted of elected members who would be entitled, and indeed expected, to have, and to have expressed, views on planning issues. The members of the committee had long experience of the development project, its merits, demerits and problems. They had received a detailed report from council officers and had received advice as to the timing of the meeting. The imminence of the local elections at the time of decision did not demonstrate that those who had voted in favour of the planning application had minds closed to the planning merits of the proposal. In all the circumstances, a decision to quash the planning permission was not justified. It did not therefore follow from the unanimity of the seven coalition members that any one of them had a closed mind.
Case annotations in other services: rule (on the application of Lewis) v Persimmon Homes Teesside Ltd [2008] All ER (D) 11 (Jul)
13. Wheelform Properties Ltd v Secretary of State for Communities and Local Government and another – town and country planning and another
Citation: [2008] All ER (D) 425 (Jun)
Hearing date: 30 June 2008
Court: Queen's Bench Division, Administrative Court
Judge: Cranston J
Summary: Town and country planning – Permission for development – Material consideration
The claimant company owned a pig farm. It sought planning permission for an agricultural dwelling to be erected on the farm, claiming that such would house a farmworker who would be employed to look after the pigs. The second defendant local planning authority refused permission. Despite the refusal, the claimant started to construct the proposed dwelling. When the authority found out, it issued an enforcement notice requiring all works in respect of the dwelling to cease. The matter was then referred to the first defendant Secretary of State. In the event, a planning inspector was appointed to consider whether there were any grounds to allow the planning permission and the enforcement notice appeals. Having regard to national planning policy, in particular, Planning Policy Statement 7 on sustainable development in rural areas, the inspector upheld the authority's refusal of the appeals. The claimant applied, inter alia, under s 288 of the Town and Country Planning Act 1990 for an order quashing the inspector's decision.
It contended, inter alia, that the inspector's decision was Wednesbury unreasonable. In particular, it argued that the inspector had made material errors in his recital of the planning history; that the inspector had failed to appreciate the nature of the farming enterprise, namely that the pigs required constant vigilance; and that the inspector had not properly directed his mind to the fact that there was a lack of available dwellings in the surrounding area in which a farmworker could be housed.
The application would be dismissed.
In the circumstances, the inspector’s decision had not been Wednesbury unreasonable. It was not possible to go behind any of the conclusions that he had reached on any of the grounds that had been raised by the claimant.
Accordingly, the inspector’s decision would stand.
14.R (on the application of North Devon District Council) v Secretary of State for Business Enterprise and Regulatory Reform – town and country planning
Citation: [2008] All ER (D) 388 (Jun)
Hearing date: 27 June 2008
Court: Queen’s Bench Division, Administrative Court
Judge: Sullivan J
Summary: Town and country planning – Inquiry – Report
In a report published in May 2007, a planning inspector recommended to the defendant Secretary of State that consent be given, under the Electricity Act 1989 and Town and Country Planning Act 1990, to the erection of 22 wind turbines in an area controlled by the claimant local authority. The inspector had regard to national and local energy policy, the local landscape, noise generated by the proposed wind farm, the effect the farm would have on tourism, other conservation considerations and earlier planning decisions concerning the proposed development site and concluded that, on balance, the benefits resulting from the development of the wind farm outweighed the adverse impact it would have. The authority challenged that decision by way of judicial review.
The authority contended that, in coming to his decision, the inspector’s assessment process had been flawed.
The application would be dismissed.
Reading the inspector’s report as a whole, and adopting a common sense approach, the recommendation to consent to the planning permission for the erection of 22 wind turbines in an area controlled by the authority was pre-eminently a matter of planning judgment and there was no substance to the authority’s challenge.
Case annotations in other services: rule (on the application of North Devon District Council) v Secretary of State for Business Enterprise and Regulatory Reform [2008] All ER (D) 388 (Jun)
15. Millgate Developments Ltd v Secretary of State for Communities and Local Government and another – town and country planning
Citation: [2008] All ER (D) 177 (Jul)
Hearing date: 14 July 2008
Court: Queen’s Bench Division, Administrative Court
Judge: Sullivan J
Summary: Town and country planning – Permission for development – Alternative site
The claimant applied for planning permission to develop a number of apartments on a site which was located near to a “Special Protection Area” (SPA). The second defendant local planning authority refused to grant permission, following which the claimant appealed to the first defendant Secretary of State. An inspector who was appointed by the Secretary of State found, following a hearing and a site visit, that the proposed development would have a “significant adverse impact on the integrity of the SPA”. In coming to that conclusion, he pointed out that a number of “suitable alternative natural green spaces” (SANGs), which had been submitted for his consideration, did not assist the claimant. He went on to state that one of those sites had not been included in the final list of SANGs. As for the other sites which had been identified, the inspector stated that their suitability had not yet been assessed. Accordingly, the appeal was dismissed. The claimant applied under s 288 of the Town and Country Planning Act 1990 challenging the lawfulness of the inspector’s decision.
It submitted, inter alia, that the inspector had erred in his approach to the SANGs.
The application would be dismissed.
In the circumstances, the inspector had not erred. His reasons for rejecting the SANGs was readily comprehensible.
Accordingly, the inspector’s decision would stand.
Case annotations in other services: Millgate Developments Ltd v Secretary of State for Communities and Local Government and another [2008] All ER (D) 177 (Jul)
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Acts
1. Housing and Regeneration Act 2008
Enactment citation: 2008 chapter 17
Royal assent date: 22 July 2008
Summary: Establishes the Homes and Communities Agency and makes provision about it; abolishes the Urban Regeneration Agency and the Commission for the New Towns and makes provision in connection with their abolition; regulates social housing; enables the abolition of the Housing Corporation; makes provision about sustainability certificates, landlord and tenant matters, building regulations and mobile homes.
Statutory Instruments
1. Land Registration (Amendment) Rules 2008
Number: 2008/1919
Enabling power: Land Registration Act 2002, sections 1(2), 13(a), 14(a), (b), 21(2)(a)-(c), 22, 25(1), 27(6), 36(4), 43(2)(a), (c), (d), 47, 60(3), 66(2), 67(3), 70, 73(2)-(4), 88, 126, 127(1), 128(1), 134(2), Sch 2, paragraphs 2(2), 7(3), Sch 4, paragraphs 7(b)-(d), Sch 6, paragraphs 2(1)(e), 10(4), 15, Sch 8, paragraphs 9, Sch 10, paragraphs 3(a), 5(2)(a), 6(a), (b), 8, Sch 12, paragraphs 2(4)
Commencement: 10 November 2008
Summary: Further amend the Land Registration Rules 2003, SI 2003/1417, which make detailed provision for land registration in England and Wales. The amendments are miscellaneous and follow a general review of the principal rules carried out by Land Registry.
2. Land Registration (Electronic Conveyancing) Rules 2008
Number: 2008/1750
Enabling power: Land Registration Act 2002, sections 1(2), 25(1), 66(2), 67(3), 71, 73(4), 91(2), (3)(d), 92(2), 95(b), 126, 128(1)
Commencement: 4 August 2008
Summary: Make provision for the creation of legal charges in electronic form. State what information such a charge must contain, while allowing for optional information. Rule 4 requires that, when notified in accordance with the provisions of the charge that the charge is to take effect, the registrar must send the person giving the notification an acknowledgement stating the time and date that it was received.
3. Estate Agents (redress scheme) Order 2008
Number: 2008/1712
Enabling power: Estate Agents Act 1979, Sch 3
Commencement: 1 October 2008
Summary: Requires every person who engages in estate agency work in the United Kingdom in relation to residential property to be a member of an approved redress scheme for the purpose of dealing with complaints relating to that work. Before such an Order can be made the Office of Fair Trading must have approved one or more redress schemes pursuant to the Estate Agents Act 1979, Sch 3 and details of every approved scheme are available on the Office of Fair Trading website (www.oft.gov.uk). "Estate agency work" is defined in that Act, as is "residential property".
Please note subscribers can go to LexisNexis Butterworths for further details about all the above SIs. Non-subscribers can sign up for a free trial of the online service.
Features
1. Experts calls for a renewed vision on regeneration of English cities
Responding to the "Cities Unlimited" Report of independent think tank Policy Exchange, five leading organisations representing and advocating the growth of cities across England have stressed the need for a renewed vision on, and commitment to, the economic development of English cities.
The report’s suggested model of economic development dependent on mass migration and "palliative care" for certain cities outside the South East has been rejected by the group, which consists of Core Cities Group, Northern Way, Centre for Cities, New Local Government Network and Centre for Local Economic Strategies. Instead, they are calling for a mature debate on the future of England’s towns and cities, focused on securing continued economic success and structural change. They are also advocating a more balanced view of cities outside the South East, many of which have achieved growth rates higher than the country as a whole in recent years.
Chris Murray, Director of the Core Cities Group, said: "We recognise that London has driven prosperity across the south east, but the eight Core Cities” city regions have a collective economy that is already bigger than London’s, at 25.5 per cent of national output. Are Policy Exchange really suggesting that we can simply move that output to the South East intact? What is more likely is that such policies would empty cities of their 20 per cent most qualified people, overheat the south east, create more deprivation and vast expense to the public purse. It’s not just that these cities are important to the economy, we simply do not have a viable economy without them".
He continued: "The headline conclusions of the report cannot be taken seriously, but there are some important questions raised by Policy Exchange. How can we empower our cities to perform better economically, what are the key drivers of growth in a shifting economic environment and how can we work together to create a different, ambitious vision for the future of our great cities? We would welcome a mature debate on these issues."
Andrew Lewis, Director of Northern Way, an organisation which brings together the regions and city-regions of the North of England in a bid to promote economic development said: "The description of the Northern cities and regions set out by policy exchange is not supported by the evidence. Many have been growing faster than the UK has a whole, creating new jobs, and attracting substantial private sector investment. An active role from the public sector has helped to secure structural change, moving their economies on from the out-of-date characterisation presented by Policy Exchange. This effort needs to be sustained, not abandoned."
The report controversially suggested that many English cities will never regenerate, and instead called for 1 million houses to be built in each of London, Oxford and Cambridge.
(21/8/08)
Legal News Analysis
2. Could council mortgages stabilise the housing market?
Councils should use their lending powers to stave off repossession and eviction, a report by the New Local Government Network (NLGN) think tank says.
However, says Trowers & Hamlins solicitor, Suzanne Benson, local authorities who want to start providing mortgages will need to ensure they are offered at the right interest rate or risk being found to be acting ultra vires (beyond their powers).
The Council of Mortgage Lenders forecasts that the credit crunch will contribute towards 45,000 homes being repossessed in England and Wales by the end of the year - nearly 20,000 more than last year--and 170,000 mortgages in arrears of more than three months.
With repossession levels at their highest since the early 1990s and many households struggling with mortgage payments, NLGN argues that councils are in an ideal position to help stabilise the housing market. Such schemes are already commonplace in the United States and are a key part of presidential hopeful Barack Osama’s strategy for reviving the flagging US housing market.
The Nolan’s Good House Keeping? report, published in June, says councils could help by offering whole or partial mortgages at below the market rate and that keeping people in their homes would also avoid further pressure on already-stretched social housing, where many evicted families end up.
Following on from this, Liverpool City Council has just announced that it is to launch a feasibility study to review whether it can start offering mortgages.
Benson says the current national interest rate, which is set by the Secretary of State for Communities and Local Government, is currently 6.89 per cent. However, Trowers & Hamlins say this rate was last set in February 2007 and, therefore, could be changed before any local authority mortgage plan gets up and running.
Local authorities have provided mortgages in the past but that mainly stopped in the late 1980s and early 1990s. More recently, she says, Trowers & Hamlins has advised some local authorities on the provision of mortgages where they have been part of urban regeneration, home improvement and relocation schemes.
"It is not an activity that is completely new to local authorities but mortgage lending to the wider market would bring local authorities onto new territory," says Benson. As an alternative to actually providing mortgages themselves, she points out, local authorities have the power to indemnify a commercial lender that would apply if a borrower defaulted.
She says: "This power could provide a useful tool in reducing the risks to lenders in providing mortgages to persons qualifying for low cost home ownership as they would potentially be able to rely on the strength of the local authority’s covenant. Undertaken properly, this solution could involve far lower administrative costs."
Benson also suggests that local authorities could provide more mortgage lending by investing in a separate body such as a local housing company, who would then provide the lending facility.
The NLGN report calculates that since its inception in the 1980s, Right-to-Buy has lead to the sale of over two million public sector houses and that this has in part led to a shortage of social housing, leaving 1.6 million households on the housing waiting list. It also argues that the current £26,000 discount of Right-to-Buy properties should be removed as it offers an unfair advantage to buying property below the market price.
(15/8/08)
Legal News Analysis
3. Market wants stamp duty clarity
Speculation is mounting over a possible package of government measures designed to kick-start the Auk’s sluggish housing market. One possible initiative is a temporary removal of stamp duty, the tax that people pay when they buy property. At the moment, this is charged at one per cent of the full sales price of properties worth between £125,000 and £250,000. It rises to three per cent on the full cost of homes between £250,000 and £500,000, and four per cent is charged on homes worth more than £500,000.
In a BBC radio interview, Chancellor Alistair Darling refused to rule out the removal of stamp duty, saying only that the Treasury was "looking at a number of measures" and had not "concluded exactly what we need to do". However, he has since added that he will not be "bounced" into action as a result of media speculation.
The National Association of Estate Agents described the possibility of a stamp duty holiday as very encouraging. "Drastic action is needed in order to get the cogs whirring in the market place again," said its chief executive Peter Bolton King. "If this suspension does occur, then it will provide a much needed boost to consumer confidence." However, he added that if action were to be taken, it needed to be taken quickly: "One concern is that the anticipation of the suspension of stamp duty may halt the transactions in the housing market even further until the decision is finalised either way." Michael Mitzman, property consultant at Mischon de Reya, believes the speculation is already having an impact on transactions.
"The possibility of a stamp duty holiday immediately causes a distortion in the property market, because a lot of people will hold back if they think something is going to happen that will help them. We already have a dip in the market because of the overall credit situation, and this is simply creating another one."
Mitzman believes it is unlikely that the government will remove stamp duty. He would prefer the levy to be completely overhauled. "This will just distort the market temporarily and is unlikely to offer any great benefits. It might offer a little bit of help to first-time buyers or buyers of lower-priced houses, but it won’t help the market significantly. If the government wanted to do something sensible, they would do what they should have done years ago and introduce a sliding scale for stamp duty.
For example, people could pay one per cent on the first £250,000 of the value of the property they are buying and three per cent on every thousand pounds beyond that. That seems much fairer and it would stop people trying to smuggle in their fixtures and fittings for a price that will bring them below the threshold."
(12/8/08)
Legal News Analysis
Articles
1. A Pivotal Adviser
Journal: Estates Gazette
Citation: Estates Gazette, 16 August 2008, 76
Issue date: 16 August 2008
Authors: Teresa Edmund and Sophie Cattell
Summary: Charity land transactions are subject to specific requirements, trustees must comply with the statutory procedures and surveyors have to provide appropriate guidance.
2. A sense of loss
Journal: Building
Citation: Building, 15 August 2008, 48
Issue date: 15 August 2008
Author: Rupert Choat
Summary: Discusses the question of whether one has a non-contractual duty to behave carefully so as to avoid causing the other loss.
3. The dangers of being positive
Journal: Construction Law Journal
Citation: (2008) 19 7 Cons.Law 17
Issue date: 1 September 2008
Author: Paul Newman
Summary: Finds the courts are taking an increasingly dim view of litigants who bring cases to court that could have been settled, or are thought over-speculative.
4. Compensation for collusion - how to get it
Journal: Taxation
Citation: (2008) 19 7 Cons.Law 20
Issue date: 1 September 2008
Author: James Jamison
Summary: Discusses why bid rigging (including cover pricing) is prohibited under competition law.
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Citation: [2008] All ER (D) 140 (Jun)
Hearing date: 1 July 2008
Court: Court of Appeal, Civil Division
Judge: Pill, Rix and Longmore LJJ
Summary: Town and country planning – Permission for development – Development by local authority
In 1999, the local authority adopted a local plan under which a common, and the surrounding area, was allocated for major leisure use with a linked housing development. The scheme for the development of the common was prepared in 2002 at the time when the local authority was Labour controlled. The local authority appointed the defendant as development partner. By then, control of the local authority had passed to a coalition comprising Liberal Democrats, Conservatives and East Cleveland Independents. There was an objection to the scheme.
In February 2006, the local authority's cabinet resolved to enter into written heads of terms with the defendant. An application for planning permission was made and public consultation followed. Having taken advice from local authority officers, the committee chairman took the view that the planning application could be considered during the pre-election period. The day before the meeting, concern was expressed over the wisdom and propriety of holding the meeting to determine such a controversial matter during the election period.
However, the meeting proceeded. At the meeting, the councillors had before them a detailed report from the director of area management which concluded with the recommendation that the committee was mindful to grant approval for the development. It was resolved that the development of the common be approved subject to conditions. Thirteen members were present, nine of whom voted in favour, including all coalition members and two Labour members. Two Labour members abstained and one Labour member and an independent member outside the Coalition voted against.
A development agreement between the local authority and the defendant was signed. A notice of planning permission was subsequently issued. The claimant challenged the lawfulness of the grant of permission on the ground that there had been an appearance of bias or predetermination on the part of the coalition members of the committee.
The judge found that having regard to the guidance given in authorities, a fair minded and informed observer would conclude that there was a real possibility of bias or predetermination on the part of the planning committee; and that if there were additional and unusual circumstances which suggested that councillors might have closed minds before embarking upon a decision, then the notional observer would conclude that there was a real possibility of bias or predetermination. He went on to conclude that the local authority's decision to grant planning permission for the development project was unlawful by reason of apparent bias or apparent predetermination, and quashed the grant of planning permission to the defendant. The defendant appealed against that decision.
It submitted that the judge had applied the wrong test to the evidence; and that even on the test he had applied, he had reached the wrong conclusion. It further submitted that while it might be possible to infer from the evidence and circumstances that councillors voting for a proposal had closed minds, the question was whether in fact their minds had been closed. The claimant submitted that there was a failure to produce good reasons for holding the meeting during the pre-election period.
The appeal would be allowed.
Planning committee members were not required to cast aside views on planning policy that they would have formed when seeking election or when acting as councillors. Councillors could properly take part in the debates which led to planning applications made by the local authority itself. It was common ground that in the case of some applications they were likely to have, and were entitled to have, a disposition in favour of granting permission.
Given the role of councillors, clear pointers were required if the state of mind of councillors was to be held to have become a closed, or apparently closed, mind at the time of decision. It would be damaging to the democratic process if the decisions of elected councillors were to be quashed on the basis of additional and unusual circumstances thought to have been decisive. The appropriate approach was for the court to put itself in the shoes of that observer and to make its own assessment of the real possibility of predetermination.
The court had to take on the responsibility of deciding whether there was a real risk that minds were closed. Councillors were not in a judicial or quasi-judicial position but were elected to provide and pursue policies. Members of a planning committee would be entitled, and indeed expected, to have and to have expressed views on planning issues. It was for the court to assess whether committee members did make the decision with closed minds or that the circumstances give rise to such a real risk of closed minds that the decision ought not in the public interest be upheld.
The decision to hold the meeting during the pre-election period, and the consequences which could flow from it, were capable of justifying a decision to quash the grant of planning permission. However, apart from that there was no possible basis for quashing the planning permission. There was no basis on which the absence of dissent by coalition members could amount to unusual circumstances which could contribute to a decision to quash. The notion that a planning decision was suspect because all members of a single political group had voted for it was an unwarranted interference with the democratic process.
The committee which had granted planning permission had consisted of elected members who would be entitled, and indeed expected, to have, and to have expressed, views on planning issues. The members of the committee had long experience of the development project, its merits, demerits and problems. They had received a detailed report from council officers and had received advice as to the timing of the meeting. The imminence of the local elections at the time of decision did not demonstrate that those who had voted in favour of the planning application had minds closed to the planning merits of the proposal. In all the circumstances, a decision to quash the planning permission was not justified. It did not therefore follow from the unanimity of the seven coalition members that any one of them had a closed mind.
Case annotations in other services: rule (on the application of Lewis) v Persimmon Homes Teesside Ltd [2008] All ER (D) 11 (Jul)
13. Wheelform Properties Ltd v Secretary of State for Communities and Local Government and another – town and country planning and another
Citation: [2008] All ER (D) 425 (Jun)
Hearing date: 30 June 2008
Court: Queen's Bench Division, Administrative Court
Judge: Cranston J
Summary: Town and country planning – Permission for development – Material consideration
The claimant company owned a pig farm. It sought planning permission for an agricultural dwelling to be erected on the farm, claiming that such would house a farmworker who would be employed to look after the pigs. The second defendant local planning authority refused permission. Despite the refusal, the claimant started to construct the proposed dwelling. When the authority found out, it issued an enforcement notice requiring all works in respect of the dwelling to cease. The matter was then referred to the first defendant Secretary of State. In the event, a planning inspector was appointed to consider whether there were any grounds to allow the planning permission and the enforcement notice appeals. Having regard to national planning policy, in particular, Planning Policy Statement 7 on sustainable development in rural areas, the inspector upheld the authority's refusal of the appeals. The claimant applied, inter alia, under s 288 of the Town and Country Planning Act 1990 for an order quashing the inspector's decision.
It contended, inter alia, that the inspector's decision was Wednesbury unreasonable. In particular, it argued that the inspector had made material errors in his recital of the planning history; that the inspector had failed to appreciate the nature of the farming enterprise, namely that the pigs required constant vigilance; and that the inspector had not properly directed his mind to the fact that there was a lack of available dwellings in the surrounding area in which a farmworker could be housed.
The application would be dismissed.
In the circumstances, the inspector’s decision had not been Wednesbury unreasonable. It was not possible to go behind any of the conclusions that he had reached on any of the grounds that had been raised by the claimant.
Accordingly, the inspector’s decision would stand.
14.R (on the application of North Devon District Council) v Secretary of State for Business Enterprise and Regulatory Reform – town and country planning
Citation: [2008] All ER (D) 388 (Jun)
Hearing date: 27 June 2008
Court: Queen’s Bench Division, Administrative Court
Judge: Sullivan J
Summary: Town and country planning – Inquiry – Report
In a report published in May 2007, a planning inspector recommended to the defendant Secretary of State that consent be given, under the Electricity Act 1989 and Town and Country Planning Act 1990, to the erection of 22 wind turbines in an area controlled by the claimant local authority. The inspector had regard to national and local energy policy, the local landscape, noise generated by the proposed wind farm, the effect the farm would have on tourism, other conservation considerations and earlier planning decisions concerning the proposed development site and concluded that, on balance, the benefits resulting from the development of the wind farm outweighed the adverse impact it would have. The authority challenged that decision by way of judicial review.
The authority contended that, in coming to his decision, the inspector’s assessment process had been flawed.
The application would be dismissed.
Reading the inspector’s report as a whole, and adopting a common sense approach, the recommendation to consent to the planning permission for the erection of 22 wind turbines in an area controlled by the authority was pre-eminently a matter of planning judgment and there was no substance to the authority’s challenge.
Case annotations in other services: rule (on the application of North Devon District Council) v Secretary of State for Business Enterprise and Regulatory Reform [2008] All ER (D) 388 (Jun)
15. Millgate Developments Ltd v Secretary of State for Communities and Local Government and another – town and country planning
Citation: [2008] All ER (D) 177 (Jul)
Hearing date: 14 July 2008
Court: Queen’s Bench Division, Administrative Court
Judge: Sullivan J
Summary: Town and country planning – Permission for development – Alternative site
The claimant applied for planning permission to develop a number of apartments on a site which was located near to a “Special Protection Area” (SPA). The second defendant local planning authority refused to grant permission, following which the claimant appealed to the first defendant Secretary of State. An inspector who was appointed by the Secretary of State found, following a hearing and a site visit, that the proposed development would have a “significant adverse impact on the integrity of the SPA”. In coming to that conclusion, he pointed out that a number of “suitable alternative natural green spaces” (SANGs), which had been submitted for his consideration, did not assist the claimant. He went on to state that one of those sites had not been included in the final list of SANGs. As for the other sites which had been identified, the inspector stated that their suitability had not yet been assessed. Accordingly, the appeal was dismissed. The claimant applied under s 288 of the Town and Country Planning Act 1990 challenging the lawfulness of the inspector’s decision.
It submitted, inter alia, that the inspector had erred in his approach to the SANGs.
The application would be dismissed.
In the circumstances, the inspector had not erred. His reasons for rejecting the SANGs was readily comprehensible.
Accordingly, the inspector’s decision would stand.
Case annotations in other services: Millgate Developments Ltd v Secretary of State for Communities and Local Government and another [2008] All ER (D) 177 (Jul)
Please note subscribers can go to LexisNexis Butterworths for further details about all the above cases. Non-subscribers can sign up for a free trial of the online service.
Acts
1. Housing and Regeneration Act 2008
Enactment citation: 2008 chapter 17
Royal assent date: 22 July 2008
Summary: Establishes the Homes and Communities Agency and makes provision about it; abolishes the Urban Regeneration Agency and the Commission for the New Towns and makes provision in connection with their abolition; regulates social housing; enables the abolition of the Housing Corporation; makes provision about sustainability certificates, landlord and tenant matters, building regulations and mobile homes.
Statutory Instruments
1. Land Registration (Amendment) Rules 2008
Number: 2008/1919
Enabling power: Land Registration Act 2002, sections 1(2), 13(a), 14(a), (b), 21(2)(a)-(c), 22, 25(1), 27(6), 36(4), 43(2)(a), (c), (d), 47, 60(3), 66(2), 67(3), 70, 73(2)-(4), 88, 126, 127(1), 128(1), 134(2), Sch 2, paragraphs 2(2), 7(3), Sch 4, paragraphs 7(b)-(d), Sch 6, paragraphs 2(1)(e), 10(4), 15, Sch 8, paragraphs 9, Sch 10, paragraphs 3(a), 5(2)(a), 6(a), (b), 8, Sch 12, paragraphs 2(4)
Commencement: 10 November 2008
Summary: Further amend the Land Registration Rules 2003, SI 2003/1417, which make detailed provision for land registration in England and Wales. The amendments are miscellaneous and follow a general review of the principal rules carried out by Land Registry.
2. Land Registration (Electronic Conveyancing) Rules 2008
Number: 2008/1750
Enabling power: Land Registration Act 2002, sections 1(2), 25(1), 66(2), 67(3), 71, 73(4), 91(2), (3)(d), 92(2), 95(b), 126, 128(1)
Commencement: 4 August 2008
Summary: Make provision for the creation of legal charges in electronic form. State what information such a charge must contain, while allowing for optional information. Rule 4 requires that, when notified in accordance with the provisions of the charge that the charge is to take effect, the registrar must send the person giving the notification an acknowledgement stating the time and date that it was received.
3. Estate Agents (redress scheme) Order 2008
Number: 2008/1712
Enabling power: Estate Agents Act 1979, Sch 3
Commencement: 1 October 2008
Summary: Requires every person who engages in estate agency work in the United Kingdom in relation to residential property to be a member of an approved redress scheme for the purpose of dealing with complaints relating to that work. Before such an Order can be made the Office of Fair Trading must have approved one or more redress schemes pursuant to the Estate Agents Act 1979, Sch 3 and details of every approved scheme are available on the Office of Fair Trading website (www.oft.gov.uk). "Estate agency work" is defined in that Act, as is "residential property".
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Features
1. Experts calls for a renewed vision on regeneration of English cities
Responding to the "Cities Unlimited" Report of independent think tank Policy Exchange, five leading organisations representing and advocating the growth of cities across England have stressed the need for a renewed vision on, and commitment to, the economic development of English cities.
The report’s suggested model of economic development dependent on mass migration and "palliative care" for certain cities outside the South East has been rejected by the group, which consists of Core Cities Group, Northern Way, Centre for Cities, New Local Government Network and Centre for Local Economic Strategies. Instead, they are calling for a mature debate on the future of England’s towns and cities, focused on securing continued economic success and structural change. They are also advocating a more balanced view of cities outside the South East, many of which have achieved growth rates higher than the country as a whole in recent years.
Chris Murray, Director of the Core Cities Group, said: "We recognise that London has driven prosperity across the south east, but the eight Core Cities” city regions have a collective economy that is already bigger than London’s, at 25.5 per cent of national output. Are Policy Exchange really suggesting that we can simply move that output to the South East intact? What is more likely is that such policies would empty cities of their 20 per cent most qualified people, overheat the south east, create more deprivation and vast expense to the public purse. It’s not just that these cities are important to the economy, we simply do not have a viable economy without them".
He continued: "The headline conclusions of the report cannot be taken seriously, but there are some important questions raised by Policy Exchange. How can we empower our cities to perform better economically, what are the key drivers of growth in a shifting economic environment and how can we work together to create a different, ambitious vision for the future of our great cities? We would welcome a mature debate on these issues."
Andrew Lewis, Director of Northern Way, an organisation which brings together the regions and city-regions of the North of England in a bid to promote economic development said: "The description of the Northern cities and regions set out by policy exchange is not supported by the evidence. Many have been growing faster than the UK has a whole, creating new jobs, and attracting substantial private sector investment. An active role from the public sector has helped to secure structural change, moving their economies on from the out-of-date characterisation presented by Policy Exchange. This effort needs to be sustained, not abandoned."
The report controversially suggested that many English cities will never regenerate, and instead called for 1 million houses to be built in each of London, Oxford and Cambridge.
(21/8/08)
Legal News Analysis
2. Could council mortgages stabilise the housing market?
Councils should use their lending powers to stave off repossession and eviction, a report by the New Local Government Network (NLGN) think tank says.
However, says Trowers & Hamlins solicitor, Suzanne Benson, local authorities who want to start providing mortgages will need to ensure they are offered at the right interest rate or risk being found to be acting ultra vires (beyond their powers).
The Council of Mortgage Lenders forecasts that the credit crunch will contribute towards 45,000 homes being repossessed in England and Wales by the end of the year - nearly 20,000 more than last year--and 170,000 mortgages in arrears of more than three months.
With repossession levels at their highest since the early 1990s and many households struggling with mortgage payments, NLGN argues that councils are in an ideal position to help stabilise the housing market. Such schemes are already commonplace in the United States and are a key part of presidential hopeful Barack Osama’s strategy for reviving the flagging US housing market.
The Nolan’s Good House Keeping? report, published in June, says councils could help by offering whole or partial mortgages at below the market rate and that keeping people in their homes would also avoid further pressure on already-stretched social housing, where many evicted families end up.
Following on from this, Liverpool City Council has just announced that it is to launch a feasibility study to review whether it can start offering mortgages.
Benson says the current national interest rate, which is set by the Secretary of State for Communities and Local Government, is currently 6.89 per cent. However, Trowers & Hamlins say this rate was last set in February 2007 and, therefore, could be changed before any local authority mortgage plan gets up and running.
Local authorities have provided mortgages in the past but that mainly stopped in the late 1980s and early 1990s. More recently, she says, Trowers & Hamlins has advised some local authorities on the provision of mortgages where they have been part of urban regeneration, home improvement and relocation schemes.
"It is not an activity that is completely new to local authorities but mortgage lending to the wider market would bring local authorities onto new territory," says Benson. As an alternative to actually providing mortgages themselves, she points out, local authorities have the power to indemnify a commercial lender that would apply if a borrower defaulted.
She says: "This power could provide a useful tool in reducing the risks to lenders in providing mortgages to persons qualifying for low cost home ownership as they would potentially be able to rely on the strength of the local authority’s covenant. Undertaken properly, this solution could involve far lower administrative costs."
Benson also suggests that local authorities could provide more mortgage lending by investing in a separate body such as a local housing company, who would then provide the lending facility.
The NLGN report calculates that since its inception in the 1980s, Right-to-Buy has lead to the sale of over two million public sector houses and that this has in part led to a shortage of social housing, leaving 1.6 million households on the housing waiting list. It also argues that the current £26,000 discount of Right-to-Buy properties should be removed as it offers an unfair advantage to buying property below the market price.
(15/8/08)
Legal News Analysis
3. Market wants stamp duty clarity
Speculation is mounting over a possible package of government measures designed to kick-start the Auk’s sluggish housing market. One possible initiative is a temporary removal of stamp duty, the tax that people pay when they buy property. At the moment, this is charged at one per cent of the full sales price of properties worth between £125,000 and £250,000. It rises to three per cent on the full cost of homes between £250,000 and £500,000, and four per cent is charged on homes worth more than £500,000.
In a BBC radio interview, Chancellor Alistair Darling refused to rule out the removal of stamp duty, saying only that the Treasury was "looking at a number of measures" and had not "concluded exactly what we need to do". However, he has since added that he will not be "bounced" into action as a result of media speculation.
The National Association of Estate Agents described the possibility of a stamp duty holiday as very encouraging. "Drastic action is needed in order to get the cogs whirring in the market place again," said its chief executive Peter Bolton King. "If this suspension does occur, then it will provide a much needed boost to consumer confidence." However, he added that if action were to be taken, it needed to be taken quickly: "One concern is that the anticipation of the suspension of stamp duty may halt the transactions in the housing market even further until the decision is finalised either way." Michael Mitzman, property consultant at Mischon de Reya, believes the speculation is already having an impact on transactions.
"The possibility of a stamp duty holiday immediately causes a distortion in the property market, because a lot of people will hold back if they think something is going to happen that will help them. We already have a dip in the market because of the overall credit situation, and this is simply creating another one."
Mitzman believes it is unlikely that the government will remove stamp duty. He would prefer the levy to be completely overhauled. "This will just distort the market temporarily and is unlikely to offer any great benefits. It might offer a little bit of help to first-time buyers or buyers of lower-priced houses, but it won’t help the market significantly. If the government wanted to do something sensible, they would do what they should have done years ago and introduce a sliding scale for stamp duty.
For example, people could pay one per cent on the first £250,000 of the value of the property they are buying and three per cent on every thousand pounds beyond that. That seems much fairer and it would stop people trying to smuggle in their fixtures and fittings for a price that will bring them below the threshold."
(12/8/08)
Legal News Analysis
Articles
1. A Pivotal Adviser
Journal: Estates Gazette
Citation: Estates Gazette, 16 August 2008, 76
Issue date: 16 August 2008
Authors: Teresa Edmund and Sophie Cattell
Summary: Charity land transactions are subject to specific requirements, trustees must comply with the statutory procedures and surveyors have to provide appropriate guidance.
2. A sense of loss
Journal: Building
Citation: Building, 15 August 2008, 48
Issue date: 15 August 2008
Author: Rupert Choat
Summary: Discusses the question of whether one has a non-contractual duty to behave carefully so as to avoid causing the other loss.
3. The dangers of being positive
Journal: Construction Law Journal
Citation: (2008) 19 7 Cons.Law 17
Issue date: 1 September 2008
Author: Paul Newman
Summary: Finds the courts are taking an increasingly dim view of litigants who bring cases to court that could have been settled, or are thought over-speculative.
4. Compensation for collusion - how to get it
Journal: Taxation
Citation: (2008) 19 7 Cons.Law 20
Issue date: 1 September 2008
Author: James Jamison
Summary: Discusses why bid rigging (including cover pricing) is prohibited under competition law.
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