Firstly, a belated Happy New Year to all our readers. What has 2011 got in store for us in the planning world? Well, the Localism Bill had its second reading with debate yesterday and is being committed to a Public Bill Committee, but the draft issued shortly before Christmas has given us plenty to think about - not least in relation to new enforcement powers, which we ask for your views on in this month's conundrum.
Last month's Future Perfect? was devoted to this draft legislation, so this month we are updating you on some recent case law which we hope you will find helpful.
If you have a particular issue you would like us to cover in future editions, or would like advice on a particular matter, please do get in touch with any of our planning team or your usual Mills & Reeve contact.
Finally, don't forget to visit our blog www.plan-it-law.com to keep up to date on the Bill, Cala and more. You can also sign up to our forthcoming environmental seminars through our website if they are of interest to you. More information and links to book a place are below.
In this issue:
- Greyfort Properties Ltd v Secretary of State for Communities and Local Government
- Calderdale MBC v Secretary of State for Communities and Local Government
- Hampshire County Council v Beazer Homes Ltd
- R (on the application of Rapose) v Wandsworth LBC
- Payne v (1) Secretary of State for Communities and Local Government (2) Windsor and Maidenhead Royal Borough Council (2010)
- Community Right to Build update
Greyfort Properties Ltd v Secretary of State for Communities and Local Government
Greyfort had submitted an application for a certificate of lawful use, essentially seeking to keep alive a planning permission granted in 1974 for the development of nineteen flats in Torquay. The fourth condition of the planning permission required that “before any work is commenced on the site” the ground floor levels of the building were to be agreed upon with the Local Planning Authority. Some works had been carried out in 1978 and it was argued by the inspector (as the planning authority had refused the application) that this condition had not been discharged, describing it as a “condition precedent that goes to the heart of the permitted scheme for nineteen flats”, such that the 1974 permission had not been lawfully implemented.
The claimant relied upon the basis of what had been observed in Hart Aggregates by Mr Justice Sullivan, arguing that the condition did not prohibit commencement of operations until the plans had been approved as the wording of the prohibition in the condition was not clear enough. However, Mr Justice Sullivan then went on to give examples of wording which would be clear enough, including an example of a condition exactly the same in substance as the fourth condition in question. Thus undermining the claimant’s reliance on Hart Aggregates.
Mr Justice Mitting, when giving his judgment, stated that he saw no material difference between a condition which expressly prohibits development before a particular matter is approved and one which requires a particular matter to be approved before the development commences. The claimant’s appeal against the inspector’s decision was dismissed.
Calderdale MBC v Secretary of State for Communities and Local Government
Calderdale had applied for consent for a housing development, and taken the council’s refusal to appeal. The case before the High Court turned on the interpretation of section 38(6) Planning and Compulsory Purchase Act 2004 and whether this simply required the inspector “to have regard” to the development plan and any other material considerations when making his decision.
The local plan contained a policy (H9) that prohibited development in unallocated greenfield land. The inspector, when considering H9 in his decision letter, stated, “I agree with the appellant that there are other policies and considerations that should be taken into account”. However, this statement was held to be insufficient: a decision of substance and a detailed and reasoned examination of the appellant’s evidence of the need for housing development was required.
The inspector’s decision was held by the High Court to be an error of law; he was not just simply obliged to “have regard to” the development plan. Section 38(6) required the decision to be taken “in accordance with the development plan unless material considerations indicate otherwise”; and the judge stated that the inspector had failed to appreciate the presumption in favour of the development plan that was created by section 38(6). He had also failed to properly examine the material considerations.
Hampshire County Council v Beazer Homes Ltd
This case considered the proper interpretation and effect of a Section 106 agreement. The defendant developer sought to have terms implied into the agreement in regards to the local authority’s expenditure of contributions and the refunding of any unexpended money. It also sought to imply that the council should refund any unexpended money in relation to a traffic management clause and that the agreement had given rise to a trust.
It was held that there were very limited circumstances in which it is appropriate to imply terms into such an agreement. Mrs Justice Swift stated that, if such terms were to be implied, it would impose duties on the claimant which were “significantly wider than the public duties to which it would in any event be subject.” If such terms had been proposed during negotiations, the claimant would not have agreed to them. Also, the exercise by a public authority of its powers in the public interest did not give rise to a trust.
R (on the application of Rapose) v Wandsworth LBC
This was a judicial review of the defendant’s decision to exercise its powers as a local planning authority under sections 178 and 179 of the Town and Country Planning Act 1990 (TCPA). The appellant had erected a three-storey side and rear extension to his house without permission and an enforcement notice was subsequently served. He then applied for permission for a large three-storey development which would encompass the previous extension that was in breach of planning control. Permission was granted in respect of this but the development was not implemented before the consent expired. The council subsequently sought to rely on the previous enforcement notice to ensure the extension was removed.
It was held that the effect of section 180 TCPA was to cancel the effect of the enforcement notice, in so far as it was “inconsistent” with a planning permission “for any development”. In this case it was clear that there were parts of the development specified in the enforcement notice “physically subsumed in the development for which the council granted planning permission.” The question of inconsistency between a planning permission and an enforcement notice is a matter of fact and degree for the planning authority, subject to review by the court on normal public law principles.
Payne v (1) Secretary of State for Communities and Local Government (2) Windsor and Maidenhead Royal Borough Council (2010)
This case questioned the application of rule 12 of the Town and Country Planning (Hearings Procedure) (England) Rules 2000. It involved a dispute over the conduct of an inspector in an appeal against a refusal by the council to grant planning permission for a replacement dwelling. While conducting the appeal, the inspector refused to physically visit the site in question, instead choosing to view it by standing on a nearby pavement on the boundary. This was despite the fact the local authority had requested a site visit. The inspector went on to determine that the site would have a significant visual impact on the neighbourhood, making it inappropriate to grant permission.
The conduct of the inspector was held to be in breach of the rules because, if a request by a local authority was made for such a visit, rule 12(2)(b) of the rules applied, making it compulsory to conduct a site visit. Such a request could not be met simply by making observations from outside of the site.
Community Right to Build update
The Localism Bill gives us a little more guidance on the Community Right to Build scheme. We now know that this is to be made available across England, rather than just in rural areas. In the Housing Minister, Grant Shapps's words ”it will be open to anyone with a drive and vision to build homes wherever they live in the country”. Notably, the threshold for support in a local community referendum is also reduced, to a simple majority. The further reduction (you may recall that the required percentage started out at somewhere between 80-90 per cent and was then reduced to 75 per cent) is justified on the basis of the checks and balances which the Government intends to put in place to make sure that community-led projects do, indeed, fit into the local council's wider vision for the development of the relevant area. And, as the new year has turned, Grant Shapps has lent his weight to the National Self Build Association's action plan to make it easier for people to build their own homes, whether on their own or as part of a community led scheme.
If the Localism Bill is passed as it stands, the planning authority will be able to enforce against a concealed breach of planning control at any time, even outside the current limitation periods of four and ten years. Concealment includes action and inaction. The enforcement could be in decades. When buying a property in future, what safeguards would readers want to take? Let us know at www.plan-it-law.com.