Transcript RECENT CASES IN PLANNING LAW

PLANNING CASES UPDATE
by
CLARE PARRY
2-3 Gray’s Inn Square
Areas to be covered
• Enforcement notices
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Estoppel
Second bite development
Procedural requirements
Time limits
Temporary stop notices
Bias
Delegation
Village greens
EIA
Trees and TPO’s
Polytunnels
Enforcement notices: estoppel
• R (East Hertfordshire District Council) v FSS [2007]
EWHC 834
• About second bite enforcement notice.
• Had accidentally given the wrong drawings in first
proceedings-couldn’t conclude the dwelling was in the
wrong place.
• HC accepted cause of action estoppel in enforcement
notice proceedings survives Reprotech.
• On the very particular facts of this case the inspector in
1st proceedings had merely said there wasn’t enough
evidence-he hadn’t made a final decision on the issue.
• See further [2007] JPL 1283 (September)
Enforcement notices: second bite
development
• R (Romer) v FSS and LB Haringey [2006] EWHC 3480
• Appellant owned 2 houses: 221 & 223 Archway Rd.
Local authority meant to enforce against house built at
rear 221 but specified 223 in 1st enforcement notice.
• 1st appeal inspector refused to amend notice.
• 2nd enforcement notice issued against 221-Appellant
argued it was out of time.
• Inspector (upheld by Court) concluded was part of same
development enforced against therefore valid 2nd bite
enforcement.
• Very wide interpretation part of same development?
• See further: JPL [2007] 1093 (August)
Enforcement notices: procedural
requirements
• Clive Payne v National Assembly for Wales and
Caerphilly County BC [2006] EWHC 597
• Inspector found notice failed to meet requirements s. 173
in that failed to specify steps required-simply required
them to submit a scheme for approval then implement
the approved scheme.
• He then purported to vary the terms of the notice under
his s. 176 powers.
• He had no power to do this-the notice was invalid and
therefore he could not use his s. 176 powers.
• See further [2007] JPL 117 (case report) and [2007] JPL
483 (article).
Enforcement notices: time limits
• FSS v Arun DC [2006] EWCA Civ 1172
• Time limit for breach of condition in
respect to use of a building as a
dwellinghouse.
• Traditionally been a question of whether it
was 4 or 10 years?
• CA overrule 1st instance Judge and
determine that it is 4 years in all cases.
• See further [2007] JPL 237 (February)
Temporary stop notices
• Wilson v Wychavon DC v FSS [2007] EWCA
Civ 52.
• Upheld Crane J saying S. 183 (permanent stop
notices) NOT incompatible ECHR Art 8 and 14.
• However, this is in part because LPAs have a
discretion whether to serve SN, have to exercise
compatibly HRA 1998 under s. 6.
• Arguable article 8 defence could be raised in
prosecution for breach of a SN. In any event
could JR decision to seek SN.
• See further [2007] JPL 1096 (August)
Bias (1)
• R (Port Regis School) v North Dorset DC [2006] EWCA
1373
• It was thought that a lodge of Freemasons had an
interest in a planning decision.
• 2 members of other lodges (1 member of national
organisation) sat on planning committee.
• Fair minded observer informed of all the facts about
freemasonry and having regard to circumstances of the
case would not conclude there was a real possibility of
apparent bias affecting the decision.
• It was relevant that Councillors were required by
freemasonry and the law to adhere to their obligations
under the Local Government Act.
Bias (2)
• National Assembly for Wales v (1) Contron
(2) Argent [2006] EWCA Civ 1573
• Incident where member of planning &
development control committee said they
were ‘going with inspector’s report’.
• CofA considered that when looked at all
the circumstances a fair minded observer
would not conclude the assembly member
or the committee as a whole was biased.
Bias (3)
• R (Sager House Chelsea) v FSS & RBKC [2006] EWHC
1251
• Large number grounds challenge of an inspectors
decision.
• Sixth ground very general-unparticularised allegation of
bias.
• Judge-unfortunate this ground of challenge was raised at
all-not sufficient for the appellant to be aggrieved by the
outcome.
• A fair-minded and informed observer, having considered
all the facts, would not have concluded there was a real
possibility the Inspector’s decision was infected by bias.
Delegation schemes
• R (SPRINGALL) v RICHMOND UPON THAMES LBC
[2006] EWCA Civ 19
• About the scope of a delegation scheme, but not
specifically in relation to enforcement.
• Suggests more relaxed approach to enforcement.
– [32] “in my view it is for local planning authorities to determine
the policy or basis of their schemes of delegation, not for the
courts to gloss them by imposing fetters on them according to
the court’s perception of how the decision-making should be
allocated between the council committee and the officer”.
• Different approach to delegation challenges in
enforcement/non-enforcement proceedings?
Village greens
• Oxfordshire County Council v. Oxford City Council [2006]
UKHL 25 (“the Traps Case”)
• The House of Lords has spoken, yet again on village
greens.
• Doesn’t matter that it doesn’t look like a village green.
• Is supposed to be easier to register a village green-less
technicality.
• Once registered for dog walking can be used for any
reasonable sporting pursuit.
• 20 years runs to date of application, not decision.
• Commons Act 2006 – article [2006] Nov. JPL
Environmental Impact Assessment
(1)
• With regard to EIA development, EA no longer
just at outline stage, may be needed at detailed
stage too, see R. (Barker) v Bromley LBC & FSS
[2006] UKHL 52
• Carry out at detailed stage if (a) significant
environmental effects not identified at outline
stage or (b) they were, but fresh assessment
required (probably arising from a change in
circumstances)
• See further August 2006 JPL and [2007] JPL
675
Environmental Impact Assessment
(2)
• R (Catt) v Brighton and Hove CC and Hove Albion Football Club
[2007] EWCA Civ 298
• Decision permitted continued use Brighton Albion’s stadium,
provision new stands, extension existing stands and increased
capacity.
• Applicant contended was unlawful for absence EIA assessment.
• Council wrote screening opinion-no EIA required because proposal
schedule 2 development and no significant impacts on environment.
• Council took proper approach-were no required to shut their eyes to
remedial measures.
• In terms delay in bringing JR entitled to look at date planning
permission not date screening opinion.
Environmental impact assessment
(3)
• R (Horner) v Lancashire City Council & Castle Cement [2007]
EWCA Civ 784
• Proposed development to handle animal waste derived fuel
(AWDF).
• Site area was more than 1000m2, but the proposed development
was smaller.
• Challenged because said Council wrong not to require EA or
undertake a screening opinion.
• No challenge to adequacy of transposition of the EU Regulations.
• As such meaning and applicability criterion such as ‘floorspace’ is a
matter of law. Their applicability as a matter fact and degree is
susceptible to usual public law challenges.
• Don’t have to have EU sympathetic approach to interpretation
‘floorspace’.
TPOs
• Perrin & Ramage v Northampton BC [2006]
EWHC 2331
• When can one top, lop, cut down etc to abate a
nuisance (s.198(6)(b))?
• Nuisance means actionable nuisance, not just
an overhanging branch.
• Irrelevant that an alternative scheme, ie root
protection, could also abate nuisance.
• On appeal. See article [2007] JPL 194
(February)
Polytunnels
• Hall Hunter Partnership v FSS [2006] EWHC 3482
• Enforcement action taken against polytunnels-for
growing strawberries- covering 34-45 ha.
• Were situated substantially in green belt and area great
landscape value.
• Inspector had considered all the circumstances including
size, degree physical attachment and permanence.
• As such was entitled to come to the conclusion they
were development.
• Inspector was correct that activities were ‘use’ and not
‘operations’.