PLANNING CASES UPDATE

1. PLANNING CASES UPDATE by CLARE PARRY 2-3 Gray’s Inn Square

2. Areas to be covered • Enforcement notices • Estoppel • Second bite development • Procedural requirements • Time limits • Temporary stop notices • Bias • Delegation • Village greens • EIA • Trees and TPO’s • Polytunnels

3. 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)

4. 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)

5. 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).

6. 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)

7. 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)

8. 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.

9. 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.

10. 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.

11. 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?

12. 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

13. 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

14. 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.

15. 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’.

16. 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)

17. 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’.