PLANNING CASE UPDATE(including conservation areas)

By

CLARE PARRY

2-3 Gray’s Inn Square

AREAS COVERED• Conservation areas/listed buildings

• Enforcement

– S 215 notices.

– Scope of appeal.

– Change of use.

– Breach of enforcement notice prosecutions.

– LDC

– S 187B injunctions.

– Race equality duty

• Procedure.

– At committee.

– On appeal.

– High Court challenge.

• Conditions precedent.

CONSERVATION AREAS

• Lots of important developments this year.

• Going to consider:– Derby County Council v Anthony– R (Arndale Properties) v Worcester City

Council.– East Riding of Yorkshire Council v Hobson.

Derbyshire CC v Anthony

• [2008] EWHC 895

• Club in Derby in state disrepair-surveyor’s recommendation to demolish.

• Council served s.54 notice.

• Once started work partial collapse. Applied for LB consent to demolish (said necessary for H&S).

• Derby CC sought injunction under s 44A Planning (Listed Buildings and Conservation Areas) Act 1990.

Derbyshire CC v Anthony 2

• Wyn Williams:– Question of fact.– On the facts preferred Derbyshire CC’s

evidence. – No urgent need on the grounds of risk to the

public to require demolition (no immediate risk collapse of the balcony).

– Decision on removal eventually was for planning inspector/ LPA.

R (Arndale Properties) v Worcester City Council

• [2008] EWHC 678

• Case concerned cricket pavilion which was in poor condition.

• Owners wanted to redevelop the area.

• WCC sought unsuccessfully to have it listed.

• Got committee to designate it as part of a conservation area.

• Owners sought judicial review.

R (Arndale Properties) v Worcester City Council 2

• Sullivan J:-– Rejected that desire to have the pavilion listed

was only the impetus. – LPA must identify following thorough

assessment the special architectural and historical character of the area.

– Existence of buildings of historic and architectural interest is not of itself sufficient.

– Can’t use conservation area designation to prevent listing of a building.

East Riding of Yorkshire v Hobson

• [2008] EWHC 1003

• Grade II listed (including stableblock).

• Granted consent to undertake works to the stable block.

• Works went significantly beyond what had consent for-wholly dismantled and reconstructed with some original bricks.

• S. 7 1990 Act: “no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a listed building.”

• Offence not to comply under s.9.

• Charged with altering a building contrary to s.7.

• Question was whether the alteration affected its character as a listed building.

• Information just referred to the dismantling of the stable block, but judge considered character after rebuilding.

East Riding of Yorkshire v Hobson

• Question was whether looked at just the dismantling, or whether looked at character after rebuilding.

• Not open to the authority to prosecute at some interim stage and ignore rebuilding (window example).

• Important to consider what works actually comprise of.

• Didn’t accept would inhibit local authorities, “It is entitled to intervene at an early stage if the facts appear to justify it. But such action may well then give rise to a hearing before an Inspector or a court where the question will be whether the works would affect the special character of the listed building.”

ENFORCEMENT

• Areas covered:– S 215 notices.– Scope of appeal.– Change of use.– Breach of enforcement notice prosecutions.– LDC – S 187B injunctions.– Race equality duty

Toni & Guy (South) Ltd v Hammersmith & Fulham LBC

• [2009] EWHC 203• Appeal by way case stated.• To do with who s. 215 (land adversely affecting amenity

of the neighbourhood) notice should be served on.• Notice referred to the whole building, but steps to be

taken only referred to the 1st floor and above.• Served on owners building and occupiers all floors.• Notice quashed-no power to serve it on the occupiers

basement/ground floor as land occupied by them not adversely affecting amenity.

R (Perrett) v SSCLG

• [2009] EWHC 234 (Admin)• Challenging refusal inspector to hold full rehearing.• C had previously successfully challenged inspector’s

conclusions on ground A in high court.• No requirement in policy or law to hold full rehearing on

all grounds (original hearing included many day’s worth of evidence).

• Matter still had to be heard de novo on ground A (not just the part of the issue on ground A on which the notice was quashed).

R (Tendring DC) v SSCLG

• [2008] EWHC 2122• Planning permission for use as nursing home-

condition preventing any other C2 use.• Enforcement notice alleged change to ‘institute

for provision residential accommodation and care’.

• Nursing home should be given natural meaning.• No bright line between C2 classes. • Not straining to say current use was a nursing

home.

Goodall v Peak District National Park Authority

• [2008] EWHC 734• Appeal by case stated.• G convicted failure to comply with an EN• PDNPA served notice (1), withdrew because G

out of country, served notice (2).• Again out of country, notice didn’t come to

attention until it had taken effect. • No Article 6 issue.• Common law (including good faith) relevant• Conviction upheld.

Keith Barnett v SSCLG & East Hampshire

• [2009] EWCA Civ 476

• Appeal against upholding of enforcement notices.

• Question was whether a second permission had extended the curtilage dwelling.

• Looked at what granted in second permission as a matter of fact and degree.

• Pragmatic approach.

• Upheld by CofA.

• Difference between situations where applying for pp for house (where usually define curtilage) and extensions where already defined.

Sevenoaks DC v Harber

• [2008] EWHC 708 (Admin)• Green belt/ AONB/ special landscape area. • Change of use to use for siting a caravan• Unsuccessful appeal. • Prosecution for failure to comply.• Defence-lack of gypsy sites-done everything he could-difficulty

taking apart caravan.• No defence-have to be able to show it is not within own unaided

powers to comply with notice-could have ceased living there unaided.

• Irrelevant whether it would have been reasonable for him to have ceased living there.

Hillingdon LBC v (1) SSCLG (2) Autodex

• [2008] EWHC 198 (Admin)

• Inspector allowed appeal against refusal LBH to grant certificate lawful use and development.

• Certificate for storage and ancillary purposes.

• HC-no obligation to define how much could be stored or specify what meant by ancillary purposes in a certificate.

• Relationship between s 57(4) and 191(2)

McCarthy v Basildon DC & Equality and Human Rights Commission

• [2009] EWCA Civ 13• EN against use as gypsy site-upheld on appeal.• Council proposing to enter and carry out works themselves (s. 178)• Not in principle disproportionate to use that rather than s. 187B-

court could consider whether proportionate on JR.• Approach to need for gypsy sites in report to committee too narrow.• No direct discrimination under Race Relations Act-indirect

discrimination but justification based on same test as proportionality under Article 8.

• Properly set out Race Relations duty in report to committee.

PROCEDURE

• Areas covered:– Procedure at committee.

• Bias/predetermination.

– Planning appeals• Role inspector• Procedural unfairness

– High court challenges.• Procedure on High Court challenges.• Strike out.

Persimmon Homes Teeside v R (App Lewis)

• [2008] EWCA Civ 746

• Planning application considered in run up to a local election.

• Although there is advice against this, Councillors don’t act quasi-judicially but in situation of democratic accountability.

• Legitimate to approach with a pre-disposition to one side of the argument, for the court to consider if this gave rise

to a real risk of closed minds.

R (Michael Gardner) v Harrogate BC & Atkinson

• [2008] EWHC 2942

• Successful judicial review of planning permission on the grounds of bias.

• Granted pp for house in AONB against officer recommendation for Councillor.

• Chair planning committee (with casting vote) same political party as and shared lifts with applicant councillor.

R (Ortana) v SSCLG

• [2008] EWHC 3207

• Rare case planning decision by inspector being quashed on appeal for bias.

• Inspector had worked in planning department of main objecting County Council until 2003.

• Planning inspectors were in the same position as judges.

• There was a real possibility of bias.

Poole v SSCLG

• [2008] EWHC 676

• Procedural unfairness.

• Effect development on protected tree arose as issue at inquiry.

• Council had failed to serve statement of case and agreed in statement common ground that not an issue .

• Application for adjournment by appellant refused.

• Appellant had no opportunity to call expert arbocultural evidence.

Coyle v SSCLG

• [2008] EWHC 2466

• Application to strike out section 288 as disclosing no reasonable grounds.

• Confirmed procedure appropriate, test analogous to test for permission in judicial review.

Bovale Ltd v SSCLG

• [2009] EWCA civ 171

• At first instance Collins J had tried to introduce changes to section 288 procedure, to provide for entering defence.

• Court of Appeal confirmed he could not change the rules in this way.

CONDITIONS PRECEDENT

• Number cases trying to understand and apply Hart Aggregates.

• 2 cases where it was held apparent condition precedents were not true conditions precedent:

– Bedford BC v SSCLG [2008] EWHC 2304

– R (London & Stamford Investment Ltd) v Stoke-on-Trent City Council [2008] EWHC 2746

• One quite harsh case going the other way:

– R (Casey) v Bradford MBC [2008] EWHC 2543