PLANNING CASE UPDATE
(including conservation areas)
By
CLARE PARRY
2-3 Gray’s Inn Square
AREAS COVERED
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Conservation areas/listed buildings
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Enforcement
– S 215 notices.
– Scope of appeal.
– Change of use.
– Breach of enforcement notice prosecutions.
– LDC
– S 187B injunctions.
– Race equality duty
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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
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[2008] EWHC 1003
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Grade II listed (including stableblock).
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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.
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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.”
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Offence not to comply under s.9.
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Charged with altering a building contrary to s.7.
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Question was whether the alteration affected its character as a listed
building.
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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 homecondition 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
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[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
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[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
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[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-onTrent City Council [2008] EWHC 2746
• One quite harsh case going the other way:
– R (Casey) v Bradford MBC [2008] EWHC 2543