| Winckworth Sherwood |
Issue 29 Planning Ahead |
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bb133eleftPlanning Ahead Issue 29 - May 2010
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| Quashed Planning Permission and Challenge to Reasons |
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In the case of Parker v Secretary of (1) State for Communities & Local Government, (2) Rother DC and (3) Bull 2010 EWCA Civ 461, the Appellant challenged the High Court's refusal to quash the decision of a planning inspector who allowed an appeal against the refusal of an application for planning permission. Previously, the planning inspector had ruled that a proposed development in an Area of Natural Beauty fell within guidelines laid out in the local plan, a finding disputed by the Appellant. The Local Plan stated that static caravan and chalet accommodation would be permitted if it would significantly improve the appearance of an existing site. The proposed development envisaged 15 new cabins to replace 9 mobile caravans, 3 static caravans and 4 chalets.
(With thanks to Gregory Jones of Francis Taylor Building for providing the Approved Judgement). |
| Grant of Declarations |
| In the recent case of Milebush Properties Ltd v Tameside Metropolitan Council and others EWHC 1022 (Ch), the Claimant (C) sought a declaration that it was entitled to a right of way over the service road of a neighbouring property, belonging to D, in accordance with a Section 106 agreement. The s106 Agreement had been negotiated between D's predecessor in title and the local planning authority (P). D and P argued that C was not entitled to enforce the agreement as it was not a party to it. The Section 106 Agreement provided access for C over the service road to obtain "access for servicing the rear of those properties only" at reasonable times and on reasonable terms. D proposed to grant C access between 7.30am and 6pm Monday-Friday via a locked gate, which would be opened by a security guard. This was unacceptable to C, who wanted to use the service road as an emergency exit for one of its properties. The High Court held that C was not entitled to a declaration as to the true construction of the clause. Such a declaration would be in conflict with P's power to decide whether or not to enforce which was only challengeable by judicial review. The Court went on to say that, even if C could have enforced the agreement, the proposed use of the service road as an emergency exit was inconsistent with the limitations of the proposed right of access. This case demonstrates that in similar situations, landowners should seek to obtain legal protections themselves, rather than solely relying on the local planning authority protecting their position under a Section 106 agreement. |
| Westminster Watch |
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This week the coalition Government's legislative programme was announced in their first Queen's Speech. Winckworth Sherwood has put together a briefing summarising the Bills. The Decentralisation and Localism Bill is likely to be of particular interest to those in the local authority and housing sectors.
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| Feedback |
PLANNING AHEAD
Issue 29 - May 2010
Coalition Government's 5 Year Programme
Compulsory Purchase: Courts Rule 'Sweetners" Should be Disregarded
Quashed Planning Permission and Challenge to Reasons
Grant of Declarations
Westminster Watch
The newly elected Conservative-Liberal Democrat Government has published its programme for partnership government for the next 5 years, The Coalition: our programme for government. The programme is based on the ambition to place more power and opportunity into people's hands and can be viewed at http://www.direct.gov.uk/en/Nl1/Newsroom/DG_187877
The proposals for planning and climate change include the following:
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Regional Spatial Strategies will be abolished and decision-making powers on housing and planning will be restored to local councils.
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The Infrastructure Planning Commission will be abolished and replaced with a democratically accountable system that provides a fast-track process for major infrastructure projects.
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A simple, national planning framework covering all forms of development with national economic, social and environmental priorities will be presented to Parliament.
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The Green Belt, Sites of Special Scientific Interest (SSSIs) and other environmental protections will be maintained and a new designation similar to SSSIs to protect green areas of particular importance to local communities will be created.
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The Government Office for London will be abolished and the case for abolishing the remaining Government Offices will be considered.
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Shared ownership schemes will be promoted and social tenants and others will be assisted to own or part-own their homes.
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The Sustainable Communities Act will be implemented so that citizens know how taxpayers' money is spent in their area with a greater say over how it is spent.
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"Home on the Farm" schemes will be promoted to encourage farmers to convert existing buildings into affordable housing.
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Local authorities will be given incentives to deliver sustainable development and measures to bring empty homes into use will be explored.
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The third runway at Heathrow will be cancelled and permission for additional runways at Gatwick and Stansted will be refused.
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The target for energy from renewable sources will be increased subject to the advice from the Climate Change Committee.
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Energy performance certificates will be retained whilst HIPs will be scrapped.
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The Government will support an increase in the EU emission reduction target to 30%.
Compulsory Purchase: Courts Rule 'Sweetners" Should be Disregarded
The Supreme Court recently handed down judgement in the case of R (on the application of Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20. The case is important in clarifying matters which must be disregarded when considering the merits of compulsory acquisition of land by a local authority. Winckworth Sherwood has produced a separate Briefing Note on this case which is available from the attached link.
Compulsory Purchase: courts rule 'sweeteners" should be disregarded
Quashed Planning Permission and Challenge to Reasons
In the case of Parker v Secretary of (1) State for Communities & Local Government, (2) Rother DC and (3) Bull 2010 EWCA Civ 461, the Appellant challenged the High Court's refusal to quash the decision of a planning inspector who allowed an appeal against the refusal of an application for planning permission. Previously, the planning inspector had ruled that a proposed development in an Area of Natural Beauty fell within guidelines laid out in the local plan, a finding disputed by the Appellant. The Local Plan stated that static caravan and chalet accommodation would be permitted if it would significantly improve the appearance of an existing site. The proposed development envisaged 15 new cabins to replace 9 mobile caravans, 3 static caravans and 4 chalets.
The Court of Appeal held that the planning inspector had not sufficiently stated his reasoning in his report. Accordingly, it was not clear whether he had properly directed himself on the relevant issues. The touring caravans could not be taken into consideration when deciding whether the site was an existing static caravan and chalet site. In the circumstances, nor could the static caravans, as the site did not have the requisite licence for the use of static caravans as accommodation. Whilst the chalets themselves may have been sufficient to constitute a relevant existing site, the inspector had not stated whether his decision was based on the touring caravans, static caravans, chalets, or a combination. The decision of the planning inspector was quashed.
This case will likely be of great concern to planning inspectors and indicates just how carefully they must explain their findings. On the part of applicants and objectors, this case demonstrates the importance of careful study of the inspector's report, as it may be challengeable.
(With thanks to Gregory Jones of Francis Taylor Building for providing the Approved Judgement).
Grant of Declarations
In the recent case of Milebush Properties Ltd v Tameside Metropolitan Council and others EWHC 1022 (Ch), the Claimant (C) sought a declaration that it was entitled to a right of way over the service road of a neighbouring property, belonging to D, in accordance with a Section 106 agreement. The s106 Agreement had been negotiated between D's predecessor in title and the local planning authority (P). D and P argued that C was not entitled to enforce the agreement as it was not a party to it. The Section 106 Agreement provided access for C over the service road to obtain "access for servicing the rear of those properties only" at reasonable times and on reasonable terms. D proposed to grant C access between 7.30am and 6pm Monday-Friday via a locked gate, which would be opened by a security guard. This was unacceptable to C, who wanted to use the service road as an emergency exit for one of its properties.
The High Court held that C was not entitled to a declaration as to the true construction of the clause. Such a declaration would be in conflict with P's power to decide whether or not to enforce which was only challengeable by judicial review. The Court went on to say that, even if C could have enforced the agreement, the proposed use of the service road as an emergency exit was inconsistent with the limitations of the proposed right of access. This case demonstrates that in similar situations, landowners should seek to obtain legal protections themselves, rather than solely relying on the local planning authority protecting their position under a Section 106 agreement.
Westminster Watch
This week the coalition Government's legislative programme was announced in their first Queen's Speech. Winckworth Sherwood has put together a briefing summarising the Bills. The Decentralisation and Localism Bill is likely to be of particular interest to those in the local authority and housing sectors.
The Queen's Speech: Legislative Programme
Sara Hanrahan - Partner
Tel: 020 7593 5144
Nicola Raistrick - Partner
Tel: 020 7593 0275
Richard Bull - Solicitor
Tel: 020 7593 5074
Anjana Ghosh - Solicitor
aghosh@wslaw.co.uk
Tel: 020 7593 5088