PLANNING CASE UPDATE including conservation areas

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PLANNING CASE UPDATE(including conservation
areas)

• By
• CLARE PARRY
• 2-3 Grays Inn Square

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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.

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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.

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Derbyshire CC v Anthony

• 2008 EWHC 895
• Club in Derby in state disrepair-surveyors
  recommendation to demolish.
• Council served s.54 notice.
• Once started work partial collapse. Applied for
  LB consent to demolish (said necessary for HS).
• Derby CC sought injunction under s 44A Planning
  (Listed Buildings and Conservation Areas) Act
  1990.

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Derbyshire CC v Anthony 2

• Wyn Williams
• Question of fact.
• On the facts preferred Derbyshire CCs 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.

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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.

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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.
• Cant use conservation area designation to
  prevent listing of a building.

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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.

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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.
• Didnt 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.

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ENFORCEMENT

• Areas covered
• 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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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.

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R (Perrett) v SSCLG

• 2009 EWHC 234 (Admin)
• Challenging refusal inspector to hold full
  rehearing.
• C had previously successfully challenged
  inspectors conclusions on ground A in high
  court.
• No requirement in policy or law to hold full
  rehearing on all grounds (original hearing
  included many days 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).

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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.

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

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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.

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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.

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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)

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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.

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PROCEDURE

• Areas covered
• Procedure at committee.
• Bias/predetermination.
• Planning appeals
• Role inspector
• Procedural unfairness
• High court challenges.
• Procedure on High Court challenges.
• Strike out.

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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 dont 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.

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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.

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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.

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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.

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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.

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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.

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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