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Planning Case Law Update 20131

This Paper offers summaries of a selection of recent cases in the field of Town and Country

Planning in the last 18 months to early July 2013.2 The cases are divided into the following

themes:

Page

POLICY INTERPRETATION .................................................................................................. 2

SEA ............................................................................................................................................ 8

CHANGE OF USE ...................................................................................................................... 15

APPEALS & LITIGATION .......................................................................................................... 17

ENFORCEMENT ......................................................................................................................... 22

1 This Paper has been updated for the purposes of Thirty-Nine Essex Street’s Environment and

Planning Case Law at Cardiff on 3 July 2013 by the principal speaker, Rose Grogan. She has been

assisted by her co-presenters, James Burton and John Pugh-Smith. We express our thanks to our other

colleagues, Christiaan Zwart, Philippa Jackson, Daniel Stedman Jones, Ned Helme, Zack Simons and

Samar Abbas, for their earlier joint and several inputs into the previous versions of this Paper which

supported presentations, in London, on 13th February 2013 and 7th March 2013, in Bristol to the

Planning Inspectorate’s Annual Training Event on 20th March 2013 and in Birmingham in June 2013.

Additional critiques have also been made by Gordon Nardell QC, Richard Harwood QC and Martin

Edwards.

2 The material in this Paper is based on the law of England and Wales. It is only intended to provoke

and stimulate. It does not constitute advice. Detailed professional advice should be obtained before

taking or refraining from taking action in relation to this material.

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POLICY-INTERPRETATION

Tesco Stores v Dundee City Council [2012] UKSC 13

The sea-change in the approach to an objective interpretation of planning policy since March 2012

stems from the Supreme Court’s consideration of an appeal arising from a Tesco challenge to the

decision of a local planning authority (LPA) to grant planning permission to a competitor for the

development of an out-of-centre superstore only 800m from the local Tesco. It argued that the grant of

planning permission was based on a misunderstanding of one of the policies in the development plan.3

The main issue in the case was whether it is up to the court to interpret the meaning of policies in the

development plan or whether a local authority may adopt its own interpretation which will be immune

from challenge except on Wednesbury principles. The Supreme Court held that in principle, policy

statements should be interpreted objectively in accordance with the language used read in its proper

context. The meaning of a policy is a matter for the court to interpret. The application of a particular

policy to a particular set of facts falls within the judgment of the local planning authority and can only

be challenged on the basis of irrationality. Such an error in interpretation would only be material if

there was a real possibility that determination of the application might otherwise have been different.

Before this case, it was considered settled law that the interpretation of planning policy was primarily

a matter for the decision maker.4

Following the Tesco case, there is now scope for challenges to planning decisions on the grounds that

the decision maker has erred by misinterpreting a relevant policy, as has resulted from in the

following cases.

Telford and Wrekin Borough Council and St Modwen Developments Limited v Secretary of

State for Communities and Local Government [2013] EWHC 1638

In this case, a developer sought planning permission from Telford and Wrekin Council for

the proposed development of a supermarket and associated amenities (“the Audley Avenue

site”). The Council failed to determine the application and the developer appealed to the

Secretary of State. The Second Claimant (St Modwen) was the developer of a competing site

3 The particular issue of interpretation before the court was: did “suitable” mean “suitable for the development

proposed by the Applicant” (as the Council contended), or “suitable for meeting identified deficiencies in retail

provision in the area” (as Tesco contended). 4 See R v Derbyshire DC ex parte Woods [1997] JPL 958

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on land which the Council owned. The Council resolved to grant planning permission in

respect of St Modwen’s development but that decision was called-in by the Secretary of State

(“the Station Road site”). In the meantime, the appeal in respect of the Audley Avenue Site

took place and the Inspector allowed the appeal and granted planning permission for the

Audley Avenue site.

The Council and St Modwen sought to challenge that decision on the basis that on a proper

application of the NPPF and the Practice Guidance, the Station Road site was sequentially

preferable to the Audley Avenue Sight and the Inspector ought to have found to this effect

(which would, absent any competing material considerations, have resulted in the appeal

being dismissed). The question for the court was: when there are two or more eligible sites,

must the application of the sequential test always result in finding that one is sequentially

superior to the other or can two sites be sequentially equal? The judge held that it is open to a

decision maker to find that one or more sites are sequentially equal. First, the drafters of the

Framework did not rule-out the possibility of this occurring and it would have been simple to

clearly exclude it. Second, it is more in keeping with the nature of a policy (as opposed to a

statute) that the decision maker should retain some level of flexibility. There is no

justification, all other things being equal, to interpret a policy in a narrow, prescriptive sense.

Third, there may be cases where it would be wholly artificial for the decision-maker to find

that one site is the sequential victor over another. For example, there may be one site which is

geographically closer but another which is more accessible.

R (on the application of TW Logistics) v Tendring District Council and Anglia Maltings

(Holdings) Ltd [2013] EWCA Civ 9

Tesco has since been followed by the Court of Appeal in the Tendring case. There, the issue was

whether the challenged sections of a Conservation Area Management Plan were inconsistent with the

relevant parts of a Local Plan. TW, a port operator, contended that a warehouse was capable of use in

its current form for port uses in accordance with the Local Plan, which provided that the quayside area

was first and foremost for port-related uses and not for mixed use "regeneration" schemes and that a

change of use could not be allowed unless and until all port-related uses had been excluded. The

Conservation Management Plan, on the other hand, encouraged the re-development of the warehouse

as part of the re-organisation of the port. Dismissing TW’s appeal the Court of Appeal held that the

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fact that the local plan did not specifically promote the reorganisation of the port or the redevelopment

of the warehouse for non-port-related purposes did not entail the converse proposition that either of

them was prohibited. The Management Plan was not inconsistent with the Local Plan and was

therefore not unlawful.

On the issue of policy interpretation the case is helpful with the Court of Appeal’s emphasis that

because a local plan is to be objectively construed the public is, in principle, entitled to rely on it as it

stands without having to investigate its provenance and evolution. A local plan might include policies

which were not in complete harmony and where different parts of the local plan pointed in different

directions it was for the planning authority to decide which policy should be given greater weight in

relation to a particular decision.

R (on the application of (1) Manchester Ship Canal Company Limited; (2) Peel Holdings

(Land & Property) Limited v Environment Agency [2013] EWCA Civ 542

This decision arose from an appeal by the Environment Agency against the decision of Lang J. who

had quashed its decision to categorise sluices on the Manchester Ship Canal as ‘formal defences’

because they serve a dual purpose: maintaining Canal water levels for safe navigation by large ships

and passing to the sea the water impounded as a consequence of the original canalization of the river.

The original claim had been brought by the Manchester Ship Canal Company and Peel Holdings

(Land and Property) Limited because, between then, they owned and operated the Canal and also

owned land around it which they proposed to develop for housing.

The consequence of the Environment Agency’s decision was to place the Canal and nearby land

within Flood Zone 3 when- if it were otherwise- that land would be in Flood Zone 2. The planning

consequence of that Zoning was to place the land at the back of the (then) PPS25 (now NPPF)

sequential test development queue so that land in Zones 2 and 1 was required by PPS25 to be

developed first. Since the original Environment Agency decision, the Supreme Court had decided the

Tesco case. In the Canal case, the Environment Agency had discussed with the challengers’ experts

for a considerable time the basis of that risk and how to categorise the Canal’s flood risk: on the one

hand it had been operated without failure for a long time; on the other, the very impounding of water

as part of the original canalisation process meant that water had to be conveyed down to the sea or a

flood may occur. The Environment Agency had formulated a policy in light of PPG25, and later

PPS25, as to how it categorised defences as either formal flood defences (having ‘a’ primary purpose

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of flood relief) or as de facto flood defences. It had only two categories. That policy was issued to its

internal staff and, whilst available if requested, was not subject to formal consultation processes akin

to a development plan.

In the Court of Appeal, Moses LJ gave the lead judgment which, itself, shows the real difficulties that

the Court itself had. He identified that the absence of categorization of the whole canal as a formal

flood defence showed the flaw in the Environment Agency’s approach: “Either the whole of the Canal

and the structures by which it is operated are a formal flood defence or none of them are”. He applied

the Tesco case and ruled that the Environment Agency had, in effect, created a third category between

the two express policy categories. It was not entitled to create the third (implied) category. If it had

wanted to have such a category, then it ought to have published a policy with that additional category

included, or considered the sluices as an exception to its published policy. As it had done neither, it

was not then further entitled to construe its own policy to mean what it thought it meant as opposed to

what it did mean. The default position was that the sluices were to be treated as de facto defences (and

in consequence the land affected became categorised as Flood Zone 2 rather than 3). On that basis, the

Environment Agency’s judgement was outside of the range of responses available to it. That is, the

actual (as opposed to implied) policy terms as construed by the Court of Appeal did not support the

Environment Agency’s expert judgment.

The High Court’s judgment raised a number of questions about the application of Tesco, questions

which the Court of Appeal did not take the opportunity to resolve. Crucially, the question whether a

policy must always have one uniquely correct meaning for the court to ascertain, or whether it is

enough that the decision maker gives the policy a meaning it is legally capable of bearing, will have

to be decided on another occasion, The Court of Appeal ultimately decided this case on its particular

facts. But the case is of interest as a warning to administrative decision makers to be most careful in

the application of their policies to the particular facts. The potential for three Lords Justices of Appeal

to bring lawyers’ scrutiny to bear on a policy designed as a technical rather than legal document may

be some distance from its original author’s mind. But, gone are the days when a decision maker may

simply assume that approaching difficult policy questions can be justified by an unchallengeable

consideration of their implied meaning or of their ‘spirit’. Today, more than ever before, claimants are

seeking recourse to the Courts and the Courts are showing increased willingness to intervene where

they can.

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R (on the application of RWE Npower Renewables Limited v Milton Keynes Borough Council

[2013] EWHC 751 (Admin)

This challenge concerned the LPA’s adoption of the Wind Turbines Supplementary Planning

Document. The Wind SPD contained an emerging policy that planning permission would be granted

for proposals to develop wind turbine renewable energy sources unless, inter alia, any turbine

generator over 25m in height was not separated from residential premises by a certain minimum

distance, which varied according to its height. Planning permission would still be granted where the

distance condition was not met if the owners and occupiers of all affected residential premises agreed.

The Claimant, which developed and operated wind turbine schemes, was concerned about the

application of separation distances in the Wind SPD to its two proposals for wind farms within the

LPA’s area. It argued that it should have been adopted as a development plan document (DPD)

because it contained statements, falling within the Town and Country Planning (Local Planning)

(England) Regulations 2012 reg.5(1)(a)(iv), regarding development management policies intended to

guide the determination of applications for planning permission, and that as a DPD, it was required to

have survived a more rigorous examination than it had been exposed to as an SPD. It was also

submitted that even if the Wind SPD was rightly characterised as an SPD, its adoption was still

unlawful as the emerging policy within it conflicted with the adopted local development plan,

contrary to the requirement under reg.8(3).

The Court (John Howell QC) held that the Wind SPD was a document containing statements

regarding the matters mentioned in reg.5(1)(a)(iii) which could be an SPD. Accordingly, the local

authority had been entitled to so adopt the Wind SPD. However, Policy D5 of the adopted Local Plan

(2005) did not simply provide that renewable energy development would be permitted subject to

addressing any adverse impacts. Rather, the structure of the policy was to provide that planning

permission for proposals to develop renewable energy sources, including wind turbines, would be

granted unless certain conditions were met. The Policy did not require planning permission to be

refused if there was a significant adverse impact: the proposed development merely ceased to benefit

from the policy that planning permission would be granted for it. However, the LPA's view that the

separation distances in its emerging plan were not in conflict with the development plan was one

which no reasonable person could have adopted, and the emerging policy was in breach of reg.8(3)

(i.e. it was in conflict with the adopted development plan). In consequence, the adoption of the Wind

SPD had been unlawful on that basis.

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R (on the application of Houghton and Wyton Parish Council v Huntingdonshire District

Council [2013] EWHC 1476 (Admin)

This challenge concerned the legality of the St Ives West Urban Design Framework (“the UDF”) and

its categorisation. It identified a 47 ha. area as having a capacity for 500 new homes up to 2026, as

outlined in the Hunts Core Strategy. The Parish Council contended that the LPA had acted unlawfully

(1) by seeking to allocate land for a particular use or development otherwise than by the adoption of a

development plan document ("DPD") and (2) by seeking to produce planning guidance otherwise than

by way of a Local Development Document ("LDD").

Rejecting the first ground, the Court found in favour of the Parish Council on the second upon the

basis that the UDF was much more than a mere Masterplan and did contain policies with development

principles which were highly prescriptive. Whilst the deputy High Court Judge (Charles George QC)

pointed out that an LPA can (under section 111 of the Local Government Act 1972) produce research

documents and analyses, as well as good practice guides in relation to, say, trees, shop fronts and

advertisements without these being produced as LDDs, and, that the weight which attaches to them

will be reduced if they are not contained in LDDs he also accepted that there is, or may be, a fine

line between the foregoing and the point at which these "set out the authority's policies relating to the

development and use of land". In that case they can only be included in LDDs, to ensure compliance

with section 17(3) of the 2004 Act. Indeed, had the UDF continued to be entitled an SPD, it could

without any greater consultation than the UDF had had, and with few other statutory procedures

(including separation of policies and justification to comply with regulation 13(2) of the 2004

Regulations), have been adopted as an SPD so as to be an LDD in compliance with section 17(3) of

the 2004 Act. However, because of its confused status the Court decided to quash the UDF. The LPA

were granted permission to appeal.

The Manydown Company Ltd v Basingstoke and Deane BC [2012] EWHC 977

This case concerns antecedent documents to Development Plan Documents. The claimant applied for

judicial review of the defendant local authority’s decision to promote a site as available for

development. In 2005, the local authority had unsuccessfully promoted the site for development and

in 2006 it suspended its involvement in promoting the site. In 2010, a housing land availability

assessment concluded that the site was likely to be available for development. The local authority

refused to reconsider its decision to cease promoting the site for development. In 2012, during the

process of preparing a core strategy, the council’s pre-submission draft core strategy set out sites

selected for the promotion of development and the claimant’s site was not included. The pre-

submission core strategy was approved for consultation and the claimant initiated judicial review

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proceedings. The Court granted the application despite the defendant’s argument that it had no

jurisdiction because the challenge was not in accordance with the provisions of s.113 of the Planning

and Compulsory Purchase Act 2004 (“PCPA 2004”). Lindblom J held that the ouster clause in

s.113(2)5 must be interpreted strictly. The pre-submission draft core strategy was not a relevant

document and the challenge was against two decisions which were antecedent to the statutory process.

Lindblom J’s approach in this case requires local planning authorities to give careful consideration to

protecting themselves from public law challenges in the earlier stages of preparing Development Plan

documents. Such challenges will inevitably cause delay to the process. In the Manydown Ltd case

itself, the Core Strategy is still in the pre-submission stages, with further consultation due in Spring

2013.

SEA

Scope of SEA

Inter-Environment Bruxelles et al v Region de Bruxelles-Capitale (Case C-567/10) (judgment

22.03.12)

The Belgian Constitutional Court referred two important questions about the scope of the SEA

Directive to the European Court of Justice:

(1) Whether ‘Plans and Programmes’ included the total or partial repeal of a Land Use Plan?

(2) Does the discretionary repeal of a plan require SEA?

Both questions were answered by the ECJ in the affirmative, with the Court remarking that

“plans and programmes whose adoption is regulated by national legislative or regulatory

provisions which determines the competent authority adopting them and the procedure for

preparing them must be regarded as ‘required’ within the meaning and for the application of

Directive 2001/42 and accordingly subject to an assessment on their environmental effects in

the circumstances which it lays down.”

5S.113(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided

by the following provisions of this section.

(3) A person aggrieved by a relevant document may make an application to the High Court on the ground that–

(a) the document is not within the appropriate power;

(b) a procedural requirement has not been complied with.

(4) But the application must be made not later than the end of the period of six weeks starting with the relevant

date.

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As a result of the Bruxelles decision progress on RSS revocation in England has been even slower.

R (on the application of Wakil) v Hammersmith and Fulham LBC [2012] EWHC 114 (QB).

The Bruxelles decision has more far reaching effects; for this definition of ‘required’ was applied by

the High Court in the context of a judicial review of whether the adoption of an SPD for the

regeneration of Shepherds Bush Market was unlawful. In that case there was an issue as to whether

the document was an SPD or a DPD. Neither sort of document is ‘compulsory’ but both are ‘required’

under the ECJ’s definition. On that basis both come within the definition of ‘plans and programmes’

in Art 2 (and also Regulation 2(1) of the SEA Regulations). On the document at issue in Wakil the

High Court found that, whether it was an SPD or a DPD, it fell under the description in Reg 5 of the

SEA Regulations and so a determination under Reg 9(1) had been required on whether or not it was

likely to have significant environmental effects.

Alternatives

Heard v Broadland DC, South Norfolk DC & Norwich City Council [2012] EWHC 344

(Admin)

In this case, the Joint Core Strategy was remitted in part for failure to comply with the requirements of

the SEA Directive because the local authorities failed to give sufficient reasons for selecting

reasonable alternatives and had also failed to examine them in the same depth as the preferred option.

The claim was successful because the local authorities had failed to carry out a comparison between

the reasonable alternatives and the preferred option. The court held that while there is no express

requirement in the Directive that alternatives are appraised to the same level as the preferred option,

the aims of the Directive were more obviously met if there is an equal examination of alternatives

alongside the preferred option. The court declined to exercise its discretion not to grant relief.

However, Ouseley J invited submissions on the precise form of appropriate relief on the basis that

s.113 grants a wide variety of powers which fell short of quashing the whole Joint Core Strategy and

starting again. This approach has, regrettably, led to yet further confusion, on the part of the plan-

making authorities and delay at the re-examination hearing, which had to be adjourned for two

months for the authorities to complete the necessary work. It has also raised the jurisdictional issue as

to the scope of the Inspector’s power, now under the Localism Act 2011, to address housing issues

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through, for example, a reserve sites policy, over the whole of the Joint Core Strategy jurisdictional

area, subject to SEA compliance6.

Cogent Land v Rochford District Council [2012] EWHC 2542 (Admin)

The particular significance of this case is that it confirms that defects in the SEA process may be

cured after the event. Here, although there had been errors in the assessment of alternatives at the

preferred options stage, Singh J found that an Addendum report which had later been produced was

adequate and capable in law of curing any defects which had arisen. He rejected the Claimant’s

submission that the Addendum was an “ex post facto justification” and held that there had been no

SEA/SA/natural justice breach since the Addendum supplied adequate reasons for site selections so

there was no need to re-open the public examination of the draft Core Strategy.

SEA or EIA?

Walton v Scottish Ministers [2012] UKSC 44

This case concerned a belated challenge to the Aberdeen bypass. The project had already been subject

to EIA. The attempt by this appeal to bring the project within the SEA Directive on the basis that a

decision to enlarge the project was a modification of the regional transport strategy was rejected with

the Court pointing out that the SEA and EIA Directives require environmental assessments in

different but complementary circumstances: SEA is concerned with plans and programmes which set

the framework for future development consent of projects; EIA is concerned with the environmental

impact of specific projects. The decision is also helpful on the issue of standing. The appellant had

made representations and participated in the inquiry. The court took a generous approach to the

question of standing on the basis that the environment is a legitimate concern “to everyone as an

individual or organisation which has a genuine interest in and sufficient knowledge of an

environmental issue to qualify them to raise issues in the public interest should be regarded as a

“person aggrieved” (Lord Hope @ 152-155).

6 Regns. 5(1)(a) and 5(2)(a) of the T&CP (Local Planning) (England) Regulations 2012 permit an

LPA, individually or in co-operation with one or more other LPAs, to produce a LDD to achieve

one of the stated purposes in the relevant sub-paras, and, as the Joint Core Strategy is an LDD to

which the duty to co-operate applies (under s.33A of the Planning and Compulsory Purchase Act

2004). However, the modification of the (remitted) JCS will require a Sustainability Appraisal;

though the Cogent Land case6 permits this work to be undertaken through an Addendum exercise.

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In Walton, Lord Carnwath also addressed the issue of remedies and discretion. Lord Carnwarth sought

to distinguish the Berkeley case7 where Lord Bingham and Lord Hoffman said that in European law

cases, the discretion not to quash an ultra vires planning permission is very narrow, if it exists at all.

Lord Carnwath said that the factual circumstances in Walton were dramatically different from those in

Berkeley, the potential prejudice to public and private interests flowing from a quashing order would

be very great and it would be extraordinary if the court were prevented from weighing that prejudice

in the balance. He saw: “nothing in principle or authority to require the courts to adopt a different

approach merely because the procedural requirement arises from a European rather than a domestic

source.”

DECISION-MAKING: MATERIAL CONSIDERATIONS

R (on the application of Vieira and Saph) v London Borough of Camden & Bozi [2012]

EWHC 287

Messers Vieira and Saph lived next to Ms Vanessa Bozi on the Regent’s Park Road in London. Ms

Boz erected a conservatory and trellis screen, and put in an application for retrospective planning

permission. Camden – the relevant LPA – consulted the Claimants, who objected on the grounds of

overlook and loss of privacy. Following negotiation, Ms Boz submitted revised drawings of the trellis,

amending the application. The Claimants were not re-consulted on the new drawings. Planning

permission was granted. Camden’s Statement of Community Involvement provided that – inter alia –

everyone who has commented on a planning application should be notified of “any significant

revisions made to the application”.

The Claimants claimed that this provision had created a procedural legitimate expectation that they

would be re-consulted on the new drawings, and that the expectation had not been met. Lang J held

that there had been a breach of legitimate expectation in respect of all grounds on the basis that it was

unfair to deny the claimant the opportunity to know the precise details of the application and be given

the opportunity to comment on it. It was also prejudicial to the claimant to be denied the benefit of a

re-consideration of how the application should be determined. The local authority sought to argue that

in any event, no relief should be granted because it was inevitable that planning permission would be

granted. The Court rejected this argument, quashing the planning permission. The grant of permission

was not inevitable because there remained a question of whether the amendments to the scheme made

it acceptable.

7 Berkeley v Secretary of State for the Environment, Transport and the Regions [2001] 2 A.C. 603

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R (on the application of Godfrey) v Southwark LBC [2012] EWCA Civ 500

In another case about legitimate expectation, the Court of Appeal considered an appeal against a

decision of Lindblom J refusing permission to bring judicial review proceedings in relation to a

community centre on a site known as Downtown on the Rotherhithe Peninsular in East London. The

site had been a district centre providing community facilities, including a freestanding community hall

of around 400m2. In 2002, the Council prepared a planning brief relating to the site which made it

clear that any developer would be expected to improve the site’s community facilities or create new

infrastructure, which may include building a new community hall on the site. In 2007 the council

adopted a UDP which identified the uses for the site as a community centre and health centre.

Planning permission was granted by the Council in 2010 for redevelopment of the site, which

included a community centre of around 124 m2 contained within the Health Centre. Local residents

challenged the grant of permission on a number of grounds, and the Court of Appeal’s judgment

concentrates on the fourth ground that there was a substantive legitimate expectation that better and

larger facilities would be provided. The appellant argued that previous consultation between the

Council and local community, combined with the terms of the planning brief, had given rise to a

substantive legitimate expectation that any grant of planning permission would include a freestanding

community hall at least as large as the existing hall on site. The Court of Appeal held that a rigorous

standard is to be applied when a substantive legitimate expectation is claimed on the basis of a

representation or promise by a public authority. The duty of public authorities to exercise powers in

the public interest must be kept in mind. Only when, in the court's view, to fail to give effect to the

promise would be so unfair as to amount to an abuse of power, should it override other considerations.

Further an earlier approach of the local planning authority to an issue, even if amounting to a planning

policy, cannot have primacy over the statutory duty of the council (e.g. under s. 70(2) TCPA 1990 and

s.38(6) PCPA 2004) to assess the current situation. The UDP policy did not require a particular size of

provision for community facilities and the Council was required to assess current needs against that

policy. The bar to acquiring a substantive legitimate expectation is very high, and the Claimants were

a long way from meeting it on these facts. The heart of their case was based on documents and

informal representations made by the LPA from up to 10 years previous. Those were not material

considerations for the LPA in conducting its present statutory task.

Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34

Under section 97 of the TCPA 1990, in deciding whether it is expedient to revoke or modify planning

permissions, the LPA must have regard to “any other material considerations” – does that include the

threat of consequent compensation under section 107 TCPA? Victoria Hall Ltd applied to the Council

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to erect four blocks (blocks A–D) of student accommodation at a site in Wolverhampton – 95 metres

away from a Liquid Petroleum Gas storage facility. The HSE was consulted by the Council, and

advised refusal on health and safety grounds. Without going back to the HSE, or seeking its own

advice on health and safety, the Council granted permission without informing the HSE it had so

done. By the time the HSE became aware of the development, work on three of the blocks – A, B and

C – was well advanced. Work on block D, which was the closest block to the LPG facility, had not

commenced. The HSE complained that the Council's procedural failures had deprived it of the

opportunity to ask the Secretary of State to call in the application for planning permission. They asked

the council to remedy this by making a revocation order under section 97, at least to prevent the

construction of block D. The LPA was reluctant to make that order, inter alia, because of the likely

compensation costs. The Court of Appeal unanimously ordered the Council to reconsider the question

of revocation. However, the Court was divided on whether compensation would be a material issue in

that reconsideration. Pill LJ, dissenting, relying on Richards J in the Alnwick District Council case8

which decided that “in so far as financial consequences do not relate to the use and development of

land, they are not capable of amounting to material considerations”.

Lord Carnwath formulated what he called the “simple” view:

“24 […] In simple terms, the question is whether a public authority, when deciding whether

to exercise a discretionary power to achieve a public objective, is entitled to take into account

the cost to the public of so doing.

25 Posed in that way, the question answers itself. As custodian of public funds, the authority

not only may, but generally must, have regard to the cost to the public of its actions, at least

to the extent of considering in any case whether the cost is proportionate to the aim to be

achieved, and taking account of any more economic ways of achieving the same objective. Of

course, the weight attributable to cost considerations will vary with the context. Where, for

example, the authority is faced with an imminent threat to public security within its sphere of

responsibility, cost could rarely be a valid reason for doing nothing, but could well be

relevant to the choice between effective alternatives. So much is not only sound administrative

practice, but common sense.”

Section 97 did not require a different approach. Its mention of “expediency” and other “material

considerations” is broad enough to encompass the cost consequences of revocation:

“The word “expedient” implies no more than that the action should be appropriate in all the

circumstances. Where one of those circumstances is a potential liability for compensation, it

is hard to see why it should be excluded.”: §26.

The central point against Lord Carnwath’s view was an argument on consistency:

8 79 P & CR 130

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i) There is a presumption that words are used with a consistent meaning throughout a statute.

There is no good reason to depart from that presumption in this case.

ii) The meaning of the phrase “material considerations” in the planning Acts is well established.

It does not include financial considerations, except where they have planning consequences.

Planning permission should not be bought or sold. Particularly cf. the usage at s.70, which

requires LPAs to have regard to “material considerations” when deciding whether to grant or

refuse planning permission.

Lord Carnwath’s answer at §49 was that:

“Sufficient consistency is given to the expression if the word “material considerations” is

treated as it is elsewhere in administrative law: that is, as meaning considerations material

(or relevant) to the exercise of the particular power, in its statutory context and for the

purposes for which it was granted.”

This case clarifies the previously contradictory cases from lower courts on the question of whether

compensation under s.107 is capable of being a material consideration.

AZ v SSCLG & South Gloucestershire District Council [2012] EWHC 3660 (Admin)

This case concerned a challenge against the refusal of planning permission for a mobile home

stationed in a field within the green belt. At appeal, the inspector had held that the claimant’s

personal circumstances did not amount to very special circumstances which outweighed the harm to

the green belt from the development. He contended that the inspector had failed properly to consider

the psychiatric evidence, his rights under article 8 of the European Convention on Human Rights9 and

those of his son, his wife and his sister-in-law, and the possibility of a personal condition and/or

temporary permission. Upholding the challenge, the High Court found that the inspector's decision

could not stand since it did not take into account a series of requirements that it should have complied

with. An Article 8 proportionality assessment was not the same as a consideration of whether the

claimant's personal circumstances amounted to very special circumstances. As it was clear that the

planning application and appeal would engage the claimant’s Article 8 rights and those of his three

family members it followed that the inspector was required to undertake a structured balancing

exercise or proportionality assessment. The use of the hearing procedure, in the instant case, had

required the inspector to take an active part in formulating the issues she had to decide and bringing

out the evidence required to decide those issues. The inspector's proportionality assessment had not

been structured, largely because she had decided that the incomplete considerations that she took into

9 The right to respect for private and family life

15

account should carry little if any weight. She had not considered the claimant’s family life to any

significant extent nor each family member's enjoyment of family life with the other three. Having

ruled out a full permission she had not considered one linked to a personal or time-limited condition

other than the possibility of a change in the claimant’s psychiatric condition . She had also not

adequately explained her reasoning.

Linfoot v SSCLG & Chorley Borough Council [2012] EWHC 3514 (Admin)

This case concerned the grant of temporary planning permission and the lack of availability of

alternative sites. Mr Linfoot and other occupants of the relevant site were gypsies and had placed

caravans on the site. He had sought a three-year permission to enable the local authority and the

neighbouring authorities to comply with the requirement to supply sites under the Planning Policy for

Traveller Sites. The inspector found that there was a significant need for sites at regional and county

level, but that there was no conclusive evidence of a need for a site in Chorley. Upholding the

challenge, the High Court held that the inspector had not taken into account the argument that there

was a reasonable expectation that alternative sites would become available in the wider area. Given

the inspector's findings as to the significant need for sites at regional and county level, it had to follow

that it was reasonable to expect that sites would become available in the wider area even if not in

Chorley. He had therefore failed to take into account whether planning circumstances would change

in the wider area within the time for which temporary permission was sought. As there was a real

possibility that consideration of that matter would have made a difference to the decision it would be

quashed.

CHANGE OF USE

Hertfordshire CC v SSCLG [2012] EWCA Civ 1473

This case concerned intensification of use constituting a material change of use. A scrap metal yard

had been operated under an extant planning permission since 1972. The County Council considered

that the substantial increase in throughput and the erection of buildings had constituted a material

change of use and issued enforcement notices concerning the increased noise, dust, vehicles and new

buildings. Upholding the Inspector’s decision the Court considered that he had applied the right test,

namely, whether the material change of use had changed the character of that use. In assessing

whether there had been a change of character in the use, the impact of the use on other premises was a

relevant factor. It was necessary to consider both what was happening on the land and its impact off

the land when deciding whether the character of the use had changed; and although the inspector's

16

reasoning about throughput and extraneous factors was questionable those matters should have been

identified in the enforcement notices in order for the local authority to rely on them.

R (on the application of Gibson) v Waverly Borough Council [2012] EWHC 1472

This case reached the national media as it concerned a challenge to the grant of planning and listed

building consent of a property constructed in the late 1890s by Sir Arthur Conan Doyle. The

Interested Party had used the property as a hotel, but since then it had stood vacant for several years. It

applied for planning permission to divide up the property into separate dwellings. An individual, Mr

Norris, subsequently applied for planning permission to change the property into a single dwelling

house. The Council's planning officer informed the planning committee of Mr Norris’ application, but

nonetheless it decided to grant planning permission on the basis that its proposed development would

not result in harm justifying refusal in the public interest. Mr Norris' application for planning

permission was later granted. Allowing the application Cranston J drew attention to the statutory

mandate to have regard to the preservation of heritage assets. He found that national planning policies

seek the optimum viable use for a building, which includes a consideration of what the optimum

viable use is in the interests of the asset’s long term conservation, not simply its optimum use. He held

that the optimum use and optimum viable use was as a single dwelling (albeit that it was not the most

profitable use), and, crucially, that the planning officer should have referred the matter back to the

committee following the grant of Mr Norris’s planning application; for that was a new material

consideration which should have been taken into account. An appeal by the developer to the Court of

Appeal was dismissed.

Sheila Tara Moore v SSCLG and Suffolk Coastal DC [2012] EWCA Civ 1202

This case concerned whether using a dwelling for commercial holiday lettings could amount to a

material change of use. The property had been used for large parties of people instead of being let to

single households. The Court of Appeal held, unsurprisingly, that this would be a question of fact and

degree in each case and the answer would depend on the particular characteristics of the use as

holiday accommodation.

East Northamptonshire District Council& Ors v SSCLG [2013] EWHC 473 (Admin)

This challenge, brought not just by the LPA but also English Heritage and the National Trust

concerned the grant of planning permission, at appeal for a development of four wind turbines and

their impact on the setting of a number of heritage assets ( Lyveden New Bield (Scheduled

Monument, Grade 1 Listed Building, Grade 1 Registered Park and Garden); St Andrews Church

17

Brigstock (Grade 1 Listed Building), Drayton House (Grade 1 Listed Building) and its Grade 1

Registered Park and Garden). Upholding the claim Lang J found that the Inspector had failed to have

special regard to the desirability of preserving the settings of listed buildings as required by s.66(1) of

the Planning (Listed Buildings and Conservation Areas) Act 1990 in the balancing exercise of

weighing the desirability of preserving the setting of listed buildings in the balance with other

material considerations which had not been given special statutory status. Although he had weighed

the "harm" of the proposal against the wider benefits (in accordance with then PPS5), and the concept

of keeping safe from harm was closely linked with the meaning of "preservation" within s.66(1), the

addition of the word "desirability" in that provision signalled that "preservation" of setting was to be

treated as a desired or sought-after objective, to which the Inspector was required to accord "special

regard". That requirement went beyond the mere assessment of harm. However, the Inspector had

treated the "harm" to the setting and the wider benefit of the wind farm proposal as if those two

factors were of equal importance; so it followed that he had not given effect to the duty under s.66(1) .

Furthermore, the Inspector had not adequately summarised the intrinsic significance of the heritage

assets but had merely identified them, described their listing and concluded that they were clearly

heritage assets of national significance but without deciding which applied and why. Nor had he

identified the contribution made to the significance of the assets by their setting. That assessment was

therefore unsatisfactory. Moreover, the inspector had failed to have proper regard to the relevant

planning policies, in particular by limiting his assessment to the ability of the public to understand the

asset. The policies required a wider assessment to be taken. Accordingly, the Inspector had failed

properly to interpret and apply the relevant planning policies on the effect of development on the

setting of heritage assets. That error was likely to have affected the balancing exercise which he was

required to carry out because, by failing properly to assess the contribution made by setting to the

significance of the heritage assets, the inspector might have failed properly to assess the overall

magnitude of harm. As the Inspector should have given a clear conclusion, with reasons, on the issue

of whether there were planned views before proceeding to assess the level of harm failure to do so had

prejudiced the LPA as it was not able to ascertain the inspector's conclusions in relation to an

important controversial issue, nor whether he had made an error of law. As it was not possible to

predict what conclusion he would have reached if he had correctly applied s.66(1) and the relevant

planning policies, the decision was quashed and the matter remitted for reconsideration.

APPEALS & LITIGATION

Ashley v SSCLG & Greenwich RBC & Taylor Wimpey [2012] EWCA Civ 547

18

In Ashley, the claimant objected to a housing development on the grounds of noise and loss of

amenity to the neighbouring houses. Planning permission was refused on the basis of the noise

considerations and the matter proceeded to an appeal by way of written representations. The claimant

was invited to provide written comments by a certain date after which point he was informed that no

further representations could be made. On the last day before the deadline for representations, the

appellant developer submitted detailed expert evidence on the noise issue. No copy was provided to

the claimant and no prior notice of the report was given. The Inspector concluded that there was no

objection to the expert evidence and that it adequately addressed the issue of noise and granted the

appeal. The claimant challenged the decision on the basis of procedural unfairness. The Developer

resisted the challenge on the basis that all the claimant had to do was attend the council’s offices the

day after the deadline, see the report and then apply to make further representations.

At first instance, the challenge failed but the Court of Appeal allowed the appeal. The Court of Appeal

found that there was no duty incumbent on the claimant to attend the council’s offices. He did not

attend the offices on the basis that the deadline had passed and he did not think there was much point.

Further, he was not aware that the expert evidence had been submitted. The claimant had not had a

fair crack of the whip because he had been denied the opportunity to comment on the expert evidence.

Lord Justice Pill expressed the view that the Planning Inspectorate’s guidance on written

representations should be revised to prevent this sort of unfairness occurring in the future by an overly

strict approach to deadlines.

Welsh Ministers v RWE Npower Renewables [2012] EWCA Civ 311

RWE sought permission for a wind farm. The Countryside Council for Wales said that the impact on

peat bog habitat was significant whereas the Environmental Statement from RWE said there was no

significant impact. The Countryside Council for Wales did not attend the Inquiry and its concern

about the conclusions in the Environmental Statement was not put to RWE’s experts. The Inspector

recommended refusal of planning permission on the basis that there was an unacceptable risk of harm

to the peat habitat that was sufficient to justify the refusal of the proposal, which was confirmed by

the Welsh Ministers.

In the High Court, RWE’s appeal was allowed on the basis that the Inspector failed to give reasons for

his conclusion on the effects on the peat bog habitat. The judge was also inclined to the view that by

the Inspector failing to raise his concern with RWE’s experts, there had been procedural unfairness.

The decision was overturned in the Court of Appeal. It was held that the Inspector was concerned

19

with whether the harm or risk of harm was sufficient to justify refusal. He was not bound to accept the

unchallenged expert evidence before him and was entitled to make his own planning judgment. The

background of the decision had to be taken into account when assessing whether the reasons were

adequate, RWE was aware of the issues and the importance of the peat bog habitat. The Court of

Appeal also held that there was no procedural unfairness.10

O’Connor v SSCLG [2013] EWCA Civ 263

The appellant traveller (O) owned land in the Green Belt. She sought planning permission to change

the use of the land to a gypsy caravan site. Her application was refused and her appeal to an Inspector

failed. Her application to the High Court was dismissed and she appealed to the Court of Appeal on

two grounds. The first was a contention that the Inspector had failed to give substantial weight to the

unmet need for the further provision of sites for gypsies and travellers as required by ODPM Circular

01/2006 paragraphs 45 and 46. The second was a contention that the Inspector had misconstrued

Circular 11/95. On the first ground, the Court of Appeal noted that the Inspector had referred to

Circular 01/2006 and stated that the unmet need was an important material factor. The Inspector had

not expressly alluded to paragraph 45, but it was clear that he knew that unmet need was an important

consideration for temporary planning permission. There was nothing to suggest that the Inspector had

not given substantial weight to unmet need. He had considered it, attributed it substantial weight and

considered the effect of it on O. The fact that he did not make specific reference to a paragraph within

the policy document did not mean that he had not been taken it into consideration. On the second

ground, the Court of Appeal considered that the Inspector had not misconstrued Circular 11/95. He

had decided that the harm that the proposed development caused would be unacceptable for a

temporary period, which properly reflected the policy.

Barker v Hambleton DC [2012] EWCA Civ 610

The Court of Appeal confirmed the principle in Hinde v Rugby BC and SSCLS [2011] EWHC 3684

that time to challenge under s.113 PCPA 2004 begins on the date of adoption of the Development

Plan document. In this case, the DPD was adopted on 21 December 2010. At 7.46pm on 1 February

10 This case was applied in the recent case of MacArthur and others v SSCLG, King’s Lynn & West Norfolk

Borough Council, E.ON Climate & Renewables UK Developments Ltd, Res UK & Ireland Ltd [2013] EWHC 3

where it was held that Inspectors are not generally under a duty to give reasons for accepting or rejecting expert

evidence and that the inspector was not required to record or summarise what an expert had said in his written or

oral evidence. The requirement to give reasons had been satisfied because there was no doubt as to what the

Inspector had decided and why.

20

2011, the applicant pushed an application to quash part of the Allocations DPD under the door of

Leeds Court Centre. The application was sealed by the court on 2 February 2011. The council’s

Adoption Statement stated that an application could be made within six weeks of 31 December 2010,

in order to give people more time over the holidays. The claimant argued that the court had a duty to

read the provisions of the statute in accordance with the EU law principle of effectiveness and/or the

claimant’s right to a fair trial under article 6 ECHR. In confirming the decision of the High Court that

it did not have jurisdiction because the application was made out of time, the Court of Appeal held

that the wording of the statute was clear that time started to run on the date of adoption. The time limit

under s.113 is a statutory limitation upon the jurisdiction of the court and therefore the Council could

not extend it, nor could jurisdiction be established on the basis of an estoppel operating against the

Council. The applicant’s right of access to the court had not been infringed because there was no

impairment of the very essence of his right of access. Similarly the EU principle of effectiveness had

not been broken. There was no reason why the claimant could not bring an application within the time

specified and the limit of 6 weeks was in any event a reasonable one. Permission to appeal to the

Supreme Court was sought by the claimant and refused.11

R (on the application of Berky) v Newport City Council [2012] EWCA Civ 378

Following the Uniplex case 12, the requirement for promptness in bringing judicial review proceedings

under rule 54(4) Civil Procedure Rules13 was held to be unlawful in cases concerned with EU law

because it contravened the principle of effectiveness. This has had a direct impact on domestic

planning cases because if the claimant can find an EU point (for example, EIA), the requirement for

promptness falls away and an application can be made on the last day before the 3 month time limit

expires14.

11See also: Lukaszewski v District Court in Torun, Poland [2012] UKSC 20. This is case from the extradition

field and is mentioned because it has the potential to impact on the recent line of cases about time limits and the

absolute bar to proceedings brought out of time in respect of planning appeals. The Supreme Court held in this

case that in the context of human rights cases the short statutory time limits for extradition appeals could be

extended in exceptional circumstances notwithstanding the clear wording of the statute. This case was raised in

the grounds of appeal in Barker but the point may be re-opened in another case in the future.

12 Uniplex (UK) Ltd v NHS Business Services Authority [2010] PTSR 1377

13(1) The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.

14 see e.g. R (U & Partners (East Anglia) Ltd) v The Broads Authority [2011] EWHC 1824 (Admin)).

21

In this case the Local Authority granted planning permission for the erection of a supermarket and

restoration of a former social club despite officers’ recommendation that the scheme did not comply

with retail policies and was on an out-of-centre site. The decision to grant planning permission was

made on 26 January 2011. On 21 April 2011 the claimant instructed solicitors and grounds of judicial

review were filed on 26 April 2011, the Tuesday after the Easter Monday Bank Holiday. The grounds

included the decision not to require EIA and the reasons for not following officers’ advice. The

claimant failed at first instance following a rolled-up hearing and appealed to the Court of Appeal. It l

addressed a number of important issues, including time limits for judicial review proceedings. First, it

held that the three month time period starts to run the day after the grounds for the decision arise,

therefore time ran from the 27 January 2011 and expired on 26 April 2011. The claim was therefore

brought just in time (it would have been in time anyway because the 25 April 2011 was a bank

holiday and so was to be disregarded). The Court of Appeal also addressed (obiter) the issue of

timing more generally. It held that promptness does not apply in respect of European law points raised

in judicial reviews. However, where there are mixed grounds of European and domestic law,

promptness may still apply to domestic grounds. The judges’ reasoning on this point does not reveal a

clear answer to the issue. Carnwath LJ held that the domestic grounds had not been brought promptly

whereas Sir Richard Buxton disagreed. The final judge, Moore-Bick LJ, did not address the point in

detail but said that he agreed that there was no reason that domestic law and Community law

challenges could not be subject to different time limits but that he agreed that this case was not the

right forum for resolving the issue. Berky will not be the last word on timing. The court was further

split on the issue of whether the court could decline relief on the basis of undue delay for Community

law points. The majority, Moore-Bick and Sir Richard Buxton held that Uniplex did apply to the

s.31(6) Senior Courts Act 1981 discretion to refuse relief on the grounds of “undue delay” in making

an application for Judicial Review).

R (on the application of Macrae) v Herefordshire County Council & John Heath [2012]

EWCA Civ 457

Around the same time as the Berky case, this matter came before the Court of Appeal. It touches on

the application of promptness to judicial review claims which raise purely domestic points. The case

concerned the duty to give summary reasons for granting planning permission. In this case, the

planning committee resolved to grant planning permission despite a recommendation to refuse by the

planning officer. The judge at first instance held that the reasons given were inadequate because they

referred back to a planning report which recommended refusal of the application. The judge

nonetheless declined to grant permission to apply for judicial review on the basis that the application

(brought within a few days of the expiry of the 3 month time limit) had not been brought promptly.

22

The Court of Appeal upheld the claimant’s appeal against the judge’s refusal to grant permission on

the basis that the judicial review time limit could not be viewed in isolation of the issue before the

court. The Court of Appeal described the reasons for the grant as “puzzling” and concluded that they

left the claimant in the dark as to why the decision had been made. The Court of Appeal held that the

lapse of time caused no prejudice and that permission should have been granted. The Court of Appeal

allowed the claim and granted a declaration that the summary reasons were inadequate. Although this

was a victory for the claimant, the Court of Appeal side-stepped the issue of whether promptness is

still a feature of domestic law following Uniplex.

Amendments to the Civil Procedure Rules

CPR r54.5(5) and (6) now specify shorter time limits which set out that a claim for a judicial review

which relates to a decision made by the Secretary of State or Local Planning Authority under the

“Planning Acts”15 must be filed not later than six weeks after the grounds to make the claim first

arose.

The Pre-Action Protocol for Judicial Review has also been revised, taking effect from 1 July 2013, it

now states that:

“This protocol may not be appropriate in cases where one of the shorter time limits in Rules 54.5(5)

or (6) applies. In those cases, the parties should still attempt to comply with this protocol but the

court will not apply normal cost sanctions where the court is satisfied that it has not been possible to

comply because of the shorter time limits.”

The Pre-Action Protocol also confirms that compliance with the Protocol alone is unlikely to be

sufficient to persuade the court to allow a late claim.

ENFORCEMENT

R (on the application of Allsop) v Derbyshire Dales District Council [2012] EWHC 3562

(Admin)

15 As defined in s.336 TCPA 1990

23

Section 215 of the TCPA 1990 allows LPAs to serve remedial notices on owners or occupiers of land

the condition of which adversely affects the amenity of the LPA areas. Failure to take the required

steps within the specified time is a criminal offence under section 216. Appeal is by way to the

Magistrates’ Court under section 217, and thereafter to the Crown Court under section 218. This case

concerned a field on Mr Allsop’s farm used for storing agricultural trailers. In 2008, the LPA served a

notice under section 215 giving him 21 days to “cease the use of the land for storage of vehicles and

trailers.” In fact, it was not the storage of the trailer per se which was at the heart of the LPA’s

complain, but rather a “lurid face” painted on the side of the trailer. Mr Allsop appealed against the

notice to the Magistrates' Court, arguing that the trailers were part of the “ordinary course of events

from, the carrying on of operations or a use of land” – i.e. that the trailers were used for agricultural

purposes. Mr Allsop’s appeal was rejected by the Magistrates Court, and also by the Crown Court,

which concluded: “We are satisfied that this lurid face was graffiti which adversely affected the

amenity of the land.” However, Leggatt J held that the Crown Court had erred in its interpretation of

Section 215. That was for two reasons:

(i) Section 215 gave no power to issue a notice which required the cessation of a use of land

which itself did not contravene Part III of the 1990 Act. In other words, Mr Allsop’s use

of his field for storage of vehicles and trailers was a lawful use of agricultural land. The

notice was too broadly drafted – it could have required remediation of the “lurid” graffiti,

but not of the use of the land for storage altogether.

(ii) Section 215 gave no power to issue a notice which failed to identify the mischief at which

it was directed. In this case, that mischief was not the use of the land in question to store

vehicles and trailers but the presence of graffiti on a particular trailer parked along the

boundary of the land. Albeit that there were no regulatory or policy prescriptions as to the

content of a section 215 notice (unlike, e.g., for enforcement notices under section 172),

Leggatt J held that:

“as a matter of general principle, such notice in order to be valid must identify the

condition of the land about which complaint is made and the steps required to remedy

that condition with sufficient clarity to enable the recipient of the notice fairly to

understand the nature of the complaint and exactly what it is that he must do in order

to comply with the notice.”

The LPA’s counsel in Allsop conceded that the relevant section 215 notice “could perhaps have been

better drafted”. The Allsop case is a stern reminder for LPAs that action under section 215 has to be

focused, restrained and rigorously justified.

24

R (on the application of Manorgale Ltd) v Thames Magistrates Court and Hackney London

Borough Council [2013] EWHC 535 (Admin)

Under section 179(9) of the TCPA 1990, in determining the amount of fine to imposed on conviction

for failure to comply with an enforcement notice, “the court shall in particular have regard to any

financial benefit which has accrued or appears likely to accrue to him in consequence of the offence”.

Hackney served an enforcement notice on Manorgale Ltd requiring the demolition of two extensions

made to a dwelling house without planning permission. The notice was not complied with. Hackney

initiated a prosecution in the Thames Magistrates’ Court. In the run-up to the hearing, negotiations

were ongoing between Hackney and Manorgale in relation to retaining a smaller structure, and the

court hearing was adjourned twice. The Claimant was notified of the hearing in the Magistrates’

Court the day before it was due to take place and, after calling the court, was under the impression

that he did not have to attend because there would be an adjournment. The hearing went ahead and the

Claimant was convicted and sentenced in his absence. He was fined the maximum £20,000 fine. The

Claimant applied to the Magistrates’ Court under s.142 Magistrates’ Court Act 198016 to re-open the

case but the application was refused on the ground: (a) that the Magistrates’ Court did not want to act

as an appellate court; (b) that it would be more appropriate for the matter to go to the Crown Court;

and (c) that it only had power to re-open the case in the event of a substantial procedural error. The

Divisional Court held that this reasoning had been flawed:

(i) The Magistrates’ Court had the power to re-open the case if it was in the interests of

justice to do so and the right of appeal to the Crown Court did not allow for the Crown

Court to correct a substantial procedural error.

(ii) The sentence would be re-opened because when sentencing the Court had failed to take

into account the question of financial benefit under s.179(9) TCPA 1990.17 The Claimant

was entitled to make the argument that he had not benefitted financially from the breach

of planning control.

Oxfordshire County Council v Wyatt Brothers (Oxford) Ltd & Others [2012] EWCA Civ 1921

16 s.180(1) A magistrates' court may vary or rescind a sentence or other order imposed or made by it when

dealing with an offender if it appears to the court to be in the interests of justice to do so, and it is hereby

declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by

another which the court has power to impose or make.

17 Section 179(9) In determining the amount of any fine to be imposed on a person convicted of an offence under

this section, the court shall in particular have regard to any financial benefit which has accrued or appears

likely to accrue to him in consequence of the offence.

25

The Wyatts and their company, Wyatt Brothers Oxford Limited, occupy a 12-hectare site at

Waterstock near Oxford where they run a golf course and driving range. They unlawfully deposited

waste on the site in the 1990s for which they received over £1 million. Enforcement notices were

followed by injunction proceedings and, thereafter, by committal proceedings. In May 2010,

McCombe J found that the Wyatts had failed to comply with court orders. He found them guilty of

contempt and gave suspended sentences of four and six months respectively, suspending them for a

year on condition that they make realistic efforts to comply with Crane J's order within 12 months.

The Wyatts made no such efforts, and on 9 June 2011 the council applied to have the sentences

activated. After several high court hearings in 2011, where, in one of which Thirlwall J had said that

the Wyatts had “treated the court with contempt in the literal sense” but adjourned the hearing with

prison periods to be suspended while the Wyatts took steps to comply with the original High court

order. After further extensions and submissions of new material, it was eventually Cox J who

concluded that the Wyatts’ conduct constituted continued contempt of court and their sentences

should be implemented. That implementation of sentence was appealed to the Court of Appeal. The

Wyatts claimed that they had insufficient funds to remove the waste, that the order requiring them to

do so was not accurate, that it is not in the public interest to send two old men to prison, that one of

the Wyatts was in poor health. All of the grounds were rejected by Sir Scott Baker in the Court of

Appeal, with whom Mummery and Patten LJJ agreed, holding that:

“It seems to me that the importance of committal in a case of this kind is to send out loud and

clear the message that court orders are made to be complied with and, although nobody

wants to send somebody to prison for non compliance with a court order, the time comes

when, regrettably, there is no alternative.”

Doncaster Metropolitan Borough Council v AC and Others [2013] EWHC 45

The Defendants – members of the Gypsy and Traveller community – had occupied a site in Askern to

the north of Doncaster for several years and without planning permission. The LPA applied for an

injunction to cease that use. The defendants argued that they had no alternative pitches to go to and

granting an injunction would have a detrimental effect on their children and be a disproportionate

interference with their rights, and their children’s rights under article 8 ECHR. HHJ Richard Salter

QC reviewed the authorities and reminded himself that, following South Cambridgeshire DC v

Gammell [2005] EWCA Civ 1429, injunctive relief is unlikely unless properly thought to be

proportionate to the breach of planning control that has taken place. A key consideration in the

balancing exercise was the best interests of the Claimants’ children and the Claimants’ and their

families’ article 8 ECHR rights. It was a drastic step to require six families to move from their home.

However, this had to be balanced against the fact that the claimants’ occupation of the site had always

been unlawful. The judge granted the injunction, reasoning that against the background of three and a

26

half years’ unlawful use of the site, there was a real risk that the planning system and criminal law

would be brought into serious disrepute if the court were to hold that the grant of an injunction would

be disproportionate because of the interference with the claimants’ and their children’s rights. It

would not be correct to give only limited weight to a local authority’s decision and the requirements

of the criminal law.

R (Baker) v Bath and North East Somerset Council & Hinton Organics Ltd [2013] EWHC 946

(Admin).

Hinton Organics Ltd operates a waste-composting site. The Claimant lives near the site. In a judgment

dated 19 February 2009 Collins J held that paragraph 13 of Schedule 2 of the 1999 EIA Regulations

did not properly implement applicable EU law, with the result that applications required to be

screened18. This led to various planning permissions on the site being quashed, but Hinton Organics

continued to operate the site after this date. The Secretary of State subsequently made positive

screening directions and accordingly, there were before the Council three live applications for

planning permission which would, if granted, operate with retrospective effect. The purported

environmental statement submitted by Hinton Organics was inadequate and, fourteen months later,

the Council decided to grant a further three months to present a complete environmental statement.

The issue of whether an enforcement notice should be issued was therefore withdrawn from its

agenda. The Claimant sought to challenge this decision by way of judicial review. The Court, in

dismissing the claim, held that there was no duty on the authority under EU law immediately to issue

an enforcement notice in the circumstances. It noted that the statements produced by Hinton Organics

were “significantly deficient”, and that it had offered no real explanation, convincing or otherwise, for

this failure. It considered that by allowing Hinton Organics a further opportunity, the Council ran the

risk of acting inconsistently with established case law concerning its obligations under the EIA

Directive. However, notwithstanding these misgivings, the court concluded that the authority had

reached a fair, reasonable and proportionate decision on the relevant issue. In particular, there was

objectively a real probability that Hinton Organics would produce a compliant environmental

statement, notwithstanding past failures; and the deadline set was not a lengthy one. Moreover “the

issue of an enforcement notice would not be likely to bring the unauthorised operations to an end, but

would be likely only to transfer the planning applications, supported by such environmental statement,

to the Secretary of State”.

18 [2009] EWHC 595

27

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