Planning, Local Government & Administrative Law Case Update. May by Mark C. Mohammed, Advocate

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1 Planning, Local Government & Administrative Law Case Update May 2012 by Mark C. Mohammed, Advocate In this month s update cases involving the licensing of sex shops and the transfer of liabilities following local government reorganisation are examined, along with several planning appeals. Planning Baker v. Hambleton District Council [2012] EWCA Civ 610 is an appeal that concerns the interpretation of section 113 of the Town and Country Planning Act 1990, which provides for appeals against development plan documents. Subsection (4) provides that an appeal must not be made later than a period of six weeks starting with the adoption of the development plan. The Court of Appeal held that time runs from the day that the plan is adopted, and not from the following day, thus approving of the judgement in Hinde v. Rugby Borough Council. 1 The Court rejected the argument that section 113(4) was in breach of article 9 of the Aarhus Convention, which requires the provision of adequate and effective remedies, holding that there was no requirement to read into section 113(4) a discretion to allow appeals to proceed out of time, as the statutory time limit was clear and reasonable. Section 113 accordingly affords an effective remedy. A similar argument based upon article 6 of the ECHR was also rejected. Harbidge v. Secretary of State for Communities and Local Government [2012] EWHC 1128 (Admin) is a challenge to a successful appeal against the issuing of an enforcement notice by the London Borough of Southwark in respect of the use of land as a place of worship. The challenge was by way of judicial review, brought by the owners of various properties adjacent to the property in question. The case raises an issue regarding the interpretation of section 52(2)(f) of the Town and Country Planning Act 1990, which provides that a change of use of land for any other 1 [2011] EWHC 3684 (Admin). 1

2 purpose falling within the same class (as defined by regulations) shall not be taken to be development of the land. The issues before the Court were whether use of the land requires to be lawful before section 52(2)(f) is engaged, and whether there requires to be a single use of land falling within a class for ten years in order to obtain immunity from enforcement action or whether different uses falling within the same class for the ten year period is sufficient. The facts are that in 1994 planning permission was granted for use as a place of worship, subject to certain conditions precedent that were never fulfilled. Matters came to a head in 2009 when the premises were used by Recovery Chapel and the enforcement notice was issued. Since 1994 various uses had been made of the premises, all falling within class D1 as defined by the relevant regulations. 2 The planning authority argued that where there was unlawful use of land, in breach of planning controls (as in the present case, where the conditions precedent on the grant of permission had never been fulfilled), section 52(2)(f) was not engaged and a change of use within a class could not be said to fall outwith the definition of development. There was accordingly an unauthorised development when the change of use occurred, within ten years of the enforcement action being taken, and therefore no immunity. The Court rejected that argument on the basis that it was contrary to the clear wording of the Act, which imported no such condition of lawful use, nor of use for a single purpose within a class. The changes in use that had occurred since 1994 did not constitute development, as they all fell within the same class. Immunity was accordingly obtained ten years after the initial commencement of use of the land. Sea & Land Power & Energy Ltd v. Secretary of State for Communities and Local Government [2012] EWHC 1419 (Admin) is an appeal against the refusal of planning permission for a wind farm in Norfolk. Permission was refused on the basis that it would be contrary to the local policy on landscape. The decision raises important questions as to the interplay between national and local policy. The appellants argued that the inspector who refused their appeal erred in failing to give primacy to national policy where it was in conflict with local policy. In particular, it was submitted that national policy PPS1, which requires that development plans should seek to 2 The Town and Country Planning (Use Classes) Order 1987, SI 1987/764. 2

3 encourage, rather than restrict, the use of renewable energy, ought to have taken precedence over the local policy considerations concerning landscape. The Court rejected that argument, holding that there is a statutory presumption in favour of the development plan unless material considerations indicate otherwise. National policy is a material consideration, but a balancing exercise is required. National policy may supersede the development plan, but not necessarily. In the present case the inspector was aware of the need to weigh the benefits of renewable energy against the visual harm the wind farm would cause having regard to the nature of the coastal environment. The inspector weighed the competing factors in the balance and exercised planning judgement. There was no error of law and the appeal was dismissed. R (Gibson) v. Waverley Borough Council [2012] EWHC 1472 (Admin) is an application for judicial review of a decision of the Council granting planning permission and listed building consent for various works at Undershaw, a grade II listed building where Sir Arthur Conan Doyle once lived and wrote inter alia The Hound of the Baskervilles. 3 The proposed works entailed dividing the property (by then an unoccupied hotel) into three separate houses, as well as demolition works and the erection of new townhouses. A few months after the application was submitted, but before it was determined, a prospective buyer emerged who submitted his own application for planning permission for a change of use to a single dwelling. When the owner s application was determined, the planning committee were advised of the second application, and received legal advice that each application fell to be determined on its merits. The owner s application was granted, as was the second application at a later date. The Court held that the committee erred in its approach to the second application. It was wrong to say that the second application was a mere factor to take into account and weigh in the balance when considering the owner s application. Having regard to the relevant policy on heritage assets 4 there was a presumption in favour of conservation, and the optimum viable use is that which has the least harmful impact on the asset. The Court held that where there was a viable use that preserved the asset then that was a compelling reason for refusing 3 The application was opposed by a considerable number of people, including luminaries from the arts world such as Sir Christopher Frayling, Julian Barnes, Stephen Fry and Ian Rankin. 4 Policy HE9.4 of Planning Policy Statement 5: Planning for the Historic Environment. 3

4 permission for a viable proposal that had a greater harmful impact on the asset. Accordingly the owner s application ought to have been refused, and the Court quashed the decision. Local authority Anton v. South Ayrshire Council & North Ayrshire Council [2012] CSOH 80 is a mesothelioma case which raises questions as to the transfer of liabilities following local government reorganisation in 1975 as provided for in The Local Authorities etc. (Miscellaneous Provision) (Scotland) Order The case turns on the interpretation of article 3(1) of the Order, which provides for the transfer of all rights, liabilities and obligations which existed immediately before 16 th May 1975 to the successor local authority. The action was raised by the executor of the deceased, who was exposed to asbestos while in the employment of Ayr County Council between 1948 and The deceased first developed symptoms in October 2007, by which time both the 1975 and 1994 reorganisations had taken place. The various defenders argued that there could be no transfer of liability in relation to the deceased as, at the date of the transfer in 1975, there was no liability to the deceased as there was no coincidence of injuria and damnum. 6 Lady Clark of Calton rejected that argument, holding that a distinction falls to be drawn between the terms liabilities and obligations in article 3(1). Where there is a coincidence of injuria and damnum an obligation arises (to pay damages). The term liabilities is wider, and includes contingent liabilities. A potential liability arose when the deceased was exposed to asbestos and that liability was transferred to Ayr County Council s successors by virtue of the 1975 Order. To hold otherwise would be to leave the deceased s family without a remedy, an outcome the Court deemed unacceptable. 7 Licensing Hemming t/a Simply Pleasure Ltd & Others v. Westminster City Council [2012] EWHC 1260 (Admin) relates to the licensing of sex shops in Soho, however the case is of wider 5 SI 1975/ For a detailed discussion of injuria and damnum see the decision of a bench five in Aitchison v. Glasgow City Council 2010 SC The same decision was reached by Woolf J (as he then was) in Walters v. Babergh District Council (1983) 82 LGR

5 import as it concerns the interpretation of The Provision of Services Regulations 2009, 8 which are UK wide regulations made in implementation of an EU directive. 9 Regulation 18(4) provides that any charges that a competent authority may make (including a licensing authority) must be reasonable and proportionate to the cost of the procedures and formalities under the scheme and must not exceed the cost of those procedures and formalities. The issue for the Court was whether the cost of the procedures and formalities of the licensing scheme includes the costs of enforcing the scheme or is limited to the costs of administering the licensing system, viz. the costs associated with the grant, renewal and revocation of licences. The Court held that the costs of enforcing the licensing scheme could not be included in the fee for the licence, as such an interpretation would be contrary to the clear wording of the regulations. Government guidance also favours that interpretation SI 2009/ Directive 2006/123/EC on Services in the Internal Market. 10 Department for Business, Innovation and Skills, Guidance for Departments and Competent Authorities at page 18. 5