Habitats

March 21st, 2017 by James Goudie KC in Planning and Environmental

Ashdown Forest is a Special Area of Conservation (“a SAC”). This designation, in 2005, was pursuant to the Habitats Directive (“the Directive”). The designation was given for a number of reasons, including the SAC’s extensive areas of lowland heath, which is vulnerable to nitrogen dioxide pollution from motor vehicles. The SAC covers 2,729 hectares and lies wholly within the area of Wealden District Council. This is the local planning authority for Wealden District, save for that part of it (to the south) which falls within the South Downs National Park.

In Wealden District Council v SoS for CLG and others [2017] EWHC 351 (Admin) there was a challenge to quash part of the Lewes District Plan known as the Joint Core Strategy 2010-2030 (“the JCS”). The JCS was jointly prepared under the Planning and Compulsory Purchase Act 2004 by Lewes District Council and the South Downs National Park Authority as local planning authorities.  The JSC forms part of the statutory development plan for the district of Lewes, including the extent of the National Park which falls within it. Read more »

 

Green Belt

March 14th, 2017 by James Goudie KC in Planning and Environmental

In Samuel Smith Old Brewery v North Yorkshire County Council [2017] EWHC 442 (Admin) Hickinbottom J held that, depending on the specific circumstances of a case, visual impact might be taken into account by a planning decision-maker when considering the impact of a proposed development on the openness of a green belt area. Factors such as visual impact, purpose, and degree of permanence and reversibility, were not matters to which, as a matter of law, a planning decision-maker had to have regard in every case in which a proposed development was in a green belt area, or even in every such case in which openness was an issue. They were factors to which the decision-maker might have regard if, on the facts of the particular case, in the exercise of his judgment and discretion he thought it right to do so. In other words, the decision-maker had a margin of appreciation within which he might decide just which consideration should play a part in his reasoning process.

 

Procurement Decisions

March 10th, 2017 by James Goudie KC in Decision making and Contracts

In R (Wylde) v Waverley Borough Council (2017) EWHC 466 (Admin) Dove J held that the claimants, who were not “economic operators” with an interest in securing the contract which was the subject of their claim, but who were a group of local councillors and residents who opposed a large scale development in Farnham Town Centre, lacked standing for a judicial review claim that the development contract had been varied, in order to decrease the sum payable by the developer to the Council for the land in question, contrary to the contracting authority’s procurement law duties.  Dove J applied the Court of Appeal decision in R (Chandler) v SoS for Children, Schools and Families (2010) LGR 1 and concluded that R (Gottlieb) v Winchester City Council (2015) EWHC 231 (Admin), the Winchester Silver Hill case, had been wrongly decided on the standing issue.  The claimants were unable to demonstrate any direct impact upon them from the variation not being regarded by the Council as a new contract and the Council’s decision that no competitive tendering exercise was required.  Any competition would be with respect to the same development that the claimants opposed.

 

Services of Payment Notices

March 8th, 2017 by James Goudie KC in Council Tax and Rates

In Serpes v City of London, Judgment on 2 March 2017, the Court held that demand notices for non-domestic rates, reminder notices, and summonses, were all served properly at the appellant’s last known address, in accordance with Section 233 of the Local Government Act 1972.  It was immaterial that she did not in fact receive them.  There had been no procedural impropriety or unfairness.  The Council was not obliged to make inquiries to discover her location.  If she wished to be served at another address it was for her to inform the Council accordingly.  Liability for the rates had not necessarily passed to someone else.

 

Alternative School Site

March 7th, 2017 by James Goudie KC in Planning and Environmental

In Lucas (on behalf of Save Diggle Action Group) v Oldham Metropolitan Borough Council (2017) EWHC 349 (Admin) the Council had been granted funding to redevelop a School, the existing buildings of which were in a poor state of repair.  The funding was from the Education Funding Authority (“the EFA”).  The EFA undertook a Feasibility Study (“the Study”).  The Study looked at various options for the redevelopment.  These included relocation at a new site.  The Study designated the new site as the best option.  This was because the new site offered the best value for money.

The Study confirmed, however, that if the Council chose to redevelop the School on its existing site, that would be funded by the EFA, despite being more expensive. Nonetheless the Council adopted the new site option.

The Council as Local Planning Authority did not take into account as a material planning consideration with respect to the new site that there was the option of redeveloping the school at its existing site. Kerr J held that it should have done so.  It was relevant to the proposed development for a number of reasons, not irrelevant as the LPA had believed.

 

Rateable Value

March 7th, 2017 by James Goudie KC in Council Tax and Rates

Section 56 of the Local Government Finance Act 1988 (“LGFA 1988”) incorporates Schedule 6 to LGFA 1988. Schedule 6 sets out the statutory basis on which the rateable value of a non-domestic hereditament is determined.  It sets out statutory assumptions for determining rateable value. What is required is an assessment of “the rent at which it is estimated the hereditament might reasonably be expected to be let from year to year”. The hereditament means the hereditament, as a whole, not part or most of it.  So emphasized in Hobbs v Gidman (VO) , (2017) UKUT 63 (LC).

 

Affordable Housing

March 3rd, 2017 by James Goudie KC in Housing

In York City Council v Trinity One (Leeds) Ltd [2017] EWHC 318 (Ch) the claimant LPA sought payment from the respondent property developer pursuant to a s106 agreement to pay a sum of money in lieu of providing affordable housing.  The developer then applied to modify the s106 agreement by removing the affordable housing payment obligation.  The LPA dismissed that application. The dismissal was subject to appeal.  The Judge held that if the appeal was successful that would extinguish the payment liability with retrospective effect.

 

Rateable Value

March 2nd, 2017 by James Goudie KC in Council Tax and Rates

Does a commercial building which is in the course of redevelopment have to be valued for the purposes of rating as if it were still a useable office. Paragraph 2(1) of Schedule 6 (“Non-domestic rating: valuation”) to the Local Government Finance Act 1988, as amended by the Rating (Valuation) Act 1999, provides that the rateable value of a property is an amount equal to the rent at which it is estimated it might be expected to be let from year to year, subject to the assumption, in para 2(1)(b), that, immediately before the tenancy begins, the property is in a state of reasonable repair, but excluding from that assumption any repairs which a reasonable landlord would consider uneconomic. The issue of general public importance to the law of rating and valuation in Newbigin (Valuation Officer) v SJ & J Monk (2017) UKSC 14 was whether a property should be rated in accordance with the para 2(1)(b) assumptions or in accordance with its physical condition on the relevant date for determining rateable value on an application to alter the rating list.  On that date the property was stripped to a shell in the course of renovation works.  The Supreme Court held, allowing an appeal from the Court of Appeal, that the property had been stripped out beyond reasonable repair and should be rated as a “building undergoing reconstruction” and the rateable value reduced to the nominal amount of £1 from £102,000, not on the assumption that it was in reasonable repair as “offices and premises”. Read more »

 

Decision Making and Contracts

March 1st, 2017 by James Goudie KC in Decision making and Contracts

The Council succeeded in Milton Keynes Borough Council v Viridor (2017) EWHC 239 (TCC) in obtaining rectification of a waste-recycling contract on the basis that payment terms offered in a tender had been unequivocally accepted but later the wrong tender document had been incorporated into the contract by common or unilateral mistake.

 

Regulatory Functions

February 28th, 2017 by James Goudie KC in Environment, Highways and Leisure, Social Care

In R v Recycled Materials Supplies Ltd (2017) EWCA Crim 58 the Court considered the respective regulatory functions of the local authority and the Environment Agency under the now superseded Environmental Permitting (England and Wales) Regulations 2010 (“the EPR”).  The Court determined that it was the Environment Agency, not the local authority, that had jurisdiction under Regulations 32 and 33 of the EPR over a company carrying on a massive operation recovering and processing multiple types of construction waste.  Duality of regulation was not to be encouraged.

There is a broad distinction based upon the size and seriousness of the potential risks of pollution. In general, regulation of the more serious and potentially more harmful activities is placed in the hands of the Environment Agency, with regulation at a lower level for less complex or less polluting activities falling upon the local authority.  The power of local authorities to exercise the function of issuing environmental permits is to be found in the EPR and is limited.

 

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