The Supreme Court has granted permission to appeal in conjoined cases R (Lancashire County Council) v SoS for DEFRA and R (NHS Property Services) v Surrey County Council on town and village greens, local authority owned land, and the important concept of “statutory incompatibility”.

The Local Government (Boundary Changes) Regulations 2018, SI 2018/1128, provide that, when two or more councils come together through a merger to create a single, district council, there is a smooth transition, in practical terms, from the predecessor councils (the councils that will be abolished on the reorganisation date) to the successor council (the new council that is being created for the whole of the area). The Regulations provide for incidental, consequential, transitional and supplementary arrangements in consequence of any Orders made by the SoS under Section 10 of the Local Government etc Act 2007.

The issue in TW Logistics Ltd v Essex County Council (2018) EWCA Civ 2172 was whether part of a working port had been properly registered as a town or village green (“TVG”). Barling J had held that it was. The Court of Appeal unanimously dismissed the appeal. A landowner is free, and indeed has the right, to continue in his previous commercial or other activities on the land after registration, so long as he does not interfere with the corresponding right of local inhabitants to continue in their use of it for recreation.

In R ( WX ) v Northamptonshire County Council ( 2018 ) EWHC 2178 ( Admin) Yip J ruled that the Council’s library closure decisions were unlawful. The grounds considered were the duties under the Public Libraries and Museums Act 1964, with respect to consultation and the PSED, and under Section 11 of the Children Act 2004 and Section 5A(1) of the Childcare Act 2006. Yip J said, at para 116, that the need to make savings was “ a legitimate, indeed, necessary driver”for further cuts, but it not relieve the Council’s duty to Act lawfully.

In Banner Homes Ltd v St Albans City and District Council (2018) EWCA Civ 1187 a landowner appealed against the Council’s listing under Section 88 of the Localism Act 2011 (“the Act”) of its undeveloped land as a community asset. The land was situated in the metropolitan green belt. It was crossed by two public footpaths. It had been used for more than 40 years by the local community for peaceful and beneficial recreational activities.

The landowner had been well aware of the existing community use when it purchased the land in 1996. It had taken no steps to oppose the use since.

The 820 strong residents’ association made a community nomination for the land to be listed as an asset of community value. The Council acceded, listed the land, and notified the landowner. The landowner applied for an oral review. Read more »

Rittson-Thomas v Oxfordshire County Council (2018) EWHC 455 (Ch) concerned two grants of land under Section 2 of the School Sites Act 1841 (“the 1841 Act”). It gave rise to a question concerning the exercise of the power of sale contained in Section 14 of the 1841 Act. Although the operation of the 1841 Act has been amended by the Reverter of Sites Act 1987 (“the 1987 Act”), the 1841 Act remains in force, and has, it seems, generated a good deal of litigation. However, the question at the heart of this case had not previously fallen for determination. Read more »

The Compulsory Purchase of Land etc Regulations 2018, SI 2018/253, amend the Compulsory Purchase of Land (Written Representations Procedure) (Ministers) Regulations 2004 (SI 2004/2594) (“the 2004 Regulations”). The amendments make a number of procedural changes to the 2004 Regulations, including to authorise the use of electronic communications and to set out the modifications which will apply where a “confirming authority” appoints an Inspector to act instead of it in relation to the confirmation of a CPO. The “streamlining” amendments provide that any site visit under the written representations process must be undertaken within 15 weeks of the “starting date”, making clear that the 2004 Regulations will be subject to a number of modifications where a confirmation decision is delegated to an Inspector, making various changes to reflect that the decision whether to confirm the CPO will be taken by the Inspector, and clarifying where certain procedural steps will not be required; setting out the procedures to be followed where a decision whether or not to confirm a CPO is quashed following a successful legal challenge; and authorising the use of electronic communications under the 2004 Regulations. Read more »

In Camden LBC v Foxtons Ltd [2017] UKUT 349 (AAC) the Council successfully appealed to the Upper Tribunal (Judge Levenson) against Foxtons, Estate Agents, using the term “administration fees” in their letting agencies work.  This was (paragraph 25) a breach of Section 84(3)(c) of the Consumer Credit Act 2015.  The wording did not provide a description of each fee that was sufficient to enable a person who is liable to pay to understand the service or cost that is covered by the fee or the purpose for which it is imposed.

In Homes and Communities Agency v J S Bloor (Wilmslow) Ltd (2017) UKSC 12 raised questions concerning the Pointe Gourde or “no-scheme” rule, by which compensation for compulsory acquisition is to be assessed disregarding any increase or decrease in value solely attributable to the underlying scheme of the acquiring authority.  The particular issue concerned the relationship between the general provisions, in the Land Compensation Act 1961, as explained and expanded by judicial interpretation, for the disregard of the scheme, and the more specific provisions relating to planning assumptions.

The Supreme Court reversed the decision of the Court of Appeal and reinstated that of the Upper Tribunal. The Tribunal were entitled to regard the underlying policies, including the allocation in the development plan, as potentially relevant also to the development apart from the scheme.  The assessment of their significance in the no-scheme universe was pre-eminently a matter for the Tribunal.  They did not ignore potential policy considerations. Their reasoning disclosed no error of law.

The right to claim for potential development value is long established. The specific statutory provisions relating to planning assumptions do not preclude account being taken under the general law of the prospect (certain or a hope) of planning permission for valuable development.  Moreover, the application of the Pointe Gourde principle may result in changes to the assumed planning status of the subject land.  The application of the general law may produce a more favourable result for the claimant than the statutory planning assumptions.

The Supreme Court concluded that the Upper Tribunal’s decision in this case was a powerful illustration of the potential complexities generated by the by the 1961 Act in its unamended form. It was to be hoped that the amendments currently before Parliament will be approved.

One of the issues in Whitstable Society v Canterbury City Council [2017] EWHC 254 (Admin) was whether the notification and consultation proceedings required by Section 123(2A) in relation to open space land owned by a local authority ought to have been gone through in respect of the sale of land owned by the City Council.  Dove J held not, notwithstanding that the land had been acquired for development as open space and had not been formally appropriated to any other use.  He said, at paragraph 78:

“In my view the key issue in applying section 123(2A) is whether, at the time of the disposal of the land, it consisted or formed part of an open space. That is the specific language of the section. In my view that is not solely determined by use, if in fact the land has been laid out as a public garden (the breadth of which term does not arise for determination in this case). If the land were to be a public garden the section 123(2A) requirements could not be evaded simply by excluding the public. Thus the phrase “consisting or forming part of an open space” would also include land which might not actually at the point of disposal be being used by the public but which, by virtue of the manner in which it had been landscaped, would consist of or form part of an open space.” Read more »