Housing allocations policy

April 21st, 2016 by James Goudie KC in Housing

By a change to its housing allocations policy, Ealing Council introduced a Scheme whereby 20% of all available lettings would be removed from the general pool and would be reserved for (a) “Working Households” and (b) “Model Tenants”. In brief, a working household was one where the applicant or another member of the household worked for at least 24 hours per week.  A model tenant was an applicant for transfer who already had a Council secure tenancy but who was seeking more appropriate accommodation and who had complied with the terms of the tenancy.  The broad aims behind the Scheme are to incentivise tenants to work or return to work and to encourage good tenant behaviour.

In R (H) v Ealing LBC [2016] EWHC 841 (Admin) the High Court has ruled the Scheme unlawful.  The four grounds of successful challenge included that the Scheme unlawfully indirectly and without justification discriminated against women, the disabled and elderly persons.  The High Court also found unjustified ECHR discrimination against those who do not hold council tenancies, breach of the PSED, and breach of the Section 11 Children Act 2004 duty to safeguard and promote the welfare of children.

 

Planning Conditions

April 19th, 2016 by James Goudie KC in Planning and Environmental

Ejusdem generis has no place in the interpretation of planning conditions, the Court of Appeal has held in R (XPL Ltd) v Harlow Council [2016] EWCA Civ 378, a Judgment on 15 April 2016 on appeal from a first instance decision on 28 November 2014 with respect to a breach of condition notice served by the Council on 3 June 2014.

Lindblom LJ reiterated the principles at paragraphs 16 and 17. The general rule relating to the interpretation of a planning permission that is clear, unambiguous and valid on its face, is that regard may only be had to the planning permission itself, including the conditions, if any, imposed upon it and the reasons given for those conditions in the decision notice itself.  The planning permission and its conditions must be construed as a whole, as a “reasonable reader” would. If there is ambiguity in the wording of the permission, one can look at extrinsic material, including the application, to resolve it. There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission.  It is also relevant to the process of interpretation that a failure to comply with a condition in a public law consent may give rise to criminal liability.

The Court of Appeal found that the planning condition in the Harlow case satisfied the three conditions for validity: relevance to planning, a reasonable relationship to the development permitted, and reasonableness in the sense of its not being perverse. Lindblom LJ said, at paragraph 27, that in interpreting it he did not accept that the “ejusdem generis” principle “has any place” in the interpretation of planning conditions.  He described the suggestion that it did as “novel”.  In any event he saw no need to resort to it.

At paragraph 30 he added:-

“… there is no ambiguity either in the condition itself or in the condition and its reason read together. It follows that there is no need to go in search of extraneous material … as an aid to interpretation.  Conditions and their reasons should be interpreted, if they can be, in a benevolent way, and not in a search for inconsistency or lack of precision …”

 

Promoting Tourism

April 18th, 2016 by James Goudie KC in Environment, Highways and Leisure

The Broads Authority (“the Authority”) has rebranded “the Broads” as the “Broads National Park”, in order to attract tourists. The Broads are not, however, a National Park under the National Parks and Access to the Countryside Act 1949 (“the 1949 Act”).  Was the rebranding lawful?  Yes, held Holgate J in Harris v Broads Authority (2016) EWHC 799 (Admin).  He held that the adoption of a brand name for marketing purposes did not breach the 1949 Act.

Sections 144 and 265A of the Local Government Act 1972 (“the 1972 Act”) authorised the Authority to encourage persons, whether by advertisement or otherwise, to visit the Broads for recreation. It could therefore do anything incidental to the discharge of that function: Section 111(1) of the 1972 Act.  That included promoting the Broads in the UK or overseas.  That included adopting a brand name.  That was a separate matter from legal status. The 1949 Act had no legal monopoly over the use of the term “National Park” and did not prohibit its use outside the legislative scheme under the 1949 Act.

Nor did the branding have a misleading or confusing effect. A lawful name choice had been made.  The Authority had not sought to treat itself as a National Parks Authority.  Nor had it sought to treat the Broads as a National Park in the statutory sense; or to misrepresent the scope of its statutory functions.  There was no abuse of power.

In the context of branding or marketing, the term “National Park” uses ordinary language, and not a statutory concept, to evoke the nationally important qualities of the Broads and stimulate public enjoyment of, and potentially visits to, the Broads. The use of capital letters simply reflected that the Broads is a proper name. It did not alter the legal analysis.

 

Concession Contracts

April 7th, 2016 by James Goudie KC in Decision making and Contracts

On 18 April 2016 the Concession Contracts Regulations 2016, S.I. 2016/273 (“the Concessions Regulations”), come into force. They implement the 2014 Directive, 2014/23/EU, on concession contracts (“the Concessions Directive”). They extend to England and Wales, and Northern Ireland.

The Concessions Regulations impose obligations on “contracting authorities” (and utilities) concerning the award of “concession contracts”. “Contracting authorities” include local authorities. “Concession contracts” embrace both works and services concessions. They are contracts for “pecuniary interest” concluded in writing under which the consideration consists either solely in the “right to exploit” the works/services or in that right together with payment, and that meet a risk requirement.  That is that the award of the contract shall involve the transfer to the concessionaire of an “operating risk” and that the risk transferred shall involve “real exposure to the vagaries of the market”.

There is a high threshold: £4,104,394. However, below the threshold general EU Treaty principles will apply if the low threshold of a cross-border interest is applicable.

Parts 1 and 2 of the Concession Regulations set out their scope and principles. Part 3 contains rules on the award of concession contracts. Chapter 1 contains obligations relating to the publication of concession notices and concession award notices (Regulations 31 to 33), the electronic availability of concession documents (Regulation 34) and the prevention of corruption and conflicts of interest (Regulation 35). Chapter 2 of Part 3 contains provisions relating to technical and functional requirements of concession contracts (Regulation 36), the selection and qualitative assessment of candidates (Regulation 38) and award criteria (Regulation 41).

Part 4 contains rules on the performance of concession contracts, including provisions relating to subcontracting (Regulation 42), the modification and termination of concession contracts (Regulations 43 and 44) and reporting requirements (Regulation 45). Part 5 contains provisions about remedies.

 

 

Village Greens

April 6th, 2016 by James Goudie KC in Environment, Highways and Leisure

Appointing an independent legal expert to conduct a non-statutory enquiry and make findings is an appropriate mechanism in determining town and village green applications. So reaffirmed Stewart J in Somerford Parish Council v Cheshire East Borough Council [2016] EWHC 619 (Admin), at paragraph 31(iv).  An allegation of lack of independence, or apparent bias, based on the suggestion that the situation looked like the registration authority paying a lawyer to give favourable advice was misplaced: paragraph 35.  The appointee was a barrister in independent practice.  However, parties must be given the opportunity to make further representations on additional material filed late: paragraph 44.  Moreover, in any case where there is a serious dispute on factual issues, a public inquiry will almost invariably need to be held, and determination of the application on the papers will not be appropriate: paragraph 74.

 

Council Tax

March 22nd, 2016 by James Goudie KC in Council Tax and Rates

Coll (Listing Officer) v Mooney [2016] EWHC 485 (Admin) is a statutory appeal by the Appellant Listing Officer against the decision of the Valuation Tribunal for England (“VTE”) in which it ordered the Listing Officer to alter the valuation list to show one entry for a property, instead of two.  The property was built as one dwelling, on three floors. However, at some point, the property was converted into two dwellings.  It was listed as two separate units of property (hereditaments) when the valuation list for council tax was drawn up in 1993.

In 2014, the Respondent and her husband (Mr and Mrs Mooney) purchased the entirety of the property, with the intention of converting it back into a single dwelling. They obtained planning permission and listed building consent for a change of use from two dwellings to a single dwelling, together with alterations and extensions. However, there were severe restrictions on the changes they could make to the building because of its status as a listed building.

Upon completion of the works, the ground floor comprised a kitchen, a sitting area, dining room, two bedrooms and a shower room, and a hall leading to the main external entrance to the house. The first floor comprised a drawing room, study, bedroom and bathroom with dressing area.

Mrs Mooney applied to the Valuation Office Agency Listing Officer to alter the valuation list to remove the two entries and to replace them with one entry for the entire property, to reflect the fact that the property had been restored to one dwelling.  In a decision dated 4 December 2014, later reviewed on 9 March 2015, the Listing Officer removed the two entries and replaced them with two new entries. One entry was in band D, comprising the ground and first floors. The other entry was for the lower ground floor only in band A. The reason for the decision was that, in the view of the Listing Officer, the lower ground floor was a self-contained unit. Mrs Mooney appealed to the VTE, which held an oral hearing on 24 July 2015. In its written decision, dated 21 August 2015, it found that the lower ground floor was not a separate unit of accommodation, and allowed the appeal.

The Listing Officer appealed to the High Court on a question of law under the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009. Lang J dismissed the appeal.

The starting point is that, as a general rule, an hereditament is a unit of property which is self-contained and within the same curtilage, and occupied by the same person. The Listing Officer considered that following the adaptations there is now a single hereditament.  A single domestic hereditament is treated as a single dwelling, unless it is treated as two or more dwellings pursuant to Section 3(5) of the Local Government Finance Act 1992 and the Council Tax (Chargeable Dwellings) Order 1992 (“the Chargeable Dwellings Order”), Articles 2 and 3.

Lang J said, at paragraph 35, that the VTE was entitled, and indeed required, to consider the physical characteristics of the whole house, not just the lower ground floor. She referred, at paragraph 37, to the potential relevance of shared facilities in the remainder of the building.  She concluded as follows:-

“38. … I consider that the VTE was entitled to take into account the fact that the lower ground floor held the communal laundry facilities for the whole house.”

“40. Although the manner in which the building is being used by particular occupiers is clearly not the legislative test, … evidence of actual use may properly be considered. …”

“41. Thus, in my view, it was not impermissible for the VTE to have regard to the evidence that the house was in use as a single household, whose sole kitchen facilities were on the ground floor and sole laundry facilities on the lower ground floor. The key question was whether the panel went on to apply the correct legislative test, namely, had the building been “constructed or adapted for use as separate living accommodation”. This focuses on the use for which the building has been physically constructed or adapted, not the way in which the occupants were actually using it. …

42. I do not accept the Listing Officer’s submission that the VTE erred in law in taking into account the evidence that there were major restrictions on changes to the construction and layout of the building because it was a Grade II listed building. In my view, this was a potentially relevant part of the evidential background which the panel was entitled to take into account when examining the physical characteristics of the building and asking itself the question whether the building had been “constructed or adapted for use as separate living accommodation”.

43. In my judgment, on a fair reading of the decision, the members of the panel did correctly direct themselves in law. They set out the legislative provisions fully, correctly summarised the legal principles and referred to the case law. …

44. In my judgment, the VTE was entitled to conclude, on the evidence before it, that the way in which the building had been adapted for use, by installing laundry facilities for the whole house in the utility room, and kitchen facilities for the whole house on the ground floor, meant that the utility room was not available for separate and exclusive use as a kitchen, as part of a separate self-contained unit on the lower ground floor. This was a multi-factorial exercise of fact-finding and judgment by a specialist tribunal with which this court should be slow to interfere. …”

“46.   I am entirely satisfied that the VTE did not misdirect itself in law and, on the evidence, its conclusion was a reasonable one. In the circumstances, I do not consider it would be appropriate to set aside or remit the decision merely because the evidence and factual findings were not fully recorded in the decision.”

 

Residential development

March 18th, 2016 by James Goudie KC in Planning and Environmental

There were two important issues before the Court of Appeal in Suffolk Coastal District Council v Hopkins Homes Ltd [2016] EWCA Civ 168: (1) what is the meaning of “relevant policies for the supply of housing” in paragraph 49 of the National Planning Policy Framework (“the NPPF”)?  (2) How are those policies to be applied?

The Court of Appeal gave a wide interpretation to “relevant policies for the supply of housing”. The Court ruled that they are not confined to policies that provide positively for the delivery of new housing, in terms of numbers and distribution or the allocation of sites.  The concept extends to plan policies the effect of which is to influence the supply of housing land, by restricting the locations where new housing might be developed.

Lindblom LJ, delivering the Judgment of the Court, stated, at paragraph 25, that their interpretation of the policy in paragraph 49 of the NPPF must be “faithful to the words of the policy, read in their full context and not in isolation from it”. He continued:-

“26.    The broad context is provided by the policies of the NPPF read as a whole … The Government’s aim of providing “the supply of housing to meet the needs of present and future generations” in paragraph 7 of the NPPF is reflected generally in the policies for sustainable development, in the policies for plan-making, and in the policies for decision-taking. It is part of the “social role” of the planning system in achieving sustainable development referred to in paragraph 7 of the NPPF. And it sits in the part of the NPPF where the Government has gathered its policies for delivering “sustainable development” …

27. The more specific context is set by the policies for housing development in the paragraphs immediately preceding and following paragraph 49, in the section devoted to the Government’s objective of “[delivering] a wide choice of high quality homes”… These policies are partly directed to plan-making and partly to decision-taking. Underlying them all is the basic imperative of delivery. Where they concern plan-making, their aim, very clearly stated at the beginning of paragraph 47, is to “boost significantly the supply of housing”. The first requirement in that paragraph – that an authority must “ensure” that its local plan meets the “full, objectively assessed needs” for housing, “as far as is consistent with the policies set out in [the NPPF]” – involves the making of an objective assessment of need before considering the impact of other policies in the NPPF… The second requirement is for local planning authorities to “identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements …”.

28.… for many years successive governments have relied on the planning system to increase the supply of housing land. At least since the 1970’s national planning policy has contained either an objective or a requirement for local planning authorities to identify and maintain a five-year supply of housing land. Between 1988 and 1992 there was a policy presumption in favour of planning permission being granted for housing where no five-year supply existed in the authority’s area … The advent of the NPPF marked a significant policy shift. …

28. The policy in paragraph 49 is not a policy for plan-making; it is a policy directed to the consideration of “[housing] applications”. But it is linked to the policy for plan-making in paragraph 47 in a very obvious way, because it is predicated on the requirement for the local planning authority to “demonstrate a five-year supply of deliverable housing sites”.

29. Paragraph 49 is also connected to the policy for the application of the “presumption in favour of sustainable development” in paragraph 14 …”

30.  We turn then to the words of the policy themselves, viewed in the context we have described

31. The contentious words are “[relevant] policies for the supply of housing”. In our view the meaning of those words, construed objectively in their proper context, is “relevant policies affecting the supply of housing”. … Not only is this a literal interpretation of the policy in paragraph 49; it is, we believe, the only interpretation consistent with the obvious purpose of the policy when read in its context. A “relevant” policy here is simply a policy relevant to the application for planning permission before the decision-maker – relevant either because it is a policy relating specifically to the provision of new housing in the local planning authority’s area or because it bears upon the principle of the site in question being developed for housing. … The “supply” with which the policy is concerned, as the policy in paragraph 49 says, is a demonstrable “five-year supply of deliverable housing sites”. Interpreting the policy in this way does not strain the natural and ordinary meaning of the words its draftsman has used. It does no violence at all to the language. On the contrary, it is to construe the policy exactly as it is written

32. Our interpretation of the policy does not confine the concept of “policies for the supply of housing” merely to policies in the development plan that provide positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites. It recognizes that the concept extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development. It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is.”

Moving on to how the policy in paragraph 49 of the NPPF is to be applied, Lindblom LJ said:-

“43.    When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted.

44. The NPPF presents the decision-maker with a simple sequence of steps when dealing with a proposal for housing development. The first step, under the policy in paragraph 49, is to consider whether relevant “policies for the supply of housing” in the development plan are “out-of-date” because “the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”. Gauging the housing land supply will entail the use of the appropriate method of assessment, whatever that may be …

45. Whether a particular policy of the plan, properly understood, is a relevant policy “for the supply of housing” in the sense we have described is not a question for the court. It is, …, a question for the decision-maker. Provided the decision-maker acts on the correct understanding of the policy in paragraph 49 of the NPPF, and also on the correct understanding of the development plan policy in question, these being matters for the court, it is for him to judge whether the plan policy is or is not a relevant policy for the supply of housing. That is a matter for his planning judgment, and the court will only intervene on public law grounds. If the decision-maker finds that relevant policies of the plan are “out-of-date”, he applies the “presumption in favour of sustainable development” in the way that paragraph 14 of the NPPF requires. Again, he will be exercising his planning judgment, and again, therefore, the court will only review that exercise of judgment on public law grounds.

46. We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make “out-of-date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker …”

 

Environmental impact assessment

March 17th, 2016 by James Goudie KC in Planning and Environmental

When a local planning authority (“LPA”) issues a screening opinion stating that no environmental impact assessment is required, reasons have to be given, in accordance with the ECJ decision in Mellor.  Hickinbottom J in R (Jedwell) v Denbighshire County Council [2016] EWHC 458 (Admin) cautioned that every case is necessarily fact specific, but stated, at paragraph 94, that the following propositions in relation to the giving of reasons can be derived from principle and the authorities:-

  1. A LPA required to give reasons for a negative screening opinion within a reasonable time of a request;
  2. Those had to be the reasons in its mind at the time of the decision, and not an ex post facto justification;
  3. Given the possibility of a request coming in perhaps months or even years after the EIA screening decision was taken, LPAs would no doubt wish generally to maintain a note of the decision-maker’s reasons for any negative screening decision, so that those reasons could be sent out if and when any request was made;
  4. Once proceedings are issued, whilst it would be too late for a LPA to avoid a breach by providing reasons, if the LPA thereafter provided reasons, and the Court was persuaded that they were indeed the reasons in the LPA’s mind at the time of the decision, the Court was likely to be slow to quash the planning permission;
  5. If no contemporaneous reasons were forthcoming (including, a situation where the Court rejected the submission that reasons put forward were contemporaneous), then in accordance with usual public law principles, the planning permission should be quashed unless the LPA could show that the decision would inevitably have been the same if the breach had not occurred; or, if remitted, the decision would now be the same.

 

Ambiguous planning permission

March 17th, 2016 by James Goudie KC in Planning and Environmental

It is well established that in construing a public document such as an outline planning permission which is clear, unambiguous and valid on its face, the general rule is that may be had only to the planning permission itself, including the conditions to which the permission is subject and the expressed reasons for those conditions. This rule excludes reference to extrinsic evidence, including even the planning application, unless the planning permission itself incorporates the application by reference, in which case the application is treated as having become part of the permission. However, where there is an ambiguity in a planning permission, it is permissible to look at extrinsic evidence to resolve that ambiguity. This includes, but is not confined to, the application form, the site plan, and other documentary evidence, such as a Section 106 agreement. In University of Leicester v SoS for CLG and Oadby & Wigston Borough Council [2016] EWHC 476 (Admin) Supperstone J said that all relevant extrinsic evidence could be referred to depending on the circumstances of the case.  This might include evidence of the way in which the permission was actually implemented on the ground, albeit this could not be conclusive.   The first port of call in any examination of extrinsic evidence will usually be the application for permission. It may not, however, be the end of the matter.  When it does not resolve the ambiguity, other extrinsic material may be referred to, including non-documentary material.

 

Council tax liability order

March 17th, 2016 by James Goudie KC in Council Tax and Rates

In Williams v East Northamptonshire District Council [2016] EWHC 470 (Admin) the Court held that the authority’s application, under the Council Tax (Administration and Enforcement) Regulations 1992, S.I.1992/613, for a council tax liability order was not invalidated by its additional inclusion of a claim for an amount of costs. The application contained what it needed to. There was no prohibition against including additional information that was not required at that stage. The application clearly differentiated between the two.  The costs would be claimable in the event that a liability order was made.  There was nothing misleading, no abuse of process, and no usurping of the authority of the Magistrates’ Court with respect to costs.  Indeed the amount of costs that would be claimed, and could in due course be contested, was precisely the sort of information which ought to be made available.

 

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