Housing

June 3rd, 2013 by Christopher Knight in Housing

Article 8 ECHR Cases

The courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.

The Court of Appeal has clarified in R (JL) v Secretary of State for Defence [2013] EWCA Civ 449 that the defence of a disproportionate interference in an occupier’s right to respect for his Article 8 rights applied as a defence to the enforcement of a possession once obtained, as well as the initial claim for possession. However, if Article 8 had been considered at the initial claim stage there would need to be special circumstances for the issue to be revisited (and the Court was not obliged to do so of its own motion). Moreover, it may be an abuse of process not to have the defence at the possession stage. In JL’s case, no evaluation had occurred at the initial stage (in 2007, pre-Pinnock) and since that time no suitable alternative accommodation had been identified by the relevant local authority. It was therefore appropriate for the Court at the enforcement stage to review the possession, which it had carefully done finding that it was not disproportionate to permit enforcement. Ben Hooper of 11KBW appeared for the Secretary of State.

There was no breach of Article 8 in refusing to grant retrospective planning permission for a caravan site in the green belt, where the best interests of gypsy children were not determinative of the planning issues, but there were no less important than any other consideration and should be kept at the forefront of the planning inspector’s mind: Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin).

Nor was there a breach of Article 8 in the provision of s.15(3) of the Land Registration Act 2002 precluding a gypsy squatter in adverse possession lodging a caution against first registration of a piece of unregistered land: Turner v Chief Land Registrar [2013] EWHC 1382 (Ch).

Homelessness

The claimant in R (IA) v Westminster City Council [2013] EWHC 1273 (QB) was an Iranian who had been tortured in Iran and granted asylum in the UK. He had been living in private rented accommodation paid for by housing benefit. His landlord served him notice following the welfare reforms. After a discussion of an hour with an authority caseworker, during which he referred to his chronic leg and back pain, depression, insomnia and panic attacks, the authority determined that was homeless but was not in priority need within the meaning of s.184 of the Housing Act 1996 and as a result he would not be temporarily housed under s.193. The authority also refused to provide temporary accommodation whilst the case was under review, and the claimant was given an interim injunction ordering the provision of accommodation pending determination of the review. Sitting as a Deputy, HHJ Thornton QC, continued the injunction and granted permission to judicially review the decisions not to find him in priority need. The initial assessment seemed irrational, if not perverse. The Court gave guidance that where mental health issues arose from the historic mistreatment of a former asylum seeker, the local authority should usually consult with the individual’s medical advisors, the relevant mental health services and seek a psychiatric report. It would usually need a detailed inquiry into his pre-homelessness way of life. None of those would have been done in a one hour interview. The judgment was made the subject of a direction in order that it could be cited as an authoritative precedent.

In an ex-tempore judgment of the Court of Appeal on 21 May 2013 in Mohammed v Islington London Borough Council a claimant who had a medical condition which meant that she fainted several times a day overturned a review decision which had failed to consider whether being street homeless would affect the likelihood of her fainting and how the fainting itself would affect her if she was homeless. Although fainting was not serious, it did not mean that she was not vulnerable within the meaning of s.189 of the 1996 Act; most homeless people did not suffer from regular fainting.

Ms Obiorah had received temporary accommodation, and offers of permanent accommodation had been withdrawn after being made. Five years later an offer of temporary accommodation was made, to which Ms Obiorah replied that she had a legitimate expectation of an offer of permanent accommodation when suitable accommodation became available under the Allocation Policy of the authority. The Court of Appeal in Obiorah v Lewisham London Borough Council [2013] EWCA Civ 325 rejected this: there was no guarantee or legitimate expectation that a second offer would also be an offer of permanent accommodation. Any misunderstanding on the part of the claimant was not the fault of the authority and there was no unfairness.

When assessing whether an applicant had a priority need for accommodation under s.189(1)(c) of the Housing Act 1996 the local authority was entitled to take into account the support the applicant had been in receipt of from his brother, with whom he was living and from whom he would continue to receive support even if homeless. The weight to be accorded to such evidence was dependent on a fair evaluation of all the evidence, but there was no suggestion that the evidence had not been available to the authority: Hotak v Southwark London Borough Council [2013] EWCA Civ 515. Heather Emmerson of 11KBW (led by Paul Brown QC) appeared for Mr Hotak.

Unlawful Eviction

The statutory tort, contained in s.27 of the Housing Act 1988, of unlawful deprivation of a residential occupier of premises of occupation entitles the innocent party to damages assessed as the difference between the value of the landlord’s interest with occupation continuing and the value of that interest without the occupation right: see s.28. The Court of Appeal has clarified that that calculation had to take account of the inherent vulnerability of a secure tenancy to becoming downgraded to an assured tenancy on sale of the local authority’s interest to a private landlord: Lambeth London Borough Council v Loveridge [2013] EWCA Civ 494.

Housing Benefit

The appeal against the decision of Underhill J in R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions [2013] EWHC 233 (Admin) not to quash to the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012 will be heard at the end of July 2013 by the Court of Appeal. Elisabeth Laing QC and Christopher Knight of 11KBW appear for the Trust, instructed by Leigh Day & Co.

Children Act

No support may be provided to a person (other than an asylum seeker) under s.17 of the Children Act 1989 who is in breach of immigration laws, except to the extent necessary to avoid violation of Convention rights: Schedule 1 to the Nationality, Immigration and Asylum Act 2002. In MN & KN v Hackney London Borough Council [2013] EWHC 1205 (Admin) the local authority had refused to accept that two children of Jamaican nationals illegally present in the UK were relevantly in need because their parents had declined to provide information despite contenting there were about to become homeless, particularly in respect of how the family had survived in the UK since 2001 and what assistance was available to them. Leggatt J held that the investigations had been proper and the decision rational in the circumstances of non-cooperation. Until the authority had assessed the children as being in need, no s.17 duty arose and no accommodation could be provided.

Where an individual has obtained an assessment under s.17 which has found that the child is not in need because the family is staying with friends, and the family subsequently is accommodated on a day-to-day basis by a charity, a local authority is obliged to carry out a fresh assessment. This obligation does not cease when the Secretary of State provides accommodation under the Immigration and Asylum Act 1999 where it is arguable that that accommodation did not meet the needs of the child: R (ES) v Barking and Dagenham London Borough Council [2013] EWHC 691 (Admin).

In R (Ezeh) v Barking and Dagenham London Borough Council (QBD, Admin, unreported, 12 April 2013) Elisabeth Laing QC, sitting as a Deputy, granted an interim injunction prohibiting the withdrawal of accommodation by the local authority from a Nigerian mother and son. The authority argued that the claimant was an asylum seeker and that responsibility consequently fell on the Secretary of State. The UKBA had indicated both that it had no record of an asylum application and that one had been made. The Court held that the dispute could not be resolved prior to disclosure and that the existing position should be maintained. If it turned out that the authority had not been obligation to accommodate the claimant, the Secretary of State was expected to reimburse the authority.

Legislation

The provisions of the Localism Act 2011 (in Part VII, Chapter 6) enabling tenants to raise complaints with the Housing Ombudsman were brought into force on 1 April 2013 by the Localism Act 2011 (Commencement No.2 and Transitional Provisions) Order 2013 (SI 2013/722).

The provisions of the Localism Act 2011 (Part VII, Chapter 3) abolishing the Housing Revenue Account subsidy system will be brought into force on 1 October 2013 by the Localism Act 2011 (Commencement No.9) Order 2013 (SI 2013/797).

The new First-tier Tribunal (Property Chamber) is moving closer to existence. On 1 July 2013 it will take over the jurisdictions of the Residential Property Tribunal, the Leasehold Valuation Tribunal, the Rent Tribunal, the Rent Assessment Committee, the Agricultural Land Tribunal and the Adjudicator to the Land Registry. These changes were supported by the Transfer of Tribunal Functions Order 2013 (SI 2013/1036) and the Amendments to Schedule 6 of the Tribunals, Courts and Enforcement Act 2007 Order 2013 (SI 2013/1034). See also: the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal (Amendment) Order 2013 (SI 2013/1185); the First-tier Tribunal and Upper Tribunal (Chambers) (Amendment) Order 2013 (SI 2013/1187); and the Tribunal Procedure (Amendment No.3) Rules 2013 (SI 2013/1188). All come into force on 1 July 2013.

 

Leisure

June 3rd, 2013 by James Goudie KC in Environment, Highways and Leisure

What is the relationship between judicial review and the intervention powers of the Secretary of State (“the SoS”) in relation to changes in local library provision? On 31 May 2013 the SoS announced her decisions not to direct Inquiries under the Museum and Libraries Act 1964 into such changes in the Isle of Wight and in Bolton.

The SoS stated the Principles as follows:-

“The Secretary of State has considered the duty of a local authority to provide a comprehensive and efficient service under section 7 of the 1964 Act. What constitutes a comprehensive and efficient service is a question involving a significant element of judgement. Those judgements are, in the first instance, for the local authority to make. It has good knowledge of local conditions and needs and has direct democratic accountability to the local population. This is a significant factor. The Secretary of State’s view is that decisions about local issues should ordinarily be taken by democratically elected local representatives accountable to local voters. The duty of the Secretary of State is one of superintendence. A wide range of approaches were open to the local authority when deciding how to provide a comprehensive and efficient library service. The Secretary of State also notes that the local authority is entitled to take account of cost in deciding whether a proposal is efficient.

The Secretary of State seeks to promote and secure the proper discharge of the statutory duties on local authorities.  She has power to direct a local inquiry. Her approach in deciding whether she is minded to intervene to direct an inquiry has been to ask herself whether, having regard to the duties on her and the local authority, there is good reason in all the circumstances for her to direct an inquiry at the present time.

In taking that decision, the Secretary of State has given consideration to a number of factors. They include:

  • Whether there is any serious doubt or uncertainty as to whether the Council is (or may cease to be) complying with its legal obligation to provide a comprehensive and efficient library service.
  • Whether the Council appears to be acting in a careless or unreasonable way.
  • Whether the decision is or may be outside the proper bounds of the Council’s discretion, such as a decision to stop serving a particularly vulnerable group.
  • Whether the Council, has failed to explain, analyse or properly justify its proposals.
  • Whether the local proposals are likely to lead to a breach of national library policy.
  • Whether substantial further investigation is needed. A local inquiry would be more likely to be appropriate in a case where there are substantial uncertainties as to compliance with the statutory duty, and inadequate public consultation and discussion of proposals.  The converse is also true.
  • The advantages of local decision making by democratically accountable local representatives.
  • The cost and delay of an inquiry.
  • Whether there is any further good reason why a local inquiry would be appropriate or inappropriate.

The Secretary of State has also borne in mind that too ready an intervention would risk preventing or discouraging prompt and efficient reforms of library services. Equally, failing to intervene in an appropriate case would risk the delivery of an efficient and comprehensive service.”

There were two particular features in the case of the Isle of Wight.

First, as regards community libraries, the SoS said:-

“For the purposes of her assessment as to whether to order a local inquiry, the Secretary of State has based her view solely on the council run libraries, and the mobile library service.  The community libraries have not been taken into account, although they appear to be successful and to form an important part of Island life.  Accordingly, if the community service were to be taken into account, it would only reinforce the Secretary of State’s view.”

Second, the SoS noted that a claim for judicial review of the changes failed, and that permission was refused on grounds not only that there had been delay in bringing the claim, but also that, in any event, the claim was not of sufficient merit to justify the grant of permission.  She said:-

“In the view of the Secretary of State it is clear that the Isle of Wight continues to offer a comprehensive and efficient library service through its core libraries and mobile library service.  The Secretary of State has taken into account that the Court has decided that the changes were lawful (and it was unarguable to suggest the contrary).”

 

Rates

June 3rd, 2013 by James Goudie KC in Council Tax and Rates

Premises will be “wholly or mainly used for charitable purposes”, for the purposes of assessing whether a registered  charity is entitled under Section 43(6)(a) of the Local Government Finance Act 1988 to mandatory charitable relief from non-domestic rates only if the charity makes extensive use of the premises for charitable purposes.  In Public Safety Charitable Trust v Milton Keynes Council [2013] EWHC 1237 (Admin) Sales J held that merely some charitable use of the premises was not enough, following Kenya Aid Programme v Sheffield City Council [2013] EWHC 54 (Admin).

 

Leisure

May 31st, 2013 by James Goudie KC in Environment, Highways and Leisure

The costs of enforcing a licensing system (of sex establishments) against unlicensed operators (who may not have applied for authorisation) cannot be reflected in licence fees charged by a local authority (under the Local Government (Miscellaneous Provisions) Act 1982).  So the Court of Appeal has held in Hemming v Westminster City Council [2013] EWCA Civ 591, upholding Keith J.  This is because such costs are not (proportionate) costs of “authorisation procedures and formalities” under an “authorisation scheme”.  They are therefore prohibited by the EU Services (in the Internal Market) Directive and the Provision of Services Regulations 2009, SI 2009/2999.  In order to justify a (licence) fee or charge it has to be shown that it is related to the cost of the actual authorisation process: Beatson LJ at para 84.  The Court rejected (para 98) the “consequentialist arguments” about the effect on other regulated areas advanced by the Council in support of its construction.  The Court, however, accepted (para 103) that not only can costs in investigating the suitability of an applicant be reflected in the fee, so too, in the case of an application to renew a licence, can be the costs of monitoring the applicant’s continued suitability and compliance with the licence terms.  Enforcement against licensed operators is to be distinguished from enforcement against unlicensed operators.

 

Rates

May 31st, 2013 by James Goudie KC in Council Tax and Rates

Does the fact that no more than a minute fraction of the area encompassed within premises is used (by the presence of blue-tooth apparatus) prevent occupation being rateable occupation?  No, holds Wilkie J in Sunderland City Council v Stirling Investment Properties Ltd [2013] EWHC 1413 (Admin).  Wilkie J further holds, applying Arbuckle Smith v Greenock Corporation [1960] AC 813, that it is not relevant, for the purpose of rateable occupation, that the nature of the use to which the hereditament is put is different than that which was described in the rating list. There is nothing in the legislation which limits the ability of a local authority to levy rates to occupation for a purpose which is identical to the description of the hereditament in the rating list. The issue of any apparent disconnect between the nature of the occupation of an hereditament and its description in the rating list is a matter for the valuation officer to address if he thinks that a new, or additional, hereditament may have been brought into existence.

 

Local Authority Powers

May 20th, 2013 by James Goudie KC in Local Authority Powers

Should Birmingham City Council have been granted an Injunction, with a power of arrest attached, restraining an individual from entering a prescribed area of the City, save for certain limited purposes, and from associating with 19 named persons or gathering with them in any public place within the City, and ordering him to undertake prescribed activities?  That was the issue that went from the Birmingham County Court to the Court of Appeal in Birmingham City Council v James [2013] EWCA Civ 552, in which Judgment was given on 17 May 2013.

The factual background was as follows.  For some time Birmingham and some other major cities have suffered from the activities of urban street gangs composed of large numbers of young men. In most cases the gangs are identified by the particular neighbourhoods in which they are based and which they regard as their own territory. Street gangs are responsible for a large amount of crime, particularly violent crime and crime involving drugs and the use of firearms. Violence of a very serious kind, including the use of automatic weapons, is liable to break out when one gang invades the territory of another or when one gang takes reprisals for actual or perceived slights by another.

The legal background is as follows. In the past the Council has attempted to make use of its powers under Section 222 of the Local Government Act 1972 in order to disrupt the activities of gangs by obtaining Injunctions restraining individual gang members from entering parts of the city and associating with other gang members. However, in Birmingham City Council v Shafi [2008] EWCA Civ 1186, [2009] 1 WLR 1961 the Court of Appeal held that Section 222 did not give local authorities substantive powers but was merely procedural in nature, allowing them to exercise powers formerly vested only in the Attorney General. The Court held that although it is possible in some circumstances to obtain an Injunction to prevent a breach of the criminal law, the appropriate way to obtain relief of the kind sought in that case was for the local authority to apply for an ASBO.  The provisions in Part 4 of the Policing and Crime Act 2009 were enacted in response to the Court’s decision in Birmingham City Council v Shafi. Section 34 gives the Court power, on the application of chief constables or local authorities, to grant Injunctions prohibiting the persons to whom they are addressed from acting in ways that would promote gang-related violence or requiring them to act in certain ways, including undertaking prescribed activities.

The Court of Appeal upheld the Injunction.

Moore-Bick LJ said:-

“11.       I do not think it helpful to introduce the concept of mens rea into section 34(2). Although the section is clearly directed primarily to deliberate conduct amounting to participation in, or encouragement of, gang-related violence, it is possible that in some, no doubt unusual, cases it could be held to apply to certain kinds of conduct which could be said to amount to inadvertent encouragement. However, the question does not arise in this case and it is neither necessary nor desirable to explore precisely where the boundary lies.  …”

“13.       … Following the decision of this court in Birmingham City Council v Shafi, in which the view was expressed that an ASBO, rather than an injunction in support of the criminal law, was the appropriate means by which to restrain the defendant from taking part in gang-related violence, Parliament enacted Part 4 of the Policing and Crime Act 2009, which makes specific provision for the granting of injunctions for that purpose. There can be no doubt, therefore, that Part 4 represents Parliament’s considered response to the particular problem of gang-related violence. Although some kinds of gang activity may be classified under the generic description of anti-social behaviour, section 1(1) of the Crime and Disorder Act 1998 was not enacted with a view to dealing specifically with the consequences of gang culture. It is much broader in nature and is apt to apply to anti-social behaviour of all kinds. Section 34, as its terms indicate, is aimed at a particular kind of mischief and the choice of the civil standard of proof appears to have been a deliberate response to the view expressed by the majority in Birmingham City Council v Shafi about the appropriate standard of proof in proceedings for an injunction of the kind that the Council was seeking. In those circumstances I do not think it can possibly have been the intention of Parliament that when considering whether it is necessary to grant a gang injunction the court should ask itself whether an ASBO would provide an adequate remedy. If the condition in subsection (2) is satisfied, it is sufficient that the court consider whether it is necessary to impose a restriction on the respondent’s activities to achieve one or other of the purposes set out in subsection (3). The judge held that if the defendant’s conduct fell within both pieces of legislation the Council could make an application under whichever it considered the more convenient or appropriate. In principle I think that is right, but in any event I am unable to accept that an application under section 34 was inappropriate. …”

 

Land

May 13th, 2013 by James Goudie KC in Land, Goods and Services

From 25 June 2013 the Secretary of State will be able to give a General Consent to local authorities to dispose, for less than the best consideration reasonably obtainable, of land held for planning purposes, when the Growth and Infrastructure Act 2013 (No. 1) Commencement Order, SI 2013/1124 (C.49) brings into force, in relation to England, Section 8 of the Act, which amends Section 233 of the Town and Country Planning Act 1990.  Section 8 also extends to such disposals the protection for purchasers contained in Section 128 of the Local Government Act 1972.

 

Non Judicial Control

May 13th, 2013 by James Goudie KC in Non Judicial Control

Following the Queen’s Speech, the Local Audit and Accountability Bill (“the Bill”) was introduced in the House of Lords on 9 May 2013.  The effect of the Bill would be to abolish the Audit Commission and to establish new arrangements for the audit and accountability of local public bodies (or “relevant authorities” as set out in Schedule 2 to the Bill) in England.  The Bill also amends the legislative framework under the Localism Act 2011 for council tax referendums, to provide that increases set by levying bodies are taken into account when local authorities determine whether they have set an excessive amount of council tax each year. It also contains measures relating to local authority compliance with the Code of Recommended Practice on Local Authority Publicity.

The Bill consists of seven Parts and 13 Schedules.  Part 1 (Clause 1 and Schedule 1) provides for the abolition of the existing audit regime.

Part 2 sets out basic requirements and concepts.  Clause 3 imposes a requirement to keep accounting records and to prepare an annual statement of accounts, which must (Clause 4) be audited.

Part 3 imposes a requirement (Clause 7) to impose an external and independent auditor on the advice (Clauses 8 and 9) of an independent auditor panel (Clause 10) and to publish information about the appointment.  Clauses 14 and 15 relate to limitation of auditor liability; and Clause 16 to resignation and removal of an auditor.

Part 4 relates to eligibility and regulation of local auditors.

Part 5 is concerned with the role and conduct of local auditors. The scope of the audit is set out in Clauses 19 and 20, and largely replicates existing provisions in the Audit Commission Act 1998. Clause 18 and Schedule 6 set out the role of the Comptroller and Auditor General of the National Audit Office in setting the audit standards through codes of audit practice and guidance. Clauses 23 to 30 set out the additional duties of local auditors in undertaking audits of relevant authorities, retaining the current roles in, for example, reporting in the public interest when necessary or taking questions and objections from local government electors.  By virtue of Clause 21 a local auditor has a right of access to documents and information that relate to the relevant authority and are necessary for the purpose of the auditor’s functions under the Bill. The auditor may also require persons to provide information or explanations. Under Clause 22 a person who obstructs that access or fails to comply with a requirement (without reasonable excuse) commits an offence. Clause 25 makes provision about the inspection of accounting records and any documents supporting those records. The Court of Appeal in Veolia ES Nottinghamshire Ltd -v- Nottinghamshire CC [2010] EWCA Civ 1214 found in respect of the forerunner to this provision (Section 15 of the Audit Commission Act 1998) that it should be read down so as to exclude from that right confidential information unless its disclosure was justified in the public interest so as to ensure the provision was compatible with ECHR. Clause 25 therefore makes express provision in this regard. Information may not be disclosed if its disclosure would prejudice commercial confidentiality and there is no overriding public interest in favour of its disclosure.

Part 6 of the Bill is concerned with data matching.  Apart from transferring the power to conduct data matching exercises from the Audit Commission to the Secretary of State or the Minister for the Cabinet Office, the data matching powers set out in Schedule 9 (which is given effect to by Clause 32) are largely the same as the provisions inserted into the Audit Commission Act 1998 by the Serious Crime Act 2007.

Part 7 of the Bill contains miscellaneous and supplementary provisions. These include Clause 38, relating to local authority publicity, and Clause 39, relating to council tax referendums.  Clause 38 amends the Local Government Act 1986 to provide the Secretary of State with the power to give directions requiring one or more local authorities in England to comply with one or more of the recommendations made in a code of practice issued under Section 4 of that Act (a Code of Recommended Practice on Local Authority Publicity). A direction could apply to a single named authority, to a number of named authorities, to all authorities in a particular class, or to all authorities to which the code applies. It also sets out the procedures to be followed prior to making a direction and for the withdrawal or modification or withdrawal of a direction. Clause 39 amends Chapter 4ZA of Part 1 of the Local Government Finance Act 1992 to include the cost of levies within a billing or major precepting authority’s calculation of whether its council tax is excessive, and so requires a council tax referendum to be held. In effect, this means amending the meaning of “relevant basic amount of council tax” which is the primary trigger for council tax referendums from the current definition which excludes levies, to one that includes levies.  Clause 38 comes into force 2 months after the Act is passed.  Clause 39 comes into force on the day the Act is passed.

 

Leisure

May 7th, 2013 by James Goudie KC in Environment, Highways and Leisure

The Growth and Infrastructure Bill has received the Royal Assent (“the 2013 Act”).  Section 16 of the 2013 Act will amend the law on the registration of new town and village greens under Section 15(1) of the Commons Act 2006 (“the 2006 Act”).  It does this by inserting new provisions –Section 15C and Schedule 1A into the 2006 Act – which exclude the right to apply to register land as a green when any one of a number of events, known as ‘trigger events’, have occurred within the planning system in relation to that land. The trigger events are prescribed by Schedule 1A to the Commons Act 2006. For example, where an application for planning permission is first publicised then the right to apply to register that land as a green is excluded. Decisions regarding whether land should be developed or not will be taken within the planning process.

The new Section 15C(2) of the Commons Act 2006 provides for ‘terminating events’, which are also set out in new Schedule 1A to that Act. If a terminating event occurs in relation to the land in question, then the right to apply for registration of a green under Section 15(1) is again exercisable. For example, if the right to apply to register land has been excluded because an application for planning permission has been publicised, the right to apply for registration of the land as a green again becomes exercisable if planning permission is refused and all means of challenging that refusal have run their course.

The change takes effect from 25 April 2013, and affects applications under Section 15(1) of the Commons Act 2006 made on or after that date.  Applications made before that date are unaffected.

The 2013 Act makes two other amendments directly related to the law on town and village greens.  First, Section 14 of the 2013 Act amends Section 15(3)(c) of the 2006 Act, which  applies where recreational use of land as of right has ceased before an application is made.  This change will come into force on a date to be appointed by Order. Second, there is the introduction of Landowner Statements, which bring to an end recreational use as of right on the land to which the Statement relates, through new Sections 15A and 15B of the Commons Act 2006 (as inserted by Section 15 of the 2013 Act). Section 15A makes provision for the deposit of Landowner Statements as well as accompanying maps.  Section 15B provides for certain information relating to such deposits to be recorded on a publicly available register.  These provisions will come into force on a date to be appointed by Order, and will be supported by Regulations.

DEFRA has issued Interim Guidance to Commons Registration Authorities on Section 15C of the Commons Act 2006, the exclusion of the right to apply under Section 15(1) to register new greens.

 

Environmental Impact Assessments and Enforcement Action

May 2nd, 2013 by Heather Emmerson in Planning and Environmental

Two judgments delivered this week address the relationship between the enforcement regime under the Town and County Planning Act 1990 and the requirements imposed on developers to provide environmental information and on local authorities to undertake an Environmental Impact Assessment (“EIA”). The cases address i) whether a local authority is required to commence enforcement action where an EIA development was not supported by the grant of planning permission and ii) whether immunity from enforcement action following a change of use in the absence of an environmental impact assessment is incompatible with EU law. Both questions were answered in the negative.

No duty to take enforcement action and effect of delays in providing an environmental statement

In R (Baker) v Bath and North East Somerset [2013] EWHC 946 (Admin) Kenneth Parker J held that a local planning authority was not under a duty to issue an enforcement notice wherever a development which required an EIA was unsupported by a grant of planning permission which had properly taken into account environmental information.

The claimant lived near a waste composting site which had been operated in breach of planning conditions and later without planning permission. An application for planning permission was made and following a screening opinion, the authority determined that the development required an EIA. Because the application related to EIA development, permission could not be granted without prior consideration of environment information (including an environmental statement) – see the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, regulation 3(2). An inadequate environmental statement was provided by the developer, following which the local authority gave the developer a number of months to produce an adequate statement of environmental information in order to avoid the issuing of an enforcement notice.  The claimant argued that on receipt of the secretary of state’s screening decision, the local authority had been legally obliged to issue an enforcement notice and further had been wrong to allow the developer further time to present an environmental statement.

Kenneth Parker J held that EU law principles did not impose a duty on the local authority to immediately issue an enforcement notice wherever there was EIA development unsupported by a grant of planning permission which had properly taken account of environmental information, holding that such a position was “extreme”. Citing the case of Ardagh Glass Ltd v Chester City Council [2010] EWCA Civ 172, he held that the grant of retrospective planning permission in respect of an EIA development was permissible if there were exceptional circumstances, which the judge interpreted to mean that a particularly compelling case must be made out for retrospective permission. This was inconsistent with the alleged duty to commence enforcement action.

In relation to the delay in providing environmental information, it was held that allowing the developer a period of ten months to present an adequate environmental statement was close to running the risk of being incompatible with EU. However, in circumstances where there was a real probability that the developer would present a compliant statement by the new deadline the local authority had reached a fair, reasonable and proportionate decision.

Sufficiency of environmental statement and immunity from enforcement action

In R(Evans) v Basingstoke & Deane Borough Council [2013] EWHC 899 (Admin), Stadlen J held that immunity from enforcement action conferred by s.171B of the Town and Country Planning Act 1990 was not incompatible with the requirement in Directive 85/337, Article 2(1) which required a change of use at a site which had significant environmental effects to be subject to  an EIA.

The claimant challenged the grant of planning of planning permission for the development and expansion of a watercress farm and salad packaging plant within an AONB on the basis that it would lead to increased pollution and road use. The claimant argued, inter alia, that i) the authority was in breach of Directive 85/337 and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 by failing properly to obtain environmental impact information and  ii) statutory immunity from enforcement action conferred by the Town and Country Planning Act 1990 s.171B was incompatible with art.2(1) of the Directive and ought to be disapplied.

The Court relied on the principle established in R (on the application of Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin) that the adequacy of an environmental statement was a matter for the Council subject to review on Wednesbury principles. Stadlen J held that the local authority had not been Wednesbury unreasonable in concluding that an environmental statement and an addendum were adequate and satisfied the requirements of EU law – the adequacy of the environmental statement was for the local authority, not the court, to determine. Further, it was unrealistic to expect an environmental statement to contain “full information” and given the entitlement to request further information, it would be rare for an assessment to be classed as so deficient that it fell short of constituting a proper assessment.

Further, the court rejected the claimants’ argument that the local authority had misdirected itself in concluding that the site’s industrial element was likely to be immune from enforcement by virtue of acquired immunity under s.171B. The claimant argued that if the Council had served an enforcement notice within the ten year limitation period stating that the existing use was a breach of planning control, the developer could have appealed to the Secretary of State on the ground that planning permission should be granted for the use.  Such an appeal would have given rise to a deemed application for planning permission under section 177(5) which the Secretary of State would have had to decide, requiring the Secretary of State to determine whether the existing use was development requiring an EIA. To do that, the Secretary of State would have made a screening direction, and if the use was likely to give rise to a significant environmental effect, an environmental statement would need to be produced. However, the effect of immunity under section 171B is that none of these steps may be required. However, the Court held that s.171B was not incompatible with the obligation in art.2(1) of the Directive to ensure that a change of use at the site should be subject to an environmental impact assessment. Section 171B was a procedural rule rather than a substantive rule and satisfied the principle of equivalence and effectiveness, did not make reliance on the Directive impossible or excessively difficult, and was reasonable and justifiable by reference to the principle of legal certainty.

 

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