Locating of mobile home on land in green belt.

Citations:

[2005] EWHC 729 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Planning

Updated: 17 May 2022; Ref: scu.224487

The material considerations to be allowed for by the local authority in exercising its planning functions are considerations of a planning nature, ‘all considerations relating to the use and development of land are considerations which may, in a proper case, be regarded as planning considerations’. Though a private individual may not have any right of action against the local authority they can take his interests into account. Whether a particular consideration is material in a particular case will depend on the circumstances.

Judges:

Cooke J

Citations:

[1970] 1 WLR 1281

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Lam and Others (T/a ‘Namesakes of Torbay’) and Borough of Torbay CA 30-Jul-1997
The claimant sought damages after the planning authority allowed the first defendant to conduct a manufacturing business in the course of which spraying activities took place which caused them personal injuries and loss of business.
Held: The . .
Approved – Newbury District Council v Secretary of State for the Environment HL 1980
Issues arose as to a new planning permission for two existing hangars.
Held: The appeal succeeded. The question of the validity of conditions attached to planning permissions will sometimes be a difficult one. To be valid, a condition must be . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Cherkley Campaign Ltd, Regina (on The Application of) v Longshot Cherkley Court Ltd Admn 22-Aug-2013
The campaign company sought judicial review of a decision by the respondent granting permission to develop nearby land as a golf course.
Held: The application succeeded. The Secretary of State in preserving the effect of certain policies had . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 17 May 2022; Ref: scu.225324

Following Seddon properties, when considering the degree of detail to be given by an inspector in his decision notice: ‘The inspector is not writing an examination paper . . One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy . .’

Judges:

Hoffmann LJ

Citations:

[1993] 1 PLR 80

Jurisdiction:

England and Wales

Citing:

Cited – Seddon Properties Ltd v Secretary of State for the Environment 1978
The court considered the degree of detail to be provided in a decision notice: ‘Since the courts will only interfere if he acts beyond his powers (which is the foundation of all the above principles), it is clear that his powers include the . .

Cited by:

Cited – South Buckinghamshire District Council and Another v Porter (No 2) HL 1-Jul-2004
Mrs Porter was a Romany gipsy who bought land in the Green Belt in 1985 and lived there with her husband in breach of planning control. The inspector gave her personal permission to continue use, and it had been appealed and cross appealed on the . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 16 May 2022; Ref: scu.198569

The court asked whether the four year enforcement rule applied in respect of subdivision of a larger building to create single dwelling houses or applied only in the case of conversion of a single building to single dwelling houses.
Held: It applies to subdivision. The concept of the planning unit has no part to play in a case where there has been a change from use as a single dwellinghouse to use as two or more separate dwellinghouses within section 55(3)(a).
Simon Brown LJ said: ‘Having considered those competing submissions at some length he [the Lord Justice] had reached the conclusion that the concept of the planning unit in fact afforded no assistance to either side . . As stated, the purpose of the concept-the only point in deciding upon the appropriate planning unit-was to decide whether or not there had been a material change of use. Here undoubtedly there had been-section 55(3)(a) so declared. There was accordingly no possible need to invoke the doctrine of the planning unit to decide the question. Here, moreover, it was the very act of creating two separate units of occupation out of a single pre-existing unit which constituted the making of the material change of use. How inappropriate, therefore, that one should seek assistance from a doctrine substantially founded on units of occupation to illuminate the nature of the breach of planning control in question or to determine the appropriate target for enforcement. In short, none of the planning unit cases had any application whatever to the situation presently confronting this court.’

Judges:

Simon Brown, Dillon and Farquharson LJJ

Citations:

[1993] JPL 565, [1993] 1 PLR 124

Statutes:

Town and Country Planning Act 1990 55(3)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – T A J Moore v The Secretary of State for the Environment, The New Forest District Council Admn 25-Oct-1996
The applicant sought to quash an enforcement notice, regarding a change of use from residential to mixed residential and holiday accommodation. The change had taken in respect of several units over a long period of time. The inspector sought to . .
Cited – Moore v Secretary of State for Environment and New Forest District Council CA 18-Feb-1998
The outbuildings of a large country house had been converted into ten single self-contained units of residential accommodation for the purpose of holiday lettings. Nine of the units were in use by May 1991. In May 1995 the local planning authority . .
Cited – Secretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 16 May 2022; Ref: scu.181819

The applicant submitted three plans for motorway service areas. Each was in the green belt. The inspector rejected two, but referred the first for further consideration. The decision was confirmed by the respondent. The appellant contended that that it was unreasonable to make a final decision rejecting the alternative when the referral had not been completed. The court held that the three applications were not interlinked. The plans rejected had been properly considered, and the inspector’s decision was thorough and complete. The secretary of state’s decision letter did not need to repeat the observations of the inspectors report.

Judges:

Rich QC J

Citations:

Gazette 20-Sep-2001

Statutes:

Town and Country Planning Act 1990 288

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Environment ex parte Kent and Others 1991
Pill J disussed the rationale behind the efficacy of the provision in the Town and Country Planning Act: ‘There is an obvious public interest in certainty and finality when planning permissions which attach to the land concerned are granted.’
. .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 16 May 2022; Ref: scu.166158

Application for judicial review of policy guidance issued by the Environment Agency setting out its interpretation of certain provisions in Schedule 3 to the Environmental Permitting (England and Wales) Regulations 2016. Under the regulations, hereafter referred to as ‘the EPR’, persons engaged in certain activities involving waste products are required to hold an environmental permit.

Citations:

[2019] EWCA Civ 157

Links:

Bailii

Jurisdiction:

England and Wales

Planning

Updated: 16 May 2022; Ref: scu.633438

Listed building consent

Judges:

McCombe, Hickinbottom, Coulson LJJ

Citations:

[2018] WLR(D) 752, [2018] EWCA Civ 2619

Links:

WLRD, Bailii

Jurisdiction:

England and Wales

Planning

Updated: 16 May 2022; Ref: scu.630702

A building had been erected under permission for a ‘weekend and holiday chalet’. In response to an enforcement notice served in relation to an extension to it, the Appellant submitted that the extension was permitted development because the building was in truth a dwelling-house.
Held: Whether it was or was not a dwelling-house was a question of fact. A building that should be described as a ‘dwelling house’ if it ordinarily affords the facilities required for day-to-day existence.’
McCullough J observed: ‘In using a simple word in common usage and leaving it undefined, Parliament realistically expected that, in the overwhelming majority of cases, there would be no difficulty at all in deciding whether a particular building was or was not a dwelling-house. The use in a statute of almost any word in common usage may give rise to difficulties of interpretation in a very small number of cases, but the problems are both fewer and less troublesome than those that are apt to result when the statute defines the word. The good sense of this is such that I do not intend to resolve the issue that arises in this appeal by attempting to define what Parliament left undefined.
The more helpful approach, in my opinion, is to consider a number of buildings that quite clearly are dwelling-houses and others that equally clearly are not and to see whether this throws up any indication of what ought and what ought not to be taken into account.
Consider a building that anyone would acknowledge was a dwelling-house. If it is not being lived in because, for example, the occupants are on holiday or because they have two houses and spend half the year in each, it remains a dwelling-house. Take a common situation where a family has a second house in the country that is only visited at weekends, in the summer months and for a summer holiday. That is clearly a dwelling-house. So the intention to use one’s house, or the practice of using it throughout the year, is not essential.
If a house is empty pending its sale or because its owner cannot, or does not want, to let it, it is still a dwelling-house. So emptiness is not fatal.
If it cannot be occupied because it is flooded, or is undergoing extensive repair, it is still a dwelling-house. So, too, a second home in a remote mountainous district, cut off by snow every winter. So an ability to use it whenever one wants is not an essential either.
Suppose that there is a national emergency and an order is made prohibiting the use of houses in a particular area for the duration of the emergency: they would nevertheless remain dwelling-houses. So even an inability to use a house lawfully does not necessarily prevent it from being a dwelling-house.
Leaving aside extraordinary events like floods and national emergencies and repairs so extensive that the occupant has to move out, is it a characteristic of every dwelling-house that the owner or occupier could live in it permanently if he wanted to? I think not . .
Mr Aitchison has emphasised the ‘dwelling’ in ‘dwelling-house’ and has stressed that to dwell is to remain or reside. Comparatively few of those living in the buildings last mentioned ordinarily stay for long enough to be regarded as residing there. He submits, therefore, that a capacity to provide permanent accommodation is the essential character of a dwelling-house.
In my judgment, however, its more distinctive characteristic is its ability to afford to those who use it the facilities required for day-to-day private domestic existence.
Whether a building is or is not a dwelling-house is a question of fact. In Scurlock v Secretary of State for Wales, the Secretary of State had to decide whether a building that was used partly for residential purposes and partly for business purposes was a ‘dwelling-house’ within the meaning of the Town and Country Planning General Development Order 1973. He adopted a factual approach, and the Divisional Court held that that was right.’

Judges:

McCullough J

Citations:

[1984] P and CR 142

Cited by:

Approved – Moore v Secretary of State for Environment and New Forest District Council CA 18-Feb-1998
The outbuildings of a large country house had been converted into ten single self-contained units of residential accommodation for the purpose of holiday lettings. Nine of the units were in use by May 1991. In May 1995 the local planning authority . .
Cited – Moore v Secretary of State for Communities and Local Government and Another CA 18-Sep-2012
An enforcement notice had been issued alleging an unlawful change of use without planning permission of the Appellant’s property from a C3 dwelling to use as commercial leisure accommodation. . .
Cited – Moore v Secretary of State for Communities and Local Government and Another CA 18-Sep-2012
An enforcement notice had been issued alleging an unlawful change of use without planning permission of the Appellant’s property from a C3 dwelling to use as commercial leisure accommodation. . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 16 May 2022; Ref: scu.559398

Sullivan J rejected an argument that the Secretary of State should have deferred to an Inspector’s judgment as to the merits of a planning application, the Inspector having had a personal viewing of the site. He said: ‘Mr Katkowski referred to the decision in R (on the application of) Newsmith Stainless v Secretary of State for the Environment Transport and the Regions [2001] EWHC 74 (Admin) in which I referred in para 8 of my judgment to the importance, often the crucial importance in a planning context, of the site [inspection] [a]nd said . . that: ‘maps and paragraphs may be helpful but they are no substitute for a site [inspection. As] those who intend planning inquiries know [only too well, photomontages are often very far from being uncontroversial] when produced in evidence and [photographs] not infrequently contradict the proposition that the camera cannot lie [particularly] when questions of landscape impact are in dispute.’
Mr Katkowski submitted that since the Inspector who had had the benefit of a site visit had concluded that the proposed development would be unlikely to have a harmful impact (see para 186 of the report), the First Defendant was not entitled to reach a different conclusion unless one of her officials had visited the site to ascertain whether a different conclusion could be justified. He accepted that the First Defendant, herself, was not required to visit the site.
I have no hesitation in rejecting this submission as being wholly misconceived. It is one thing to say that an Applicant in s 288 proceedings will have an uphill task in persuading a judge that an Inspector who has seen the site has reached a Wednesbury perverse conclusion on a matter of planning judgment. It is quite another to submit that the Secretary of State is not entitled to disagree with an Inspector’s judgment on the planning merits because she will have been considering plans and photographs, or in some cases photomontages and not personally have visited the site.
The two situations are not at all comparable. The court hearing an application under s 288 is exercising a legal judgment. Was the Inspector’s conclusion so unreasonable as to be unlawful? Whereas, the Secretary of State on appeal under s 78 is exercising a planning judgment. Does she agree or disagree with the views expressed by the Inspector? Subject to giving adequate reasons, she is entitled to disagree with the Inspector on matters of planning judgment, even though she will not have seen the site herself. It is in the nature of recovered appeals that the decision-taker will not have seen the site and will be relying upon the Inspector’s report and the documents, maps photographs etc accompanying the report. In the present case those included not merely the environmental impact assessment, there was also a landscape appraisal and a number of drawings, including a height contour plan and an illustrative masterplan.
Unlike the position in Newsmith Stainless where the Claimant was attempting to introduce new material: photomontages etc, that had not been before the Inspector at the inquiry (see para 9 of the judgment), in the present case the First Defendant was basing her conclusions upon the material that had been provided by the Inspector. All of the detailed concerns expressed in para 32 of the decision letter related to matters which would have been readily apparent from the plans accompanying the Inspector’s report, one of which was included in the court bundle. Based on those detailed concerns the First Defendant was entitled to conclude in para 33 of the decision letter that the proposed flats would not reflect the distinct character of the area (which had been described in some detail in the Inspector’s report) and would detract rather than add to the experience of those living within it. In reaching those conclusions the First Defendant was doing no more than agreeing with one of the Second Defendant’s reasons for contesting the appeal (see para 9 of the Inspector’s report).’

Judges:

Sullivan J

Citations:

[2008] EWHC 2136 (Admin)

Citing:

Cited – Newsmith Stainless Ltd, Regina (On the Application of) v Secretary of State for Environment, Transport and the Regions Admn 1-Feb-2001
Application was made to quash an inspector’s decision.
Held: An inspector’s decision was not to be challenged as to its facts. In any case where the expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness or . .

Cited by:

Cited – Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government and Another Admn 5-Dec-2014
The claimant appealed against refusal of permission to erect a six turbine wind farm. The inspector had recommended the plan, but the defendant had decided against it.
Held: The claim failed. The planning inspector’s report is the . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 15 May 2022; Ref: scu.539762

Where an activity had been continuing without planning permission for 10 years it was no obstacle to obtaining a certificate of lawful use that the activity had been illegal because it had been carried out without a waste management licence. A certificate once granted is conclusive answer to any enforcement notice subsequently issued and is a conclusive answer to any other illegality which may be raised under any other statutory provision.
Pill LJ said: ‘The court is entitled to construe a statute . . in the light of its ability to promote its notions of public policy. The cases do not, however, in my judgment, establish a principle that the plain words of a statute which define what is lawful must be read subject to a proviso that what is criminal cannot be lawful. Section 191, in a systematic way, defines what uses and operations are lawful for the purposes of the Act and states the consequences of achieving that status with specific reference to section 36(2)(a) of the Environmental Protection Act 1990. There is no principle of public policy which requires that the intent of Parliament as expressed in section 191 should be defeated in the manner claimed.’
Chadwick LJ said: ‘Whatever might be the position in other contexts, it is to my mind clear beyond argument that activity which is illegal by reason of contravention of one or other of the regulatory statutes referred to in section 191(7) is not activity which, (for that reason alone) prevents an application being made under section 191(1); or which prevents a local authority from fulfilling the duty imposed upon it by section 191(4). To hold otherwise would be contrary to the plain intention of Parliament when enacting section 191(7) of the Town and Country Planning Act 1990.’
Buxton LJ said: ‘The broad principle of not benefiting from a person’s own illegal acts simply does not fit into the reality of what is being done when planning permission is granted or when a certificate of lawful existing use is granted on the basis of failure to take enforcement action over a period of 10 years; and, in particular, it does not fit, for the reasons that my Lords have given, into the particular case here, which is a case specifically addressed in section 191(7).’

Judges:

Buxton LJ, Pill LJ, Chadwick LJ

Citations:

[2002] Env LR 2

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Epping Forest Borough Council ex parte Philcox Admn 29-Jan-1998
The claimant sought permission to bring a judicial review of the respondent’s decision to grant a certificate of lawful use. . .
See Also – Regina v Epping Forest District Council ex parte Philcox Admn 18-May-1999
Application seeking leave to apply for judicial review of a decision by Epping Forest District Council, dated 2nd July 1998, to issue a certificate of lawfulness of an existing use. . .
Appeal from – Regina v Epping Forest District Council, ex parte Philcox (2) Admn 13-Apr-2000
Application for judicial review of the respondent’s decision to grant a certificate of lawful established use. The applicant submits that the respondent acted unlawfully because the person who made the successful application had been committing . .

Cited by:

Cited – Taff v Highway Agency UTLC 10-Jul-2009
UTLC COMPENSATION – compulsory purchase – preliminary issue – valuation of land with lawful use certificates and planning permission – claimant operating without necessary waste management licence – Land . .
Cited – Secretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 15 May 2022; Ref: scu.431891

Citations:

(1978) 39 P and CR 46

Cited by:

Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 15 May 2022; Ref: scu.414946

The actual date of service of an enforcement notice under the Town and Country Planning Act 1962 was not material because the notice only took effect on the date stated in it, namely 1st July with 28 days from then for compliance. The date of posting and indeed the date of service itself did not cause time to begin to run.

Citations:

[1966] 1 WLR 1085

Statutes:

Town and Country Planning Act 1962

Jurisdiction:

England and Wales

Cited by:

Cited – Immigration Advisory Services v Oommen EAT 19-Mar-1997
The claimant had been ordered to pay a deposit as a condition of being allowed to proceed with the claim which the tribunal had judged to have no reasonable prospect of success. The claim was struck out after the tribunal had been wrongly told that . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 15 May 2022; Ref: scu.347417

Judges:

Mr Justice Davis

Citations:

[2006] EWHC 558 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Planning

Updated: 15 May 2022; Ref: scu.240069

The claimant sought judicial review of the decision of the respondent to grant planning permission to Tescos to extend their supermarket.
Held: Review was refused. The application succeeded on one of the four grounds claimed, but that defect in the decision making process was insufficient to justify setting the permission aside. The officers had not sufficiently clearly interpreted the local and national planning policies as to how they impacted on the applications, and in particular whether a refusal would act as a disincentive to the planning applicants.

Judges:

Wilkie J

Citations:

[2012] EWHC 3744 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Tesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Cited – Tesco Stores Ltd v Dundee City Council SC 21-Mar-2012
The company challenged the grant of planning permission for a competitor to open a new supermarket within 800 metres of its own, saying that the Council had failed to apply its own planning policies, which required preference of suitable sites not . .
Cited – Salford Estates [No 2] Ltd, Regina (on The Application of) v Dalton Park Ltd and Others Admn 19-Sep-2012
The court was asked whether the town of Peterlee could truly accommodate four large retail stores.
Held: The claim for review was rejected.
Richardson QC Judge said: ‘It is also a paradigm of the system of planning control in England and . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 15 May 2022; Ref: scu.467640

Lloyd LJ said that it has usually been regarded as axiomatic that planning consent cannot be bought or sold. Conditions requiring off-site roadway benefits were unreasonable and it was suggested that it would make no difference if they were included in a section 106 agreement.
The developer’s agreement is a significant factor (albeit not automatically controlling) in determining the reasonableness issue, but the mere agreement of the parties does not make a ‘manifestly unreasonable’ condition permissible: ‘The fact that the applicant has suggested a condition or consented to its terms is, of course, likely to be powerful evidence that the condition is not unreasonable on the facts, since, as in the case of any commercial transaction, the parties are usually the best judges of what is reasonable. So I do not think there is likely to be any great rush of cases in which the developer obtains planning permission by consenting to a condition, and then appeals successfully against the imposition of the condition to the Secretary of State on the grounds that it is manifestly unreasonable. A successful appeal in such circumstances is likely to be rare.’

Judges:

Lloyd LJ

Citations:

(1986) 53 P and CR 55, [1986] 1 EGLR 199

Jurisdiction:

England and Wales

Cited by:

Cited – Tesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 15 May 2022; Ref: scu.374714

The issue on this appeal is what it takes in a development plan document to identify land for potential development. If land is so identified, the right to apply for registration of a town or village green is suspended.
Lewison LJ said of these amendments: ‘Ever since the Trap Grounds case . . the courts have adopted a definition of a TVG [town or village green] which goes far beyond what the mind’s eye would think of as a traditional village green. The consequence of this interpretation of the definition is that there have been registered as TVGs: rocks, car parks, golf courses, school playgrounds, a quarry, scrubland, and part of a working port. If land is registered as a TVG the effect of the registration is, for practical purposes, to sterilise land for development. This became a concern for the Government, because the criteria for registration did not take into account any planning considerations; and because it was thought in some quarters that applications for registration of TVGs were being used as a means of stopping development outside the planning system.’

Citations:

[2019] EWCA Civ 840

Links:

Bailii

Statutes:

Growth and Infrastructure Act 2013

Jurisdiction:

England and Wales

Cited by:

Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Planning, Land

Updated: 15 May 2022; Ref: scu.637524

Citations:

[1999] EGLR 167

Jurisdiction:

England and Wales

Planning

Updated: 14 May 2022; Ref: scu.248229

Whenever it is possible to recognise a single main purpose of the occupier’s use of his land to which secondary activities are incidental, the whole unit of occupation should be considered as one planning unit.
Lord Parker CJ: ‘Town and Country Planning is a comprehensive operation and . . its object, namely overall control of development, would be seriously impeded if a narrow view were to be taken as to the relevant considerations.’
Lord Denning MR: ‘You should look at the whole area on which a particular activity is carried on, including uses which are ordinarily incidental to or included in the activity.’
Diplock LJ: ‘What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether or not there has been a ‘material change in the use of any building or other land’? As I suggested in the course of the argument, I think that for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.’ and ‘I do not think that anywhere, except in a court of law, it would be argued with gravity that a Dutch barn or grain and fodder stores or any ordinary farm building are properly described as repositories. A Gloucestershire farmer would say they were farm buildings and would laugh at their being called ‘repositories’.’

Judges:

Diplock LJ, Lord Parker CJ, Lord Denning MR

Citations:

[1966] 1 All ER 704, [1966] 1 WLR 506, [1966] 130 JP 179, [1966] 64 LGR 134

Jurisdiction:

England and Wales

Cited by:

Applied – Burdle v Secretary of State for the Environment QBD 22-Jun-1972
The appellants had purchased land which had been used as a dwelling with a lean-to annex which had been used as a scrap yard, selling off car parts. The appellant had reconstructed the annex with a shop front, and began to use it more substantially . .
Cited – Main v Secretary of State for Environment and South Oxfordshire District Council Admn 22-May-1998
. .
Cited – Stewart, Regina (on the Application of) v First Secretary of State for Environment and Another Admn 28-Jul-2004
. .
Considered – Wealden District Council v Secretary of State for Environment and Colin Day CA 1988
Land was in an area designated to be of outstanding natural beauty. The Council sought the removal of a caravan used to provide weatherproof storage for cattle food and shelter for the farmer, saying that this amounted to a material change of use. . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 14 May 2022; Ref: scu.246373

Judges:

Forbes J

Citations:

[2005] EWHC 689 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Planning

Updated: 14 May 2022; Ref: scu.224529

The applicant appealed refusal of planning permission for residential development of a small plot of land. The said that the inspector had wrongly rejected the application of a Grampian condition on the basis that it would not be fulfilled and also in having considred the access arrangements unacceptable when these had been reserved.
Held: The respondent had wrongly issued a policy firmly against Grampian conditions. The decision was to be quashed.

Judges:

Purchas QC

Citations:

[1999] EWHC Admin 783

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – British Railways Board v Secretary of State for the Environment and Another HL 29-Oct-1993
Permission had been given for residential development of land provided that access was provided. The access specified was to be over land owned by the council. It was known that the Council would not allow such access. The land owner sought an order . .
Cited – Millington v Secretary of State for the Environment QBD 1999
The court commented on provisions in a circular as to the correctness of imposing planning conditions where it was thought that they might not be fulfilled: ‘I think that that footnote is mistaken. Certainly the case leaves it open to the Secretary . .
Cited – Grampian Regional Council v Secretary of State for Scotland HL 1983
The House endorsed the practice of imposing negative conditions in planning consents, upholding the validity of a condition that the development of the site could not commence until the road on the western boundary of the site had been closed by a . .
Cited – Jones v Secretary of State for Wales and Ogwr District Council CA 1990
The court adopted as a principle that a Grampian condition could only be imposed if there was a reasonable prospect of compliance within the time limit imposed on the permission. . .
Cited – Jones v Secretary of State for Wales and Ogwr District Council CA 1990
The court adopted as a principle that a Grampian condition could only be imposed if there was a reasonable prospect of compliance within the time limit imposed on the permission. . .
Cited – Lavender v Minister of Housing and Local Government 1970
While it is not for the courts to interfere with the formulation or administration of the Minister’s planning policies, the Minister is not able to dictate the exercise of discretion on the basis of a policy mandate. . .
Cited – Millington v Secretary of State for Environment Transport and Regions v Shrewsbury and Atcham Borough Council CA 25-Jun-1999
The fact that a new product was made on agricultural land from produce grown elsewhere on the land did not make that production process non-agricultural. The making of wine is capable of being agricultural use, and being thus free from planning . .
Cited – Tesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Cited – Kent County Council v Kingsway Investments (Kent) Limited HL 1971
The objectives of the policy discouraging conditional planning consents included the avoidance of the accumulation of unimplemented permissions, an objective which itself underlay the time limit provisions, originally introduced under the 1968 Act. . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 14 May 2022; Ref: scu.140047

Citations:

[2005] EWHC 2719 (Admin)

Planning

Updated: 14 May 2022; Ref: scu.236053

The court considered the degree of detail to be provided in a decision notice: ‘Since the courts will only interfere if he acts beyond his powers (which is the foundation of all the above principles), it is clear that his powers include the determination of the weight to be given to any particular contention; he is entitled to attach what weight he pleases to the various arguments and contentions of the parties; the courts will not entertain a submission that he gave undue weight to one argument or failed to give any weight at all to another. Again, in doing so he must, at any rate if substantial issues are involved, give clear reasons for his decision.
In considering whether or not the Secretary of State has acted contrary to any of these principles the materials on which the court may come to a conclusion are, in general, the inspector’s report and the letter of the Secretary of State setting out his decision. In approaching this task it is no part of the court’s duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to the parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument . .’

Judges:

Forbes J

Citations:

(1978) 42 PandCR 26

Jurisdiction:

England and Wales

Cited by:

Cited – South Somerset District Council v Secretary of State for the Environment CA 1993
Following Seddon properties, when considering the degree of detail to be given by an inspector in his decision notice: ‘The inspector is not writing an examination paper . . One must look at what the inspector thought the important planning issues . .
Cited – South Buckinghamshire District Council and Another v Porter (No 2) HL 1-Jul-2004
Mrs Porter was a Romany gipsy who bought land in the Green Belt in 1985 and lived there with her husband in breach of planning control. The inspector gave her personal permission to continue use, and it had been appealed and cross appealed on the . .
Cited – Green, Regina (on the Application Of) v First Secretary of State and others Admn 13-Apr-2005
Appeal was made against the decision to allow and refuse changes of use on land for the siting of caravans and mobile homes. . .
Cited – Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government and Another Admn 5-Dec-2014
The claimant appealed against refusal of permission to erect a six turbine wind farm. The inspector had recommended the plan, but the defendant had decided against it.
Held: The claim failed. The planning inspector’s report is the . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 13 May 2022; Ref: scu.198570

A notice of appeal was given against an enforcement notice, under the Act which required that an appeal should be made by notice in writing to the minister, ‘which shall indicate the grounds of the appeal and state the facts on which it is based’. Failure to submit a valid notice of appeal within the permitted time limit would result in the enforcement notice taking effect and any right to challenge it being lost. A notice of appeal was served in time, but it failed to state either grounds or facts. A subsequent letter gave the necessary information, but was not posted until after the period had elapsed.
Held: Although the requirement for a written notice of appeal was mandatory, the requirement to set out the grounds and the facts was directory only. ‘The machinery of the enforcement provisions and the appeal therefrom simply would not work unless there were some fixed time put in section 16(1) to limit the time in which an appeal is to be brought. That provision is therefore imperative or mandatory and a failure to appeal within the time there limited clearly goes to the jurisdiction. The provisions of subsection (2) requiring the notice to indicate the grounds of appeal and to state the facts on which it is based appear to me to be more in the nature of procedural matters which are directory and do not go to the jurisdiction.’

Judges:

Stamp LJ

Citations:

[1975] QB 235

Statutes:

Town and Country Planning Act 1968 16(1)

Jurisdiction:

England and Wales

Cited by:

Cited – M25 Group Limited v Tudor and others CA 4-Dec-2003
Tenants served notices under the Act requiring information about the disposal of the freehold. The landlords objected that the notices were invalid in failing to give the tenants’ addresses as required under the Act.
Held: The addresses were . .
Cited – Kay-Green and Others v Twinsectra Limited CA 15-May-1996
The former landlord had sold a number of buildings, some of which fell within Part I of the 1987 Act. The section 5 notice had not been served. The vendor had also failed to comply with his duty (under s 5(5)) to ‘sever’ the transaction, and sell . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 13 May 2022; Ref: scu.194055

Farmers sought to construct a reservoir for irrigation. To create the reservoir they would have to excavate substantial volumes of sand and gravel which would be sold on. The appellants contended that the extraction of the sand and gravel was an engineering operation that was requisite for the use of the land for the purposes of agriculture and therefore permitted under the Order. The question was, whether the construction of the reservoir would fall within the classes of development to which section 26(2) applied as constituting the use of the land for the winning and working of minerals.
Held: The appeal was dismissed. Whether a single process amounted for planning to two activities was a question of fact and degree; that, if it involved two activities, each of substance, so that one was not merely ancillary to the other, both required permission; that the construction of the appellants’ reservoir would involve two activities, each of substance, the extraction of minerals on such a scale not being merely ancillary to the carrying out of the engineering operation of constructing the reservoir; and that, accordingly, planning permission was required for the winning or working of minerals involved. ‘Mr. Schiemann QC, for the appellants, submitted that the impossibility of constructing the reservoir without extracting the gravel demonstrated that the latter activity was an integral part of the former. There was one indivisible process. Therefore, permission for the former was permission for the latter. I accept the premise of that submission but reject the conclusion. The planning legislation is not impressed by the indivisibility of single processes. It cares only for their effects. A single process may for planning purposes amount to two activities. Whether it does so or not is a question of fact and degree. If it involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission.’ Neill LJ: ‘I see no reason in principle why works that are carried out on land may not comprise development of more than one class. In many cases, building or engineering operations will involve as an incidental feature of the operations the extraction of gravel or other minerals. In such cases, it would often be quite inappropriate to treat the development as involving the winning or working of minerals within article 8(1)(b) of the Order of 1977.’

Judges:

Nourse LJ, Neill LJ

Citations:

(1985) 50 PandCR 368

Statutes:

Town and Country Planning General Development Order 1977 3

Jurisdiction:

England and Wales

Cited by:

Cited – C F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
Considered – Regina (On the Application of Lowther) v Durham County Council and Another CA 24-May-2001
The landowner sought to alter the fuel it used in a furnace at Thrislington, Durham, to a fuel which was constituted from waste. The council received a second opinion to the effect that the new fuel did not constitute a change in use. The objector . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 12 May 2022; Ref: scu.188854

Pill J disussed the rationale behind the efficacy of the provision in the Town and Country Planning Act: ‘There is an obvious public interest in certainty and finality when planning permissions which attach to the land concerned are granted.’
and ‘In my judgment, sections 242 and 245 of the 1971 Act do define the time limit for challenging allegedly unfair decisions under section 36 of the Act by way of judicial review.’

Judges:

Pill J

Citations:

[1991] 3 PLR 17

Statutes:

Town and Country Planning Act 1971 36 242 245

Jurisdiction:

England and Wales

Cited by:

Cited – Swayfields Ltd v Secretary of State for Environment Transport and the Regions and Another QBD 4-Sep-2001
The applicant submitted three plans for motorway service areas. Each was in the green belt. The inspector rejected two, but referred the first for further consideration. The decision was confirmed by the respondent. The appellant contended that that . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 12 May 2022; Ref: scu.182946

The land-owner had permission to develop the land for residential purposes. He brought rubble onto the land. The authority complained that this was waste. The owner appealed the inspector’s decision.
Held: In making his decision, the inspector had taken into account some matters properly, but had wrongly rejected the applicant’s own expert’s evidence that the materials were to be used in the construction process. Appeal allowed.

Judges:

Ouseley J

Citations:

Gazette 31-Oct-2002

Planning

Updated: 12 May 2022; Ref: scu.177846

The owners of a rugby football stadium were not entitled to a certificate of lawfulness of a proposed use under the section, for the use of the stadium as an open air concert hall. The idea of a concert hall required the idea that it should be a closed area. Nor were attendees at such concerts or concert players taking place in ‘Other outdoor sport or recreation’ under D2(e).

Judges:

Ouseley J

Citations:

Times 08-Nov-2001

Statutes:

Town and Country Planning Act 1990 192, Town and Country Planning (Use Clauses) Order 1987 (1987 No 764) Class D2

Jurisdiction:

England and Wales

Cited by:

At QBD – Rugby Football Union v Secretary of State for the Environment, Transport and the Regions and Another CA 17-Jul-2002
The land owner sought a certificate of lawful use for its Rugby Stadium which had been used as a concert stadium.
Held: The court must look to the Order to see whether the proposed use fell within the same use class as the existing use. A . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 12 May 2022; Ref: scu.166840

Citations:

[1998] EWCA Civ 1486

Jurisdiction:

England and Wales

Citing:

Cited – Christchurch Borough Council v Secretary of State for the Environment CA 16-Dec-1993
The council appealed against the inspector’s decision to grant permission to a construction company to build houses on land. The land had formerly been used as a school playing field and was now surplus to requirements. The Council wished to put the . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 11 May 2022; Ref: scu.144965

The applicants appealed an enforcement notice, with regard to a change of use, to use land for a multiplicity of businesses. The inspector had suggested he would correct by amendment an error in the notice. The section provided that an amendment could be made unless it caused injustice. The applicant argued that an amendment could not go to the heart of the notice. This was a misinterpretation of the earlier case law and was not justified by the statute.

Citations:

[1997] EWHC Admin 288

Statutes:

Town and Country Planning Act 1990 176

Jurisdiction:

England and Wales

Citing:

Cited – Miller-Mead v Minister for Housing and Local Government and Another CA 1963
The court considered the power of the Secretary of state to vary or amend an enforcement notice under the Act.
Held: He could amend a notice which was otherwise invalid but not one which was upon its face a nullity. Lord Denning MR said: ‘He . .
Cited – Regina v Secretary of State for the Environment ex parte Ahern 1989
. .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 11 May 2022; Ref: scu.137233

A highway authority acquiring land by compulsory purchase for a project had a right to require a contribution from the developer not just for the building costs but also for the cost of acquiring the land necessary. Statute interpreted widely.

Citations:

Times 03-Mar-1999

Statutes:

Highways Act 1980 278(2)

Jurisdiction:

England and Wales

Planning

Updated: 11 May 2022; Ref: scu.90305

Where an enforcement notice did not include any required steps, s173(11) does not apply, and an inspector has no power under s176(1) to amend the notice by adding steps to be taken where the issuing local authority could not itself have included it.

Citations:

Times 16-Jun-1999, Gazette 16-Jun-1999, [1999] 3 All ER 247

Statutes:

Town and Country Planning Act 1990 173(11), 176(1)

Jurisdiction:

England and Wales

Planning

Updated: 11 May 2022; Ref: scu.89704

A house had been used by the owner as a second home for holidays by himself and his family, by members of his office staff, and by ‘family groups’ who paid rent. There were lettings at a rent for 10 out of 18 weeks in the four month holiday season; for the remainder of the year the premises were left empty. The local planning authority served an enforcement notice alleging a material change of use from use as a private dwelling house to use for holiday lettings on a commercial basis. On appeal, the Inspector had concluded that there had. been no material change of use. The Secretary of State adopted the Inspector’s conclusions and allowed the owner’s appeal against the enforcement notice. The local planning authority’s appeal was dismissed by the Divisional Court. The planning authority submitted that the Inspector had erroneously approached the matter on the basis that ‘if the house is occupied by one family, the house is residential and therefore in accordance with the permitted use as a dwelling-house.’
Held:
Ackner LJ said: ‘I would agree that, if that is what the Inspector is saying, it would be wrong, because not every residential use is necessarily a use as a private dwelling-house. To my mind, however, what is said reads quite clearly as being merely a double description. If the house is occupied by one family, etc., the use is residential and in accordance with permitted use as a private dwelling-house. In my judgment, what was being found as fact here was that the character of the user from the planning point of view had not been changed by the fact that the premises were being occupied not only by the owner and his family but also by his friends or by members of his office staff or by paying tenants during the periods that I have indicated.
If that is right, it is a finding of fact, and all that this court has to ask itself is: was it a finding of fact that could reasonably have been made on the evidence before the inspector. It is common ground, as I understand it, that the question for determination in the context of this appeal is whether the character of the use of this dwelling-house as a private residence has been changed so substantially as to amount to a material change of use. It is a question of fact and degree. It is a decision that is based on the particular facts of this case that I have recited. This is not a case that lays down, as I see it, any principle. The Inspector was not dealing with a house that was constantly being let in short holiday lettings. She was dealing with a house that was being occupied by the owner, by the owner’s friends and by the owner’s staff on a non-paying basis, with, superadded to that, a period in the aggregate of 10 weeks in the year during which it was let as a rent to single households. I think that she was wholly entitled to reach the conclusion that the character of this dwelling-house and its use was not materially changed by the succession of occupiers over the period that I have mentioned in the categories that I have described. As I have said, I do not consider that she was seeking to propound any proposition of law in her paragraph 42. She was making the legitimate findings of fact on which to base her conclusion that there had been no material change of use.’
Jupp J agreed with Ackner LJ ‘that not every residential use is necessarily a use as a private dwelling house’, and added: ‘I also agree that the method of taking the evidence in this case has left some matters of fact unclear that might have come out and turned out very differently from the way they did had they been open to further probing and questioning. It is not to be thought that, in a case like this where the lettings had a different character from that concluded by the Inspector here, there would not be a material change of sue. It depends entirely on the facts, as Diplock LJ said in Wilson v West Sussex County Council: ‘Considerations which are relevant are planning considerations . . .’ and these vary from case to case.’

Judges:

Ackner LJ

Citations:

(1980) 40 P and CR 104

Jurisdiction:

England and Wales

Cited by:

Cited – Moore v Secretary of State for Communities and Local Government and Another CA 18-Sep-2012
An enforcement notice had been issued alleging an unlawful change of use without planning permission of the Appellant’s property from a C3 dwelling to use as commercial leisure accommodation. . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 11 May 2022; Ref: scu.559397

Lord Green MR identified the importance of the administrative stage of a planning decision: ‘the raising of the objections to the order, the consideration of the matters so raised and the representations of the local authority and the objectors – is merely a stage in the process of arriving at an administrative decision. It is a stage which the courts have always said requires a certain method of approach and method of conduct, but it is not a lis inter partes, and for the simple reason that the local authority and the objectors are not parties to anything that resembles litigation. A moment’s thought will show that any such conception of the relationship must be fallacious, because on the substantive matter, viz whether the order should be confirmed or not, there is a third party who is not present, viz the public, and it is the function of the minister to consider the rights and the interests of the public . . It may well be that, on considering the objections, the minister may find that they are reasonable and that the facts alleged in them are true, but, nevertheless, he may decide that he will overrule them. His action in so deciding is a purely administrative action, based on his conceptions as to what public policy demands.’
and ‘[T]he functions of the minister in carrying these provisions into operation are fundamentally administrative . . subject only to the qualification that, at a particular stage and for a particular and limited purpose, there is superimposed on his administrative character a character which is loosely described as ‘quasi-judicial’. The language which has always been construed as giving rise to the obligations, whatever they may be, implied in the words ‘quasi-judicial’ is to be found in the duty to consider the objections . . The administrative character in which he acts reappears at a later stage because, after considering the objections, which may be regarded as the culminating point of his quasi-judicial functions, there follows something which again, in my view, is purely administrative, viz, the decision whether or not to confirm the order. That decision must be an administrative decision, because it is not to be based purely on the view that he forms of the objections, vis-a-vis the desires of the local authority, but is to be guided by his view as to the policy which in the circumstances he ought to pursue . . [O]n the substantive matter, viz, whether the order should be confirmed or not, there is a third party who is not present, viz, the public, and it is the function of the minister to consider the rights and the interests of the public. That by itself shows that it is completely wrong to treat the controversy between objector and local authority as a controversy which covers the whole of the ground. It is in respect of the public interest that the discretion that Parliament has given to the minister comes into operation . . His views on that matter he must, if necessary, defend in Parliament, but he cannot be called on to defend them in the courts.’

Judges:

Lord Green MR

Citations:

[1947] 2 All ER 395

Planning

Updated: 11 May 2022; Ref: scu.447484

A permission had been granted for a garden centre with a limited sales area. The applicant had objected that the new building covered a greater area than allowed, and sought that the permission be quashed as invalid. The council appealed the quashing of the order.
Held: The court has a discretion not to quash a planning permission which had in fact been unlawfully granted. The records of the extent of the area were no longer available, but it appeared to have been implemented in excess of the permitted size. Nevertheless, the objector had not established any impairment of its own visual amenity, and the new buildings seemed to be an improvement, and it had not affected the rural character of the neighbourhood. The grant should stand.

Judges:

Aldous LJ, Schiemann LJ, Brooke LJ

Citations:

Times 22-Nov-2000

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v North Somerset District Council Ex Parte Cadbury Garden Centre Ltd QBD 10-Nov-1999
A garden centre challenged a series of planning decisions relating to adjoining land which changed its use to that of a garden centre. The challenge was successful insofar as the authority had failed to acknowledge that their decision amounted to . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 11 May 2022; Ref: scu.88572

A finding by the local planning authority that applications for listed buildings consent and planning permission were invalid, was not sufficient to exclude the right of the applicant to appeal to the Secretary of State against that finding of validity. This was in accordance with the broad purposes of the planning legislation despite apparently inconsistent particular provisions.

Citations:

Times 03-Jun-1999, Gazette 16-Jun-1999

Statutes:

Planning (Listed Buildings and Conservation Areas) Act 1990 20, Town and Country Planning Act 1990 78

Jurisdiction:

England and Wales

Planning

Updated: 11 May 2022; Ref: scu.85504

A condition on a permission which was widely stated, was not void for uncertainty as to its effect if it could be enforced. Conditions in the permission had to be properly related to planning issues, but a condition requiring support for intended student tenants was intended in part to prevent parking problems and was correct.

Citations:

Gazette 27-Jun-1999, Times 05-Jul-1999

Jurisdiction:

England and Wales

Planning

Updated: 11 May 2022; Ref: scu.85144

An applicant for planning permission completed his building before the application was determined, but an enforcement notice was served. The application was incomplete and served only as a request, and the applicant had to pay the fee for the appeal.

Citations:

Gazette 10-Feb-1999

Jurisdiction:

England and Wales

Planning

Updated: 10 May 2022; Ref: scu.80778

The term ‘knowledge or consent’ is to be construed disjunctively. The absence of consent is a defence.

Citations:

Times 06-Jul-1993, Ind Summary 12-Jul-1993

Statutes:

Town and Country Planning Act 1990 224-5

Jurisdiction:

England and Wales

Planning

Updated: 10 May 2022; Ref: scu.80255

Where an applicant had breached orders previous requiring compliance with planning conditions and waste management licences a mandatory order was appropriate, even though it involved great expense to the party.

Citations:

Gazette 28-Apr-1999

Jurisdiction:

England and Wales

Planning

Updated: 10 May 2022; Ref: scu.79018

The court considered the status of planning policies: ‘For one thing, in the planning field of policies and development plans of this kind are commonly drafted by planners for planners and often are very loosely drafted. They are not, putting it broadly, intended to be legally binding documents in the strict sense. For another, the relevant phrases used will often be hardly sensible bearing a strict hard edged interpretive approach and resort will be needed to elements of value judgment . . . . ‘ There may be instances where even if the words of a policy support an interpretation, consideration of the purpose and underlying objective of the policy in question may show that such linguistic interpretation simply will not accurately represent the true policy.

Judges:

Davis J

Citations:

[2004] EWHC 2949 (Admin

Jurisdiction:

England and Wales

Cited by:

Cited – JD Wetherspoon Plc, Regina (on the Application Of) v Guildford Borough Council Admn 11-Apr-2006
The company sought judicial review of the decision of the respondent to apply its cumulative impact policy to their application for extended licensing hours.
Held: The company’s application amounted to a material variation of the license, and . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 10 May 2022; Ref: scu.240395

A planning permission given for the development of seven bungalows was construed as a grant of permission for a single development which could be spaced out over time.

Citations:

[1982] JPL 702

Jurisdiction:

England and Wales

Cited by:

Cited – Stancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 10 May 2022; Ref: scu.228573

The court was asked whether an extension of a listed building which involved the demolition of parts of the listed building constituted demolition within the meaning of the Act which required the proposal to be notified to various interested bodies by the local planning authority.
Held: The dominant word in the provisions about demolition, alteration and extension was the word ‘demolition,’ especially where, under the interpretation section, demolition was deemed to refer not only to a building but also to part of a building.

Judges:

Comyn J

Citations:

[1981] JPL 752

Cited by:

Cited – Shimizu (UK) Ltd v Westminster City Council HL 11-Feb-1997
The removal of a listed building’s chimney stacks was an alteration allowing a claim for compensation. The phrases ‘alteration’ and ‘demolition’ are mutually exclusive. Although part of a building may be a listed building, a part of a listed . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 May 2022; Ref: scu.226087

The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an now appealed against the Court of Appeal’s overturning of the orer in its favour at first instance.
Held: (Majority: Lord Walker, Lady Hale, Lord Mance and Lord Collins; Minority: Lord Phillips, Lord Hope, Lord Brown) It was unlawful for the Council to allow the promise of funding by the third party for an unrelated project to affect its decision to take the company’s land: ‘First, the question of what is a material (or relevant) consideration is a question of law, but the weight to be given to it is a matter for the decision maker. Second, financial viability may be material if it relates to the development. Third, financial dependency of part of a composite development on another part may be a relevant consideration, in the sense that the fact that the proposed development will finance other relevant planning benefits may be material. Fourth, off-site benefits which are related to or are connected with the development will be material. They do not . . raise questions of fact and degree. There must be a real connection between the benefits and the development.’
Lord Walker said: ‘The fact that an exercise of powers of compulsory acquisition and a ‘back to back’ disposal to a developer are prearranged is unobjectionable . . But that does not mean that the proper consideration of the exercise of powers of compulsory acquisition under section 226 of the 1990 Act can be telescoped into the exercise of powers of disposal under section 233. ‘
Lord Philips (dissenting) said: ‘When considering the merits of an application for planning permission for a development it is material for the planning authority to consider the impact on the community and the environment of every aspect of the development and of any benefits that have some relevance to that impact that is not de minimis that the developer is prepared to provide. An offer of benefits that have no relation to or connection with the development is not material, for it is no more than an attempt to buy planning permission, which is objectionable in principle.’ and ‘The the real issue is which developer should be preferred by the Council . . The fact that the compulsory purchase of land owned by one or the other is involved is really peripheral. Each purchased its land in the hope of being able to use it for the purpose of the development. Each shares the intention that its land should be used for the development. In resisting the compulsory purchase of its land each is motivated by commercial rivalry, not by any objection to the land being used for the proposed development. It would be unfortunate if the rigid application by analogy or principles of planning law were to rob the local community of the additional benefit of the redevelopment of the RHS. I have not found it necessary to reach such a result.’

Judges:

Lord Phillips, President, Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Collins

Citations:

[2010] UKSC 20, [2010] RVR 237, [2010] 20 EG 144, [2010] PTSR 1103, [2010] 2 WLR 1173, [2011] 1 AC 437

Links:

SC, SC Summ, Bailii, Bailii Summary, WLRD, Times

Statutes:

Town and Country Planning Act 1990 226

Jurisdiction:

England and Wales

Citing:

Cited – Rugby Joint Water Board v Shaw-Fox HL 1973
The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for . .
Appeal from – Sainsbury’s Supermarkets Ltd v Wolverhampton City Council CA 31-Jul-2009
The council wanted to exercise its powers of compulsory purchase so as to allow them to acquire the claimant’s land to go toward the completion of the development of a competitor’s proposed supermarket. The claimant sought judicial review, saying . .
Cited – Galloway v The Mayor, Aldermen And Commons Of The City Of London 26-Apr-1864
In 1863, an Act was passed authorizing the Corporation of London to make a new street and buy certain lands (including the land of the Plaintiff) and sell such parts of them as were not required to form part of the sreet. Shortly before the passing . .
Cited – Galloway v Mayor and Commonalty of London HL 1866
Lord Cranworth LC said: ‘The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the Legislature to take compulsorily the lands of others, making to . .
Cited – Simpsons Motor Sales (London) Ltd v Hendon Corporation (No 1) CA 1962
The use of land purchased under compulsory powers for a different purpose was ultra vires, but did not undermine the original notice to treat. There was no reason not to use a compendious description of the range of purposes for which land was to be . .
Cited – R and R Fazzolari Pty Limited v Parramatta City Council etc 2-Apr-2009
(High Court of Australia) French CJ said: ‘Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of . .
Cited – Standard Commercial Property Securities Ltd and others v Glasgow City Council and others HL 16-Nov-2006
The claimant challenged a back to back agreement between the council and a developer where the council agreed to purchase compulsorily a plot of land against a developer’s undertaking to complete the development and indemnify the council against its . .
Cited – Regina v Westminster City Council, ex parte Monahan CA 1989
The Royal Opera House sought permission and listed building consents to carry out a re-development, extending and modernising the House raising it to international standards, and to develop the surrounding area consistently with that project. Parts . .
Cited – Simpsons Motor Sales (London) Ltd v Hendon Corporation HL 1964
The plaintiff complained of an attempt by the defendant local authority to enforce in October 1958 a CPO made several years earlier. He obtained at first instance an injunction to restrain the local authority from proceedings on the basis of an . .
Cited – Campbell v Municipal Council of Sydney PC 1925
The court looked at the council resolutions, which in turn referred to a minute of the Lord Mayor that indicated the general purpose of the council’s action.
Held: A court was able to look at surrounding papers to derive the reasons for the . .
Cited – Hanks and Others v Minister of Housing and Local Government 1963
A factor in a decision might be so insignificant that the failure to take it into account could not have materially affected the decision. There might be cases where the factor wrongly omitted was ‘insignificant’ and thus would not justify . .
Cited – Prest v Secretary of State for Wales CA 1982
Lord Denning MR said: ‘I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so . .
Cited – Clunies-Ross v Commonwealth 25-Oct-1984
Austlii (High Court of Australia) Compulsory Acquisition – Land – Acquisition by Commonwealth – Power to acquire land for public purposes – Whether limited to acquisition of land needed or proposed to be used for . .
Cited – Regina v Secretary of State for Transport, ex parte de Rothschild CA 1988
The court considered the use of powers of compulsory purchase of land under the Acts.
Held: ‘In answer to counsel’s submissions as to ‘special rules’, I summarise my conclusions thus. First, I do not accept that any special rules beyond the . .
Cited – Pyx Granite Co Ltd v Minister of Housing and Local Government CA 1958
Pyx Granite had the right to quarry in two areas of the Malvern Hills. The company required permission to break fresh surface on one of the sites.
Held: Conditions attached to the planning permission relating to such matters as the times when . .
Cited – Standard Commercial Property Securities Limited for Judicial Review of A Decision Dated 26 August 1999 of Glasgow City Council OHCS 15-Aug-2000
. .
Cited – Tesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Cited – Newbury District Council v Secretary of State for the Environment HL 1981
The grant of a temporary planning permission did not operate to cancel an existing established use. A planning condition requiring removal of hangars was invalid because it did not fairly or reasonably relate to the permitted development. The grant . .
Cited – Regina v Plymouth City Council, ex parte Plymouth and South Devon Co-operative Society CA 1993
A supermarket operator was seeking to overturn planning consents granted to two rivals, and argued that the section 106 agreements were not material considerations unless they passed the necessity test.
Held: It was sufficient, on the basis of . .
Cited – Westminster Renslade Ltd v Secretary of State for the Environment 1983
It was not legitimate for an authority to refuse a planning application because it did not contain provisions for the increase of the proportion of car-parking space subject to public control: the absence of a benefit was not a reason for refusing . .
Cited – Regina v Westminster City Council, ex parte Monahan CA 1989
The Royal Opera House sought permission and listed building consents to carry out a re-development, extending and modernising the House raising it to international standards, and to develop the surrounding area consistently with that project. Parts . .
Cited – Bradford City Metropolitan Council v Secretary of State for the Environment CA 1986
Lloyd LJ said that it has usually been regarded as axiomatic that planning consent cannot be bought or sold. Conditions requiring off-site roadway benefits were unreasonable and it was suggested that it would make no difference if they were included . .
Cited – Sovmots Investments Ltd v Secretary of State for the Environment 1977
. .
Cited – Brighton Borough Council v Secretary of State for Environment 1978
. .
Cited – Sosmo Trust Ltd v Secretary of State for the Environment 1983
Woolf J accepted that the consequences of the financial viability or lack of financial viability of a development were a potentially relevant factor in a planning assessment: the true question was not whether a development would be viable but what . .
Cited – Sovmots Investments Ltd v Secretary of State for the Environment HL 28-Apr-1977
The section in the 1881 Act does not apply to a quasi-easement because ‘When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. . .

Cited by:

Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 May 2022; Ref: scu.414897

Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for a link road as part of its application.
Held: The offer of funding for the link road was sufficiently related to the proposed development to constitute a material consideration for planning purposes but the Secretary of State had been entitled to consider that it was of insufficient weight to justify the grant of permission. A Local Authority is to attach its own importance to planning obligation offered with application. A planning obligation was a material consideration for consideration by Local Authority assessing a planning application. When the decision-maker comes to balance the factors he is entitled to place in the scales, it is entirely for the decision-maker to attribute to the relevant consideration such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense.
Lord Hoffmann discussed the difference between the materiality of a consideration and its weight: ‘The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all.
This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.’ and ‘If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd v Secretary of State for the Environment [1991] JPL 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it.’

Judges:

Lord Keith of Kinkel, Lord Hoffmann

Citations:

Gazette 05-Jul-1995, Gazette 21-Jun-1995, [1995] 1 WLR 759, [1995] UKHL 22, (1995) 70 P and CR 184, [1995] 2 All ER 636, [1995] 2 EGLR 147, [1995] EG 82, [1995] 2 PLR 72, [1995] 27 EG 154

Links:

Bailii

Statutes:

Town and Country Planning Act 1990 106

Jurisdiction:

England and Wales

Citing:

Appeal from – Tesco Stores Ltd v Secretary of State for the Environment and Others CA 25-May-1994
Three companies competed for permission to build a retail food superstore in Witney. The inspector recommended Tesco’s proposal, but the SSE set aside the inspector’s decision in favour of the local authority’s preference. Tesco sought a declaration . .
Cited – Good and Another v Epping Forest District Council CA 11-Nov-1993
The Court was asked whether a planning authority could validly achieve by agreement any purpose which it could not validly achieve by planning condition or whether the test for validity was the same in each case.
Held: A council may agree to a . .
Cited – Bradford City Metropolitan Council v Secretary of State for the Environment CA 1986
Lloyd LJ said that it has usually been regarded as axiomatic that planning consent cannot be bought or sold. Conditions requiring off-site roadway benefits were unreasonable and it was suggested that it would make no difference if they were included . .
Cited – Newbury District Council v Secretary of State for the Environment HL 1980
Issues arose as to a new planning permission for two existing hangars.
Held: The appeal succeeded. The question of the validity of conditions attached to planning permissions will sometimes be a difficult one. To be valid, a condition must be . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:

Cited – C v London Borough of Lewisham CA 4-Jul-2003
The applicant lost her flat and had been refused emergency housing for herself and her child. She had a very troubled history with severe emotional trauma, and was disorganised. He application was refused on the ground of her having become . .
Cited – Douglas John Merritt v Secretary of State for Environment, Transport and Regions and Mendip District Council Admn 5-Aug-1999
The applicant appealed refusal of planning permission for residential development of a small plot of land. The said that the inspector had wrongly rejected the application of a Grampian condition on the basis that it would not be fulfilled and also . .
Cited – Nirah Holdings Ltd v British Agricultural Services Ltd and Another ComC 11-Sep-2009
The parties entered into an option agreement giving the claimant a right to purchase the defendant’s land. The consideration would be affected by the costs of complying with a section 106 agreement to construct local ancillary services. The parties . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Cited – Hinds, Regina (on The Application of) v Blackpool Council Admn 17-Mar-2011
The council had resolved to grant planning permission for a development, but before the permission was actually granted the Secretary of State had written to planning authorities saying that he intended to abolish the ‘Regional Spatial Strategies’. . .
Cited – Cala Homes (South) Ltd, Regina (on The Application of) v Secretary of State for Communities and Local Government and Another CA 27-May-2011
The respondent had circularised local authorities to say that when assessing future local housing needs a proper material consideration was the proposed Localism Bill which would lead to the replacement of ‘Regional Spatial Strategies’ on which such . .
Cited – Tesco Stores Ltd v Dundee City Council SC 21-Mar-2012
The company challenged the grant of planning permission for a competitor to open a new supermarket within 800 metres of its own, saying that the Council had failed to apply its own planning policies, which required preference of suitable sites not . .
Cited – Estates and Agency Properties Ltd, Regina (on The Application of) v Barking and Dagenham and Another Admn 21-Dec-2012
The claimant sought judicial review of the decision of the respondent to grant planning permission to Tescos to extend their supermarket.
Held: Review was refused. The application succeeded on one of the four grounds claimed, but that defect . .
Cited – Cherkley Campaign Ltd, Regina (on The Application of) v Longshot Cherkley Court Ltd Admn 22-Aug-2013
The campaign company sought judicial review of a decision by the respondent granting permission to develop nearby land as a golf course.
Held: The application succeeded. The Secretary of State in preserving the effect of certain policies had . .
Cited – Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited SC 25-Oct-2017
The court was asked whether, anticipating substantial growth, a local authority had power to attach to permissions for development conditions intended to recover sums for pooled fund for infrastructure development.
Held: The appeal failed. . .
Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Planning

Leading Case

Updated: 09 May 2022; Ref: scu.89776

Three companies competed for permission to build a retail food superstore in Witney. The inspector recommended Tesco’s proposal, but the SSE set aside the inspector’s decision in favour of the local authority’s preference. Tesco sought a declaration quashing the decision letter. It said that insufficent allowance had been given to its offer of funding for infrastructure.
Held: The Secretary of State had not failed to have regard to Tesco’s offer of funding nor treated it as immaterial, but had simply declined to give it any or any significant weight, as he was entitled to do.
Sir Thomas Bingham MR said that the case involved: ‘a question of unusual public importance bearing on the conditions which can be imposed, and the obligations which can be accepted, on the grant of planning permission and the point at which the imposition of conditions, and the acceptance of obligations, overlaps into the buying and selling of planning permission, which are always agreed to be unacceptable.’
Beldam LJ said: ‘In section 106(1) [of the 1990 Act] the obligations referred to in subsections (a), (b) and (c) clearly relate to the land in which the person entering into the obligation is interested. The obligation entered into by a person interested in land under subsection (d) to pay money to the authority is not expressed to be restricted to the payment of money for any particular purpose or object. But all the planning obligations are, by section 106(3), enforceable not only against the person entering into the obligation but also against his successors in title to the land. Against the background that it is a fundamental principle that planning permission cannot be bought or sold, it does not seem unreasonable to interpret subsection (1)(d) so that a planning obligation requiring a sum or sums to be paid to the planning authority should be for a planning purpose or objective which should be in some way connected with or relate to the land in which the person entering into the obligation is interested.’

Judges:

Sir Thomas Bingham and Beldam L.J

Citations:

Court of Appeal (Civil Division) Transcript No. 736 of 1994, Unreported, 25 May 1994

Statutes:

Town and Country Planning Act 1990 106

Jurisdiction:

England and Wales

Cited by:

Appeal from – Tesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Cited – Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited SC 25-Oct-2017
The court was asked whether, anticipating substantial growth, a local authority had power to attach to permissions for development conditions intended to recover sums for pooled fund for infrastructure development.
Held: The appeal failed. . .
Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 May 2022; Ref: scu.374713

The case concerned the grant of planning permission to develop land as a motorway service area upon condition of the acceptance of obligations by the developer and site owner in an agreement made under section 106 of the 1990 Act which included that a local employment and training policy should be submitted for the approval of the local planning authority and that reasonable endeavours would be used to stock goods and produce from local producers for sale at the site. A challenge to quash the grant of planning permission, including on the ground that the condition and obligations were immaterial to the merits of the proposed development, was dismissed.
Held: There was a sufficient connection between the obligations and the proposed development (that is to say, the proposed use of the land) so that these were matters capable of falling within the statutory concept of ‘material considerations’, and separately held that there was sufficient policy justification for the authority to be entitled to impose the condition as a matter of planning judgment.

Judges:

Bean J

Citations:

[2012] EWHC 140 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 May 2022; Ref: scu.452902

Pyx Granite had the right to quarry in two areas of the Malvern Hills. The company required permission to break fresh surface on one of the sites.
Held: Conditions attached to the planning permission relating to such matters as the times when machinery for crushing the stone could be used and the control of dust emissions were valid.
A planning condition is invalid, being contrary to law unless it is reasonably related to the development in the planning permission which has been granted. It must not be used for an ulterior purpose, and must be fairly and reasonably relate to the permitted development.
Lord Denning MR said: ‘The principles to be applied are not, I think, in doubt. Although the planning authorities are given very wide powers to impose ‘such conditions as they think fit’, nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest.’

Judges:

Lord Denning MR

Citations:

[1958] 1 QB 554

Jurisdiction:

England and Wales

Cited by:

Cited – Kingston London Borough Council v Environment Secretary 1973
Planning was granted for the rebuilding of a railway station on condition that the land allocated for parking should be made available for such purposes at all times and used for no other purpose. The station was duly rebuilt but the car park was . .
Appeal from – Pyx Granite Ltd v Ministry of Housing and Local Government HL 1959
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court . .
Cited – Stewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
Dictum Approved – Newbury District Council v Secretary of State for the Environment HL 1980
Issues arose as to a new planning permission for two existing hangars.
Held: The appeal succeeded. The question of the validity of conditions attached to planning permissions will sometimes be a difficult one. To be valid, a condition must be . .
Cited – Tarmac Materials Ltd v Secretary of State for Environment Admn 6-Jul-1999
. .
Cited – Valentines Homes and Construction Ltd, Regina (on The Application of) v HM Revenue and Customs CA 31-Mar-2010
The claimant had applied for judicial review of a decision by the defendant to seek to recover a debt from them. The issue had however been settled in the County Court. Costs were ordered against them, and they now appealed. In a small company the . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Cited – Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited SC 25-Oct-2017
The court was asked whether, anticipating substantial growth, a local authority had power to attach to permissions for development conditions intended to recover sums for pooled fund for infrastructure development.
Held: The appeal failed. . .
Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 May 2022; Ref: scu.183690

A supermarket operator was seeking to overturn planning consents granted to two rivals, and argued that the section 106 agreements were not material considerations unless they passed the necessity test.
Held: It was sufficient, on the basis of Newbury [1981] A.C. 578, that the obligations offered concerned planning matters and fairly and reasonably related to the proposed development.
Hoffmann LJ discussed paragraph B7 of the SS guidance that planning obligations should only be sought where they were necessary to the granting of permission, he observed that this statement of policy embodied a general principle that planning control should restrict the rights of landowners only so far as might be necessary to prevent harm to community interests: ‘The fact that the principle of necessity is applied as policy by the Secretary of State does not make it an independent ground for judicial review of a planning decision . . to say that a condition or the requirement of a section 106 agreement would have been discharged on appeal by the Secretary of State, because its imposition did not accord with the policies I have quoted, is not at all the same thing as saying that the planning authority would have been acting beyond its statutory powers.’

Judges:

Hoffmann LJ

Citations:

(1993) 67 P and CR 78

Jurisdiction:

England and Wales

Cited by:

Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 May 2022; Ref: scu.414945

Lord Parker CJ said that when considering whether there has been a change of use of land ‘what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier.’

Judges:

Lord Parker CJ

Citations:

[1962] 2 QB 484

Jurisdiction:

England and Wales

Cited by:

Cited – Westminster City Council v Great Portland Estates plc HL 31-Oct-1984
The House was asked whether the 1971 Act permitted the relevant authorities, by resort to their development plans, to support the retention of traditional industries or was the ambit of the Act such as to permit only ‘land use’ aims to be pursued? . .
Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 May 2022; Ref: scu.182497

The grant of a temporary planning permission did not operate to cancel an existing established use. A planning condition requiring removal of hangars was invalid because it did not fairly or reasonably relate to the permitted development. The grant of an unnecessary planning permission does not exclude a landowner from relying on an existing use right. Where an impossible condition is attached the permission might be read without it.
Viscount Dilhorne said: ‘If, however, the grant of planning permission, whether it be permission to build or for a change of use, is of such a character that the implementation of the permission leads to the creation of a new planning unit, then I think that it is right to say that existing use rights attaching to the former planning unit are extinguished.’ and
‘It follows that the conditions imposed must be for a planning purpose and not for any ulterior one, and that they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them . .’

Judges:

Lord Scarman, Viscount Dilhorne, Lord Fraser, Lord Lane

Citations:

[1981] AC 578, [1980] 1 All ER 731, [1980] 2 WLR 379, (1980) 40 P and CR 148

Jurisdiction:

England and Wales

Citing:

Explained – Prossor v Minister of Housing and Local Government 1968
The owner of a garage sought planning permission to replace a repair shop on part of his site with a new building. There had been an established use as a petrol filling station and motor repair shop. The permission was granted subject to a . .

Cited by:

Distinguished – Wiggins v Secretary of State for The Environment, Transport and The Regions Admn 21-Dec-2000
The claimant sought to appeal an enforcement notice. The land had been used for crushing etc concrete. The council had said it was an unlicensed waste management facility. A temporary permission had been granted subject to an obligation under s106. . .
Cited – British Railways Board v Secretary of State for the Environment and Another HL 29-Oct-1993
Permission had been given for residential development of land provided that access was provided. The access specified was to be over land owned by the council. It was known that the Council would not allow such access. The land owner sought an order . .
Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v Wolverhampton City Council and Another SC 12-May-2010
The appellant’s land was to be taken under compulsory purchase by the Council who wished to use it to assist Tesco in the construction of a new supermarket. Tesco promised to help fund restoration of a local listed building. Sainsbury objected an . .
Cited – Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited SC 25-Oct-2017
The court was asked whether, anticipating substantial growth, a local authority had power to attach to permissions for development conditions intended to recover sums for pooled fund for infrastructure development.
Held: The appeal failed. . .
Cited – Wright, Regina (on The Application of Wright) v Resilient Energy Severndale Ltd and Another SC 20-Nov-2019
W challenged the grant of planning permission for the change of use of agricultural land to allow erection of a wind turbine, saying that the authority had taken into account a promise by the land owner to run the scheme as a community development . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 May 2022; Ref: scu.185796

Citations:

[1984] 2 EGLR 180

Cited by:

Cited – Harrods Ltd v Secretary of State for the Environment, Transport and the Regions and Another CA 7-Mar-2002
The applicant sought to allow the roof of its store to be used as a helicopter landing pad, and sought a lawful use certificate. It asserted that such a use was incidental to its main normal use. The secretary of state refused a certificate, against . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 08 May 2022; Ref: scu.183154

Land on a farm had been used intermittently for many years as an airfield. The local authority issued two enforcement notices, one in respect of a building used as a hangar, and one for unlawful change of use from domestic and agricultural purposes to use for domestic purposes and as an airfield. The inspector allowed appeals against the notices, the second because of use in excess of ten years, and the first on the ground that permission ought to be granted. The Council appealed, and succeeded at first instance. The farmer appealed.
Held: The appeals failed. It had been for the land-owner to show continuous use, if lawful use had not once been established. The inspector should have asked whether a hangar would have been required within the 1955 uses authorised. It could not.

Judges:

Lords Justice Schiemann and Chadwick and Sir Christopher Staughton

Citations:

Gazette 06-Mar-2002

Statutes:

Town and Country Planning Act 1990 174(2)(d) 174(2)(a)

Jurisdiction:

England and Wales

Citing:

Distinguished – Panton and Farmer v Secretary of State for Environment , Transport and Regions and and Vale of White Horse District Council Admn 16-Dec-1998
When granting a certificate of lawful use and development, the inspector should include uses as primary even though the uses as such may be dormant at the time of the application unless the suspension of use was as a result of a loss of the right in . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 08 May 2022; Ref: scu.167742

Citations:

[1996] EWHC Admin 23

Jurisdiction:

England and Wales

Citing:

Cited – Westminster City Council v Great Portland Estates plc HL 31-Oct-1984
The House was asked whether the 1971 Act permitted the relevant authorities, by resort to their development plans, to support the retention of traditional industries or was the ambit of the Act such as to permit only ‘land use’ aims to be pursued? . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 08 May 2022; Ref: scu.136571

The applicants sought to exercise an old planning permission which would have lapsed if they had not begun mining operations. The only act undertaken was the preliminary removal of topsoil as required by the permission.
Held: This was insufficient to constitute the beginning of mining. Mining meant the winning and working of materials. Though the soil had had to be removed this had not contributed by making the material sought available. The loss of the top soil in breach of the permission would not have affected this issue, since this went to enforcement only.

Citations:

Gazette 01-Mar-2001

Jurisdiction:

England and Wales

Planning

Updated: 08 May 2022; Ref: scu.89481

When considering a planning application, it was only in exceptional circumstances that the authority should consider alternative sites. Those circumstances would be where the proposed development would involve such a conspicuous adverse impact, that an alternative had to be considered. In this case the alternative would itself have objections and problems, and it had not been necessary to consider it. ‘If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that the consideration of alternative sites would only be relevant to a planning application in exceptional circumstances. Generally speaking . . . such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question.’

Judges:

Laws LJ

Citations:

Times 30-Mar-2001, [2001] EWCA Civ 315, [2001] PLCR 31

Jurisdiction:

England and Wales

Cited by:

Followed – Mount Cook Land Ltd and Another v Westminster City Council CA 14-Oct-2003
The applicants had sought judicial review of the defendant’s grant of planning permission for the redevelopment of the former CandA building in Oxford Street. Though the application for leave to apply had been successful, and a full hearing took . .
Cited – Phillips v First Secretary of State and others Admn 22-Oct-2003
The claimant had objected to the grant of permission to erect a mobile phone mast near her property. The issue was that she had not been given opportunity to comment upon the consideration of alternative sites.
Held: The consideration of . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 08 May 2022; Ref: scu.85982