Where the inspector allowed an appeal against refusal of permission, finding exceptions to the structure plan, the Local Authority appealed.
Held: The appeal was refused as the inspector had given proper weight to the statutory considerations and was entitled to his conclusion.
Gazette 24-Feb-1999
Town and Country Planning Act 1990 54A
England and Wales
Updated: 08 May 2022; Ref: scu.78312
A local plan could itself be challenged by an application under the Act, but that section could not properly be used to challenge a decision by the local authority not to hold an inquiry before adopting the plan. Where the process had concluded, and appeal was appropriate, but where it had not got to that stage, it was not. It sought a quashing order which was not appropriate at this stage.
Times 15-Jun-2001
Town and Country Planning Act 1990 287
England and Wales
Updated: 08 May 2022; Ref: scu.80554
Mr Justice Holgate
[2020] EWHC 3204 (Admin)
England and Wales
Updated: 08 May 2022; Ref: scu.656495
Mrs Justice Elisabeth Laing DBE
[2020] EWHC 3166 (Admin)
England and Wales
Updated: 08 May 2022; Ref: scu.656322
[2017] ScotCS CSIH – 28
Scotland
Updated: 08 May 2022; Ref: scu.591965
[2014] EWCA Civ 1723
England and Wales
Updated: 08 May 2022; Ref: scu.541554
Hickinbottom J
[2014] EWHC 888 (Admin)
England and Wales
Updated: 08 May 2022; Ref: scu.523384
Permission to appeal.
Lord Justice Patten
[2013] EWCA Civ 51
England and Wales
Updated: 08 May 2022; Ref: scu.470936
renewed application for permission to appeal – enforcement notice
[2012] EWCA Civ 1891
England and Wales
Updated: 08 May 2022; Ref: scu.470985
Ackner J upheld the standing of the chairman of a local preservation society who had appeared at a public local inquiry by permission of the inspector to challenge the decision. Ackner J said: ‘I see no merit in the proposition that a person who has merely been given notice of the existence of the inquiry at the request of and not by the requirement of the Secretary of State and whose right to attend and make his representations has resulted from the exercise of the inspector’s discretion should be obliged to sit by and accept the decision, which, ex hypothesi , is bad in law. I can see no compelling matter of policy which requires this form of silence to be imposed on a person who has, again ex hypothesi , a clear grievance in law. On the other hand I see good reason, so long as the grounds of appeal are so restricted, for ensuring that any person who, in the ordinary sense of the word, is aggrieved by the decision, and certainly any person who has attended and made representations at the inquiry, should have the right to establish in the courts that the decision is bad in law because it is ultra vires or for some other good reason. It is true that the would-be developer may be held up while the appeal is made, but, as the dates in this case indicate, the procedure is a reasonably expeditious one and I have no doubt that an application for special expedition, where justified, would be listened to sympathetically by the court.’
Ackner J rejected the proposition that there was a distinction between an interested person who appeared at the discretion of the Inspector and a person who was required to be served. He said: ‘In his report the inspector classifies the applicants, inter alios, as ‘interested persons,’ a classification which is clearly justified by the facts. They were persons whom the appointed person in his discretion had allowed to appear at the inquiry and make representations in relation to the subject-matter of the inquiry, which representations had to be recorded by the inspector and transmitted with his, the inspector’s, findings of fact and conclusions to the Secretary of State with a view to the Secretary of State accepting or rejecting those findings of fact and conclusions. Such persons have, in my judgment, impliedly the right that the Secretary of State in considering those representations shall act within the powers conferred on him by the statute and shall comply with the relevant requirements of the statute, in just the same way (as is conceded to be the case) as has a person who makes representations at the inquiry being a person on whom the Secretary of State has required notice of the inquiry to be served. I thus conclude that no valid differentiation can be made between a person who appears at an inquiry and makes his representations having had notice of the inquiry at the insistence of the Secretary of State and a person who appears and makes his representations by permission of the appointed person.’
Ackner J
(1974) 28 P and CR 123
England and Wales
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.
Updated: 08 May 2022; Ref: scu.514941
The trustees sought permission to erect a religious meeting place on Green Belt Land, which was refused. They said the council had failed to treat it as an ‘institution standing in extensive grounds’ within PPG2 (1988). The inspector said there had to be a functional relationship between the proposed building and the extensive grounds, which the respondent Secretary of State rejected in allowing the appeal.
Held: The Council’s appeal failed. There was no definition in law of what was meant by the phrase, and in most case this simply fell as a matter of fact and degree decided by planning judgement. The words spoke for themselves, but their application to particular factual situations would often be a matter of judgment for the planning authority. That exercise of judgement would only be susceptible to review in the event that it was unreasonable. The respondent might well choose to refine the guidance to give clarity. Until any change there was no necessary connection between the land and the function of the proposed building.
Auld J
[1993] JPL 761
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.452985
[2009] EWHC 2940 (Admin), [2010] Env LR 26
England and Wales
Appeal from – Morge v Hampshire County Council CA 28-Jan-2010
. .
At first Instance – Morge v Hampshire County Council SC 19-Jan-2011
The claimants had challenged the allocation of a former railwy line to become a rapid bus service, saying that the Council had failed properly to take account of the Habitats Directive. The Supreme Court was asked as to the extent of doisturbance to . .
At First Instance – Morge, Regina (on The Application of) v Hampshire County Council CA 10-Jun-2010
Over time, an abandoned railway line had become a habitat for local wildlife. The claimant now objected to the grant of planning permission for a light railway.
Held: The claimant’s appeal failed. For an act to fall within 12(1)(b) of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.425533
Ouseley J
[2010] EWHC 2919 (Admin)
England and Wales
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government Admn 16-Dec-2010
Local authorities were presently bound to plan future housing developments in accordance with Regional Spatial Strategies which the new government intended to abolish. The respondent had previously been told by the court that primary legislation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.428417
(1980) JPL 110
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.430278
The introduction onto land of waste material can be either a change of use or an operation, depending on whether the purpose is to get rid of the material or to alter the character of the land.
[1980] 40 PandCR 332
England and Wales
Cited – Roberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.421579
The land-owner sought planning permission for an established change of use to allow for a caravan on his field. He appealed against the Secretary of States refusal which had confirmed that of the local authority, but had relied on a different ground.
Held: The land-owner’s appeal failed. The Secretary of State’s powers were not limited to finding that the Authority was wrong in law and thus allowing an appeal. He also had the power to confirm the decision for new or different reasons. That is what he had done.
Woolf J
[1982] JPL 443
England and Wales
Updated: 07 May 2022; Ref: scu.375203
Refusal of a lawful development certificate.
[2002] EWHC 1578 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.347800
Ouseley J
[2002] EWHC 2044 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.347802
The exercise of the permission to develop granted by the local planning authority may have the result that the character of the neighbourhood changes and that which would previously have been a nuisance must be held no longer to be so
Cumming-Bruce LJ said: ‘The planning authority has no jurisdiction to authorise a nuisance save (if at all) in so far as it has statutory power to change the character of a neighbourhood.’
Cumming-Bruce LJ
[1980] QB 156
England and Wales
Cited – Watson and others v Croft Promo-Sport Ltd CA 26-Jan-2009
The claimants were neighbours of the Croft motor racing circuit. They alleged nuisance in the levels of noise emanating from the site. The defendants denied nuisance saying that the interference was deemed reasonable since they operated within the . .
Appeal from – Allen v Gulf Oil Refining Ltd HL 29-Jan-1980
An express statutory authority to construct an oil refinery carried with it the authority to refine. It was impossible to construct and operate the refinery upon the site without creating a nuisance. Lord Wilberforce said: ‘It is now well settled . .
Cited – Wheeler and Another v JJ Saunders Ltd and Others CA 19-Dec-1994
The existence of a planning permission did not excuse the causing of a nuisance by the erection of a pighouse. The permission was not a statutory authority, and particularly so where it was possible it had been procured by the supply of inaccurate . .
Cited – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.280164
A hotel placed a caravan within its grounds to house its waitresses. The council served an enforcement notice.
Held: There had been no material change of use. The use of the caravan was incidental to the main use of the land. The test was to be applied by looking at the alleged change in the context of the entire planning unit.
[1982] JPL 785
England and Wales
Applied – 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.
Updated: 07 May 2022; Ref: scu.259215
The planning authority served an enforcement notice after the land owner increased the number of caravans on his land. The court considered the validity of the enforcement notice. Lord Denning said: ‘It was said on behalf of the appellant that the change of use alleged in the enforcement notice (from one to four caravans) was not a material change of use. Intensification of an existing use, it was said, is not a material change of use. I do not agree. I think that a considerable increase in the number of caravans would be a material change of use. In any case it must be remember that this whole site was used as a pleasure ground with a cafe and one caravan. If the site is used as well for several caravans, that would be a material change of use. It would be a change from a pleasure ground to a caravan site, at least in part. This question — of a material change of use — has been repeatedly held to be a question of fact and degree. The Divisional Court was quite right to refer it to the Minister for decision.’
Lord Denning and Davies LJ
[1966] 1 WLR 135
England and Wales
Appeal from – James v Secretary of State for Wales QBD 1965
The defendant challenged the validity of a planning enforcement notice served after he had increased the number of caravans on his site. The Secretary of State said it amounted to a change of use. . .
Appeal from – James v Secretary of State for Wales HL 1968
The land-owner increased the number of caravans on his land. The planning authority alleged there had been a change of use, and issued an enforcement notice. The land-owner challenged its validity.
Held: A decision granting or refusing . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.258744
The appellant challenged the validity of a conditional planning permission which had been granted after the expiry of the period statutorily prescribed for doing so. It is unnecessary to examine the cases in detail.
Held: A planning permission so granted was not necessarily voidable, but that it might be so in certain circumstances.
[1966] 1 WLR 135
England and Wales
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.258745
The defendant challenged the validity of a planning enforcement notice served after he had increased the number of caravans on his site. The Secretary of State said it amounted to a change of use.
[1965] 63 LGR 269
England and Wales
Appeal from – James v Secretary of State for Wales CA 1966
The planning authority served an enforcement notice after the land owner increased the number of caravans on his land. The court considered the validity of the enforcement notice. Lord Denning said: ‘It was said on behalf of the appellant that the . .
At First Instance – James v Secretary of State for Wales HL 1968
The land-owner increased the number of caravans on his land. The planning authority alleged there had been a change of use, and issued an enforcement notice. The land-owner challenged its validity.
Held: A decision granting or refusing . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.258743
[2004] EWHC 2447 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.239278
[2006] EWHC 223 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.240333
Elias J
[2005] EWHC 208 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.223847
Application under section 288 of the Town and Country Planning Act 1990, challenging the decision of an inspector appointed by the First Secretary of State on a planning appeal.
Richards J
[2005] EWHC 521 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.224095
Ouseley
[2005] EWHC 2218 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.231268
[2003] EWHC 3012 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.189127
[2003] EWHC 3007 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.189129
Planning permissions had been deemed to have been granted for the construction of the East London Line Extension to Dalston. It was proposed to demolish an historic goods yard with associated buildings to make way for the line. The claimant objected that the new line could be constructed to make good use of mucjh of the existing structures. HELD: Permission for review was granted, and the court declared that material operations had already been undertaken in breach of conditions of the permissions.
Ouseley J
[2002] EWHC 2307 (Admin)
Town and Country Planning Act 1990 90(2A)
England and Wales
Cited – Dillner, Regina (on The Application of) v Sheffield City Council Admn 27-Apr-2016
The claimant challenged the policy of the respondent council to replace many established trees along streets in the City.
Held: Permission to apply for review was refused: ‘Some concern has been expressed by objectors to the scheme that, in . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.189094
Whether the proposed redevelopment of a site on the seafront at Margate ought to be subjected to an environmental impact assessment
Lord Justice Maurice Kay
[2014] EWCA Civ 1446
England and Wales
Updated: 07 May 2022; Ref: scu.538319
Did the London Borough of Barnet Council, as local planning authority, discharge the public sector equality duty in section 149 of the Equality Act 2010 when determining an application for planning permission for the development of a school on land that was once the Wyevale Garden Centre
[2012] EWHC 3725 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.467638
Application under section 288 of the Town and Country Planning Act 1990 quashing the decision of the Inspector appointed by the first respondent, dismissing the application for residential and Class B and employment development
[2009] EWHC 2187 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.374379
Application to quash part of local plan.
Sir Michael Harrison
[2007] EWHC 3278 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.271206
The claimant sought registration of an open area as a Commons under the 2006 Act. Until 2002 it had been tenanted by a golf club. The inspector had recommended against registration, saying that the use by the public for lawful pastimes had been for more than twenty years, but that this use had been generally deferential to the tenants, and so had not been as of right’.
Held: To establish a common, the use had to be ‘as of right’ and the use had acknowledged the tenants’ and therefore the land-owners’ rights. The claim for a common failed.
Jackson J
[2007] EWHC 3166 (Admin), [2008] JPL 1156, [2008] ACD 38
Council Directive 79/409/EC of 2nd April 1979, on the Conservation of Wild Birds, Commons Act 2006 15
England and Wales
Appeal from – Lewis, Regina (on the application of) v Redcar and Cleveland Borough Council and Another CA 15-Jan-2009
The claimants sought registration of land as a common, saying that it had been used by the local residents for social activities for many years. The council had licenced the land for use as a golf course for many years.
Held: The residents’ . .
At First Instance – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.271202
This application for judicial review is concerned with the manner in which the Defendant Council dealt with an application for approval of conditions (the application) made by the claimant under the Environment Act 1995
[2003] Env LR 679, [2002] 17 EG 155, [2002] EWHC 866 (Admin), [2002] PLCR 25
England and Wales
Updated: 07 May 2022; Ref: scu.347795
The law ordinarily entitles a person whose land is taken for a highway to compensation unless the statutory intention to resume without compensation is expressed in clear and unambiguous terms. Lord Wilberforce described a use treated as established under planning law as: ‘analogous to a right established by prescription’.
Where a statutory procedure exists for taking away rights with compensation, the court will resist the argument that some other procedure is available for doing the same thing without compensation.
Lord Wilberforce, Lord Reid
[1965] AC 1134
England and Wales
Cited – Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners PC 18-Jan-1927
An Act removing the right of appeal to the Privy Council was held not to affect an appeal in litigation pending when the Act was passed and decided after its passing, on the ground that (Lord Warrington) ‘[t]o deprive a suitor in pending litigation . .
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.237726
The applicant had already been granted prior approval for the erection and installation of antennae. The respondent then designated the area to be a conservation area.
Held: Once the notification had been given, the subsequent designation could not be used to require the resubmission of any request. The date of approval had already been fixed.
Times 24-Jan-2006
England and Wales
Updated: 07 May 2022; Ref: scu.238730
The court considered the relevance of personal circumstances to the grant of injunctions in enforcement of planning conditions.
Held: In any considerations of common humanity, the needs of these particular gypsy families were a material consideration because they had a need for this development in this location. Those personal circumstances entitled the Secretary of State to have regard to them as relevant to the decision he had to make in the public interest about the use of the land for the stationing of residential caravans. Their particular need for stability in the interest of the education of the younger children can also reasonably be seen as an aspect of the wider land use interest in the provision of gypsy sites, which interest includes the need for stable educational opportunities. There is also a public interest in the planning system providing stable educational opportunities for gypsy families, including these gypsy families.
Ouseley J
[2001] JPL 1184
England and Wales
Cited – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.182494
An application for submission of details supporting an application for outline planning permission had been made within the time limit. However, following an inquiry the Secretary of State had indicated that approval would be appropriate in respect of a more limited area, and had invited submission of detailed plans and information relating to the reduced area. The authority argued that such an amendment would be outside the scope of the original permission. They accepted that an amendment was possible within the three-year period, but submitted that once that period had come to an end no amendment whatever could validly be made.
Held: The argument was rejected. Lord Keith said: ‘It is to be observed that neither in the Act of 1972 nor in the Order of 1975 is any procedure laid down for the manner in which applications of this nature are to be dealt with, apart from the provisions about entry in the register. This is not a field in which technical rules would be appropriate, there being no contested lis between opposing parties. The planning authority must simply deal with the application procedurally in a way which is just to the applicant in all the circumstances. That being so, there is no good reason why amendment of the application should not be permitted at any stage, if that should prove necessary in order that the whole merits of the application should be properly ascertained and decided upon . . ‘
Lord Keith
(1981) 43 P and CR 375
England and Wales
Cited – Oxfordshire County Council v Oxford City Council and Another CA 24-Feb-2005
The court was asked as to the power to amend an application for registration of land as a village green, in the absence of any specific provision in the regulations permitting amendment. Guidance was sought for practitioners. . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.565106
[1977] 76 LGR 533
England and Wales
Approved – Pilkington v Secretary of State for the Environment QBD 1973
A planning permission was granted to build a bungalow on part of the land, site ‘B’, subject to a condition it should be the only house to be built on the land. He built the bungalow. Later the owner discovered the existence of an earlier permission . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.538891
The court was asked as to the standing of the applicants to make their application. Lord President Hope said: ‘But in my opinion the fact that all three appellants were present at, and made representations at the public inquiry is sufficient for them to be persons ‘aggrieved’ . . they were entitled to expect that the Secretary of State, in considering their representations, would act within the powers conferred upon him by the statute and . . they are entitled to appeal against his decision on the ground that he has not done so.’
Lord President Hope
1992 SLT 373
Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.470549
Appeal from decision on enforcement notices.
Owen J
[2009] EWHC 1676 (Admin)
England and Wales
Updated: 05 May 2022; Ref: scu.352267
Lord Carlile of Berriew QC
[2009] EWHC 829 (Admin)
Town and Country Planning Act 1990
England and Wales
Updated: 05 May 2022; Ref: scu.341855
The exceptions expressed in the 18 and 19 Vict. c. 120, s. 90, and 19 and 20 Vict. c. 112, s. 3 (the Metropolis Local Management Acts), do not exempt the Ecclesiastical Commissioners, acting under the Church Builditig Acts, from the provisions of the first-mentioned Act, and vestries have, under the first-mentioned Act, authority to pull down such portions of churches, as well as of other buildings, as transgress the provisions of that Act.
[1861] EngR 620, (1861) 3 De G F and J 688, (1861) 45 ER 1045
Updated: 05 May 2022; Ref: scu.284381
The parties disputed what constituted an application under section 288 of the 1990 Act.
Held: Though the time limit for filing an application was absolute, a discretion remained with the court to allow subsequent service out of time in the court rules.
The Inspector’s letter was not sufficiently clear as to whether permission was being given for a second site and was quashed.
(1993) COD 274
Town and Country Planning Act 1990 288, Rules of the Supreme Court O3r5 O94r1.2
England and Wales
Cited – Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting Admn 18-Jul-1997
The applicant complained of having been struck off the register of nurses. He said that when he told the court that he wanted to appeal he was sent forms appropriate for a judicial review. He amended and submitted them. In correcting him, the court . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.277519
A challenge was made to a decision of the local authority to grant planning permission for an area of land for residential development where it was surrounded by industrial works. It had no intention to arrange compulsory purchase.
Held: The request for judicial review failed. The fact that the authority did not intend to use its powers for compulsory purchase did not vitiate the planning permission. It had not acted improperly or irrationally, and had not taken into account anything it should not have. An applicant for judicial review must in any event proceed ‘with greatest possible celerity.’
Simon Brown J
[1991] 1 QB 471, [1989] 29 RVR 134
Town and Country Planning Act 1991 29 51 245
England and Wales
Cited – Finn-Kelcey v Milton Keynes Council and MK Windfarm Ltd CA 10-Oct-2008
Judicial Review must be timely
The appellant challenged the grant of permission for a wind farm on neighbouring land. His application for judicial review had been rejected for delay and on the merits.
Held: The court repeated the requirement that an application must be both . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.277138
Forbes J said: ‘What does ‘new evidence’ in this context mean? It cannot mean that, because the inspector has not seen it before, everything that he sees is new evidence. If it meant that, every time that an inspector went on a view he would have to re-open the inquiry because he would be taking into account new evidence, and, of course, at that inquiry, in accordance with the terms of Rule 13(ii) of the Rules of 1974, he would have to go and have another view, and he would then be having further fresh evidence which would require him to re-open the inquiry once more, and one would have a never-ending case like a cat chasing its tail. The task of inspectors would then be even worse than it is at the moment. ‘New evidence’ means that, if what is seen on a view raises a point that was either not raised during evidence or argument at the inquiry or, if it was raised, was taken as being so peripheral as to be of virtually no account, then there is a duty to reconvene the inquiry or at least to give an opportunity of making representations. If, however, when [what] is seen on a view simply serves to underline or give greater emphasis to some point that was raised at the inquiry, then no such opportunity need to be given.’
Forbes J
(1978) 36 P and CR 455
England and Wales
Cited – Checkpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.179897
The appellants had a motorbike dealership, which operated under a planning permission requiring them not to sell or display motor-cycles on the forecourt. They were convicted of breaching that permission when customers and staff parked their own motorcycles on the forecourt.
Held: The magistrates had considered that ‘display’ in the permission meant ‘open up to view’ or to ‘exhibit to the eyes’. The appellants argued that something more was required, either an element of deliberate ostentation or of display of cycles for sale. They were correct. The magistrates had failed to look to the intention behind the cycles being so parked. They were not being exhibited for any commercial purpose. Conviction quashed.
Mr Justice Harrison
Gazette 01-Aug-2002, Times 30-Jul-2002
England and Wales
Updated: 05 May 2022; Ref: scu.174697
The applicant opposed permission for an egg-production unit, alleging that an environmental impact assessment was required. The regulations required a screening review to assess whether an assessment was required. There was no formal record of a screening review having been taken into account by the planning committee.
Held: The failure to record the screening was a defect in the way the decision had been reached, and nor was the council able to allow the application to proceed on the basis that fuller details would be supplied later. In deciding whether an EIA is required, the focus should be on likely significant environmental effects rather than on remediation or mitigation measures; and if a decision runs two issues together and rests on the view that remediation measures will be effective to prevent otherwise significant effects, it deprives the public of the opportunity to make informed representations in accordance with the EIA procedures about the adequacy of such measures. The claim was allowed.
Mr Justice Sullivan, Richards J
Gazette 19-Sep-2002, [2002] EWHC Admin 2009, [2003] JPL 466
Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999
England and Wales
Cited – Bellway Urban Renewal Southern v Gillespie CA 27-Mar-2003
The applicant appealed against a decision for development granted in the absence of its own decision. The judge had quashed the decision because of the absence of an environmental impact statement.
Held: When making the screening decision, it . .
Cited – Younger Homes (Northern) Ltd v First Secretary of State and Another Admn 26-Nov-2003
The claimant sought to quash a planning decision on the basis that a screening decision had not been made.
Held: Though the procedures within the authority could have been bettered, there was no formal requirement for a screening option to . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.177319
Local Authority properly had a policy requiring developers to contribute to infrastructure cost. Infrastructure improvement requirements of developers lawfully imposed by District Council.
Times 08-Nov-1994, Independent 26-Oct-1994
England and Wales
Updated: 05 May 2022; Ref: scu.88084
A Local Authority was not wrong for failing to follow a planning inspector’s report rejecting district structure planning for future development of cycle ways. It had properly considered all the relevant points
Gazette 08-Jul-1998
England and Wales
Updated: 05 May 2022; Ref: scu.84300
The extent of a curtilage was to be determined as at the time when a dispute arose, but historical evidence remained relevant.
Times 06-Dec-1994, [1995] 1 PLR 16
England and Wales
Cited – Crockett v Secretary of State for Transport, Local Government and the Regions and another Admn 24-Oct-2002
The applicant built a shed on land behind his bungalow, but without planning consent. The planning authority issued enforcement proceedings. He appealed, contending that it fell within the Order. The inspector visited the property, and decided that . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.83491
The applicants had been successful in their appeal against a refusal of planning permission. The Secretary of State had awarded himself and the applicants their costs against the Council. The Council asked the House to give guidance on the principles which should underly such awards.
Held: A losing party is not usually to pay all costs of a multiply represented opponent, but there is no overall rule. A developer would not normally be entitled to his costs unless they have some additional interest over and above their interests as developers which required their separate representation. A second set of costs might be awarded at lower appeal stages, but would be come unusual as cases progressed through levels of appeal, and the award of a third set of costs would be rare.
Lord Justice Glydewell: ‘I venture to suggest that from the authorities generally, and particularly those to which I have referred, one can deduce the following principles:
. . . (2) the decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb ‘might’ I mean where there is a real possibility that he would reach a different decision if he did take that consideration into account.
(3) If the matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account’.
Lord Lloyd of Berwick: ‘As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule.’
Lord Lloyd of Berwick, Lord Justice Glydewell
Gazette 31-Aug-1995, Times 17-Jul-1995, [1995] 1 WLR 1176, 61 P and CR 343
England and Wales
See also – Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others HL 25-May-1995
There had been an application in 1986 for planning permission for a shopping centre in Trafford. There were two public enquiries, followed, as public policy changed by further representations. The plaintiff complained that the eventual decision . .
Cited – Waverley Borough Council v Secretary of State for the Environment 1988
. .
Cited – Wychavon District Council v Secretary of State for the Environment and Another CA 24-Oct-1994
The Secretary of State was entitled to a costs order whether or not matter of principle had arisen in the course of a planning appeal. . .
See also – Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others HL 25-May-1995
There had been an application in 1986 for planning permission for a shopping centre in Trafford. There were two public enquiries, followed, as public policy changed by further representations. The plaintiff complained that the eventual decision . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.78477
The question raised by these renewed applications, put at its simplest, is this: when must an unsuccessful litigant accept ‘No’ for an answer?
Sir Keith Lindblom, The Senior President of Tribunals, Coulson and Andrews L.JJ
[2020] EWCA Civ 1588
England and Wales
Updated: 04 May 2022; Ref: scu.656374
Meaning and effect of a delegated planning decision
[2020] EWCA Civ 1420
England and Wales
Updated: 04 May 2022; Ref: scu.655368
Lord Justice Lloyd
[2012] EWCA Civ 1911
England and Wales
Updated: 04 May 2022; Ref: scu.517243
The Council challenged various decisions of the first defendant’s Inspector, and in particular the Inspector’s decision on a substantive planning appeal. The court now looked at the timing of the issue of the proceedings and of their service.
Forbes J
[2008] EWHC 3619 (Admin)
England and Wales
Updated: 04 May 2022; Ref: scu.375536
The second respondents had a factory. They sought planning permission to extend it, and this was granted with conditions, against which the land-owners appealed, saying that the first defendant had misused the opportunity to seek to impose conditions on the existing development.
Held: When an application was made, an authority might grant permission attaching conditins which would affect an existing authorised us and without offering compensation. The new conditions must however relate to the development now permitted. That applied in this case, and the conditions were not ultra vires.
[1977] JPL 371, [1977] 34 P and CR 269
England and Wales
Updated: 04 May 2022; Ref: scu.260046
[1988] 3 PLR 101
England and Wales
Cited – Bolton Metropolitan District Council and Others v Secretary of State for the Environment and Others No 2 HL 17-Jul-1995
The applicants had been successful in their appeal against a refusal of planning permission. The Secretary of State had awarded himself and the applicants their costs against the Council. The Council asked the House to give guidance on the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.238512
The question of whether or not a defendant has done all that he can ‘reasonably be expected’ to do to comply with a planning enforcement notice is a matter for the tribunal of fact whether it be the magistrates or the jury.
(1996) 1 PLR 1
Cited – Wood, Regina v CACD 25-May-2001
The appellant was a gipsy. He had bought land and occupied it with his family but without planning permission. He now appealed against a conviction for failing to comply with an enforcement notice. He appealed saying that he had not been allowed to . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.536025
(1989) 59 P and CR 468
Cited – Alnwick District Council v Secretary of State for Environment, Transport and Regions and others Admn 4-Aug-1999
The Council had given planning consent for a superstore, not appreciating the proposed size, which would contravene national planning policy. In the face of the council’s objections, the Secretary of State revoked the permission. The substantial . .
Mentioned – The Health and Safety Executive v Wolverhampton City Council and Victoria Hall Ltd CA 30-Jul-2010
The Council had granted planning pemission for four blocks of student accomodation. The Executive objected that it had not dealt properly with the issue the proximity of a liquified petroleum gas storage depot.
Held: Though there had been some . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.463645
The court was asked whether, when a building was found to have been erected without permission, the Local authority was able to agree a partial demolition, leaving what would have been permitted under the General Development order.
Held: It could. Lord Denning MR said: ‘After all, the local planning authority cannot pick and choose between the various parts of the extension. It cannot say which is to be pulled down and which to stand. It can only order the removal of the whole.
It is only right to add that, nevertheless, the city council have said that they are prepared to allow Mr Garland to keep so much of the extension as comes within the amount permitted by the General Development Order. That is very proper. We have been shown a plan which indicates that Mr Garland will be allowed to keep quite a lot of what he has done. It means, however, that he will have to take down a good deal of the top storey and part of the second. But I will not go into those details. I would only echo the words of Lord Parker CJ in the Divisional Court: I hope that an amicable arrangement can be reached.’
Lord Denning MR
1968] 20 P and C R 93
Updated: 04 May 2022; Ref: scu.450768
[1989] 2 PLR 1
Cited – Perrin and Another v Northampton Borough Council and others CA 19-Dec-2007
The land owners had sought permission to fell an oak tree subject to a tree preservation order in order to prevent further damage from its roots.
Held: The council’s appeal succeeded. The court was asked to decide whether any works to the tree . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.432932
Carnwath J
[1998] Env LR 560
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.428513
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 the planning consequences would be if it were not viable.
Woolf J
[1983] JPL 806
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.
Updated: 02 May 2022; Ref: scu.414947
Nicholls LJ discussed the nature and enforcement of agreements under section 106 of the 1990 Act, saying: ‘A section 106 agreement may be enforced against the original covenantor in contract, and against successors in title to the original convenantor by virtue of sub.(2). Enforcement is a matter solely for the local planning authority, and there is no right for the public at large, even through a relator action to bring enforcement proceedings; although the authority’s decision to enforce or not to enforce is amenable to judicial review.’ and
‘In the nature of things, many decisions of local authorities affect members of the public to a greater or lesser extent. These decisions affect the public and, in that loose sense, ‘the public interest.’ This is as much so in planning matters as in many other fields of activity of local authorities, such as education. But, despite this, there is no general ‘public right’ which entitles or enables the court to override a local authority’s decision on a matter which by statute or otherwise has been entrusted to its decision. In exercise of its judicial review jurisdiction, the court is able to ensure that a local authority’s decision has been arrived at properly, in the sense that the decision-making process was duly followed. The court will check that the decision-making body proceeded properly, and applied its collective mind properly to the matters entrusted to its decision. If the decision is flawed, the authority may be compelled to reconsider the matter, and this time to do so properly. But the end result is still a decision by the local authority on the relevant issue, not a decision of the court. All this is trite law, but its importance in the present case lies in noting that the public right for which the Attorney-General contends would have the consequence that a decision by the council on whether or not to enforce the covenant in the 1934 agreement, even if arrived at impeccably, could effectively be overridden, at any rate in some circumstances. If the council decided not to enforce the covenant, nevertheless, if the Attorney-General is correct, the covenant would still be enforceable pursuant to the ‘public right’ to have the covenant complied with.’
Nichols LJ continued: a special type or degree of public interest such as to justify the conclusion that they give rise to a ‘public right’ of enforcement. Mr Price [counsel for the Attorney-General], indeed, disclaimed any contention that all agreements to which section 34 applies, or to which its well-known successor section (s.52 of the 1971 Act) applies, give rise to such a right. He was wise to do so. A proposition that all section 52 agreements, irrespective of their content, create a ‘public right’ would be unsustainable. It would be far too wide.
This compelled the Attorney-General to adopt the position that there is to be found in the provisions of this particular agreement some special feature having the consequence that this agreement, unlike the generality of section 34 or section 52agreements, did create a ‘public right. Mr. Price contended that the special feature was that the land was intended to be preserved permanently as a private open space ‘for the benefit and amenity of the district.’ This is a promising starting point, but the route which Mr. Price was then obliged to negotiate led him into quicksand. He recognised that, notwithstanding the existence of the public right for which he contended, the council had power to vary or release the restrictions in the 1934 agreement, by agreement with the owner of Birtenshaw Farm. (Indeed, this power was exercised in this case. In 1955 the council and the executors of the two Ashworth brothers agreed to modify the user restrictions to enable a school to be built partly on Birtenshaw Farm and partly on Oaks Farm.) The public right, in other words, consisted only of a right to enforce the restrictions in the agreement as subsisting from time to time. Mr. Price contrasted a case (a) where the council had agreed to release or vary the restrictions, with a case (b) where there was no variation or release but the council declined to take steps to enforce the agreement for non-planning reasons: for example, because of a mistaken view of the enforceability of the agreement. He submitted that in the latter case, case (b), there was a residual public right which did not override the council’s right to decide whether to vary or release the restrictions. Nor did it override the council’s planning policies. In case (b) the public had a right to enforce the agreement in default of the council doing so. In such a case the public right would not be inconsistent with any relevant policy of the council.
I cannot accept this. By thus limiting its scope, one is left with a public right defined in terms which cannot stand scrutiny. On this formulation the 1934 agreement generated a right vested in the public to enforce the restrictions if, but only if, the reason for non-enforcement was unrelated to planning considerations: for example, financial constraints, or a mistaken view of the council’s legal rights. I can see no sound basis for concluding that the agreement created a public right of such a curiously circumscribed nature. The agreement either operated to vest a right in the public in respect of the user restrictions, or it did not. If it did, the right must surely have been applicable, at the very least, in all circumstances where the agreement remained in force. But admittedly the right being claimed would not apply if it was for planning reasons that the council decided not to enforce the restrictions.
The difficulties do not end there. There is no practical distinction between a decision of the council not to enforce a restriction and a decision formally to vary or release a restriction. In each case the effect of the decision is the same: non-enforcement. For there to be a public right available in the one case but not the other would be unsatisfactory. If the public right is subordinate to and overridden by a formal variation decision, there can be no good reason why it should not equally be subordinate to and overridden by a decision not to enforce.
If that is correct, no scope is left for the operation of the novel public right being contended for. On analysis, the council’s ability to ‘override’ the public right of enforcement by releasing the covenant is inconsistent with there being any public right to enforce the covenant. The custodian of the covenant was the council. Established procedures exist for those dissatisfied with the council’s decisions. But there is no independent public right to enforce the covenant. In short; the categories of public right are not closed, but there is no scope for the existence of a public right in this case without doing unjustifiable violence to the contractual and local government framework in which the 1934 agreement rests.’
Nicholls LJ
Times 02-Jan-1990
Town and Country Planning Act 1990 106
England and Wales
Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD 13-May-2010
The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.415911
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 planning permission where the benefit could not otherwise have been lawfully secured by means of a condition.
There had been evidence at the inquiry although the Inspector did not accept it and formed his own view. It was open to him to use his experience, his professional judgement and his common sense in the matter.
(1983) 48 P and CR 255
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.
Updated: 02 May 2022; Ref: scu.414944
Where a land-owner owner had failed to give proper notice to the Board, the Board had, under the 1855 Act, power to demolish any building he had erected and recover the cost from him. The plaintiff said that the Board had used that power without giving the owner an opportunity of being heard. The Board maintained that their discretion to order demolition was not a judicial discretion and that any appeal should have been to the Metropolitan Board of Works.
Held: The claim succeeded. Erie CJ said that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard. This rule had been applied to: ‘many exercises of power which in common understanding would not be at all a more judicial proceeding than would be the act of the district board in ordering a house to be pulled down.’
Willes J said that the rule was ‘of universal application and founded upon the plainest principles of justice.’ and ‘I apprehend that a tribunal which is by law invested with power to affect the property of one Her Majesty’s subjects is bound to give such subject an opportunity of being heard before it proceeds, and that rule is of universal application an founded upon the plainest principles of justice.’
Byles J said that ‘although there are no positive words in a statute requiring that the party shall be heard yet the justice of the common law will supply the omission of the legislature.’
Erie CJ, Willes J, Byles J
[1863] EngR 424, (1863) 14 CB NS 180, (1863) 143 ER 414
Metropolis Local Management Act 1855
Cited – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.283079
A party seeking a judicial review has a duty to go ahead very quickly. The court considered the need for an environmental assessment in respect of the proposed development.
[1991] 1 PLR 6
England and Wales
Cited – Finn-Kelcey v Milton Keynes Council and MK Windfarm Ltd CA 10-Oct-2008
Judicial Review must be timely
The appellant challenged the grant of permission for a wind farm on neighbouring land. His application for judicial review had been rejected for delay and on the merits.
Held: The court repeated the requirement that an application must be both . .
Cited – Friends of Basildon Golf Course v Basildon District Council and Another Admn 23-Jan-2009
The council owned land on which it ran a golf course. It set out to privatise it and sought interest. An application was made for planning permission. The applicants objected to the planning permission, saying that the Environmental Impact . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.277139
The landowner challenged conditions attached to a grant of planning permission for an extension. A restriction would require the existing office accomodation to be used for ancillary purposes only.
Held: The conditions were upheld.
[1975] 237 Estates Gazette 416
Updated: 01 May 2022; Ref: scu.260047
The sherriff court had not accepted a submission by the Council that an alteration from a painted gable wall advertising Raleigh Bicycles, to a smaller advertisement for Carlsberg Special Brew, painted onto plywood sheets which were nailed to the wall and surrounded by a timber frame, was a ‘substantial alteration’ in the use of the site for the display of advertisements.
Held: ‘On the second point the Sheriff could not accept, however, that the interposition of sheets of plywood between the paint and the stonework of the building must necessarily be regarded as a substantial alteration in the manner of the use of the site for the purpose of displaying advertisements, nor could he see that it necessarily made any difference that, according to the pursuers’ averments, the new advertisement was surrounded by ‘a nominal timber frame’. The general appearance and effect of an advertisement might be the same whether it was painted directly on a wall or on sheets of plywood or metal nailed to the wall, or printed on paper which in turn was pasted on the underlying surface. Changes from one such method to another may be no more than comparatively minor changes in the method used to achieve what may in appearance be almost exactly the same display. They were not necessarily substantial alterations in the manner of the use of the site for the purpose of that display.’
[1980] JPL 409
Cited – Wandsworth Borough Council v South Western Magistrates’ Court, Clear Channel UK Limited Admn 2-May-2007
The council appealed dismissal of its prosecution of the defendant under the Regulations on the basis that the defendant had deemed consent for the advertisements at issue. A picture which had been painted on the upper half of a house, in 1921, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.254431
(Commission) A local authority had served an enforcement notice on ISKCON alleging a material change of use of the land. ISKCON appealed against the notice under section 174(2) of the Town and Country Planning Act 1990 and after a report by an inspector the Secretary of State largely confirmed the enforcement notice. The High Court and the Court of Appeal rejected ISKCON’S appeal. On a complaint under the Convention the Commission recalled that an appeal under section 289 of the Town and Country Planning Act 1990 lay only on a point of law but it took into account that the local authority could only take proceedings within the limits of section 174 of that Act and that in accordance with its own structure plans and the policy guidance laid down by the Secretary of State ISKCON could then seek a determination as to whether the legal requirements had been met.
Held: The Commission concluded: ‘The Commission recalls that the High Court dealt with each of ISKCON’S grounds of appeal on its merits, point by point, without ever having to decline jurisdiction. Moreover, it was open to ISKCON to contend in the High Court that findings of fact by the inspector and/or the Secretary of State were unsupported by evidence, as they could have argued that the administrative authorities failed to take into account an actual fact or did take into account an immaterial fact. Finally, the High Court could have interfered with the administrative authorities’ decisions if those decisions had been irrational having regard to the facts established by the authorities.
It is not the role of article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities on questions of expediency and where the courts do not refuse to examine any of the points raised; article 6 gives a right to a court that has ‘full jurisdiction’ (cf [Zumtobel v Austria (1993) 17 EHRR 116, para 32]).’
20490/92, (1994) 18 EHRR CD 133
European Convention on Human Rights 6, Town and Country Planning Act 1990
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.251597
The four years period limiting enforcement proceedings runs from the first date at which the enforcement notice could have been served. Widgery J said: ‘If the plaintiff can . . Show that a notice in the terms of that served could, on the facts proved, have been served more than four years before the date upon which it was actually served, the notice served is bad, and it matters not that a further intensification of the use has resulted in further development within the four year period, because that further development will not be the development or give rise to the breach of condition upon which the notice is based.’
Widgery J
[1962] 14 PandCR 332
England and Wales
Affirmed – Britt v Buckinghamshire County Council CA 1963
. .
Cited – Thomas David (Porthcawl) Ltd and others v Penybont Rural District Council and others 5-Oct-1972
The appellant complained that an enforcement notice had been served as to an entire plot of land when the activities complained of, sand and gravel extraction, had occurred on only two smaller parts.
Held: The site should be looked at as a . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.246382
The court considered the planning effect of a new building on about a half of a site. Lord Widgery CJ: ‘. . The principle which one derives from the authorities and applies to the present case is that, where you have a new building erected, that part of the land which was absorbed in the new building and covered by the new building is merged in it; you start with a new planning unit which has no permitted planning use except those derived from the planning permission, if any, and from section 33(2) of the Town and Country Planning Act 1971, which allows such a building in many instances to be used for the purpose for which it was designed.’
Lord Widgery CJ
Unreported, 09 April 1973
Town and Country Planning Act 1971 33(2)
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 – Jennings Motors Ltd v Secretary of State for the Environment and another CA 27-Nov-1981
The land owners had demolished a building and erected a new building on a small part of the entire site, but without obtaining planning permission. The local authority argued that this was a change of use and a breach of planning control.
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.246386
Schiemann LJ, Sedley LJ, Blackburne J
[1997] EWCA Civ 330
England and Wales
Cited – Adamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.245314
The court referred to the decision of Sedley J in Atkinson adding: ‘As consideration of common humanity, they had to be equally applicable to decisions in relation to enforcement actions.’
Latham J
[1996] JPL 837
England and Wales
Cited – Regina v Lincolnshire County Council Ex Parte Atkinson; Regina v Wealden District Council Ex Parte Wales and Others QBD 3-Oct-1995
A local Authority must make proper welfare enquiries before seeking to remove unlawful campers. The new draconic legislation must be seen in its context. The commons of England provided lawful stopping places for people whose way of life was or had . .
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.
Updated: 01 May 2022; Ref: scu.240396
‘There was no obligation on an inspector to undertake an investigatory role, though he had certain powers to call for information if he considered it necessary. He should arrive at his conclusions on the basis of what the parties (including third parties) put before him, together with his inspection of the site and the area, and of course utilising his own experience, expertise and common sense.’
David Widdicombe QC
[1983] JPL 812
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.
Updated: 01 May 2022; Ref: scu.240305
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the decision was actually made. In order to have proper regard to a policy, it is essential that the policy is properly understood by the decision-maker, otherwise the decision will be as defective as would be the case if no regard had been paid to the policy in question.
Government policy would often be a material consideration in planning decisions.
Woolf J
(1985) 54 PandCR 86, [1986] JPL 519
England and Wales
Cited – Regina v North Derbyshire Health Authority ex parte Kenneth Graeme Fisher Admn 11-Jul-1997
The court considered the duty of the authority to take account of guidance issued by the Secretary of State: ‘If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it . .
Cited – Gill, Regina (on The Application of) v Secretary of State for Justice Admn 26-Feb-2010
Failure to provide programme discriminated
The claimant prisoner who had a learning disability said that he had been unable to complete the offending behaviour programmes because of his disability, that he had been kept in prison for much longer than he should have been as a consequence, and . .
Cited – Milner, Regina (on The Application of) v South Central Strategic Health Authority Admn 11-Feb-2011
The claimant sought to challenge the way the defendant had reached its decision to add flouride to the water supply, in having failed to comply with the requirements for consultation.
Held: The claim failed. The Regulations as enacted differed . .
Cited – Milner, Regina (on The Application of) v South Central Strategic Health Authority Admn 11-Feb-2011
The claimant sought to challenge the way the defendant had reached its decision to add flouride to the water supply, in having failed to comply with the requirements for consultation.
Held: The claim failed. The Regulations as enacted differed . .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.238557
The claimant was said to have failed to comply with an enforcement notice.
Held: A person prosecuted for failure to discontinue a use in accordance with an enforcement notice could challenge the validity of the notice before the criminal court on any ground whatever, including those upon which he could have appealed to the magistrates when it was served upon him
[1958] 1 QB 478
Cited – Hampstead Heath Winter Swimming Club and Another v Corporation of London and Another Admn 26-Apr-2005
Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
Held: It has always been a principle of the interpretation of . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.231179
[2005] EWHC 2251 (Admin)
England and Wales
Updated: 30 April 2022; Ref: scu.231574
The plaintiff’s predecessor in title had applied in 1946 for planning permission. The authority approved the application and for nearly 40 years all concerned had proceeded on the basis that outline planning permission had been granted. In 1984 the defendant council contended that in the absence of a document containing a formal grant no valid permission could have been granted. A fresh application for permission was refused and the plaintiffs therefore sought a declaration that there had been a valid grant of permission in 1946 under a document that had since been lost. The Vice-Chancellor heard evidence of the circumstances in which the application had been made and the manner in which the parties had acted in the intervening period. The evidence was not satisfactory on either side and he was unable to make a firm finding either that there had, or had not, been a formal grant of permission contained in a document that had since been lost. In those circumstances he considered it proper to resort to the presumption of regularity which he described in the following terms: ‘But in certain cases the law raises a presumption . . The presumption is that when there has been a long-term enjoyment of a right which can only have come into existence by virtue of a grant or some other legal act, then the law presumes, in the absence of proof to the contrary, that there was a lawful origin. This is the historical basis from which the doctrine of lost modern grant was developed in relation to easements. Given the long enjoyment of a right of way, then the court presumed the existence of a grant of the right of way. I am not for a moment suggesting that the technicalities and indeed the legal consequences applicable to lost modern grant in the law of easements are applicable to the present case; they are not. The legal basis though is the same, namely a presumption from long enjoyment. The same presumption of regularity can arise where the validity of an act done by a public authority depends on the existence of a state of facts which cannot, with the passage of time, be proved. The presumption is that the statutory authority has acted lawfully and in accordance with its duty.’
Sir Nicolas Browne-Wilkinson V.-C
(1989) 60 P and CR 322
England and Wales
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 . .
Cited – Stancliffe Stone Company Ltd v Peak District National Park Authority CA 17-Jun-2005
In 1952, the Minister wrote a leter confirming the planning permissions for four quarries now owned by the claimants. In 1996, two of the quarries were separately included in a list of dormant sites, and in 19999 the applicant began to apply for . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.228574
An Enforcement Notice alleged unauthorised use of land as a timber storage and transfer area. The land so used was 1500 metres from forestry plantations. The appellant argued that it was concerned with ‘the use of land for the purposes of forestry’ and that therefore development was not involved. This was rejected by the reporter on the grounds that the land against which the Enforcement Notice was directed was so physically divorced from the forest that he could not regard it as ‘an operation or use ancillary to forestry and I consider it rather to be a use of industrial character’.
Held: ‘The cultivating of forests and the management of growing timber would include the felling of trees and the extraction of the timber from plantations. There would be little point in cultivating or managing forests unless the fruits of the operation in the sense of the felled timber were to be taken away from the plantation for commercial purposes. Accordingly, we are satisfied that the extraction of timber is included in the general term forestry. . . . In the light of the findings which the reporter has made in the present case, it is plain that, if timber were to be extracted from these plantations, there was no alternative to the movement of timber on the road through the village and that the use of the subjects described in the Enforcement Notice for stock piling timber extracted from the forest and transferring it onto the lorries was functionally essential to the running of these plantations commercially. That being so, we are satisfied that at the material time the subjects referred to in the Enforcement Notice were being used for the purposes of forestry. …….. In our opinion it does not matter that the subject s referred to in the Enforcement Notice were situated some 1500 metres from the plantations; what is important is not the fact that the subjects were physically divorced from the plantation but the use to which the subjects were being put.’
[1992] 2PLR 123
Town and Country Planning (Scotland) Act 1972
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.229044
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. The inspector quashed the Enforcement Notice on the grounds that as the caravan was used for animal feed preparation and shelter. Such uses were ancillary to the agriculture use, and stationing the caravan was not a material change. The Council now contended that the caravan amounted to a new primary use of the land, and was not incidental to the existing use, that the use now was a mixed use, and that the change was material because the caravan was objectionable viusually.
Held: The Council’s appeal failed. The court should consider not just the placing of the caravan, but also the purpose of its being so placed. The use was incidental to the main purpose of use of the land and so was exempted under section 22(2)(e), and therefore there had been no material change of use.
Ralph Gibson LJ said that he: ‘had sympathy with the contention of the council that it was both surprising and a reasonable ground for concern if the occupier of agriculture land was free under Planning Law to station at any point upon his land one of more caravans, intended to serve the same purpose as farm buildings, regardless of the harm which the Planning Authority reasonably considered would be caused by the presence and appearance of the caravan in the place where they were stationed. ‘ However, such reflections upon apparent gaps in the extent of the planning control could not affect the construction of the Act because, the meaning of the word there used in the context of the Act as a whole was clear . . . the Section . . . operated where there was ‘use of any land for the purposes of agriculture’. The word ‘agriculture’ was defined [to include] a list of agriculture activities among which were for example, fruit growing and the breeding and keeping of live stock. No reliance was placed by Mr Burrell [counsel for the council] upon any arguments to the effect that Section [55(2)(e)] could only apply to use of land for the purposes of one of the listed agricultural activities and not for use for the purposes of activities ancillary or incidental to those listed agriculture activities. He was right not to rely on upon any such arguments. The definition was an inclusionary definition. Construed in its context there was ‘use of land for the purposes of agriculture’ where the land was used for activities in direct furtherance of agricultural activity.
The stationing of the caravan on the land was without doubt for the purposes of agriculture . . . a typical caravan . . . was said Mr. Burrell, designed for human habitation as a residence and therefore the stationing of it on land could not be ordinarily incidental to a primary agricultural use. It was assumed in that submission that the degree of connection between the land use in question and the primary agricultural use, was accurately expressed by the phrase ‘ordinarily incidental’ if the land use was held to be ‘for the purposes of agriculture’ within Section [55(2)9e)] Ralph Gibson LJ assumed that this was so but it was not necessary to decide whether the connection expressed by the meaning contained in that phrase would in every case be necessary for this purpose . . . there was nothing in the nature of the typical residential caravan . . . which rendered the use of such a caravan incapable of being properly regarded as ordinarily incidental to the agricultural use of land , that was to say as an ordinary piece of equipment for stationing upon land and for use when so stationed for the purpose of agriculture.’
Ralph Gibson LJ
(1988) JPL 268, [1988] 08 EG 112
Town and Country Planning Act 1971 22(2)(e)
England and Wales
Considered – G Percy Trentham Ltd v Gloucestershire County Council CA 1966
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 . .
Applied – Restormel Borough Council v Secretary of State for the Environment and Rabey 1982
A hotel placed a caravan within its grounds to house its waitresses. The council served an enforcement notice.
Held: There had been no material change of use. The use of the caravan was incidental to the main use of the land. The test was to . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.229043
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.
Lord Morris
[1971] AC 72
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.229045
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.
Willis J
[1970] 1 WLR 1231, [1970] 3 All ER 871
Cited – Ealing London Borough Council v The Audit Commission for Local Authorities and Another Admn 17-Feb-2005
The authority complained at the intended use by the respondent of a performance assessment issued by a third party. The Audit Commision appealed.
Held: The use of the third party assessment was proper where that body had the appropriate skills . .
Cited – Audit Commission for England and Wales v Ealing London Borough Council CA 16-May-2005
The authority complained that the respondent intended to adopt the assessment of its performance the judgment of a third party.
Held: There had been no unlawful delegation of the Audit Commissions duties. The Commission for Social Care . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.225437
The planning functions of a local authority are exercised in the public interest. Salmon J said: ‘The scheme of the Town and Country Planning Legislation, in my judgment, is to restrict development for the benefit of the public at large and not to confer new rights on any individual members of the public, whether they live close to or far from the proposed development.’
Salmon J
[1961] 1 QB 278
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.225323
The planning function is exercised by a local authority on behalf of the public at large and not for private individuals.
[1989] 46 BLR 34
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 . .
Cited – Welton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.225322
Application was made for planning permission to use a redundant hospital building in Covent Garden for primarily office use. Policies of the local planning authority sought not only to restrain office use, but also to seek residential accommodation in, inter alia, the appeal building. The Inspector dismissed the appeal.
Held: The decision letter was quashed. The Inspector had not applied, the BWB probability test as to the likelihood of residential use ultimately taking place within the building. The Secretary of State apparently accepted, in argument, that the BWB test applied in principle to a future use, though it was submitted that the test was not applicable where there was – as in that case – a planning objection to the proposed use.
Unreported, 27 July 1992
England and Wales
Cited – Regina (Westminster City Council) v British Waterways Board HL 1985
The tenant occupied land next to a canal under a lease from the Defendants. The landlord opposed a renewal saying they wished to occupy the land themselves for the purposes of a marina. The tenant said the plan was unrealistic, because it would not . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.219458
Planning permission had been granted for an office block, together with 8 flats as part of the same building. The building was largely erected, with the residential part incomplete. There was an application to change the existing permitted use of the residential part of the block to office use. That application was refused. The resulting appeal was dismissed by the Secretary of State. At first instance Willis J. quashed the decision, following Granada on the basis that the desirability of retaining the existing housing use was an immaterial consideration.
Held: This approach was wrong, Sir David Cairns: ‘The fact that the refusal of planning permission for a change of use cannot ensure that a current use which is a permitted use will continue was as already indicated the ground of the refusal of planning permission in the case of the Dartford cinema. It is equally true that whereas in the present case the permitted use has not been started, the refusal of an application to change of use cannot ensure that permitted use will ever be started. This was a point strongly relied on. I do not find it a compelling argument. The need for housing is certainly a planning consideration. If permission is given for office use, the permission will almost certainly be implemented and the building will be unavailable for housing. If permission for office use is refused, there is at least a fair chance that the building will be used for housing rather than being allowed to stand empty’.
Sir David Cairns
[1977] 1 WLR 926
England and Wales
Cited – Regina (Westminster City Council) v British Waterways Board HL 1985
The tenant occupied land next to a canal under a lease from the Defendants. The landlord opposed a renewal saying they wished to occupy the land themselves for the purposes of a marina. The tenant said the plan was unrealistic, because it would not . .
Cited – London Residuary Body v Lambeth London Borough Council HL 1990
Planning battles had raged over the use of the former GLC County Hall. The question was whether it was desirable and appropriate to retain use of part of the building for London Government offices and centred on the ‘competing needs’ test.
Cited – London Residuary Body v Lambeth London Borough Council HL 1990
Planning battles had raged over the use of the former GLC County Hall. The question was whether it was desirable and appropriate to retain use of part of the building for London Government offices and centred on the ‘competing needs’ test.
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.
Updated: 30 April 2022; Ref: scu.219456
Planning battles had raged over the use of the former GLC County Hall. The question was whether it was desirable and appropriate to retain use of part of the building for London Government offices and centred on the ‘competing needs’ test.
Held: County Hall in London was not an office use, but was a Local Government use sui generis. A change to general office use was development. The competing needs test was rejected: ‘All that section 29(1) of the Act of 1971 requires is that the Secretary of State should have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. The amount of weight to be given to any material consideration is a matter for the judgment of the Secretary of State’. Afrer refering to Clyde and BWB Lord Keith continued:- ‘In my opinion nothing in either the Clyde and Co. case or in the Westminster Council case is properly to be interpreted as laying down that the competing needs test exists as a matter of law. Such a proposition would involve putting an unwarranted gloss on the language of section 29(1) of the Act of 1971. The most that can be extracted from the two cases is that the desirability of preserving an existing use of land is a consideration material to be taken into account under that subsection, provided there is a reasonable probability that such use will be preserved if permission for the new use is refused’.
Lord Keith
[1990] 1 WLR 744, [1989] 3 PLR 105, [1990] 2 All ER 309
Town and Country Planning Act 1971 29(1)
England and Wales
Cited – Clyde and Co v Secretary of State for the Environment CA 1977
Planning permission had been granted for an office block, together with 8 flats as part of the same building. The building was largely erected, with the residential part incomplete. There was an application to change the existing permitted use of . .
Cited – Regina (Westminster City Council) v British Waterways Board HL 1985
The tenant occupied land next to a canal under a lease from the Defendants. The landlord opposed a renewal saying they wished to occupy the land themselves for the purposes of a marina. The tenant said the plan was unrealistic, because it would not . .
Cited – Clyde and Co v Secretary of State for the Environment CA 1977
Planning permission had been granted for an office block, together with 8 flats as part of the same building. The building was largely erected, with the residential part incomplete. There was an application to change the existing permitted use of . .
Followed – 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.
Updated: 30 April 2022; Ref: scu.219457
The claimants, charitable trustees bought land with planning permission subject to an agreement by the defendant to provide roadway improvement. They deposited sums with the authority as security. The roadworks were not completed for 10 years. The claimants sought return of the sums deposited as no longer required.
Held: The claimants had to permit a drawdown unless, and until, the obligation was discharged or modified, as a matter of judgment for the engineer, however the claimants were granted an inquiry on damages from the defendant not having been completed the work within the requisite period.
Hart J
Gazette 22-Apr-2004
Town and Country Planning Act 1990 106
England and Wales
Updated: 30 April 2022; Ref: scu.200442
The House considered the status of a pedestrian right of way through a caravan site to a beach, and the 1949 Act: ‘The sections which follow section 27 deal with the further steps which have to be taken before the definitive map is completed and published. They provide an elaborate procedure for enabling representations or objections to be made to the surveying authority (with a right of appeal to the minister) as to anything contained in or omitted from the draft map. Such representations and objections can be made not only by persons interested in the land, but also by members of the public, so that a person who alleges that a right of way as shown on the draft map ought to be upgraded from ‘footpath’ to ‘bridleway,’ or from ‘bridleway’ to ‘road used as a public path,’ has an opportunity at this stage of adducing evidence to make good his claim. The next step in the procedure is the preparation by the surveying authority of a provisional map incorporating any modifications to the draft which, as a result of representations, have been accepted by the surveying authority or upheld by the minister on appeal. The procedure for verifying the accuracy of what is eventually to be shown on the definitive map does not stop here; though the remaining step is not likely to bring to light the existence of more extensive rights of way than are shown on the provisional map. Its presence may, however, supply an explanation of why a reasonable allegation that a right of way of a particular kind exists is treated as sufficient justification for entering it on the draft map. The owner, lessee, or occupier of the soil over which any right of way shown on the provisional map passes has the right under section 31 to apply to quarter sessions (now the Crown Court) for declarations inter alia that a right of way shown on the provisional map either does not exist or is there shown as being more extensive than it really is; and, if he does so, the onus of proving the existence of the disputed right lies on the county council. But failing any proceedings in the Crown Court under this section, an entry of a right of way that originally appeared on the draft map on no firmer basis than that the surveying authority was of opinion that an allegation that it existed was a reasonable one is carried through to the definitive map unaltered.’
and ‘The way in which ramblers . . are to be benefited is by providing them with an easy and conclusive way of proving their rights to walk . . on particular routes’.
Lord Diplock also said: ‘The law of highways forms one of the most ancient parts of the common law. At common law highways are of three kinds according to the degree of restriction of the public rights of passage over them. A full highway or ‘cartway’ is one over which the public have rights of way (1) on foot, (2) riding on or accompanied by a beast of burden and (3) with vehicles and cattle. A ‘bridleway’ is a highway over which the rights of passage are cut down by the exclusion of the right of passage with vehicles and sometimes, though not invariably, the exclusion of the right of driftway, i.e., driving cattle, while a footpath is one over which the only public right of passage is on foot.
At common law too a public right of way of any of the three kinds has the characteristic that once it has come into existence it can be neither extinguished nor diminished by disuse, however long the period that has elapsed since it was last used by any member of the public – a rule of law that is the origin of the brocard ‘once a highway, always a highway.’
Lord Diplock
[1979] AC 705, [1979] 2 All ER 369
National Parks and Access to the Countryside Act 1949
England and Wales
Cited – Todd, Bradley v The Secretary of State for Environment Food and Rural Affairs Admn 22-Jun-2004
Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that . .
Cited – Todd, Bradley v The Secretary of State for Environment Food and Rural Affairs Admn 22-Jun-2004
Application was made to quash an order modifying the Council’s definitive map of public rights of way.
Held: Before the Secretary of State could confirm a Council’s modification of a right of way shown on the definitive map, where that . .
Cited – Boss Holdings Ltd v Grosvenor West End Properties and others HL 30-Jan-2008
The tenant sought to enfranchise the property under the 1967 Act. The freeholders replied that it was not a ‘house’ within the Act at the time of the notice. It had been built in the eighteenth century as a house, but the lower floors had been . .
Cited – Barrett v Director of Public Prosecutions Admn 10-Feb-2009
The defendant appealed against his conviction for driving whilst disqualified. He had driven on a roadway within a caravan park. A public footpath (a highway) went through the park. There were gates at the entrance but these were kept open. The . .
Cited – Ernstbrunner v Manchester City Council and Another Admn 16-Dec-2009
The appellant challenged by case stated a refusal of the Crown Court to order removal of a gate which he said obstructed a public footpath. The land-owner had persuaded the magistrates that the gate was not on the line of the footpath. The claimant . .
Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
Cited – Fortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.199309
There had been an unauthorised change of use case from residential to commercial use. The notice not only required the cessation of the commercial use but also the removal of an internal staircase which had been put in to facilitate that use though in itself the staircase had not required permission.
Stuart-Smith J
[1987] JPL 630
England and Wales
Cited – Sage v Secretary of State for the Environment, Transport and the Regions and others HL 10-Apr-2003
The appellant had challenged an enforcement notice requiring him to pull down a partially built house. The issue was when the four year limitation period had commenced. Did the four year limitation period commence when the works were complete, or . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.196900
(1962) 13 P and CR 417
England and Wales
Cited – Sage v Secretary of State for the Environment, Transport and the Regions and others HL 10-Apr-2003
The appellant had challenged an enforcement notice requiring him to pull down a partially built house. The issue was when the four year limitation period had commenced. Did the four year limitation period commence when the works were complete, or . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.196896
The court referred to the extent of interest in land required by caravan dwellers to support payment of compensation on the issue of enforcement notice.
Held: Salmon LJ said: ‘I agree that the interest referred to in section 45(3)(b) is confined to a legal or equitable interest and does not include an interest in the loose or colloquial sense of someone being interested in the land.’ Stamp LJ, (dissenting), said that the caravan dwellers had no legal or equitable interest in the land itself or any part of it.
Salmon LJ, Stamp LJ, Edmund Davies LJ
[1972] 1 Ch 400
Town and Country Planning Act 1962 45(3)(b)
England and Wales
Cited – Madrassa Anjuman Islamia of Kholwad v Municipal Council of Johan-Nesburg PC 1922
‘The word ‘occupy’ is a word of uncertain meaning. Sometimes it denotes legal possession in the technical sense, . . At other times ‘occupation’ denotes nothing more than physical presence in a place for a substantial period of time, . . Its precise . .
Distinguished – International Traders Ferry Ltd v Adur District Council CA 26-Feb-2004
The council served a stop notice. The company sought compensation. The council replied that the company had no legal or equitable interest in the land affected.
Held: The company had occupied the land under a licence. A contractual licensee on . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.194774
The council granted planning permission although its planning committee had decided that further surveys should be carried out to ensure that bats would not be adversely affected by the proposed development. The question was the adequacy of information provided pursuant to Schedule 3 (where an EIA had been required), rather than the initial decision whether an EIA was required at all. The planning committee had decided that further surveys should be carried out to ensure that bats would not be adversely affected by the development.
Held: Since those surveys might reveal significant adverse effects on bats, it was not open to the committee to conclude that there were no significant nature conservation issues until they had the results of the surveys. The surveys might have revealed significant adverse effects on the bats or their resting places. Without the results of the surveys, they were not in a position to know whether they had the full environmental information required by Regulation 3 before granting planning permission. It was not permissible to defer to the reserved matters stage consideration of the environmental impacts and mitigation measures.
Harrison J
[2001] 2001 Env LR 473
England and Wales
Cited – Jones, Regina (on the Application of) v Mansfield District Council and Another CA 16-Oct-2003
Plannning permission was sought. Objectors said that it would have such an impact that an environmental impact assessment was required. They now sought judicial review of the decision to proceed without one.
Held: The judge had explained the . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.187370
A decision should in general be quashed if by way of error a relevant consideration is not taken into account or an irrelevant consideration is taken into account unless the decision-maker was bound on the facts to have reached the same conclusion if the error had not occurred.
Purchas LJ
[1989] 3 PLR 25, (1988) 57 Cand PR 306
England and Wales
Cited – Regina v Broadcasting Complaints Commission, ex parte Owen CA 1985
The BBC is a creation of the Crown through the grant of a Charter in the exercise of the Royal Prerogative, and it exercises its functions under agreement with and licences from the Government. The court expressly declined to express a view on the . .
Cited – Fisher and Another v English Nature Admn 4-Jul-2003
The claimants were trustees of land. The Respondent had notified the Secretary of State that they considered that part of the land satisfied the criteria to be certifed as being of special scientific interest. They now intended to confirm 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 – MR, Regina (on The Application of) v The Secretary of State for The Home Department Admn 10-Mar-2017
The claimant challenged the use of the Royal Prerogative to withdraw his passport. He had as a youth been involved with a terrorist organisation, but said that he now regretted that and was no longer so involved. He had sought to set up a business, . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.186086
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 proceedings doing so. Viscount Simonds said: ‘It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights in not to be excluded except by clear words. That is a ‘fundamental rule’ from which I would not for my part sanction any departure.’
Viscount Simonds, Lord Goddard
[1960] AC 260, [1959] 3 All ER 1
England and Wales
Appeal from – 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 – I-CD Publishing Ltd v The Secretary of State, The Information Commissioner (Interested Party) Admn 21-Jul-2003
The claimant sought judicial review challenging the restrictions on the sale of electoral registers to registered credit reference agencies. Following Robertson (1) the new regulations created two registers, and the claimant sought to be able to . .
Approved – Wandsworth London Borough Council v Winder HL 1985
Rent demands were made by a local authority landlord on one of its tenants. The local authority, using its powers under the Act, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. He argued that the . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
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 – Manchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.185845