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Planning - From: 1985 To: 1989

This page lists 27 cases, and was prepared on 02 April 2018.


 
 Pioneer Aggregates (UK) Limited v Secretary of State for the Environment; HL 1985 - [1985] 1 AC 132; [1984] 2 All ER 358

 
 Westminster City Council v Great Portland Estates plc; HL 1985 - [1985] AC 661; [1984] 3 WLR 1035
 
Regina (Westminster City Council) v British Waterways Board [1985] 1 AC 476; [1984] 3 WLR 1047
1985
HL
Lord Bridge of Harwich
Landlord and Tenant, Planning
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 get planning permission for the change of use (the tenant was also the planning authority). Held: The test was objective. Would a reasonable man, looking at the situation from the outside think there was a reasonable prospect of planning permission being given. The tenant's own occupation was not a legitimate planning objection, and the landlord had established a reasonable prospect of planning permission being granted. The House had to consider whether "the desirability of preserving an existing use of land may by itself afford a valid planning reason for refusing permission for a change of use": "As it seems to me, the preservation of an existing use (which is temporarily suspended) cannot afford a ground to refuse permission for an otherwise acceptable change of use, unless it can be shown that the refusal may reasonably be expected to lead to a resumption of the suspended use. This raises questions as to the true scope, for planning purposes, of the established existing use of the premises to which I must shortly revert . . . "In a contest between the planning merits of two competing uses, to justify refusal of permission for use B on the sole ground that use A ought to be preserved, it must, in my view, be necessary at least to show a balance of probability that, if permission is refused for use B, the land in dispute will be effectively put to use A".
Lord Bridge of Harwich said: "So long as the mixture of uses on the premises, which the judge held to be the relevant planning unit, remain substantially unchanged, there would be no material change of use. Those uses, as already indicated, included workshops, offices, stores, messing facilities and parking for a variety of vehicles both under cover and in the open. This is just such a mixture of uses as would be required by a wide variety of undertakings whose business was the operation of some kind of vehicular transport and who required a base from which to operate. Whether, in any particular case, the proposed use of the premises by such an undertaking would involve a material change of use would depend on the detailed nature of the proposal. But it would be of no relevance to the use of the premises to inquire for what purpose the vehicles parked there were to be used when they left their base."
and "Before turning to the planning issues on which this appeal ultimately depends, it is necessary to dispose first of a question arising upon the construction of section 30(1)(g) of the Act of 1954. Since there has been no actual planning application by the respondents for permission to change the use of the premises and since we know that any such application would be refused by the appellants as local planning authority, what are the circumstances, necessarily hypothetical, in which the respondents' prospects of success in such an appeal to the Secretary of State must be considered? More particularly, are the respondents' prospects of success in such an appeal to be considered on the assumption that, when the Secretary of State has to decide the appeal, the respondents are entitled to possession of the premises and the appellants' occupation has ceased? My Lords, it seems to me that an affirmative answer to that question is inescapable. A landlord opposing the grant of a new tenancy under section 30(1)(f) or (g) seeks to establish what he intends to do "on the termination of the current tenancy." If the only obstacle to his implementing an admittedly genuine intention is a suggested difficulty in obtaining a necessary planning permission, the plain language of the Act of 1954 requires that his prospect of success in overcoming that difficulty should be assessed on the footing that he is entitled to possession . . I hope I do Walton J no injustice, but I find it difficult to resist the conclusion that he approached the planning issue on the assumption of an uninterrupted occupation of the premises by the appellants (which the grant of a new tenancy would, of course, in practice ensure) and failed to appreciate that the Act of 1954 requires, for this purpose, a hypothetical resumption of possession by the respondents to be assumed . . if the notional planning appeal is considered on the assumption that the respondent landlords are entitled to resume possession, the continued use of the premises for the purpose for which they are presently used by the appellant tenants is by no means an inevitable consequence of the refusal of permission . . The Court of Appeal . . correctly approached the question of the respondents' prospects of success in a notional planning appeal on the basis of an assumed entitlement to possession . . For my part, I find it difficult to see how [Westminster's] argument can be sustained at all, once it is appreciated that the respondents' prospects of success in a notional planning appeal must be considered on the assumption that they, not the appellants, are in possession."
Landlord and Tenant Act 1954 30(1)(g)
1 Cites

1 Citers


 
West Bowers Farm Products v Essex County Council (1985) 50 P&CR 368
1985
CA
Nourse LJ, Neill LJ
Planning
Farmers sought to construct a reservoir for irrigation. To create the reservoir they would have to excavate substantial volumes of sand and gravel which would be sold on. The appellants contended that the extraction of the sand and gravel was an engineering operation that was requisite for the use of the land for the purposes of agriculture and therefore permitted under the Order. The question was, whether the construction of the reservoir would fall within the classes of development to which section 26(2) applied as constituting the use of the land for the winning and working of minerals. Held: The appeal was dismissed. Whether a single process amounted for planning to two activities was a question of fact and degree; that, if it involved two activities, each of substance, so that one was not merely ancillary to the other, both required permission; that the construction of the appellants’ reservoir would involve two activities, each of substance, the extraction of minerals on such a scale not being merely ancillary to the carrying out of the engineering operation of constructing the reservoir; and that, accordingly, planning permission was required for the winning or working of minerals involved. "Mr. Schiemann QC, for the appellants, submitted that the impossibility of constructing the reservoir without extracting the gravel demonstrated that the latter activity was an integral part of the former. There was one indivisible process. Therefore, permission for the former was permission for the latter. I accept the premise of that submission but reject the conclusion. The planning legislation is not impressed by the indivisibility of single processes. It cares only for their effects. A single process may for planning purposes amount to two activities. Whether it does so or not is a question of fact and degree. If it involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission." Neill LJ: "I see no reason in principle why works that are carried out on land may not comprise development of more than one class. In many cases, building or engineering operations will involve as an incidental feature of the operations the extraction of gravel or other minerals. In such cases, it would often be quite inappropriate to treat the development as involving the winning or working of minerals within article 8(1)(b) of the Order of 1977."
Town and Country Planning General Development Order 1977 3
1 Citers


 
EC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment (1985) 54 P&CR 86; [1986] JPL 519
1985
QBD
Woolf J
Planning, Administrative
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.
1 Citers


 
Castell-y-Mynach Estate v Secretary of State for Wales [1985] JPL 40
1985
QBD
Nolan J
Planning
A building ceased to be occupied as a dwelling in 1965, and then over a period of years became nearly derelict. Even so, the evidence showed that at no time had the owners intended abandoning the rights of existing use, despite their decision not to relet for residential use. Four relevant factors were identified at the inquiry and, the issue was whether the building was abandoned or not. Counsel for the applicant emphasised the intentions of the owners, saying the Secretary of State had "misdirected himself in going by the view of a reasonable man rather than apprising his mind of the crucial issue which was the true intention of the owners". Held: The weight of any particular fact had to depend on the circumstances of the case. Nolan J: "What was decisive was that the argument before the inspector, reviewed by the first respondent, was conducted on the agreed basis that all four factors relevant to this matter were taken into account. The weight that any particular factor bore had to depend on the particular case. It was true that in this case the extreme state of disrepair seemed to have affected the mind of the first respondent, as it had done the inspector, more than anything else. However, that was not at all inconsistent with the view formed, whichever one of the four factors one looked at. The only strong evidence the other way was the expressed intention of the owners, which was repeated at the hearing. However, genuinely expressed and put forward, it appeared to have yielded to the weight of the other factors in the mind of the inspector. Therefore the judge could see no error of law on the grounds advanced by counsel in his first submission."
1 Citers


 
Runnymede Borough Council v Smith [1986] JPEL 592
1986


Planning
The section provided protection even for caravans which had come on to the site with knowledge of the stop notice, and an injunction was refused on these grounds.
Town and Country (Amendment) Act 1971 90(2)(b)
1 Citers


 
Hall Aggregates (Thames Valley) v Secretary of State for the Environment [1986] 1 EGLR 194
1986


Planning
Whether to adopt a flexible or strict approach to the application of planning policy is a matter of planning judgment.

 
Bradford City Metropolitan Council v Secretary of State for the Environment (1986) 53 P & CR 55; [1986] 1 EGLR 199
1986
CA
Lloyd LJ
Planning
Lloyd LJ said that it has usually been regarded as axiomatic that planning consent cannot be bought or sold. Conditions requiring off-site roadway benefits were unreasonable and it was suggested that it would make no difference if they were included in a section 106 agreement.
The developer’s agreement is a significant factor (albeit not automatically controlling) in determining the reasonableness issue, but the mere agreement of the parties does not make a "manifestly unreasonable" condition permissible: "The fact that the applicant has suggested a condition or consented to its terms is, of course, likely to be powerful evidence that the condition is not unreasonable on the facts, since, as in the case of any commercial transaction, the parties are usually the best judges of what is reasonable. So I do not think there is likely to be any great rush of cases in which the developer obtains planning permission by consenting to a condition, and then appeals successfully against the imposition of the condition to the Secretary of State on the grounds that it is manifestly unreasonable. A successful appeal in such circumstances is likely to be rare."
1 Citers


 
Regina v Wells Street Metropolitan Stipendiary Magistrate, Ex parte Westminster City Council [1986] 1 WLR 1046
1986


Planning, Crime
The offence provided in section 9 of contravening section 7 is an offence of strict liability.
Planning (Listed Buildings and Conservation Areas) Act 1990 7 9


 
 Somak Travel v London Borough of Brent; 1987 - [1987] JPL 630
 
ELS Wholesale (Wolverhampton) Limited v Secretary of State (1987) 56 P&CR 69
1987


Planning
Planning appeal decision letters are not to be read on the basis that the Inspector is writing an examination paper, and one has to look not at the minutiae but at the real sense and basic content of the decision to which he had come.
1 Citers


 
Regina v Newland (1987) 54 PCR 222; [1987] JPL 851
1987
CACD

Planning, Crime
The appellant, a woman of gypsy stock had been fined for breach of a planning enforcement order. The crown court judge had concluded cursorily that her planning appeal was hopeless and simply designed to frustrate the local authority. By the time the matter reached the appellate court the appeal had been decided in her favour. Held: The appeal succeeded. The judge had been wrong not to grant the application for an adjournment pending the inspector's decision, which could have realistically been expected to be handed down within a matter of weeks. The fine imposed was in any event grossly excessive and a much lower amount was substituted.
1 Citers



 
 Waverley Borough Council v Secretary of State for the Environment; 1988 - [1988] 3 PLR 101
 
Waverley Borough Council v Hilden [1988] 1 WLR 246
1988


Planning
The local authority sought to use its powers under the Act to enforce planning control over gypsies.
Local Government Act 1972 222
1 Citers


 
Dyer v Dorset County Council [1988] 3 WLR 213; [1989] 1 QB 346
1988
CA
Lord Donaldson of Lymington MR, Nourse LJ, Mann LJ
Planning, Land
The court discussed what was meant by the curtilage of the appellant's house: "Thus the sole issue is whether Mr Dyer's house is or is not within the curtilage of another building or, by the application of section 6 of the Interpretation Act 1978, of more than one other building. This is a question of fact and degree and thus primarily a matter for the trial judge, provided that he has correctly directed himself on the meaning of 'curtilage' in its statutory context." and "Parliament has not seen fit to define the word 'curtilage' in this statutory context and we have to regard to dictionaries and to such authorities as to its meaning as existed in 1980 and 1984." and "There are also a number of ecclesiastical authorities to the effect that a curtilage must be near a house and must 'belong' to it ..." "'Curtilage' seems always to involve some small and necessary extension to that to which the word is attached." Nourse LJ: "I agree. The derivations mentioned in the Oxford English Dictionary (French, courtil - a little court or garth; Italian, corte; Mediaeval Latin, cortile or curtile - a court or yard) rather suggest that 'curtilage' started life as a word describing a small area enclosed by walls or buildings, the smallness of the area being emphasised by the diminutive suffix 'age', as in village. The need for physical enclosure of the area having disappeared in current usage, the dictionary definition, which I quote in full, is for most present-day purposes adequate." and "While making every allowance for the fact that the size of a curtilage may vary somewhat with the size of the house or building, I am in no doubt that the 100 acre park on the edge of which Mr Dyer's house now stands cannot possibly be said to form part and parcel of Kingston Maurward House, far less of any of the other college buildings. Indeed, a park of this size is altogether in excess of anything which could properly be described as the curtilage of a mansion house, an area beyond which no conveyancer would extend beyond that occupied by the house, the stables and other outbuildings, the garden and the rough grass up to the ha-ha, if there was one." Mann LJ: "The word 'curtilage' is a term of art and, in employing it, the draftsman and Parliament must have had regard to its meaning as such a term. Its meaning as a term was discussed in Metheun-Campbell. It appears from that decision that the meaning of the word 'curtilage' is constrained to a small area about a building. The size of the area appears to be a question of fact and degree."
Interpretation Act 1978
1 Cites

1 Citers


 
Wealden District Council v Secretary of State for Environment and Colin Day (1988) JPL 268; [1988] 08 EG 112
1988
CA
Ralph Gibson LJ
Planning
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."
Town and Country Planning Act 1971 22(2)(e)
1 Cites

1 Citers


 
Simplex GE (Holdings) Limited v Secretary of State [1989] 3 PLR 25; (1988) 57 C& PR 306
1988
CA
Purchas LJ
Planning, Administrative
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.
1 Cites

1 Citers



 
 Northumberland County Council v Secretary of State for the Environment; 1989 - (1989) 59 P & CR 468

 
 Smith v Oliver; 1989 - [1989] 2 PLR 1

 
 Regina v Secretary of State for the Environment ex parte Ahern; 1989 - [1989] 2 PLR 96

 
 Ryeford Homes v Seven Oaks District Council; 1989 - [1989] 46 BLR 34

 
 Calder Gravel Ltd v Kirklees Metropolitan Borough Council; 1989 - (1989) 60 P & CR 322

 
 White v Secretary of State for the Environment; CA 1989 - [1989] 58 P&CR 281; [1989] 15 EG 193
 
Regina v Westminster City Council, ex parte Monahan [1989] 1 PLR 188; [1990] 1 QB 87
1989
CA
Kerr LJ, Nicholls LJ
Planning
The Royal Opera House sought permission and listed building consents to carry out a re-development, extending and modernising the House raising it to international standards, and to develop the surrounding area consistently with that project. Parts of the site were proposed to be used for the erection of office accommodation, which would be a departure from the development plan. The authority gave permission for the whole proposed development saying that the desirable improvements could not be financed without the offices. M objected saying that that part of a development would not be viable without permission the rest was not a "material consideration" for the statute. Held: Where there are composite or related developments (related in the sense that they can and should properly be considered in combination), the local authority may balance the desirable financial consequences for one part of the scheme against the undesirable aspects of another part. The authority was entitled to balance financial issues against the fact that the office development was contrary to the development plan.
Nicholls LJ regarded as "self-evident" the idea that "a planning authority may properly take into account as a material consideration . . the practical consequences likely to follow if permission for a particular development is refused".
Kerr LJ said: "In my view, for the reasons which follow, I have no doubt that the respondents' approach is correct in principle, and I would summarise it in the following way. Financial constraints on the economic viability of a desirable planning development are unavoidable facts of life in an imperfect world. It would be unreal in an imperfect world. It would be unreal and contrary to common sense to insist that they must be excluded from the range of considerations which may properly be regarded as material in determining planning applications. Where they are shown to exist they may call for compromises or even sacrifices in what would otherwise be regarded as the optimum from the point of view of the public interest. Virtually all planning decisions involve some kind of balancing exercise . . [Provided] that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation."
Town and Country Planning act 1990 70(2)
1 Cites

1 Citers


 
Mckay and Walker v Secretary of State for the Environment [1989] 1 PLR 7; [1989] JPL 590
1989
QBD

Planning
The court considered a test as to whether a building was constructed for human habitation and not for agricultural use, using its physical layout and appearance.
1 Citers


 
Horsham District Council v The Secretary of State for the Environment and Another Unreported 13 October 1989; Independent, 31 October 1989
13 Oct 1989
Admn
McCullough J
Planning
The court asked whether a traditional gypsy who had lived permanently on a site for a long time, was a gypsy within section 16 and entitled to be excepted from local planning policy restraint on development. Held: The criterion 'nomadic way of life' leads to a certain ambiguity, especially in relation to gypsies who settle for lengthy periods on authorised sites. Many gypsies, in the ethnic sense settle sometimes for several years. It may not be easy to determine whether they have lost their status as gypsies for the purpose of the relevant legislation. There must come a time when as matter of fact the nomadic habit of life has been lost. When it is lost the gypsy is no longer a gypsy for the purposes of the Act. He remains a gypsy by descent, by culture and by tradition, but that is not the issue. The question is whether he is a gypsy for the purposes of the relevant Acts.
Caravan Sites Act 1968 6 16
1 Citers


 
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