swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Planning - From: 1990 To: 1990
This page lists 9 cases, and was prepared on 02 April 2018.
Devon County Council v Secretary of State for the Environment [1990] JPL 40
1990
Hutchinson J
Planning
The court was asked whether an Inspector should have had regard to the changes in ministerial policy which were to lead to the introduction of section 54A of the 1990 Act. Held: Hutchinson J said (obiter): "that the Inspector was not obliged to have regard to section 54A before it came into force . . Her correct course, I consider, was to have regard to current statutory provisions and to the guidance to be derived from any circulars published prior to her decision, in particular [Circular] 14/91. One piece of guidance that circular gave was that current circulars already reflected the spirit of the new provision; another was that section 54A was to be brought into effect about two months after July 25 and that "In future it will mean that determination is to be in accordance with the plan unless etc" This language is, I am satisfied, if anything an encouragement not to give effect to changes dependent wholly on the new section: but it is coupled with encouragement to recognise that existing policy is, matters of nuance apart, broadly consistent with that embodied in the section."
1 Citers
Bolton Metropoitan Borough Council v Secretary of State (1990) 61 P&CR 343
1990
Glidewell LJ
Planning
1 Citers
Regina v Exeter City Council, ex parte JL Thomas Co Ltd [1991] 1 QB 471; [1989] 29 RVR 134
1990
Simon Brown J
Judicial Review, Planning
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."
Town and Country Planning Act 1991 29 51 245
1 Citers
Thrasyvoulou v Secretary of State for the Environment; HL 1990 - [1990] 2 AC 273
Jones v Secretary of State for Wales and Ogwr District Council (1990) 61 P&CR 238
1990
CA
Planning
The court adopted as a principle that a Grampian condition could only be imposed if there was a reasonable prospect of compliance within the time limit imposed on the permission.
1 Cites
1 Citers
Regina v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 2 WLR 186; [1990] 1 ALL ER 754; [1990] 1 QB 504
1990
QBD
Schiemann J
Administrative, Planning
The remains of an ancient theatre had been discovered during the development of a site. The respondent declined to schedule the building as a monument, saying a balance had to be found between preservation and the need to ensure the prosperity of the city, the site was not itself under threat from the developers, and compensation would be payable for any ensuing delays. Held: The Secretary of State was exercising a discretion given to him under the Act. That discretion had not been shown to have been exercised improperly. Members of the public at large had insufficient locus standi to seek judicial review, and locus could not be obtained buy applying to have the building scheduled under the Act.
Schiemann J said: "There is no doubt that, in the early part of this decade, the High Court was fairly liberal in its interpretation of who had "a sufficient interest" to be able to apply for judicial review." and "The applicant's argument on standing runs essentially like this. 1. When scheduled monument consent is sought anybody who wishes to make representations to the Secretary of State can do so and the Secretary of State must consider any such representation once made: see paragraph 3(3) of Schedule 1 to the Act of 1979. 2. Therefore Parliament recognised that everyone has an interest in the preservation of monuments considered by the Secretary of State to be of national importance and everyone has a legitimate expectation to be consulted on such a matter. 3. The Secretary of State considers the Rose Theatre to be a monument of national importance. 4. At the stage when he is considering whether or not to schedule a monument considered by him to be of national importance, the area of discretion left to the Secretary of State is a very small one and therefore it would be artificial to make a distinction so far as standing is concerned between the position at the scheduling stage and the position at the scheduled monument consent state. 5. Therefore, the court should recognise that everyone has a sufficient interest to challenge, by way of judicial review, the lawfulness of the Secretary of State's decision in deciding not to schedule. 6. Although as a matter of form the applicant is a company, as a matter of substance the company is merely the corporate expression of the wills and desires of persons of undoubted expertise and distinction in the fields of archaeology, the theatre, literature and other fields and includes local residents, the local Member of Parliament and so on. These are not mere busybodies. The very fact that the Secretary of State has answered with care the representations made by those whose will the applicant embodies gives them a sufficient interest for the purpose of this application. 8. There is no evidence of any rival organisation which claims to represent the public in relation to the Rose Theatre and thus if this application is struck down for lack of standing then the legality of the Secretary of State's decision is unlikely to be tested in the courts."
"I can therefore consider the question of standing by considering whether an individual of acknowledged distinction in the field of archaeology, of which the company has several amongst its members, has sufficient standing to move for judicial review of a decision not to schedule... It seems to be that the decision not to schedule is one of those governmental decisions in respect of which the ordinary citizen does not have a sufficient interest to entitle him to obtain leave to move for judicial review" and "I do not consider that an interested member of the public who has written and received a reply in relation to a decision not to schedule a site as an ancient monument has sufficient interest in the decision to enable him to apply for judicial review. Finally, I ought to say that I recognise the force of Mr. Sullivan's submission that since an unlawful decision in relation to scheduling either has been made or may well be made in the future, my decision on standing may well leave an unlawful act by a minister unrebuked and indeed unrevealed since there will be those in the future who will not have the opportunity to ventilate - on this hypothesis - their well-founded complaints before the court.
This submission is clearly right. The answer to it is that the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated. Parliament could have given such a wide right of access to the court but it has not done so. The challenger must show that he "has a sufficient interest in the matter to which the application relates". The court will look at the matter to which the application relates - in this case the non-scheduling of a monument of national importance - and the statute under which the decision was taken (in this case the Act of 1979) and decide whether the statute gives that individual expressly or impliedly a greater right or expectation than any other citizen of this country to have that decision taken lawfully. We all expect our decision makers to act lawfully. We are not all given by Parliament the right to apply for judicial review."
Ancient Monuments and Archeological Areas Act 1979 1
1 Citers
London Residuary Body v Lambeth London Borough Council [1990] 1 WLR 744; [1989] 3 PLR 105; [1990] 2 All ER 309
1990
HL
Lord Keith
Planning
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 & 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".
Town and Country Planning Act 1971 29(1)
1 Cites
1 Citers
Attorney-General ex rel. Scotland v Barratt Manchester Ltd Times, 02 January 1990
2 Jan 1990
CA
Nicholls LJ
Planning, Contract
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."
Town and Country Planning Act 1990 106
1 Citers
Wallington v Secretary of State for Wales Times, 12 November 1990; [1991] 1 PLR 87
12 Nov 1990
CA
Slade, Farquharson LJJ
Planning
The landowner appealed against an enforcement notice, saying that though she kept a large number of dogs (44), this was for domestic pleasure purposes, and was only incidental to the use as a private domestic dwelling. Held: The appeal failed. It was sensible to have regard to what would be the normal use of a dwelling house (ie a generic approach) in order to decide whether, as a matter of fact and degree, the activities should reasonably be regarded as incidental to the enjoyment of the particular dwelling house as a dwelling house. A use involving such a large number of dogs was not merely incidental.
Slade LJ said: "The wording of section 22 of the 1971 Act in my opinion made it necessary for the inspector to consider two separate questions. First, had a 'material change in the use of' the premises, within the meaning of section 22(1), taken place by reason of the fact that a large number of dogs were kept there? This was the ground upon which the council in their enforcement notice had alleged that development, and thus breach of planning control, had taken place. If, though only if, the answer to the first question was in the affirmative, the inspector had then to consider the second question, namely whether the use of the premises for keeping of dogs in large numbers constituted the use of the premises 'for any purpose incidental to the enjoyment of the dwellinghouse as such' within the meaning of section 22(2)(d).
The inspector, in para 26 of his decision, in effect answered the first question in the affirmative but answered the second question in the negative. He thus concluded that the use of the premises for the relevant purpose did not fall within the exemption conferred by section 22(2)(d)." and "The formula makes it necessary to consider whether the relevant purpose is incidental to the enjoyment of 'the dwellinghouse' (i.e. the particular dwellinghouse in question) as such, not any dwellinghouse."
Lord Justice Slade considered the phrase "of and incidental to the enjoyment of the dwellinghouse" saying: "As drafted, however, the phrase must mean 'of and incidental to the enjoyment of the dwellinghouse as a dwellinghouse'. The mere fact that an occupier may genuinely regard the relevant activity as a hobby cannot possibly suffice to prove by itself that the purpose is incidental to the enjoyment of the dwellinghouse as a dwellinghouse."
Farquharson LJ said that the concept of what is incidental to the enjoyment of the dwelling house as such involved an element of objective reasonableness and that it could not rest solely on the unrestrained whim of the occupier of the dwelling house.
Town and Country Planning Act 1970 55(2)(d)
1 Citers
