Planning

Tesco Stores Limited v Dundee City Council and Asda Stores, [2012] UKSC 13, 21 March 2012

Mon, 26 Mar 2012 22:42:26 GMT

Supreme Court case considering an appeal from the Inner House which upheld the planning authority’s decision to grant permission for an Asda Store at a site in Myrekirk Road in Dundee.

Tesco (which owns a store 800m from the proposed site) argued that the planning committee had failed to properly apply the “sequential test” (which involves considering suitable alternative sites for development from the town centre outwards) which was set out in the development plan and planning policy. Tesco also claimed that the planning committee had failed to consider its own policy in respect of the Lochee district. (There was an alternative site in Lochee which the Council had discounted as being too small.)

The Supreme Court refused the appeal. The argument centred on the meaning of the word “suitable” which Tesco contended meant “suitable for meeting identified deficiencies in retail provision in the area”. The Supreme Court found that the Council had been correct to proceed on the basis that the word “suitable” meant “suitable for the development proposed by the applicant” but this was subject to the qualification that flexibility and realism must be shown by developers.

Asda had followed a flexible approach but did not regard the Lochee site as suitable for their needs. In accepting that assessment, the Council had exercised their judgment as to how the policy should be applied to the facts and had not proceeded on an erroneous understanding of the policy.

Lord Reed observed that an error by the planning authority in interpreting its policies would be material only if there was a real possibility that their determination might otherwise have been different and he was not persuaded that there was such a possibility in this case.

With regard to a planning authority’s exercise of discretion, Lord Reed also noted:

“planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”

Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council, [2011] UKSC 15, 06/04/2011

Thu, 14 Apr 2011 23:28:00 GMT

This appeal concerns the application of planning law to a dwelling house disguised as a hay barn. The first issue is whether the building is within the provisions of the Town and Country Planning Act 1990 which impose a time limit for taking enforcement action against breaches of planning control. The second issue is whether the owner’s dishonest scheme disentitles him from benefitting from those provisions.

In 2001 Mr Beesley, the Second Respondent, applied for and obtained planning permission to construct a hay barn for grazing and haymaking on open land which he owned in the Green Belt. In 2002 he constructed a building which was to all external appearances the permitted barn, but internally was a fully fitted-out dwelling house with garage, living room, study, bedrooms, bathrooms and gym. In August 2002 he moved in with his wife and lived there continuously for four years. Welywn Hatfield Borough Council, the Appellant, in whose area the property lies, remained unaware that the building was constructed as, or was being used as, a dwelling house.

In August 2006 Mr Beesley made an application for a certificate of lawfulness for use of the building as a dwelling house. He contended that the four year time limit for taking enforcement action in section 171B(2) of the Town and Country Planning Act 1990 (“the 1990 Act”) was applicable and had elapsed. The section provides that “where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of four years beginning with the date of the breach”. The certificate was granted and subsequently upheld by the Court of Appeal, which decided that there had been a “change of use” within section 171B(2) such that immunity from enforcement was established.

The Council appealed to the Supreme Court on two grounds. First, it challenged the Court of Appeal’s decision that there had been a relevant change of use. Secondly, it argued that even if there had been such a change, the principle of public policy that no one should be allowed to profit from his own wrong precluded Mr Beesley from relying on section 171B(2).

The Supreme Court unanimously allows the appeal. It holds that: (i) there had been no change of use within section 171B(2); (ii) in any event, Mr Beesley’s dishonest conduct meant that he could not rely on the section. Lord Mance gives the lead judgment. Lords Rodger and Brown deliver additional
concurring judgments.

On the first issue, the question was whether there had been any relevant change of use such as to bring the building within section 171B(2). The Supreme Court held first that the building which Mr Beesley constructed was not the permitted barn: it was a dwelling house. Therefore there could not have been a change of use within section 171B(2) from the use permitted by the planning permission.

The second issue involved consideration of the scope and application of the principle that, unless the contrary intention appears, statutes are to be construed to the effect that no one should be allowed to profit from his own wrong. The Court noted that Mr Beesley intended to deceive the Council from the outset by his statements in the planning application. This was positive deception in matters integral to the planning process and directly intended to undermine that process. His conduct was not identifiably criminal but the principle is not only relevant where there has been the commission of a crime. The Court further considered the rationale of the statutory provision: the four year period in section 171B(2) must have been conceived as a period during which a planning authority would normally be expected to discover an unlawful use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner which prevent discovery take a case outside that rationale. It would in fact frustrate the policy of the section if the time limit for enforcement was to apply on the facts of the present case. It would also damage the public’s confidence in planning law: any law-abiding citizen would be astonished to suppose that Mr Beesley’s dishonest scheme, once being discovered, would not be enforced against but rather crowned with success. It is unthinkable that Parliament intended such an outcome. Even if, therefore, Mr Beesley had come within the literal wording of section 171B(2), his conduct took him outside its scope.

Morge (FC) (Appellant) v Hampshire County Council (Respondent), [2011] UKSC 2, 19/01/2011

Thu, 27 Jan 2011 23:29:00 GMT

This appeal concerns, first, the meaning of the obligation imposed on the United Kingdom by the Habitats Directive, a European legislative instrument, to prohibit “deliberate disturbance” of certain species of bats. It concerns, secondly, the scope of the obligation in domestic legislation on planning authorities to have regard to the requirements of the Habitats Directive.

Hampshire County Council, the Respondent in the appeal, granted planning permission on 29 July 2009 for a proposed three mile stretch of roadway to provide a rapid bus service between Fareham and Gosport in South-East Hampshire. The Appellant, Mrs Morge, lives close by and objects to the scheme. The scheme, its supporters argue, will create a new and efficient form of public transport to the benefit of many residents, workers and visitors to the area. Environmental objections have arisen, however, on grounds that the proposed path of the busway runs along the path of an old railway line, which has become an ecological corridor for various flora and fauna.

The planning application was submitted on 31 March 2009 and objected to by Natural England, the Government’s adviser on nature conservation, in part because of their concerns about the impact of the development on bats. The Council responded by submitting an Updated Bat Survey (UBS), largely as a result of which Natural England in a letter of 17 July 2009 withdrew their objections. At a meeting of the Council’s Planning Committee on 29 July 2009 planning permission was granted by a majority of six to five with two abstentions.

The UBS recorded that no bat roosts were found on the site. The removal of trees and vegetation, however, would result in a loss of good quality bat foraging habitats. This would have a moderate adverse impact at local level on foraging bats for nine years, the impact thereafter reducing to slight adverse / neutral. In addition the busway would sever a bat flight path, increasing their risk of collision with buses.

Mrs Morge challenged the permission on environmental grounds, including its impact on several species of European protected bats. The challenge failed before the High Court and Court of Appeal, but the Supreme Court granted the Appellant limited permission to appeal on two issues of general importance. The first is the level of disturbance required to engage the prohibition in article 12(1)(b) of the Habitats Directive on “deliberate disturbance” of the bat species in question. The second is the scope of the obligation in regulation 3(4) of Conservation (Natural Habitats etc.) Regulations 1994 on local authorities to have regard to the requirements of the Habitats Directive in deciding whether to grant planning permission, and whether the Council in this case complied with the obligation.

The Supreme Court by a majority of 4 - 1 dismisses the appeal. Lord Brown gives the lead judgment for the majority, setting out the correct approaches to article 12(1)(b) of the Habitats Directive and regulation 3(4) of the 1994 Regulations, and finding that the Council complied with the obligation in regulation 3(4). Lord Kerr agrees with majority on the article 12(1)(b) issue but dissents on the regulation 3(4) issue.

R (on the application of Sainsbury's Supermarkets Ltd) (Appellant) v Wolverhampton City Council and another (Respondents), [2010] UKSC 20

Thu, 13 May 2010 21:44:25 GMT

The Town and Country Planning Act 1990 gives a power to local authorities to acquire compulsorily any land in their area if the authority thinks that the acquisition will facilitate the carrying out of development on the land and if it thinks that the development is likely to contribute to the well-being of the overall area for which it is responsible. This appeal concerned the proper approach to the exercise of that power in relation to land known as the Raglan Street site which lies immediately to the west of, and just outside, the Wolverhampton Ring Road.

R (on the application of Lewis) (Appellant) v Redcar and Cleveland Borough Council and another (Respondents), UKSC 2009/0167

Thu, 11 Mar 2010 17:09:42 GMT

The Appellant was one of five local residents who applied under Section 15 of the Commons Act 2006 (‘the 2006 Act’) to have a piece of land in the town of Redcar registered as a town or village green. When land is successfully registered as a town or village green under the 2006 Act, the inhabitants of the locality concerned are entitled to exercise ‘lawful sports and pastimes’ over the land, such as walking, or playing informal games. Registration typically prevents development on the land taking place. In order to register land for such use, however, the inhabitants are required to demonstrate under s.15, broadly, that a significant number of them have indulged, ‘as of right’, in lawful sports and pastimes over the land for a period of 20 years.

This appeal concerned the meaning of ‘as of right’ in the 2006 Act. The land in question had been used, until 2002, as a golf course by the tenants of the land. The inspector who conducted a public inquiry into registration recommended to the relevant registration authority - the Respondent - that the land should not be registered. He found that although the local inhabitants had indulged in lawful sports and pastimes on the land for 20 years, they had ‘overwhelmingly deferred’ to the landowner’s use of the land by, amongst other things, waiting for the golfers to play their shots before they walked across the course. Such use, he concluded, was not ‘as of right’. On the inspector’s recommendation, the council decided not to register the land. On an application for judicial review by the Appellant, the High Court and the Court of Appeal both upheld the council’s decision. The Appellant appealed.