Planning, Local Government & Administrative Law Case Update. April by Mark C. Mohammed, Advocate

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1 Planning, Local Government & Administrative Law Case Update April 2012 by Mark C. Mohammed, Advocate In this month s update several planning appeals are considered, along with an important decision of the Lands Valuation Appeal Court and English cases concerning warrants under the Food Safety Act 1990 and an application for an injunction by Transport for London against the operator of a fleet of private hire cars. Planning Petition of Robertson Property Ltd [2012] CSOH 72 is a judicial review challenge to a decision of Moray Council to vary the conditions of planning permissions in respect of units at an out of town retail park, so as to remove the restrictions on the type of goods to be sold from those units. Lord Pentland declined to entertain the petitioners argument that the report to the Planning Committee did not correctly set out the test in section 25 of the 1997 Act, and there was accordingly a risk that the Committee had misapplied the law, as such an argument was not averred in the petition and, more importantly, had not been raised before the Committee. The petitioners had had sight of the report several weeks in advance of the hearing, the purpose of which was to allow parties the opportunity to challenge the terms of the report. Lord Pentland stressed the discretionary nature of the remedy of judicial review, holding that it was inappropriate for the Court to exercise its discretionary powers in the light of the petitioners failure to challenge that aspect of the report before the Committee. In considering the sequential approach, Lord Pentland held that paragraph 63 of the SPP is not a mandatory process which requires to be followed to the letter regardless of the circumstances of the case. The Committee was entitled to rely upon its own knowledge of the availability of suitable alternatives in the locality, without insisting that a separate analysis be carried out by the applicants. 1

2 It is also noteworthy that Lord Pentland approved of the practice of a Councillor moving for approval of a planning recommendation as recommended. Lord Pentland held that this construction entails approval on the basis of the planning officer s report, accordingly any decision made on that basis requires to be assessed in the light of the report as a whole. It was wrong to focus on words used by Councillors at the end of a long, detailed process and to examine them in isolation. R (Godfrey) v. The London Borough of Southwark [2012] EWCA Civ 500 is an appeal against the refusal of permission by Lindblom J on the papers to bring judicial review proceedings against the grant of planning permission for a mixed-use site. Although a permission application, the Court of Appeal held that the decision may be cited. The case concerns the redevelopment of a district centre providing community services, including a community hall, which was first proposed in At that time, the Council produced a planning brief stating that the developers were required to build a new community hall. Two unsuccessful applications for planning permission were submitted. After a protracted history planning permission was granted in 2010 with a significantly reduced provision for a new community hall, on the basis that alternative provision was by then in place. The claimant, a local campaigner, founded upon a legitimate expectation that the 2002 planning brief would be fulfilled in relation to the provision of a new community hall. The appeal was refused, on the basis that even if the earlier approach of the planning authority amounted to a planning policy that could not have primacy over the authority s duty to assess the current situation. In terms of section 38 of the Town and Country Planning Act the planning authority require to assess the current development plan (which considered the current needs of the community) and it would be wrong to consider a different assessment of community needs undertaken several years before. The 2002 brief was not a material consideration and no legitimate expectation arose. The Manydown Company Ltd v. Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin) concerns section 113 of the Planning and Compulsory Purchase Act 2004, which makes provision for challenges to development plan documents. In particular, the 1 The English equivalent of section 25 of the Town and Country Planning (Scotland) Act

3 question arises as to the extent to which section 113 precludes challenges by way of judicial review. In short, the facts are that the Council hold a 999 year lease over a site which they acquired under section 227 of the Town and Country Planning Act 1990 for the purpose of housing development. The claimants are the owners of the freehold reversion of the site. After a change in administration the Council decided not to include the site in the consultation on its Core Strategy, effectively precluding housing development on the site. The Court held that the provisions of section 113 were not engaged. That section limits challenges to development plan documents, however the present case was not a challenge to a relevant document per se, but rather a challenge to decisions made by the Council affecting the parameters of the process that would culminate in the adoption of the Core Strategy. Accordingly section 113 did not apply to the decisions of the Council, which are susceptible to judicial review. On the merits, the decision of the Council was quashed. After an extensive review of the authorities the Court held that the decision of the Council was plainly contrary to the purpose for which the land was acquired. The Council had acquired the land using public money for the purpose of housing development; it was not lawful for the Council to use its powers to delay development of the site by means of a self-imposed moratorium on development. The Council also erred in failing to have regard to the purpose for which the land was acquired. Local government R (Dulai) v. Chelmsford Magistrates Court & Essex County Council [2012] EWHC 1055 (Admin) is a decision of the Divisional Court that concerns applications for judicial review of (1) the grant of a warrant by a District Judge to the Council under section 32 of the Food Safety Act 1990 for entry to premises used for the storage of food; and (2) the subsequent granting of an order under section 59 of the Criminal Justice and Police Act 2001 by the Crown Court requiring the Council to return foodstuff seized during the execution of the warrant to its owners, on the ground that the warrant was unlawful and should not have been issued. 3

4 Section 59 of the 2001 Act provides a mechanism whereby the owner of seized property can apply to the Crown Court for its return. 2 The Council argued that, in exercising its powers under section 59, the Crown Court does not have power to determine the lawfulness of the warrant; an application to the High Court for judicial review is required. The Divisional Court declined to determine the point, however indicated that, if correct, the Council s submission would lead to an unfortunate division of jurisdiction between the Crown Court and the High Court. The Divisional Court was not supportive of that outcome, and pointed out that in any event a High Court judge can also sit as a judge of the Crown Court, with the implication that the judge could hear both applications at the same time. Such a practical solution is not possible in Scotland, as the Sheriff Court does not exercise a supervisory jurisdiction. 3 In relation to the merits, the Council s challenge to the order under section 59 was successful. The Court held that even where the notice requirements of section 52 of the 2001 Act are not fulfilled when property is seized, the seizure is not necessarily unlawful. The degree of compliance with section 52 is a matter to be taken into account in proceedings under section 59. Transport for London v. Griffin [2012] EWHC 1105 (QB) concerns a subject matter close to the heart of many Edinburgh residents and Evening News readers: the exclusion of private hire cars from bus lanes that can be used by taxis. A similar scheme is operated by TfL, and the defendant, the operator of Europe s largest private hire car fleet, has commenced judicial review proceedings claiming a breach of EU anti-discrimination law. The application for judicial review has not yet been heard, however taking matters into his own hands the defendant issued a notice to all his drivers confirming that the regulations are unlawful and indemnifying them from any fines that may be issued should they use a bus lane. TfL raised the current action for injunctive relief. The Court applied the decision of Forbes J in Drake v. Morgan, 4 where it was held that a trade union could only lawfully indemnify its members in respect of fines imposed for criminal offences where the indemnity was given after the offences had been committed. As 2 In Scotland an application under section 59 is made to the Sheriff. 3 West v. Secretary of State for Scotland 1992 SC 385. In any event the Scottish courts appear to be unwilling to countenance any blurring of the lines between the civil and criminal courts: see Duff v. Strang 2008 JC [1978] ICR 56. 4

5 the indemnity was offered by the defendant before any fine has been incurred, the Divisional Court held that the indemnity is unlawful and granted injunctive relief. Relief was also sought to prevent the defendant from encouraging or assisting its drivers to use bus lanes. The Court rejected the argument that an injunction in those terms was too vague or imprecise, noting that the same phrase is used in section 44 of the Serious Crime Act 2007, which provides that it is an offence to encourage or assist in the commission of an offence. When considering whether or not to grant relief, the correct approach is for the Court to assume that the regulations are valid, but that the existence of the defence of acting reasonably in section 50 of the 2007 is a factor to take into account in the exercise of its discretion. The Court held that it was a relevant consideration that there was the potential for the defendant s conduct to encourage his drivers to use bus lanes, which could lead to confusion in the minds of other drivers as to the status of the regulations and problems in the enforcement of them. Injunctive relief was granted. Valuation and rating Assessor for Glasgow v. Schuh Ltd & Others [2012] CSIH 40 is an appeal by the Assessor against a decision of the Valuation Appeal Committee for Glasgow, which allowed appeals brought under section 3(4) of the Local Government (Scotland) Act 1975 by the owners of numerous shops in Sauchiehall Street, Glasgow. The central issue before the Lands Valuation Appeal Court was the interpretation of section 3(4) of the 1975 Act, and in particular what constitutes a material change in circumstances. The ratepayers case, upheld by the Committee, was that the value of their subjects had fallen as a result of the recession, the changing pattern of retail in Glasgow city centre and the impact of out of town shopping centres. These factors were said to constitute a material change in circumstances. The leading opinion is given by the Lord Justice-Clerk (Gill). Lord Gill noted that in the retail world change is constant; in the course of competition retailers may lose or gain market share, and the rise and fall of individual retailers or locations is part of the ebb and flow of a dynamic industry. These are all normal manifestations of the free market in retail, and in Lord Gill s opinion cannot fall within the terms of section 3(4) as amounting to a material 5

6 change in circumstances. The same applies to a fall in rental value in consequence of a fluctuation in the economy, unless caused by an abnormal economic crisis. The normal processes of change fall outwith the scope of section 3(4), and change such as can be seen in Argos Distributors Ltd v. Assessor for Fife, 5 where the economic recession had an immediate and direct impact on the town centre resulting in several vacant units, is required before section 3(4) is engaged. On the facts Lord Gill held that the factors prayed in aid by the ratepayers did not amount to a material change in circumstances. Lord Gill recognised that the effect of the Court s decision is to severely limit the scope of section 3(4). A further point is worthy of mention. The above analysis was carried out by the Court on its own volition, and not on the submissions of the Assessor. The Court was minded to simply refuse the Assessor s appeal, however Lord Gill noted that the Lands Valuation Appeal Court has a broader supervisory function to ensure the integrity and consistency of valuation for rating throughout Scotland. On that basis Lord Gill held that the function of the Court should not be thwarted by any failure of a party to raise important questions of law that ought to have been raised, and accordingly the Court gave the above guidance on the interpretation of section 3(4) despite the issue not being raised by the Assessor SC