Peyto Law Secures £21k Fine and £17k Confiscation Order Following Successful Prosecution

Louise Humphreys has continued to act for Chiltern District Council (CDC) in the criminal proceedings relating to the failure by Lombard Hotels Ltd and Asrar Ahmed to comply with an enforcement notice. Details of the prosecution and the facts can be found here

Asrar Ahmed was sentenced today (18 January 2019) at Aylesbury Crown Court by the Honourable Recorder for Aylesbury and ordered to pay a fine of £21,170 (including victim surcharge). In addition a confiscation order under the Proceeds of Crime Act (POCA) was made in the sum of £17,000. Mr Ahmed was also ordered to pay CDC’s costs in bringing the proceedings in the sum of £23,293.04.

No separate penalty was given against Lombard Hotels Limited of whom Mr Ahmed was the sole Director and Company Secretary.

It is understood that the breach of planning control has now been resolved and that the site operatives are operating in accordance with their planning permission.

Brent Council secures £322k confiscation orders against husband and wife landlords

Brent Council has secured confiscation orders totalling £322,282 against a husband and wife landlord team who converted two terrace houses into 18 flats without planning permission under the Proceeds of Crime Act 2002

The confiscation orders were made at Harrow Crown Court against Mohammad Ishaq and Shamim Akhtar both of Clifford Way, Neasden.

The pair had previously pleaded guilty to the planning offences at Willesden Magistrates Court in May 2018

On top of a confiscation order of £161,141 each, the defendants were also each fined £10,000 for their failure to comply with planning enforcement notices on properties they own in Willesden and Harlesden. They were ordered to pay the council’s costs.

Ishaq and Akhtar had previously lost appeals against Brent’s enforcement notices, which ordered them to undo the works. Despite written warnings, they ignored the problem and failed to comply with the notices for several years. It is understood that works have now mostly been completed to revert the properties to their lawful use as single houses.

Parish fails in High Court challenge to permissions for 229 homes

East Bergholt Parish Council has failed in a High Court challenge to decisions by Babergh District Council to grant planning permissions for 229 new homes in the Suffolk village.

Sir Ross Cranston, sitting as a High Court judge, said the three applications involved were not in accordance with the local development plan but were granted because Babergh could not demonstrate a five year housing land supply. They were therefore allowed under the provision of the National Planning Policy Framework that permits applications for developments deemed sustainable in this situation.

The case turned on the Parish Council’s claims that Babergh had not lawfully exercised its discretion when assessing deliverability in the context of a five year land supply. The Parish Council contended that the officer’s report did not direct councillors as to whether the scheme’s opponents had a point to make, and that an error in the calculation of the land supply was not corrected.

In East Bergholt Parish Council v Babergh District Council [2018] EWHC 3400 (Admin) Sir Ross decided: “I cannot accept that the officer’s reports for the three sites were misleading, certainly not significantly misleading, in not directing councillors as to what is said was the error in the council’s 2017 [five year supply]. On their face there was nothing in my view untoward in the officer’s reports.”

He also ruled that Lindblom LJ’s judgment in St Modwen Developments Ltd v Secretary of State for Communities and Local Government did not mean Babergh was wrong to take into account developer pressure and that the developers might mount legal challenges against the council.

It is not unlawful for a local planning authority to want to have confidence that it will be able to robustly defend the judgments it forms on the deliverability of housing sites,” Sir Ross said. “For that reason the concern about challenges from developers was lawfully taken into account as a factor in decision-making.”

He also dismissed a claim that Babergh had acted unfairly in giving four days’ notice rather than five of papers for the meeting concerned.

Peyto Law Acts for the London Borough of Hackney on Regeneration Scheme at Shoreditch Park

Planning permission has today (7 December 2018) been granted by the London Borough of Hackney for a regeneration scheme at Shoreditch Park. The hybrid application sought permission for a new leisure centre, new secondary school, commercial floorspace and up to 481 residential units (including 81 affordable units) in 6 separate blocks ranging from 4 to 25 storeys in height on the site of the existing Britannia Leisure Centre, Shoreditch Park and surrounding land.

Louise Humphreys was instructed by the London Borough of Hackney in its capacity as landowner and applicant, working with the Project Team, on all aspects of the planning application and s106 obligation to deliver this ambitious regeneration project.

It is hoped that construction will start on the leisure centre and school in early 2019 and complete in 2021.

New Secondary School
New Leisure Centre
New Residential Tower

Yet another habitats judgment from the CJEU

The CJEU has this week delivered judgment in Case C-461/17 Holohan v. An Bord Pleanála, the third CJEU judgment this year concerning the Habitats Directive (as well as, this time, the 2011 EIA Directive). Once again the case involved reference from the Irish High Court.

The applicants challenged a decision of the An Bord Pleanála in July 2014 to grant consent for the proposed Kilkenny Northern Ring Road Extension which would, if constructed, cross the River Nore Special Protection Area and River Barrow and River Nore Site of Community Importance.

The CJEU held:

  1. An appropriate assessment (AA) must catalogue the entirety of habitat types and species for which a site is protected.
  2. The AA must also identify and examine the implications of the proposed project for the species present on that site and for which that site has not been listed – as well as the implications for habitat types and species outside the boundaries of that site, insofar as those implications are liable to affect the conservation objectives of the site.
  3. Where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the ‘appropriate assessment’ must include an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned.
  4. Under Article 5(1)&(3) of the 2011 EIA Directive, the developer was obliged to supply information that expressly addressed the significant effects of the proposed project on all species identified in the environmental statement.
  5. Under Article 5 of the 2011 EIA Directive, the developer was required to supply information in relation to the environmental impact both of the proposed project and of all the main alternatives studied by the developer (including any such alternative that had been rejected at an early stage), together with the reasons for his choice taking into account of the environmental effects.

Ex-planning committee chair resigns as councillor after hospitality probe

The former chair of Westminster City Council’s planning sub-committee has resigned as a councillor after a probe into his acceptance of hospitality.

An inquiry found Robert Davis registered gifts and hospitality and their acceptance was not unlawful but “it also does not rule out a conclusion that he has placed himself in a position where people might seek to influence him in the performance of his duties”.

The investigation report concluded: “By accepting the large scale of gifts and hospitality Cllr Davis has not promoted and supported high standards of conduct through leadership and by example. …His conduct has attracted media and public attention which has an impact of the council as a whole.”

Mr Davis referred himself to Westminster’s monitoring officer after press articles last spring about his acceptance of 530 cases of gifts and hospitality since 2015.

The report found that in 41 cases where the planning sub-committee overturned officers’ advice and instead approved applications six of the applicants, agents or individuals involved had provided Mr Davis with gifts or hospitality; 5 of these came either before or shortly after the sub-committee granted consent.

A cautionary tale concerning the use of POCA in planning prosecutions

A growing trend in planning enforcement has been the use of the Proceeds of Crime Act 2002 (“POCA”) in order to obtain confiscation orders against those committing offences under the Town & Country Planning Act 1990.

However, the recent Court of Appeal in  R v The Knightland Foundation & Friedman should act as a cautionary warning in the use of POCA to local planning authorities.

The case concerned a property in the London Borough of Islington which the owners had converted to 18 self-contained residential units rather than the 14-bed HMO that they actually had planning permission for. The council served an enforcement notice requiring the unauthorised use to cease alongside physical alterations to the property. The notice was not complied with and the council sought to prosecute the owners accordingly.

So far so straight-forward. However, the owners had submitted a planning application to use the property as a hotel in order to regularise the position and officers of the council’s planning team indicated that they were likely to recommend approval of the same. This support even continued after the criminal proceedings had been issued.

Things took a turn for the worse when the council’s planning team suddenly changed its position following intervention of the council’s enforcement team. The enforcement team was was concerned about the potential impact of granting permission on the prosecution and any associated POCA order. Planning permission was refused and the Council continued the criminal proceedings.

At trial the prosecution was stayed as an abuse of process on the basis that the Judge considered that the prosecution had been tainted by the improper way that the application and prosecution had been handled, where in his view the focus had been on maximising the returns to the council under a POCA order. 

The council appealed this decision to the Court of Appeal but was refused leave for the appeal. In giving the leading judgment, Lady Justice Hallet held that the judge was entitled to find that the council did not exercise its discretion to prosecute appropriately and that to allow the prosecution to proceed amounted to an abuse of process.  In particular, in deciding to prosecute, the council had failed to take account of the possibility that the position at the property could be regularised by the grant of the application and, conversely, had improperly taken account of the possibility of obtaining a POCA order to the council’s financial advantage. This had also improperly influenced the determination of the planning application.

It may seem strange that the owners were effectively “let off” when there seems to have been no doubt that they were in breach of the enforcement notice and therefore guilty of the offences for which they were being prosecuted. However, it is fundamental that prosecuting authorities behave fairly and in the public interest; even more so where they are in the relatively unusual position of also having the power to regularise the offence using direct action.

The case serves as an important reminder that a POCA order is only a tool, not an end in itself, and certainly not something that should override or unduly influence other planning decisions.

Court of Appeal sets out the general principles to be applied when considering the setting of listed buildings and the effect of developments

The Court of Appeal has handed down judgment in the conjoined appeals of Catesby Estates Ltd v Steer and Secretary of State for Communities and Local Government v Steer [2018] EWCA Civ 1697 providing general principles to be applied when local planning authorities consider the setting of listed buildings and the effect of development.

The case concerned a 2016 Inspector’s decision which granted planning permission for a housing development on land approximately 1.5km to the south of the Grade 1 listed Kedleston Hall.

In the High Court Lang J quashed the decision, concluding the Inspector had adopted an unlawfully narrow approach to the question of the “setting” of the listed building, had focussed on finding a “visual” connection, and had “set to one side” the historic social and economic connections between the Appeal site and the Hall.  

The Court of Appeal allowed the appeals. Giving the leading judgment, Lindblom L.J. set out three general principles to be applied when considering the setting of a listed building and the potential effect of a development on that setting:  

“[28] Three general points emerge. First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision-maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it. Otherwise, the decision-maker may find it hard to assess whether and how the proposed development “affects” the setting of the listed building, and to perform the statutory obligation to “have special regard to the desirability of preserving … its setting …”. 

[29] Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision-maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next. It may be that the site of the proposed development, though physically close to a listed building, has no real relationship with it and falls outside its setting, while another site, much further away, nevertheless has an important relationship with the listed building and is within its setting (see the discussion in sections 14.3, 15.2 and 15.8 of Mynors and Hewitson’s “Listed Buildings and Other Heritage Assets”, fifth edition). Under current national planning policy and guidance in England, in the NPPF and the PPG, the decision-maker has to concentrate on the “surroundings in which [the heritage] asset is experienced”, keeping in mind that those “surroundings” may change over time, and also that the way in which a heritage asset can be “experienced” is not limited only to the sense of sight. The “surroundings” of the heritage asset are its physical surroundings, and the relevant “experience”, whatever it is, will be of the heritage asset itself in that physical place. 

[30] Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government[2017] 1 W.L.R. 1865 (at paragraph 25) – that “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly”. 

Peyto Law Instructed by Hart District Council on S106 Obligation for Hartland Park

Planning permission has today (13 July 2018) been granted by Hart District Council (HDC) for the redevelopment of the former Pyestock MoD land (to be known as Hartland Village) for up to 1,500 dwellings, a local retail centre, a local community centre, a primary school, drainage works, SANG mitigation, landscaping, open space, the creation of ecological habitats and highway work.

Louise Humphreys was instructed by HDC in relation to the s106 obligation which accompanied the application. The obligation secured the provision of the SANG mitigation land, the provision of affordable housing, highway works, travel plan, the provision of a primary school and the payment of approximately 15 million pounds of financial contributions.

Louise was also instructed by HDC in relation to the s106 obligation for the associated planning application to change the use of land at Kennels Lane to provide 27.9 hectares of SANG land.

Hartland Park

Peyto Law Acts for Chiltern District Council in Prosecution for Failure to Comply with an Enforcement Notice

Louise Humphreys acted for Chiltern District Council (CDC) in the prosecution of Mr Asrar Ahmed and Lombard Hotels Limited for failing to comply with an enforcement notice with both defendants being convicted at High Wycombe Magistrates’ Court today (17 May 2018).

The case concerned premises known as Bubbles car wash, trading as Deep Mill Vans, on the A413 London Road in Little Kingshill.

In November 2014, CDC found that the number of vehicles being displayed, stored and sold on the site (which was located in the Green Belt and in an Area of Outstanding Natural Beauty) was far greater than permitted under the terms of the original planning permission. An enforcement notice was issued required the owners to comply with the condition limiting the number of vehicles on site and requiring them to be displayed in the permitted areas.

At the same time the owners submitted an application seeking to remove the relevant planning condition. This application was refused by CDC and that refusal upheld on appeal to the Secretary of State because of the impact on the Green Belt, AONB and on highway safety grounds.

Following the coming into force of the enforcement notice, CDC carried out numerous site visits and discovered that the number of vehicles on site still exceeded the permitted maximum and vehicles were being displayed outside of the permitted areas.

Prosecution proceedings were therefore brought against Lombard Hotels Ltd as the owner of the site and Asrar Ahmed as the sole Director of the company.

Following a trial at the Magistrates’ Court, both Defendants were found guilty of six offences each of failing to comply with the enforcement notice.

The case has now been sent to Aylesbury Crown Court for sentence and for the making of a confiscation order under POCA.

Land at Deep Mill Service Station – Bubbles Car Wash