Peyto Law Acting for Epping Forest District Council as Local Plan Examination Hearings Get Underway

The Local Plan examination hearings for Epping Forest District Council (EFDC) got underway this morning (12 February 2019) at the Council Offices in Epping.

Louise Humphreys has been instructed by EFDC to provide legal advice and assistance to the Council during the examination process, working alongside Mark Beard of 6 Pump Court.

The first part of the hearings will focus on legal compliance; the plan’s context, vision & objectives and sustainable development; place-shaping & general masterplan approach; and the quantitative requirements for development.

The second part of the hearings, which will commence on 25 February 2019, will focus on the spatial strategy and distribution of development before a short break until mid March.

The hearings are being webcast and you can follow them here. Alternatively you can find out more about the examination process at the examination website.

Communities Secretary issues directions over Local Plan failure to two Councils

The Secretary of State for Communities, James Brokenshire, has issued directions to two local authorities, Wirral and Thanet Councils, on preparations for their Local Plans.

In both cases the minister said the requirements of s.27(1) of the Planning and Compulsory Purchase Act 2004 had been met for intervention in view of the councils’ failure to get a Local Plan in place.

The two local authorities are now required (within ten weeks of the letter for Wirral and four weeks for Thanet) to designate a lead councillor and lead official to be responsible for progressing preparation of the Local Plan.

In addition, Wirral has also been directed to publish an action plan, which must be verified by independent planning experts, and report monthly to the Ministry on progress whilst Thanet has also been directed, within eight weeks of the date of the letter, to amend its Local Development Scheme (dated July 2018) to provide for the completion of a review of their Local Plan within six months of its adoption.

Stevenage Borough Council in judicial review challenge over delays to Local Plan

Stevenage Borough Council has launched a judicial review challenge over the temporary holding direction of its Local Plan.

The Stevenage Borough Local Plan was submitted to the Secretary of State for Communities and Local Government on 21 July 2016 and received a positive inspector’s report in October 2017 recommending its adoption.

The council said that following the imposition of the holding direction, it had provided detailed information to the Ministry of Housing, Communities and Local Government (MHCLG) with all questions responded to by the start of last year.

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.