Commercial Property

Recently the High Court has considered whether in a planning appeal if a report was not brought to the attention of a claimant this was against the rules of natural justice and was therefore unfair, rendering the appeal potentially void. 

The report, on the question of noise, was lodged as part of the developer’s appeal which was heard by way of written representation. 

Robin Purchas QC, sitting as a Deputy High Court Judge, decided that on the rules of natural justice, the claimant should have been aware of the documentation that was lodged with the Local Planning Authority. 

The judgement is full on this and the other point which was raised and, in my view, is not surprising. 

The question that was not considered is what is the position if the documents are not properly filed by the Local Planning Authority or not put on its website for downloading? 

Can a person then claim that an appeal should not be allowed, or does he then have a right of action against the Local Planning Authority? 

Although this was not considered, it is an area of interest and concern.  I am sure that I am not alone in endeavouring to inspect documents either at the relevant office of a planning authority or its website to find that not all documents are available. 

What happens, for example, if an inspection is made and the documents are subsequently filed?  There are no answers to these points as they will have to be decided by the Courts.  However, what is certain is that, as the case law currently stands, if anyone is involved in a planning appeal he should ensure that the planning file of the Local Planning Authority is inspected probably more than once.

The Supreme Court has ruled that, for the purposes of succession, a Council flat tenancy held by a tolerated trespasser can be revived.

The case involved a trespasser of a flat who was tolerated, not a tenant!

He had lost a secure tenancy when the Court granted a Possession Order against him.  The Landlord Council, the London Borough of Southwark, argued there was no tenancy to which anyone could succeed.

However, the tolerated trespasser, unfortunately, was terminally ill.  His brother moved into the Council flat to look after him.

The brother, Barry Austin, resisted attempts by the Council to evict him.  He lost in the lower Courts and the Court of Appeal.  However, the Court of Appeal ruled that where a former tenant died as a tolerated trespasser, the person seeking to succeed to the tenancy could apply to the County Court to postpone the date for possession.

If the application was successful, the tenancy could then be revived!

Of course, in practical terms, this is not the end of the matter but an unfortunate situation for Council Landlords and, nevertheless, remains a complex area of the law for tenants!

Communities Secretary Eric Pickles is not everyone’s flavour of the month in matters planning.  The removal of regional strategies and centrally imposed building targets has, for many involved in development and town and country planning, left a void which will result in fewer houses being built thereby exacerbating the current shortage.  However, not everything that Mr Pickles and his Department does is bad.  The Department of Communities and Local Government have produced technical guidance on permitted development for householders.  The intention behind the General Permitted Development Order is to enable small scale development to be undertaken without the necessity of obtaining planning permission thereby avoiding further clogging up the already overloaded planning system.

The document replaces earlier guidance.  The stated objective is to set out the rules concerning what extensions, improvements and alterations a householder may make to a house and the area around it without the need for a planning application.  The new guide is designed to be used by anyone who wants to understand more about the detailed rules on permitted development and the terms used in those rules.

Having read the guide and considered its diagrams, I have to agree that this document achieves its objectives.  In colloquial parlance, it does what it says on the tin.  As someone who has an expanding town and country planning practice, I confess that not only will householders find this document useful but at least one professional, namely myself.

Unfortunately at the time of writing this blog, the 26th August, the document does not appear on the website of the Department of Communities and Local Government nor on the website for national information.  If anyone wishes any information concerning this guidance, please contact me.

The Government has made much of its proposals stating that these give the Local Authorities “the freedom to prevent over development of neighbourhoods”.

Will this make a difference in Swindon and will it prevent over development?  According to the Government’s latest available figures which relate to 2005/2008, only 7% of all new building in Swindon was on previously residential land.  That is hardly a significant figure.  Whilst the proposals may have an influence in some areas, apparently not in Swindon.

In any event is there a problem with large houses with large gardens being redeveloped to meet modern needs?  Many people no longer want nor can afford large houses with large areas to maintain.  What this change in policy, coupled with the removal of the obligation to enforce national minimum density levels, is intended to achieve is  to ease the problem of the shortage of housing across the country. I doubt that it will have this affect.  I think it will exasperate the existing problem.