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news from 2012

Court of Appeal dismisses appeal against the activation of suspended sentences in long-running waste disposal case

11.12.2012

The Court of Appeal has dismissed an appeal against the activation of suspended sentences of imprisonment made in committal proceedings in a long running case concerning a major waste disposal operation on land adjacent to the Waterstock Golf Course within the Oxfordshire Green Belt.

The waste was first deposited in the 1990s and is the subject of enforcement notices and an injunction granted first in 2005 and varied by consent in 2006.
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Planning law accords with common sense!

11.12.2012

The High Court so held in giving judgment for the Appellant in Williams v SoS [2012] EWHC 3466 (Admin), a case which has taken over 2 ½ years to work its way through the Administrative Court to a conclusion.

The Court’s decision concerns an enforcement notice served in early 2009 which required the demolition of a large building constructed upon and extending the footprint of a pre-existing agricultural barn in the green belt.
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Solihull v Hickin and Thurrock v West in action: Article 8 and “second successors”

10.12.2012

In Kensington and Chelsea RBC v Kent & ors, District Judge Sheldon, applying Thurrock v West, found that a local authority’s claim for possession against “second  successors” did not constitute a breach of article 8, notwithstanding the personal circumstances of the Defendants.

The property had been a family home for 30 years. The Second Defendant, the daughter of the original tenants, had cared for both of her parents through severe illnesses, since the age of 18. After the death of her father, she lived at the property with her partner and two sons. She also cared for her two brothers. DJ Sheldon observed of her that "the world needs more people like you."
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High Court judge recuses himself on the basis of his membership of English Heritage and National Trust

07.12.2012

In East Northamptonshire District Council & Ors v SoS, which involved a challenge to the grant of planning permission for a wind farm brought by, inter alia, English Heritage and the National Trust, the judge (Mr Justice Underhill) has held that his own membership of those organisations meant that he was automatically disqualified from hearing the case.

Morag Ellis QC and Robin Green appeared for English Heritage, the National Trust and East Northamptonshire DC.

High Court decision on the admission of new evidence in s.204 appeals

26.11.2012

Matt Hutchings acted for Richmond in a successful appeal to the High Court from an order of the county court judge admitting new evidence in a s.204 Housing Act 1996 appeal.

The High Court dealt with the issues of when it is permissible for the court to admit new evidence and determine facts in an appeal on a point of law and what are the limits of mistake of fact as a ground of judicial review. 
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Allegations of bias against planning committee chair rejected by High Court

26.11.2012

The High Court has dismissed a challenge to a tree preservation order imposed by Wokingham Borough Council over an area of trees on a commercial fruit tree farm. The claim by EU Plants Limited alleged bias against the chair of the planning committee, as well as suggesting that the imposition of the order lacked any rational basis and failed to take proper account of the condition of the trees.
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Which policy?

23.11.2012

As national licensing guidance evolves apace, with statements of licensing principles sometimes struggling to keep up, the question often arises which version should be applied. In an interesting judgment, District Judge Wiles has turned his mind to the question in a case involving an application for a 24 hour licence for a supermarket.

In Gurgur v London Borough of Enfield (Haringey Magistrates Court, 23 Nov 2012) a supermarket applied for a variation of the premises licence to permit 24 hour sale at the end of 2011. The application was heard and refused in February 2012 and the appeal was heard in November 2012.
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Successful appeal at Invista Factory

09.11.2012

Mark Lowe QC, instructed by Burges Salmon, has successfully won an appeal for 220 homes and 13,600 sqm of B8 floorspace on a redundant private sports field at the Invista Factory, Brockworth in Gloucester. The appeal concerned the absence of a five year land supply and an offer of 40% affordable housing, overcoming a local plan designation as an important open space and alleged harmful impact on views from the Area of Outstanding Natural Beauty.

For decision letter: Invista DECISION

Appointment to Government Panel of Planning Mediators

06.11.2012

Harriet Townsend has been appointed to the newly created Government panel of expert planning Mediators. The panel has been created as part of a Government sponsored project designed to unlock the delivery of housing at certain major development sites, where this may be achieved by the re-negotiation of planning obligations.

Increased intensity of review in child abuse cases

02.11.2012

R(ET) v Islington LBC (Administrative Court, Lawtel 31 October 2012) saw a challenge to the local authority’s assessment of the risk to children posed by a convicted sexual offender.

The Court held that the intensity of a Wednesbury review was heightened in Children Act 1989 cases where the potential consequence of a local authority making an error when assessing the risk of harm was the sexual abuse of children. Applying that higher level of scrutiny, Cranston J nonetheless found that the local authority had conducted a lawful assessment of the risk of harm posed to the three children and of the means calculated to manage that risk. The challenge was dismissed.

Bryan McGuire QC appeared for Islington.

 

South Norfolk Wind Farm appeal dismissed

29.10.2012

Jonathan Clay (4Villages) and Asitha Ranatunga (South Norfolk DC) have successfully resisted a commercial wind farm scheme for 3 turbines (each 126m to blade tip) near Dickleburgh in South Norfolk. In a decision issued on 15 October 2012, the Inspector found that the impacts on the local landscape and living conditions were unacceptable.
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Alive, alive O

26.10.2012

R (oao Hughes) v. Carmarthenshire County Council, Taylor Wimpey and Charles Church

Judicial reviews of 2 reserved matters approvals for major housing developments near Carmarthen Bay.  The TW site was Stradey Park, the famous former home of  the Llanelli Scarlets Rugby Club. The cases concerned Appropriate Assessment (‘AA’) under the Habitats Directive and Regulations.
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Comprehensive victory for Claimant in unfair dismissal and unlawful deductions case

26.10.2012

Josef Cannon won an eventual victory for his client against an emanation of the Indian Government (who had employed his client as an accountant) in the employment tribunal this week. The Claimant had been summarily dismissed for what was said to be gross misconduct without any fair investigation or procedure and without any opportunity to answer the (obviously spurious) allegations made against him.
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Proprietary Estoppel in the Court of Appeal

17.10.2012

Joyce v Epsom & Ewell Borough Council - Court of Appeal

On 17 October the Court of Appeal reserved judgment in a case where a landowner is seeking to raise a proprietary estoppel against a local authority based on dealings between the authority and the landowner’s predecessor in title.
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Comments on Social Care Bill close on 19th October 2012

16.10.2012

Following the Dilnot Commission Report, the Government published its proposals to modernise the care and support system on 11 July 2012 in its White Paper: ‘Caring for our future: reforming care and support’.

Two key principles of the White Paper are minimisation and postponement of the need for care, and allowing individual’s choice in how to spend their own care budget.  There are just a few more days left to comment on the draft Care and Support Bill, which proposes a wholesale overhaul of the current care system.

You can comment online here: http://careandsupportbill.dh.gov.uk/home/

Homebase appeal for Torfaen

15.10.2012

A D Poulter, an Inspector appointed by the Welsh Ministers has delivered his decision dated 4 October in respect of an inquiry which sat on 19/06/12, 4-8/09/12, & 17/9/12 into an appeal by Prego Estates Limited under section 78 of the Town and Country Planning Act 1990. The appeal was against the failure of Torfaen Borough Council to give notice within the prescribed period of a decision on an application for planning permission under section 73 of the Town and Country Planning Act 1990 for the development of land without complying with conditions subject to which a previous planning permission was granted.
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Future of Favourite Chelsea Pub?

15.10.2012

Joe Cannon is appearing in a 5 day inquiry about the potential loss of a local pub in Chelsea.

Developers seek permission to change the use of The Phene (formerly Phene Arms) to a residential mansion.

Joe represents the local authority, Royal Borough of Kensington & Chelsea, who are supported by local residents against the loss of the pub, including Hugh Grant and Bryan Ferry.

Public Service Pensions Bill

15.10.2012

The second reading of Public Service Pensions Bill starts on 22nd October 2012.  The Bill was published on 13th September 2012.  It aims to implement the recommendations of the Independent Public Service Pensions Commission (IPSPC) which reported in March 2011.

The key points of the Bill are: 1) switch to career average pension schemes, instead of final salary; 2) extending length of service required by a scheme member to qualify for full pension; 3) capping employer contributions; 4) establishing a legislative framework with improved governance arrangements for all public service pension schemes.

The Bill in its current form phases in the changes so that the proposals do not affect those retiring in the next ten years.  The Government’s stated aim is to ensure that key parts of this settlement do not have to be revisited within the next 25 years.

Illegal gaming machine supplier jailed

09.10.2012

A two year investigation by the Gambling Commission into illegal gaming machines has resulted in a prison sentence for a company director for cheating and for supplying machines without an operating licence.

Kevin Holleran was the Director of Nexus Gaming Limited, which supplied “Skillette” gaming machines to pubs and clubs. The game invited players to use their skill to stop a wheel spinning on their chosen number, to win prizes at ratios similar to roulette. Mr. Holleran claimed that he did not need an operating licence because the machines were not gaming machines. 
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A novel approach

08.10.2012

In an article in Inside Housing Jon Holbrook argues that landlords can use an expansive injunction to protect all their land from squatters.  Click here

CALA: the Fat Lady Sings?

08.10.2012

The Secretary of State has now redetermined the Barton Farm appeal decision (2 October 2012) and this time has accepted the Inspector’s recommendation that planning permission should be granted for the 2,000 dwelling urban extension to Winchester.
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CPO for Unsustainable By Pass Quashed despite PM’s support

27.09.2012

Mark Lowe QC and Wayne Beglan, instructed by Burges Salmon, appeared for the Mawle Trustees as the sole statutory objectors to the Cogges Link Road CPO inquiry at Witney last November over a period of four weeks.

The CLR was a long standing project of Oxfordshire County Council and was supported by the local authorities in the area and the local MP, one David Cameron. It was a 1.8km new road to create a new crossing of the River Windrush to the south of the town to relieve congestion in the town centre and across the historic bridge.  The inquiry considered expert evidence on the topics of highway and traffic engineering, ecology, landscape, flooding, air quality and noise as well as planning.
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Henfield Inquiry

27.09.2012

Costs awards will follow where planning authorities refuse sustainable development.

This was a non-determination appeal for 102 houses in Henfield in Horsham District. It was a greenfield, countryside, urban extension site. The inspector found:
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London Irish secure new home at last

26.09.2012

London Irish RFC have been pursuing a campaign to remove from their present training ground and amateur playing ground in the built up area of Sunbury to a new purpose built facility on the site to a golf club in the metropolitan Green Belt on the edge of the town. In order to fund the new site the club proposed to develop their existing site for housing.
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Latest news on Zambrano and homelessness

24.09.2012

Does being the carer of a British National child make an otherwise ineligible person eligible for Part 7 Housing Act accommodation pursuant to European Treaty rights? Housing lawyers should please note:

  • This important issue is to be considered by the Court of Appeal on 7th or 8th November 2012 in the case of Pryce v Southwark LBC, an appeal against the decision of HHJ Faber in the Central London County Court on eligibility in the context of a section 204 appeal.
  • Pryce will be heard together with R (TJ) v Birmingham CC, a case where interim accommodation was refused pending review of a decision that such a person was ineligible for Part 7 accommodation. Bryan McGuire QC of Cornerstone Barristers and Azeem Suterwalla, both instructed by Bhatia Best, are acting for TJ.
  • A seminar will be taking place at Cornerstone Barristers on 19th October 2012 to consider the implications of the ECJ judgment in Zambrano for local authorities and the provision of services to third country national carers of British Citizens.

Morag Ellis QC elected Chair of PEBA

22.09.2012

Morag Ellis QC has been elected Chair of the Planning and Environment Bar Association. The appointment, which runs for 2 years, was made at a well-attended Annual General Meeting of the Association on Thursday 21st September. She succeeds Tim Corner QC.

Cornerstone Planning Day - Unlocking Growth - 5th Nov 2012

12.09.2012

Aimed at planners and developers, Cornerstone Barristers present this one day planning seminar with guest speaker Trudi Elliott CBE (CEO of RTPI) and chaired by Morag Ellis QC with speakers including James Findlay QC, Simon Bird QC, Mary Cook and Melissa Murphy.

For full information, please click here.

Clarifying the Scope of Personal Data

14.08.2012

In an article for the Privacy & Data Protection Journal, Damien Welfare of Cornerstone Barristers, discusses the challenges for organisations in interpreting the definition of ‘personal data’ in the Data Protection Act 1998, considers the ambiguities created by inconsistencies between domestic case law and guidance on the subject, looks at confusion over the meaning of the Data Protection Act over disclosing anonymised personal data such as statistics, and explains the extent to which a new draft EU Regulation may provide greater clarity.

The Article ‘Clarifying the Scope of Personal Data’ was published in the July/August Issue of the Privacy & Data Protection Journal (Volume 12, Issue 7).

A copy of the article can be found here: Clarifying the scope of personal data by Damien Welfare, Cornerstone Barristers

Planning inspector refuses permission for 21 hectares of glasshouses: Economic growth does not trump environmental harm under NPPF

13.08.2012

Planning permission has been refused with partial costs for the erection of four industrial sized glasshouses in the Manhood Pensinsula, West Sussex following an inquiry in which Mary Cook acted for the Almodington Association, a third-party objector, and Tom Cosgrove acted for Chichester District Council.

The proposed glasshouses were for the growing of lettuces (and potentially other crops) which would have covered an area of 21 hectares. The application included a landscaping scheme, wetland habitat creation, irrigation reservoirs and a highway scheme to provide access to the site.

This decision on an application for a major horticultural development in the countryside is highly significant in the context of the NPPF.
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Council Wins 3-2 in landmark Supreme Court Possession Appeal

25.07.2012

SOLIHULL METROPOLITAN COUNCIL  V ELAINE HICKIN:  SUPREME COURT 25TH JULY 2012

By a majority decision of the Supreme Court which potentially affects all joint council tenants, Solihull MBC , represented by Bryan McGuire QC and Catherine Rowlands of Cornerstone Barristers, has won an appeal brought by a council occupant, Miss Elaine Hickin.

FACTS

A 3 bedroom council property in Leahill Croft, Chelmsley Wood, Solihull was let to Raymond and Sylvia  Hickin in 1980. They were joint tenants. They separated and Mr Hickin moved away, but he remained a joint tenant. Mrs Hickin died in 2007, leaving her daughter Elaine in the property, where she had lived for many years. The issue in the case was this: who was entitled to succeed, daughter or husband?
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Planning inquiry into Code 5 homes

24.07.2012

Robin Green appeared for Rhondda Cynon Taf County Borough Council in an inquiry into whether permission should be granted for houses reaching level 5 of the Code for Sustainable Homes was held in Rhondda Cynon Taf.

The houses would replace an existing dwelling, leading to lower carbon emissions. The site was outside defined settlement boundaries and the primary issue was whether the environmental benefits of the scheme justified the grant of permission.

Housing appeal dismissed as abuse of process

20.07.2012

The court of appeal has held, in Konodyba v RB Kensington and Chelsea [2012] EWCA Civ 982 that it was an abuse of process for the Appellant to re-run an argument she had previously had dismissed by the County Court and an appeal to the Court of Appeal on the same point had been dismissed.

Ms Konodyba, a Polish national, argued in 2008 that she was eligible for assistance under Part 7 Housing Act 1996 because she had Baumbast rights under art.12 of Regulation 1612/68 as the primary carer of her son, who was the child of a former worker (herself) and in education. The local authority concluded that Baumbast rights were not available to her as an accession state national who had been in registered employment for less than 12 months. Her argument was rejected in the County Court and she was granted permission to appeal, but on the day of the appeal hearing she sacked her solicitors and counsel and appeared in person to expressly reject the Baumbast argument. The appeal was dismissed.
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Easton Farm Glasshouse Inquiry, West Sussex [June 2012]

18.07.2012

This major planning inquiry, concerning a large horticultural development in West Sussex, and involving issues of highway impact, landscape and visual impact, application of the NPPF to local plan policy, ecology and development in the countryside closed in June 2012. A decision is expected in August 2012. Tom Cosgrove appeared for the Local Planning Authority.

GDC v De Vivo [July 2012]

18.07.2012

Tom Cosgrove appeared for the GDC in a long and complex case concerning clinical care. The dentist was found guilty of misconduct, but in light of the remediation he had carried out his fitness to practise was not impaired.

Planning Inquiry paves way for much needed development in Cardiff.

17.07.2012

An Inquiry has given the go ahead to plans to build 78 homes in a conservation area near Michaelston Road in Cardiff.  The developers Charles Church were refused planning permission last year by Cardiff City Council but the Planning inspector Rebecca Phillips reversed the decision.

Morag Ellis QC of Cornerstone Barristers acted for the developers having been instructed by Savills Cardiff.  During the inquiry she argued there was already a considerable urban influence to be found in the area, with many residential developments in view.  The greenfield site overlooks St Fagan's Castle and museum.
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An end to the tenancy for life?

13.07.2012

Jon Holbrook of Cornerstone Barristers considers the profound effect that flexible tenancies could have on tenants of social housing.  Flexible tenancies enable local authorities and housing associations to avoid granting tenancies for life.

OneLondonauthority, Barnet, has already drafted a tenancy strategy that explains how it proposes to secure a better match between housing needs and resources.  This might mean, for example, that households with above median earnings in Barnet may not remain as council tenants.

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Philip Kolvin QC's Licensing Masterclass 2012

13.07.2012

Cornerstone Barristers Philip Kolvin QC's Annual Licensing Masterclass is back!

BOOK NOW to guarantee your place on the most comprehensive update on what's hot in licensing right now.

Philip Kolvin QC's Masterclass will commence the week of 24th September 2012 and arrive in venues in Leeds, Liverpool, Birmingham, Exeter and London.

Use the attached form to book your place now.

Please read flyer for full details of this half day masterclass but hot topics to be covered will be:

  • Fee Setting
  • Late Night Levy
  • Early Morning Restriction Orders
    read more

Casino Licensing and Collateral Challenges

10.07.2012

R (Clockfair Limited) v Sandwell Metropolitan Borough Council and Grosvenor Casinos Limited [2012] EWHC 1857 (Admin)

The High Court has delivered an important judgment in the field of casino licensing. While the judgment has ramifications for licensing practitioners, it has a wider significance for public lawyers in the complex field of collateral challenge.

A copy of the judgment can be found by clicking Clockfair Ltd v Sandwell MBC and Grosvenor Casinos Ltd July 9 2012
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Off-Licence Revocation Upheld

06.07.2012

Kul v London Borough of Hammersmith and Fulham - 3rd July 2012

An appeal against the revocation of a London off-licence has been dismissed. The off-licence, which traded  in North End Road in Fulham, was found by Revenue and Customs Officers in possession of alcohol upon which duty had not been paid on two separate occasions, leading to a review hearing before the London Borough of Hammersmith and Fulham, which revoked its licence. Following the revocation of the licence, the premises was found in possession of tobacco on which duty had not been paid. It had also breached licence conditions in relation to  a Challenge 21 policy and maintenance of a refusals book.
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Poker Club Closed

03.07.2012

A long chapter in the regulation of private poker clubs ended today in Thames Magistrates’ Court with the closure of the International Private Members Club, following a 2 year operation by the London Borough of Hackney, the Gambling Commission and the Police. The case threw up interesting challenges regarding the regulation of private members’ clubs in general and poker clubs in particular.

In passing the Gambling Act 2005, Parliament’s intention was that commercial poker should take place in the highly regulated environments of casinos, yet made provision for low stakes poker to be paid in pubs and clubs, and higher stakes poker to be played in private members’ clubs with club gaming certificates provided that there is no “rake” and that participation fees are kept at minimal levels.
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Tom Cosgrove to speak at Regulatory Conference

03.07.2012

Tom Cosgrove is to speak at the 'Regulation for Healthcare Professionals in 2012' conference on 21st September 2012.

This conference is chaired by Joanna Glynn QC, co-author of Health Care Regulatory Law, Principle and Process. It provides essential up-to-date guidance to regulators and to practitioners advising healthcare professionals on all aspects of regulation: from consideration of entry to the professional register right up to judicial review of a decision.
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Olympics Injunction

28.06.2012

Hackney LBC have succeeded in obtaining an injunction banning a large traveller family from land near Olympics sites. All but one of the family members have been banned from Hackney’s 58 public open spaces until after the Olympics have concluded in September
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‘Crime generator’ nightclub shut down by Camden Council

28.06.2012

(Reproduced with the kind permission of Camden Council)

Notorious night spot The Den in Holborn has had its licence revoked by a magistrates court following Camden Council’s intervention.

The club at 18 West Central Street, known as The Den and Centro, had a 24 hour premises licence and was plagued with anti social behaviour, drug dealing and violence.
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Another ‘Occupy’ protest evicted

19.06.2012

Jon Holbrook obtained a possession order for a London local authority to secure the summary eviction of members of the “Occupy” protest group from a public park.  The claim was issued in the High Court on 18 May, heard on 24 May and enforced on 25 May.  Neil Brand of Devonshires, who instructed Jon Holbrook, says:
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Another post-Pinnock proportionality defence dismissed

18.06.2012

In London Borough of Hillingdon v Neil Henley HHJ Hand QC dismissed a Pinnock defence by a failed successor to a 3-bedroom house and made an order for possession.

The facts of the case were unusual: Mr H, 51, had lived at the property for the majority of his life, initially with his parents. His mother had succeeded to the secure tenancy upon his father’s death and upon her death he was left in occupation, with no right to succeed as he was a ‘second successor’. The Council resolved to grant him a discretionary tenancy of a one-bedroom flat elsewhere in the Borough but he declined to move and sought to defend the ensuing possession proceedings on the basis that it would be disproportionate to evict him; and that he would attack bailiffs and any housing officer (including ones he named specifically) that attempted to carry out the eviction, and also himself, should he be evicted. He relied on the evidence of a psychiatrist, Dr Ike Azuonye, who had examined him and reported that his attachment to his parental home was so strong as to make a violent reaction inevitable if attempts were made to evict him.
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GDC v Anjomani

15.06.2012

June 2012

Tom Cosgrove appeared for the General DC in this case which concerned serious clinical failings by a dentist. The dentist was suspended for 12 months.

‘Occupy’ encampment evicted from Finsbury Square

14.06.2012

The ‘Occupy’ protesters at Finsbury Square, London EC2, were evicted this morning, 14 June 2012. This follows the successful summary determination of proceedings by Mr Justice Hickinbottom on 1 June 2012 and the refusal of permission to appeal by the Master of the Rolls yesterday afternoon.

Ranjit Bhose QC of Cornerstone Barristers was instructed by the London Borough of Islington to advise and appear in this high-profile case, part of the ‘Occupy’ movement’s earlier occupation of land surrounding St Paul’s Cathedral.
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Gerard Forlin QC to chair The SHE Show North West 2012

14.06.2012

Gerard Forlin QC is to chair and speak at The SHE Show North West 2012 in Blackpool.

The SHE Show is a high profile conference running alongside an exhibition featuring key suppliers and service providers in the fields of safety, health and environment. Now in its fourth year it is fast becoming one of the most successful event of its kind in the SHE arena.
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Crystal Palace Park rejuvenation challenge rejected

12.06.2012

The challenge to the planning permission granted by the Secretary of State for a major rejuvenation of Crystal Palace Park was rejected on all grounds by Mr Justice Keith in the High Court on the 12th June 2012.

Richard Ground was instructed by Herbert Smith to appear for the London Development Agency in the High Court and at the Inquiry into the Masterplan proposals for the comprehensive improvement of Crystal Palace Park.  The Inspector recommended to the Secretary of State that the proposals should be granted and the Secretary of State granted permission on 13 December 2010.
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NPPF and out of date planning policies

01.06.2012

James Findlay QC acted for Cafe Nero in a very full hearing in Skipton.

The case was one of the first to deal with the crucial question of the proper approach to out of date policies (in this case protecting high street uses) in light of the National Planning Policy Framework.
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The Coalition Government’s reform of Housing Benefit

28.05.2012

On 29 May 2012 Jon Holbrook is speaking on the "Housing Implications of Welfare Benefit Reform".  Jon will be looking at the three changes that will affect housing benefit claimants that come into force next April: (i) the benefit cap of £18,000 for single people (£26,000 for couples) that will include housing benefit; (ii) the ‘bedroom tax’ that will penalise public sector tenants with spare bedrooms & (iii) further reductions on private sector tenants.
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Court of Appeal gives guidance on the Homelessness Regulations

21.05.2012

The Court of Appeal has handed down judgment in Said El Goure v Royal Borough of Kensington and Chelsea [2012] EWCA Civ 670, a judgment of significance for homelessness practitioners.

The first basis of challenge was an alleged breach of regulation 6(2) of the Homelessness Regulations. This requires the local authority to notify a homelessness applicant of his right to make further representations on a review of its decision regarding the applicant’s homelessness. The Court held that a breach of the duty does not necessarily mean the review decision ought to be quashed, and took a purposive approach to compliance with that duty.
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Sainsburys Rebuffed in Saffron Walden

17.05.2012

In one of the first retail appeal decisions to be considered against the NPPF, a Sainsburys scheme for an out of centre foodstore at Saffron Walden has been rejected by an Inspector because of the trading impact on the town centre, and in particular on a planned investment by Waitrose to expand their existing town centre store.
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Westminster City Council ordered to repay Soho Sex Shops

16.05.2012

R (Hemming and Others) v Westminster City Council - Administrative Court - Keith J, 16th May 2012

In a seminal judgment, Mr. Justice Keith has ordered restitution of licence fees charged to sex shops by Westminster City Council.

A judicial review of Westminster’s sex licensing fees was brought by 7 owners of 13 sex shops in Soho and Covent Garden.
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Chelsea Nightclub "Public" loses Appeal

15.05.2012

The well-known nightclub, “Public” on Kings Road in Chelsea has lost its appeal against a curtailment of hours imposed by the Royal Borough of Kensington and Chelsea.

The club was taken to review by local residents in 2011 following allegations of nuisance and disorder. The Royal Borough of Kensington and Chelsea’s Licensing Committee curtailed its terminal hours from 2 a.m. to midnight. The club appealed to Hammersmith Magistrates’ Court.
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No obligation on Secretary of State to reopen gypsy caravan site inquiry following reinstatement of Regional Strategy

14.05.2012

The ripples caused by the Cala Homes litigation were considered by Foskett J in a challenge to the decision of the Secretary of State to refuse planning permission in an appeal for a gypsy caravan site.

The inquiry into the appeal was heard at a time when the Regional Strategy (RS) had purportedly been revoked, but the Secretary of State’s decision was given some months later, after Cala Homes (No. 1) had restored the RS. In a judgment handed down on 8th May 2012, the High Court rejected a challenge based on an alleged failure to refer the matter back to the parties.
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GDC v Ferreira [May 2012]

03.05.2012

Tom Cosgrove appeared for the GDC in this case which involved consideration of serious and complex clinical failings by a dentist in relation to 18 patients over period of three years. The professional conduct committee determined that the practitioner was guilty of misconduct and that his fitness to practise was impaired. His registration was made subject to conditions for 12 months.

Independent Social Workers and Age Assessments

02.05.2012

Jon Holbrook recently grilled three independent social workers who gave evidence for the claimant, an Afghan asylum seeker, in an age assessment case.

They had sought to support the claimant’s claimed age of 16 whereas Solihull’s social workers had concluded that he was probably 20.  In what is understood to have been the first fully contested age assessment case in the Upper Tribunal the Tribunal concluded in favour of Solihull. 
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Guidance Given On Reporting Of Court Of Protection Cases

02.05.2012

Bryan McGuire QC appeared for the local authority in a recent Court of Protection case which gives guidance in reporting of Court of Protection Decisions.

Sian Davies has helpfully digested Hedley J’s comments on best practice in regard to the citation and application of Court of Protection:

The case of A Local Authority v FG AG and HG (Court of Protection, anonymised transcript 27th April 2012) concerned the issue of how one assesses capacity. The question arose in the context of a young woman who could play some part in decision making, albeit a limited part and only with help.  Hedley J found at paragraph 21:
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Eligibility Training for Adults and Children

02.05.2012

On 25th April 2012, Kelvin Rutledge and Jenny Oscroft delivered a seminar entitled “No Recourse to Public Funds” to delegates working in and with the London Borough of Bexley.

Over 70 attendees, including social workers from Adult and Child Services, health workers from the PCT, managers, housing and legal officers were given a comprehensive course in this fast-developing and complicated area of law,
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Gerard Forlin QC speaks at 8th International Harbour Masters Congress

02.05.2012

On Wednesday 16th May 2012 Gerard Forlin QC is delivering a speech entitled: ‘Navigating health, safety and corporate liability in the new commercial landscape’ at the 8th International Harbour Masters Congress in Cork, Ireland.

The 8th IHMA Congress will explore and address the changing landscape of ports and how these changes are redefining the role of harbour masters in the future.
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Village Green Inquiry, Nottinghamshire

02.05.2012

Anthony Porten QC acted for a consortium of builders in a recent Village Green Inquiry which raises an important point of interest: issue estoppel.

Mrs Malcolm applied originally in 2006 under s.13 of the Commons Registration Act 1965 for land at Hucknall to be registered as a TVG. Following an eight day Inquiry the application was dismissed on various grounds – use had not continued up to the date of the application, being prevented by the erection of fences a few days earlier; use had not been as of right due to (a) deference and (b) prohibitory signs.
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CPO refused by Secretary of State for private gypsy site

25.04.2012

The Secretary of State has refused to confirm the Mid Suffolk District Council (Combs Lane) Compulsory Purchase Order 2011, so preventing the delivery of a scheme by a registered Housing Association for the improvement of an existing  privately run gypsy site which benefited from Homes and Communities Agency grant funding.
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National Trust challenge to a wind farm

25.04.2012

Morag Ellis and Robin Green have been instructed on behalf of the National Trust in a challenge to the grant of planning permission for a wind farm within 1 mile of a Grade I listed building and registered Park and Garden.
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Secretary of State upholds refusal of planning permission for major housing development in countryside

16.04.2012

In one of the last ministerial planning decisions before the publishing of the National Planning Policy Framework, the Secretary of State has upheld the decision of Wycombe District Council to refuse planning permission for 380-400 dwellings in the countryside.

The site was located outside Princes Risborough on high quality and versatile agricultural land. The development would have helped to meet the housing needs of the town, but when weighed in the planning balance the benefits were found to be insufficient to outweigh the loss of agricultural land of this quality and the negative impact on the character of Princes Risborough, a small market town. The Council had in place a five year supply of housing land and of particular interest is that the Appellant’s attempt to look at an area less than the District with regard to performance against PPS3 requirements was rejected.
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High Court dismisses challenge to adequacy of planning conditions

16.04.2012

The High Court, in a robust defence of local authority decision making, has dismissed an application for judicial review of Stafford Borough Council’s grant of planning permission for a slurry store.

In R(on the application of Davies) v Stafford BC [2012] All ER (D) 20 the Council’s grant of permission was challenged on the basis that, in the context of an environmental health officer advising that the impact of the development would be acceptable providing that it was well managed, the Council had failed to have regard to whether or not to impose a condition controlling the regulation and management of the slurry store. In the alternative, the decision not to impose a condition was irrational. Secondly, it was alleged that the EHO had improperly relied on the statutory nuisance regime for dealing with any nuisance as an alternative to planning control.
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Interim Orders in Healthcare Regulation and the approach of the Administrative Court to Delay

12.04.2012

In an article published in the Association of Regulatory and Disciplinary Lawyers Spring Bulletin Tom Cosgrove and Zoe Whittington consider the approach of the Administrative Court in dealing with the increasing number of requests for extensions of interim orders by health care regulators. The article explains the powers available to healthcare regulators and reviews a number of recent cases in the Administrative Court which address delay.

To read the article in full, please see from page 2: ARDL - Spring 2012.

Cornerstone Barristers welcome Warren Foot as their new Chief Executive

02.04.2012

Cornerstone Barristers are proud to welcome Warren Foot as their new Chief Executive.

James Findlay QC, joint Head of Chambers with Mary Cook, said "The legal world is changing quickly and we are keen to ensure that we continue to thrive and meet the changing needs of our clients. Our new Chief Executive will assist us in achieving that goal and his appointment is indicative of our members' confidence, progressive attitude and professional approach.”

Warren Foot comes from his role as a Partner at Blake Lapthorn solicitors. He added "These are interesting times for anyone involved in law and the opportunity to lead a successful and progressive set like Cornerstone Barristers is exciting.”

London Bridge Station development gets go-ahead

02.04.2012

Mark Lowe QC  has been advising Network Rail in relation to their proposals to rebuild London Bridge Station. The proposal would create the largest station concourse in the UK. The Mayor of London had opposed the plans and had threatened to exercise his power to direct the London Borough of Southwark to refuse planning permission for the scheme. With Mark’s assistance on strategy, Network Rail was able to persuade the Mayor to withdraw his opposition to the scheme at a late stage. The scheme has now been granted and the following permissions have now been issued:

  1. The planning permission
  2. The Listed Building Consent for the demolition of the train shed
  3. The Listed building Consent for the work to the arches on St Thomas Street
  4. The Conservation Area Consent for the demolition of 84 Tooley Street

Court refuses to grant injunction for removal of weir

02.04.2012

Wayne Beglan of Cornerstone Barristers appeared for Mr Chetwynd, a landowner and holder of riparian rights extending to the halfway line of a watercourse shared with a neighbouring landowner, Mr Easton. Mr Easton trespassed on Mr Chetwynd’s part of the watercourse and breached his riparian rights by dredging the riverbed and accordingly lowering the water level.
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Permission granted to install cattle grids in Epping Forest

02.04.2012

In a decision published on 26 March 2012, the Secretary of State granted permission to the Highway Authority to install four cattle grids in four strategic locations within Epping Forest. The decision, which followed a public inquiry under s. 82 of the Highways Act 1980, means that Essex County Council and Corporation of London can proceed with the installation of the grids as part of the Epping Forest Transport Strategy (the“EFTS”).
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Home Office Guidance On Use Of Closure Notices Unlawful

29.03.2012

HOME OFFICE GUIDANCE ON USE OF CLOSURE NOTICES UNLAWFUL

The Home Secretary has submitted to a judgment in the High Court which establishes that Home Office Guidance on closure notices is unlawful. The Guidance was used by the Home Office and the Police to justify the immediate closure of premises trading in alleged breach of conditions on their licence. In what is thought to be a first, both the Home Office and the West Yorkshire Police have agreed to pay damages for their unlawful conduct.

The Claimant was represented by Michael Kheng, of Kurnia Licensing Consultants based in Lincolnshire, who instructed Philip Kolvin QC, head of the licensing team at Cornerstone Barristers and one of the UKs leading licensing QCs, and Sarah Clover, Barrister of No.5 Chambers, in the claim.
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The NPPF - the response from Cornerstone Barristers

28.03.2012

The Planning Team at Cornerstone Barristers have reviewed the NPPF to look behind the headlines and general summaries to focus on six areas likely to be of general interest to all their clients.  Click here for their initial conclusions in full.  Here are the headlines:

Implications of the Presumption in Favour

Local planning authorities in areas with development plans adopted pre-2004 and which do not make provision to meet more recently assessed needs may therefore struggle to resist anything other than significantly harmful development particularly where there is a need case and nothing by way of nationally important designation to prevent it.  Time is now ticking for those unable to progress their Local Plans because of the Regional Strategy statutory general conformity requirement.

Housing

For many authorities with pre-2004 plans, there will be nothing to move forward and no means of complying with the 120% requirement other that granting planning permission.  Their policies will be out of date and the presumption in favour will apply.

Countryside

The NPPF has given some recognition to the “ordinary” countryside (compared to the draft) but it has mixed messages as to whether it is an appropriate location for meeting general development needs.

Green Belt

In relation to existing Green Belt boundaries, the familiar “exceptional circumstances” test only applies to boundaries “once established”.  It is unclear whether this is only forward looking or embraces existing detailed boundaries.

Town Centres

The message remains that retail and leisure needs should be met “in full” with corollary that town centres may need to be expanded to “ensure a sufficient supply of suitable sites”

Gypsy and Traveller Policy

The “teeth” of the new policy are little different its predecessor 01/2006.  A failure to take positive steps to meet need will result in the grant of temporary permission.  That is not a threat which, to date, has led to significant allocation of sites for travellers.

 

Store Wars continue in the Supreme Court

28.03.2012

Supreme Court rejects Tesco challenge and determines that the interpretation of planning policy is a matter of law and not to be left to the discretion of local planning authorities.  Also, provides guidance on approach to “suitability” in the context of the sequential test.

To read full article, please click below.

Store Wars

Newhaven Port and Properties Ltd v East Sussex County Council [2012] EWHC 647 (Admin)

27.03.2012

Steven Sauvain QC appeared for the Council in this important new case.

The High Court (Ouseley J) quashed the decision to register Newhaven East Beach a a village green.

The judgement deals with a number of interesting issues including the question whether it is necessary for land to have the character of a traditional village green (no); whether the changing boundary and intermittent availability of the beach due to the tide precluded registration (no); whether use was permissive by virtue of unpublished byelaws or by virtue of the land being foreshore (no); and whether the absence of a public right of way to the land precluded registration (no).
read more

Too Hot to Handle, New Law Journal article by Gerard Forlin QC

26.03.2012

In an article published in the New Law Journal on 23 March 2012, Gerard Forlin QC examines a series of recent cases in which defendants have been facing increasingly severe penalties for failure to comply with Fire Safety Regulations.

The article explains that organisations and individuals who fail to have adequate systems and assessments in place run a significant risk of large fines and terms of imprisonment being imposed.

 

NLJ Specialist Regulatory Gerard Forlin QC

Pet shop disqualification

25.03.2012

A pet shop proprietor has been disqualified from keeping a pet shop for 15 years following a prosecution for licence breaches.

Stuart Wood ran Sylvesters Pet Shops in Harrow and in Hanwell, Ealing.
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Prematurity rides to the rescue days before the NPPF

23.03.2012

The Secretary of State has announced his decision on the Hatchfield Farm appeal for an urban extension on the Earl of Derby’s land at Newmarket.

The Secretary of State agreed with his Inspector’s recommendation that the appeal should be dismissed, primarily on the ground that it was premature pending the reformulation of the District’s housing distribution strategy in its Single Issue Review of the Core Strategy. The Review had been necessitated by a High Court judgment quashing parts of the Core Strategy for breaches of the SEA regime.

Michael Bedford acted for Forest Heath District Council and Simon Bird QC acted for Tattersalls, one of the principal objectors.

To view the decision letter in full : click here.

NPPF is promised for next Tuesday 27 March

21.03.2012

As you will no doubt have read by now, the National Planning Policy Framework (NPPF) is promised for next Tuesday 27 March.   We will aim to publish a considered response on Wednesday 28th March.

The Budget states

“1.234  The Government is reforming the planning system so that it supports growth.  The Government will publish the National Planning Policy Framework (NPPF) by the end of March 2012, coming into force for plan-making and decisions from that point onwards, with appropriate implementation arrangements for local authorities with pro-growth policies in local plans.  There will be support to help local authorities get plans up to date quickly.

1.235   The NPPF will refocus planning policy to better support growth, will include a powerful presumption in favour of sustainable development to underpin all local plans and decisions, and will localise choice about the use of previously developed land, ending nationally imposed targets.  The Government will also work with key statutory consultees to ensure that they support delivery of sustainable development in line with the NPPF and are held to account for doing so”

There are also a commitments to amend the UCO to make changes of use of buildings easier, to adjust the scope of Special Parliamentary Procedure and to the creation of a Major Infrastructure and Environment Unit.

The Secretary of State’s attempted revocation of regional strategies create further ripples

21.03.2012

Further ripples from the Secretary of State’s attempted revocation of regional strategies.

In Murphy v Secretary of State and Wycombe District Council the claimant has challenged the refusal of planning permission for a gypsy caravan site on the grounds that no opportunity was given to the parties to make representations on the reinstatement of the regional strategy, which had been revoked by the Secretary of State shortly before the inquiry began, and then reinstated following the Cala Homes litigation before the Secretary of State issued his decision in the appeal.

Similar arguments were advanced in relation to the Secretary of State’s announcement of his intention to withdraw Circular 01/2006. Foskett J has reserved judgment.

Alan Masters appeared for the claimant. James Maurici appeared for the Secretary of State and Robin Green forWycombeDC.

Interesting grounds of appeal in homelessness case

21.03.2012

EL GOURE v THE ROYAL BOROUGH OF KENSINGTON & CHELSEA  Appeal Ref: B5/2011/0821 joined with MASWAKU v WESTMINSTER Appeal Ref: B5/2011/093

The Court of Appeal (Moore-Bick, Mummery and Black LJJ) has recently heard an appeal against a homelessness decision raising some interesting grounds of appeal.  David Lintott acted for RBKC in the rolled-up hearing which was heard together with the case of Maswaku vWestminster. The two main grounds in the appeal were 1) a Regulation 6 point and 2) a ‘Homes-Moorhouse’ point.

The Regulation 6 argument was of wider significance and the case was joined to Maswaku because the Appellant had already been given permission to argue the same point on that case. The Appellant argued that there was a breach of Regulation 6 in circumstances in which solicitors were acting for an Appellant, and the Appellant had not been specifically informed in the letter telling him he could make representation that he “or someone acting on his behalf” could make the representations.  RBKC obviously argued that the Regulation had been complied with and that in any event the proper approach to statutory construction was to apply a purposive rather than a literal approach to the Regulation.

The ‘Holmes-Moorhouse’ argument sought to establish that RBKC had applied the wrong test because the Council had said in its decision that exceptional circumstances did not exist, rather than applying the statutory test of whether the Appellant was someone with whom children reside or could reasonably be expected to reside. RBKC argued that the decision  letter taken as a whole applied the correct test and that in any event exceptional circumstances provided a useful cross-check given the manner in which Lord Hoffman addressed the issue in the Holmes-Moorhouse decision.

In Maswaku there an additional point of interest was argued, about the application of Regulation 8(2) post- Mitu v London Borough of Camden. EWCA Civ 1249, in which Lewison and Rixx LJJ have given differing views on the application of the Regulation.

Judgment is awaited.

Costs in JRs generally and for age assessment cases

15.03.2012

On Wednesday 14th March, Catherine Rowlands appeared before the Court of Appeal (MR, Stanley Burnton and Hallett LJJ) in M v Croydon County Council arguing about the application of the Bahta principles (R (Bahta) v SSHD & Ors [2011] EWCA Civ 895) in age assessment cases.  In Bahta the issue was whether a) the Judges had correctly interpreted R (Boxall) v Waltham Forest LBC 21 December 2000 (2001) 4 CCL Rep 258 and b) whether the test in Boxall should be modified in the light of current circumstances and the recommendations in Jackson LJ’s review of civil litigation costs.

This could be an important case for local authorities dealing with claims for costs in JRs generally and particularly in age assessment cases.  Judgment was reserved.

Lifelong ASBO

12.03.2012

LB Croydon v Aaron Kennedy

Tower Bridge Magistrates granted a lifelong ASBO against a 19 year old ringleader intimidating Croydon residents and shopkeepers. None of the victims was prepared to give evidence or to have their identity revealed in court, as there was a history of reprisals against witnesses. The application was therefore based on anonymous hearsay.

Matt Hutchings represented the London Borough of Croydon

Royal Aeronautical Society Conference

12.03.2012

Gerard Forlin QC is going to speak at the Royal Aeronautical Society Flight Simulation & Rotorcraft Conference 29-31 March 2012, on “Legal Aspects: Where are we now”.

Guidance given on the obligation to assess under s.47 NHS and Community Care Act 1990

12.03.2012

NM v Islington LBC and Northamptonshire CC (Interested Party)

Islington has succeeded in defeating a claim for Judicial Review brought by a prisoner seeking to require it to carry out an assessment of his needs so as to promote his prospects of release by the Parole Board.  In the course of a judgment on a test case, Sales J gave important general guidance on when a section 47 NHSCCA duty to assess will arise writes Sian Davies.

NM’s case was that Islington was required to assess his needs. It was required to do so, he contended, before he appeared before the Parole Board, so as to identify what accommodation and package of support would be available to him on travelling to Islington on his release. The Parole Board hearing is in April 2012, NM having been sentenced to an indeterminate sentence in 2006 for a string of offences.

Islington’s defence was that:

a)      There was no obligation to assess under s.47, as there was insufficient reason to think NM would in fact be released and the authority should not be put to unnecessary expense on such a speculative basis;

b)      Secondly, it contended that even if there was an obligation to assess, the responsibility did not fall on Islington as NM had not been ordinarily resident there before his incarceration.

Mr Justice Sales found that no obligation had yet arisen on Islington to assess NM’s needs, as the question of whether he might be released remained too speculative.  Islington and Northamptonshire County Council, in whose area NM was living at the time of his arrest, agreed to refer the question of which of them is the responsible authority to meet his needs  on release to the Secretary of State for a determination. The claim was dismissed.

Comment

The question of what triggers an obligation to assess can be a vexed question. It is of particular importance in the context of assessments for prisoners, those in Youth Offender Institutions, those in hospital and those seeking section 117 MHA aftercare services. Sales J found:

“Parliament cannot have intended to create an obligation of assessment in relation to a very wide class of cases of future provision of services, since doing so would create a serious risk of scarce resources available to local authorities for community care being wasted through assessments being carried out for no ultimate good purpose, thereby depleting funds available to provide much-needed services to vulnerable people who actually do require social welfare support from the local authority in question. In interpreting the intended ambit of the class of cases of future provision covered by section 47(1), it is necessary to bear in mind that the relevant condition set out in the opening part of the provision is expressed in the present tense so it is reasonable to suppose that Parliament intended the relevant extension to cover future cases on pragmatic grounds, as set out above, to be narrow. The future cases intended to be covered are those which are closely analogous to those where there is a (possible) present need for provision of community care. It is only in relation to such a narrow class that it can be said that “the contextual imperative” is so powerful as to allow the language in the present tense in section 47(1) to be interpreted as covering future or future conditional cases (see the approach to interpretation of community care legislation indicated by Lord Neuberger in R (M) v Slough Borough Council [2008] UKHL 52; [2008] 1WLR 1808 at para. [55]).

86. In the present case, I consider that the connection between the proposed consideration of the Claimant’s case by the Parole Board as things stand on the case before the Board and the release of the Claimant to go to Islington is too conditional and speculative to fall within the narrow class of future provision cases covered by section 47(1). Nor can it be properly said that the Claimant is “about to be in need” or “may reasonably be considered to be liable” to have an order for release made in his favour, in line with the indication by Stanley Burnton J in R (B) v Camden LBC at para. [66]”.

 

It was relevant to the prospects of release, and the conclusion that it was too speculative to trigger the assessment duty, that no MAPPA work had been done as to what risks might be posed to or by NM in Islington’s area.

The local authorities agreed to have the question of ordinary residence referred to the Secretary of State.

 

Bryan McGuire QC appeared for Islington LBC. Ranjit Bhose appeared for Northamptonshire County Council

Withdean Stadium subject of a planning judicial review again

12.03.2012

The Withdean Stadium in Brighton is to be the subject of a planning judicial review again.

John Catt, represented by Richard Buxton solicitors, has been given permission to challenge the grant of planning permission (on account of the negative screening opinion) on grounds which include a suggested definition for “significant environmental effects” previously unsuccessful in the case of Loader v SSCLG (a case which is to be considered by the Court of Appeal).

Harriet Townsend is acting for Brighton and Hove City Council.

Ranjit Bhose appointed as Queen's Counsel

29.02.2012

Cornerstone Barristers are delighted to congratulate Ranjit Bhose on his appointment as Queen’s Counsel in this year’s competition. He will formally take silk upon his being sworn in on 30 March 2012.

Ranjit very  much looks forward to continuing to work alongside his many clients during this next and exciting phase of his career.

Any inquiries in relation to Ranjit should be directed via his clerk, Stuart Pullum.

Cala Homes Round 4: To be or not to be?

27.02.2012

The latest round of the Cala Homes saga unfolded in Cardiff on Valentines Day when the Secretary of State consented to judgment in the High Court challenge brought by Cala Homes to his dismissal of Cala’s planning appeal for permission for a 2,000 dwelling urban extension at Barton Farm, Winchester.

The Secretary of State chose not to defend his decision on the grounds that the stated reasons were not legally adequate to explain it.

The appeal is now to be redetermined after further representations from the parties.

Winchester City Council is not seeking a re-opening of the Inquiry.

Go-peds, mopeds and other sources of nuisance

24.02.2012

Magistrates in Croydon have made Anti-Social Behaviour Orders lasting three and four years in respect of two youths who had been terrorising their neighbourhood on their go-peds, mopeds, quad bikes, thumper bikes (the list of mechanically propelled vehicles goes on).

A group of around 20 youths had been tearing up grassed areas with their vehicles. They were congregating in a children's play area drinking and smoking until the early hours and had been involved in acts of vandalism.

Two of the youths were identified as the leaders of the group and had signed Acceptable Behaviour Contracts. However, the anti-social behaviour continued and the Council sought interim and final ASBOs. The prohibitions included curfews, an exclusion zone and non-association clauses.

The behaviour was taking place in an area surronded by dwelling houses but residents were fearful of being identified for fear of reprisals.

Both the Police Sergeant and Anti-Social Behaviour Officer gave evidence to the Court of the matters that had been reported to them. This allows the residents to remain anonymous. The Police Sergeant confirmed that reports of anti-social behaviour from the area had been reduced by almost 90% since the interim orders were put in place.

The Council was represented by Kuljit Bhogal.

Links to local press can be found here and here.

Who says it's impossible to get outright possession orders?

23.02.2012

Welwyn Hatfield Borough Council v Holloway.  

The Luton County Court has made an outright possession order in respect of a secure tenant with four children under the age of ten (the youngest is 6 months old).

The Order was made following a three day contested trial where the Defendant had argued that the owner-occupiers in the street wanted to ‘privatise’ it and were fabricating complaints in order to persuade the council to take possession action against her.

An unusual feature of the case was that one of the residents giving evidence for the Council admitted writing a death threat which had been delivered to the Defendant.  The resident stated in his oral evidence that he had drawn around a picture of a real firearm and made various anonymous threats because he ‘didn’t know what else to do’.

The Judge found that whilst this resident’s actions were ‘terrible’, a number of residents had been affected by the Defendant’s partner’s behaviour (as had been evidenced by their nuisance diaries) and that the  behaviour had continued without any recognition of the impact it was having on others.  An outright order requiring possession to be given up in 28 days was reasonable.

Welwyn Hatfield Council was represented by Kuljit Bhogal.

R (McDonagh) v Hackney LBC

22.02.2012

The Administrative Court gave judgment this week in favour of Hackney LBC in a challenge to the rationality of the local authority’s policy for allocation of pitches for travellers. The decision has been awaited by a number of local authorities in relation to the implications for their pitch allocation policies. Robin Green appeared for the local authority.
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Aviation and Health & Safety Lectures

21.02.2012

Gerry Forlin QC will be speaking at the following international conferences:

Bar Council’s Korea and Singapore trip, taking place between 26 and 30 March

ALAANZ -Aviation - 1st-3rd April - Queenstown, New Zealand

Safety in Action 2012  - 16th-19th April - Melbourne, Australia

Housing development on a reserve site refused on appeal

20.02.2012

A planning appeal was dismissed in Canterbury City Council for a housing development on a reserve site.

The developer challenged the five year housing  supply position which was unsuccessful and the Inspector upheld the decision of the Council to refuse permission.

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2159370&coid=45826

Richard Ground from Cornerstone Barristers appeared for Canterbury City Council.

R (Tiller) v East Sussex County Council [2011] EWHC 3077 (Admin) well [2011] & EWCA Civ 1577; [2012] EqLR 265, CA

20.02.2012

Matt Hutchings and Bryan McGuire QC have submitted an application for permission to appeal to the Supreme Court in the above case on behalf of Mr Tiller, who was also represented by Matt Hutchings in the Administrative Court and Court of Appeal. Mr Tiller is a disabled man who lives in sheltered accommodation owned by the local authority. His case is that the LA breached its duty under s.49A Disability Discrimination Act 1995 (DDA) to ‘have due regard’ to various disability equality aims when it decided to replace the existing 24 hour on-site warden service with a service based on -site service during office hours only.

The Administrative Court and Court of Appeal applied R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) and held that despite the absence of any mention of the DDA or s.49A in the documents, the local authority had discharged its s.49A duty.

Mr Tiller is now asking the Supreme Court to look further at the nature and extent of the s.49A duty (now replaced by the duty in s.149 Equality Act 2010), and what that duty adds to any other duties owed by the local authority. The Supreme Court will be asked to reconsider the recent case of R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33 (in which Kelvin Rutledge and Sian Davies of Cornerstone Barristers appeared for the local authority), where it held that there was no requirement for a local authority, when discharging statutory functions which expressly directed attention to the needs of disabled persons, to make express reference to s.49A in order to demonstrate that it had had “due regard” and that there were no grounds for inferring that the authority had not regard to its duty to the claimant under s.49A.


Local Development Orders

20.02.2012

Two members of Cornerstone Barristers have been separately instructed by local authorities to advise on the content of proposed Local Development Orders under section 61A of the Town and Country Planning Act 1990 and on the procedure to be followed in having them adopted. Paul Shadarevian is advising on a prospective LDO for London Gateway deep-sea container port, whilst Emma Dring is advising on a group of planned LDOs to encourage economic growth in the energy, offshore engineering and ports sectors in the Great Yarmouth and Lowestoft Enterprise Zone.  
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Approvals granted for National Grid’s Tees Crossing replacement scheme to ensure electricity supply security for the North East

17.02.2012

...UK’s two tallest pylons approved.

The Secretary of State for Climate Change and Energy has granted consent and a necessary way leave under the Electricity Act 1989 to allow National Grid’s Tees Crossing Replacement Scheme to proceed.  He agreed with his inspector that there was an overwhelming national and regional need to replace the existing 275/400 kV overhead line as soon as possible, that National Grid had acted responsibly in assessing and selecting the route,  there was no reasonable alternative and the pressing need for the replacement outweighed the impact on the use and enjoyment of the land affected.

Simon Bird QC was instructed by Squire Sanders (UK) LLP

For a copy of the decision please contact the clerks.

Flexible Tenancies & the Localism Act 2011 - SHLA Seminar

17.02.2012

Jon Holbrook will be speaking about Flexible Tenancies under the Localism Act 2011 on Thursday 23 February in Central London (SHLA February flyer).

The organisers, the Social Housing Law Association, have agreed that our guests may attend this event for the discounted membership rate of £25 (£10 for trainees) even if they are not SHLA members.

To take up this offer please email your name to Vicky at Resolutions, with "Jon Holbrook Guest, Flexible Tenancies & the Localism Act 2011" in the subject title. Payment will need to be made to SHLA on the door.

To submit questions in advance, or for further information, email info@shla.org.uk or visit www.shla.org.uk

Beware Intensification

03.02.2012

Members of chambers acted for Metal and Waste Recycling Ltd (M & W) the successful party in Hertfordshire County Council v Secretary of State for Communities and Local Government and Metal and Waste Recycling Ltd  (decision of Ouseley J delivered on01/02/2012).
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First Gang Injunction obtained under new powers results in custodial sentence

02.02.2012

On 1st February 2012, a teenager from Edmonton became the first person to be committed to prison for breach of a ‘Gang Injunction’ which had been obtained against him by the London Borough of Enfield: For BBC news article, click here.  Following a contested committal hearing at the West London County Court, the teenager was found to have committed 3 breaches of the injunction during an incident of serious public disorder involving known gang members, threats of violence and the presence at the scene of bladed articles.  The court held the breaches warranted an immediate custodial sentence of 15 months.  There had been 9 previous breaches of the injunction in its interim and final form.  Counsel for the London Borough of Enfield was Jennifer Oscroft.  Kuljit Bhogal and Sian Davies had also acted for Enfield in order to secure the Gang Injunction, which was the first of its kind obtained under new legislative provisions, and for the committal of the earlier breaches. 
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Judicial review of plans to redevelop Stradey Park dismissed

28.01.2012

Residential redevelopment by Taylor Wimpey of the famous Stradey Park, former home of the Llanelli ‘Scarlets’, and a Persimmon development at Machynys West have both been given the go ahead as judicial review challenges were dismissed. The grounds for challenge concerned European ecological designations atCarmarthenBay(the ‘CBEEMS’) and Carmarthenshire County Council’s Appropriate Assessment of the schemes.

HHJ Milwyn Jarman QC, sitting as Deputy High Court Judge inCardiff, on 25 January 2012 held that there was no arguable case to challenge the Council’s handling of the matter. The case is of wide interest because of the many other development sites in Carmarthenshire and Swansea reliant on the scheme set up to avoid impact on the CBEEMS which lay at the heart of this challenge by Mr Hughes, a leading member of the Cocklepickers’ Association.

Geoffrey Stephenson appeared for the local planning authority, Morag Ellis QC for Taylor Wimpey and Anthony Porten QC for Persimmon.

Court ruling frees up Stradey Park development

27.01.2012

A housing development on the site of Llanelli’s former Stradey Park rugby ground is now free to go ahead following a High Court ruling.

Developer Taylor Wimpey was originally granted planning permission by Carmarthen County Council to build 355 homes in 2007.

A Judicial Review claim was lodged last year by a protester arguing that the council had been in breach of environmental regulations and other points relating to planning matters.
read more

Planning seminar in Enfield

27.01.2012

Melissa Murphy conducted a seminar on 26 January 2012 for the London Borough of Enfield on the subject of planning enforcement, focusing on the Localism Act; on Environmental Impact Assessment in an enforcement context; and on best practice in relation to the drafting of enforcement reports and notices.

Lift Fatality Inquest

26.01.2012

In January 2012 Gerard Forlin QC acted for Thyssen Krupp Elevators UK at an inquest into the death of Katarzyna Woja who died in 2003 in a lift accident in a Holmes Place gym in the City of London. The verdict of the jury at the inquest was accidental death.

Gerard also acted for Thyssen Krupp Elevators Uk in the criminal proceedings that finished in 2010.

Coverage can be seen here.

Shepperton Pinewood’s “Project Pinewood” rejected. - Simon Bird QC & Melissa Murphy

23.01.2012

The Secretary of State for Communities and Local Government has rejected Shepperton Pinewood’s proposal to create a purpose built film industry community in the South Bucks Green Belt.  The proposal involving 1400 dwellings (including 420 affordable units) constructed within permanent streetscapes designed to accommodate film making was recommended for rejection by the Inspector.  The Secretary of State agreed, finding the proposal would:

  1. Destroy the concept of the site as part of the open Green Belt;
  2. Significantly alter the landscape character and appearance of the area to its detriment and run counter to the aims of the Colne Valley Park;
  3. Be located in an inherently unsustainable location;
    read more

Full scale attack on town and village greens repelled

17.01.2012

The Court of Appeal have dismissed a challenge on the law relating to town and village greens which, if successful, would have dramatically limited the ability of local residents to register land as a town and village green. Mr Jones, a local resident, applied for a large area of land lying on the outskirts of Leeds to be registered as a town and village green. Leeds Group Plc, which owned part of the land in question, objected to the proposed registration and Leeds City Council, the registration authority, held a non-statutory public inquiry. The Inspector recommended registration, which Leeds CC accepted.

Leeds Group Plc sought judicial review of that decision on various grounds. The Court of Appeal dismissed the challenge on the basis, first, that the reference in the legislation to inhabitants of a ‘neighbourhood’ who use the land in question, could be read in the plural, such that users of a town and village green could be made up of two or more neighbourhoods. Secondly, although the amendment introducing the word ‘neighbourhood’ took effect on 30 January 2001, an application for registration after that date could still rely on such user occurring before that date. This was not retrospective legislation and not incompatible with Article 1 of Protocol 1 of the European Convention on Human Rights.

The decisions of the Court of Appeal are at [2011] EWCA Civ 1447 and [2010] EWCA Civ 1438. The Appellant’s application to the Supreme Court for permission to appeal is pending.

Morag Ellis QC and Clare Parry appeared for Leeds City Council. Robert Williams appeared for the interested party.

Cornerstone Barristers tender successes

07.01.2012

Cornerstone Barristers have recently been successful in tenders for planning work of a number of local authorities and groups of local authorities.

These include the London Boroughs Legal Alliance, the London Boroughs of Lambeth and Southwark, South West Wales, and West Yorkshire.