Court of Appeal Hat Trick
The last few days of December saw members of Chambers in the Court of Appeal in three very different cases.
The cases were:
1. Neath Port Talbot County Borough Council v Ware [2007] EWCA Civ 1359
Anthony Porten QC acted for the Council in this appeal. Following advice from the monitoring officer, four members of the planning committee had abstained from voting. The Court below (Collins J) had quashed the planning permission and hazardous substance consent granted by the committee to the National Grid for a natural gas pressure reduction, on the grounds that that the officer’s advice had been wrong. The Court of appeal reversed that decision, holding that advice given had not been wrong, the members had been left to exercise their own discretion and that there had been no procedural irregularity.
Planning magazine of 4 January 2008 reported this under the headline “Appeal court removes doubts on terminal approval process”. Click here for full text of the article.
The New Law Journal of 18 January 2008 reported that the decision restores stability to the law on bias in their article “Breathe easy”. Click here for full text of the article.
2. Green & Anorv London Borough of Croydon [2007] EWCA Civ 1367
Wayne Beglan acted for the Council in this case dealing with issues relating to intentional homelessness and possession orders. The Council relied upon the essential reasoning of the judge making the possession order. The appellants contended that the district judge had clearly erred in making the possession order and that the Council should look behind that order. Accordingly the appellants contended that the Council had failed to make all the necessary inquiries when carrying out their review despite the fact that a court of competent jurisdiction had already made a possession order on the facts of rent arrears.
In conclusion, the judgment indicated that “it can certainly be said that in the normal case a housing authority can rely on what a court decides or seems to have decided”. There might be exceptions to this, but on balance, it would be “an extreme case, if it exists at all”.
3. Perrin & Anor v Northampton Borough Council & Ors [2007] EWCA Civ 1353
James Findlay and Ryan Kohli acted for the Council who successfully appealed a decision which had reduced the protection to trees afforded by Tree Preservation Orders and which, in particular, had broadly interpreted the exemption provision which concerned abatement of a nuisance. The case involved the relevance of steps which might be taken to control the nuisance without actually topping, lopping or felling the tree such as underpinning of property or using engineering solutions to contain root damage. At first instance HH Judge Coulson sitting in the TCC had ruled them irrelevant. Judgment of the Court of Appeal was that the purpose of a TPO was to preserve the tree and before determining whether it was necessary to fell a tree etc. to abate a nuisance it was relevant to consider other options.
