Local Government


Planning - certificates of lawful development - land use - planning control - prescribed forms - planning permission



James Hay Pension Trustees Ltd v First Secretary of State & Ors: CA (Civ Div) (Lords Justice Ward, Wall, Richards): 26 October 2006





The secretary of state appealed against a decision ([2005] EWHC 2713 (Admin)) that a planning document issued by a local authority was a certificate of lawful use of proposed development under section 192 of the Town and Country Planning Act 1990, since it was 'substantially to the like effect' as the form set out in schedule 4 of the Town and Country Planning (General Development Procedure) Order 1995.



Decades earlier, planning permission had been granted to the site for change of use to a garage and store, subject to conditions that included a restriction on the building being used for any purpose within class X of the Town and Country Planning (Use Classes) Order 1963, other than with consent.



The respondent (J) acquired the site and it was used to repair and service motor vehicles, and the yard was used for parking them. Part of the site was used as a builder's yard, and the local authority issued an enforcement notice requiring cessation of that use. J applied for a certificate of lawfulness for an existing use, on the basis that the site had benefited from an extant grant of planning permission.



The local authority issued a document, stating that the original planning permission granted decades before was not personal to the previous occupier, and that the store and class X use referred to therein was now covered by reference to storage in the use class B8. J argued that that document was 'substantially to the like effect' as a certificate of lawful use under section 192 of the 1990 Act. A planning inspector held that the document merely responded to specific questions and was not, therefore, a section 192 certificate. That decision was overturned by the judge.



Held, the document was not in the form prescribed by schedule 4 of the 1995 order. The document did not on its face purport to certify that any and if so what use was lawful. It was not clear that the local authority had satisfied itself, as it had to be satisfied pursuant to section 192(2) of the Act, that the use or operations described in the application would be lawful if instituted, or begun at the time of the application.



There was no clear description in the document of the use or operations in question as required by section 192(3)(b) of the Act, and the local authority had failed to give reasons for determining the use to be lawful as required by section 192(3)(c) of the Act.

Furthermore, the document was not in the form prescribed by schedule 4 of the 1995 order in that it was unclear whether the local authority was certifying some specified use to be lawful, something that the prescribed form made clear.



To be in 'substantially the same form', the disputed document had at least to contain the essential information required by the 1995 order, even if it was laid out differently. Looking at the document issued in this case, the only conclusion was that it was significantly different from what was required under the 1995 order. The certificate was not substantially to the like effect of the prescribed form and, accordingly, there was a failure to comply with article 24 of the 1995 order.



Appeal allowed.



Natalie Lieven, Paul Greatorex (instructed by the Treasury Solicitor) for the appellant; no appearance or representation for the respondent.





Property



Nuisance - damages - development - discretion - mandatory injunctions - private nuisance - right to light - remedies - award of damages in lieu of mandatory injunction - exercise of discretion



Dennis Regan v (1) Paul Properties Ltd (2) Peter Lahaise: CA (Civ Div) (Lords Justice Mummery, Tuckey, Wilson):

26 October 2006



R appealed against a decision to award him damages ([2006] EWHC 1941 (Ch)) following the finding that the respondent developers (P) had infringed his right to light.



P had begun developing two properties directly across the road from R's property. From the beginning, R had expressed concern about the effect of the development on the right to light in his property. P consulted a surveyor, who advised that the loss of light would be minor and would not give rise to an actionable injury, and carried on with the works.



R sought an injunction in relation to one particular unit in the development. The judge found that an actionable nuisance had been committed, rendering the enjoyment of R's living room significantly less comfortable and beneficial than it previously was, but that the right course was to grant R damages in substitution for an injunction.



The judge purportedly based his decision on Shelfer v City of London Electric Lighting Co (No1) (1895) 1 Ch 287, finding that it would be oppressive to P to grant an injunction, and that the injury to R's legal rights was small, capable of being estimated in money and could be adequately compensated by a small money payment. R contended that the judge had misdirected himself in law, in ruling that the refusal of an injunction in infringement of right to light cases and the grant of damages in lieu was not an exceptional course; and in putting the burden of proof on him to persuade the court that he should not be left to a remedy in damages.



Held, the case of Shelfer established that a claimant was prima facie entitled to an injunction against a person committing a continuing nuisance that invaded his legal right, and that the discretion to grant an award of damages in substitution for an injunction should only be exercised in exceptional circumstances (Shelfer followed).



Shelfer laid down a 'good working rule' for courts to follow when determining whether it would be appropriate to award damages in lieu of an injunction. None of the propositions in Shelfer had been overruled by later decisions (Leeds Industrial Cooperative Society v Slack (No2) (1924) 2 Ch 475 applied, Colls v Home & Colonial Stores Ltd [1904] AC 179 explained, and Jolly v Kine (1905) 1 Ch 480 doubted).



The judge had erred in placing the onus on R to persuade him why damages should not be awarded (Fishenden v Higgs and Hill (1935) 153 LT 128 considered). On the basis of the correct legal principles deduced from the authorities, the proper course was to grant an injunction against P.



The amount by which the light in R's living room would be reduced could not be regarded as a small injury to the right to light. Although the injury was capable of being estimated in money, it was not capable of being adequately compensated by a small money payment. Furthermore, although an injunction would have a serious effect on P, that was not determinative of the issue of oppressiveness and the choice of remedy. It was necessary to consider all the circumstances of the case.



The judge had wrongly directed himself on the relevance of the parties' conduct to the exercise of his discretion. P had acted on wrong advice that there would be no infringement of R's right to light. That should not prejudice the position of R, who had acted on correct advice and whose conduct could not be criticised.



Appeal allowed.



Stephen Bickford-Smith (instructed by Child & Child) for the appellant; Andrew Francis (instructed by Dawsons) for the respondents.





Health



Civil evidence - disciplinary procedures - expert witnesses - fitness to practise - immunities - medical evidence - professional conduct - statistical evidence - extending witness immunity to disciplinary or fitness-to-practise proceedings



General Medical Council (appellant) v Roy Meadow (respondent) & Attorney-General (intervenor): CA (Civ Div) (Master of the Rolls Sir Anthony Clarke, Lords Justice Auld, Thorpe): 26 October 2006





The General Medical Council (GMC) appealed against the decision ([2006] EWHC 146 (Admin), [2006] 1 WLR 1452) that an expert witness could be entitled to immunity from disciplinary proceedings in relation to evidence given by him in legal proceedings, and that the respondent paediatrician (M) had not been guilty of serious professional misconduct.



M had given evidence in the prosecution of a woman (C) for the murder of her two sons. The Crown had relied in part on M's evidence to refute the proposition that C's children might have died from sudden infant death syndrome.



C had been convicted. Her first appeal was dismissed but a second appeal was allowed on the ground that the verdicts were unsafe because of material non-disclosure by the Crown's pathologist. Full argument on the unreliability of M's evidence was not heard during the second appeal but the court indicated that, if it had been, the appeal would in all probability have been allowed on that ground too.



C's father made a complaint to the GMC, alleging serious professional misconduct by M. The fitness to practise panel of the GMC concluded that M had been guilty of serious professional misconduct.



The High Court allowed M's appeal. The judge held that an expert witness should be entitled to immunity unless his conduct was referred to the relevant authorities by the trial judge as having fallen far below what was expected of him. The GMC, and the Attorney-General, intervening, submitted that the immunity from suit enjoyed by witnesses in legal proceedings should not be extended except by Parliament to provide expert witnesses with immunity from disciplinary or fitness-to-practise proceedings in respect of their evidence in legal proceedings. The GMC submitted that the judge had failed to accord due deference to the decision of the panel and had been wrong to find that M was not guilty of serious professional misconduct.



Held, Master of the Rolls Sir Anthony Clarke dissenting on the issue whether M had been guilty of serious professional misconduct. The courts had shown a marked reluctance to extend the immunity from civil suit at all. There was no principled basis for extending the immunity to all fitness-to-practise proceedings. The purpose of fitness-to-practise proceedings was distinct from the purpose of civil proceedings. It was to ensure, so far as reasonably possible, that those who were not fit to practise did not do so. If the conduct or evidence of an expert witness at or in connection with a trial, whether civil or criminal, raised the question whether that expert was fit to practise in his particular field, the regulatory authorities should be entitled and might be bound to investigate the matter for the protection of the public. Nor should there be a partial extension of immunity as proposed by the judge.



The solution proposed by the judge would cut across or impliedly limit the powers of a fitness-to-practise panel by extending the immunity from civil suit to fitness-to-practise proceedings, which would be wrong in principle. It was essentially a matter for Parliament or the relevant authorities to decide which, if any, changes should be made. The judge's approach was inconsistent with the principle that a common law immunity had to be an absolute immunity (Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747 considered).



There was no principled basis on which trial judges should be charged with the responsibility for deciding whose conduct should be referred to a fitness-to-practise panel and whose conduct should not. The panel in this case had had jurisdiction to entertain the allegations against M.



The practice direction to part 52 of the Civil Procedure Rules provided for appeals to the High Court from the panel under section 40 of the Medical Act 1983 to be by way of rehearing. The court could not ignore that requirement. In any event, whether the appeal was by way of review or rehearing, the material test for quashing a decision of the panel was whether it was wrong, and the judge's conclusion that the panel's decision was wrong because it was not justified by the evidence before the panel would have been the same whichever test applied.



M had not intended to mislead the court when giving statistical evidence in the mistaken belief that it was valid. He was guilty of some professional misconduct, because he had fallen below the required standard, but not of serious professional misconduct. The panel had failed to understand the full context in which M gave evidence and that his evidence as to probabilities went to a non-issue at the conclusion of the evidence.



Appeal allowed in part.



Roger Henderson QC, Adam Heppinstall (instructed by the in-house solicitor) for the appellant; Nicola Davies QC, Ian Winter, Kate Gallafent (instructed by Hempsons) for the respondent; Lord Goldsmith QC (Attorney-General), Jonathan Crow, Ben Watson for the intervenor.





Tax



Civil procedure - restitution - advance corporation tax - compensation - overpayments - limitation period in respect of tax paid under mistake of law



Deutsche Morgan Grenfell Group Plc v Inland Revenue Commissioners: HL (Lords Hoffmann, Hope of Craighead, Scott of Foscote, Walker of Gestingthorpe, Brown of Eaton-under-Heywood):

25 October 2006





Taxpayer (D) appealed against the decision ([2005] EWCA Civ 78) that its claim for repayment of advance corporation tax was statute-barred.



The European Court of Justice (ECJ) held, in Metallgesellschaft Ltd v Inland Revenue Commissioners (C-397/98) [2001] ECR I-1727, that it was contrary to article 43 of the EC treaty provisions on freedom of establishment for UK tax law to deny the right to make a group income election, thereby avoiding payment of advance corporation tax by a subsidiary, where a parent company was resident in a member state other than the UK. The ECJ further held that claimants who had paid tax prematurely were entitled to compensation for loss of the use of money between the date on which advance corporation tax was paid and the date when mainstream corporation tax became due.



In this case, D sought compensation in respect of various payments of advance corporation tax that it had made. The respondent commissioners submitted that there was no cause of action at common law for the recovery of tax paid under a mistake of law, and that tax could only be recovered where it had been unlawfully demanded or under section 33 of the Taxes Management Act 1970; and that D's claim was statute-barred because proceedings had not been brought within six years of the date when the mistake had been discovered, which was when D had learned that the provisions of UK tax law were the subject of serious legal challenge on the basis of EC law and might not be lawful, and not when judgment was later given by the ECJ.



Held, Lord Scott of Foscote dissenting on whether D had made a mistake of law and Lord Brown of Eaton-under-Heywood dissenting on when D should have discovered the mistake, that there was no reason in principle why the right to restitution of payments made by mistake of law should not apply to payments of tax (Kleinwort Benson Ltd v Lincoln City Council [1999] LGR 1 considered). Any common law claim on the grounds of mistake was not excluded by section 33 of the 1970 Act.



There was no reason to infer that Parliament intended to exclude a common law remedy in all cases of mistake, whether of fact or law, in which the Revenue was unjustly enriched but did not fall within section 33 (Woolwich Equitable Building Society v Inland Revenue Commissioners [1992] 126 SJLB 230 considered, Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42 distinguished). The advance corporation tax had in the circumstances been paid by mistake, and D's action could be described as being for relief from the consequences of a mistake within the meaning of section 32(1)(c) of the Limitation Act 1980. The true state of affairs and the fact that D had paid under a mistake of law was not discoverable until the ECJ pronounced its judgment.



Therefore, section 32(1)(c) of the 1980 Act postponed the commencement of the limitation period in respect of the payments of advance corporation tax in this case until the ECJ judgment and D's proceedings were in time.



Appeal allowed.



Laurence Rabinowitz QC, Francis Fitzpatrick, Steven Elliott (instructed by Slaughter & May) for the appellant; Ian Glick QC, David Ewart (instructed by the Revenue and Customs Solicitor) for the respondent.





Planning



Policy guidance - retail development - Scotland - structure plans - urban regeneration - proposal to create town centre



Land Securities Group Plc v Scottish Ministers & Ors: HL (Lords Nicholls of Birkenhead, Scott of Foscote, Rodger of Earlsferry, Walker of Gestingthorpe, Mance): 25 October 2006





L appealed against a ruling of the Extra Division of the Inner House, upholding the decision of the respondent Scottish ministers to approve an alteration to a structure plan.



The structure plan dealt with, among other things, the proposed regeneration of a large area of land that had formerly been the site of the Lanarkshire and Ravenscraig steelworks. It proposed the creation of a 'core economic development area' with an industrial and business park, residential neighbourhoods, and a major new sports and recreational facility. It also referred to the potential for 'creating a new town centre for the area' linked to the restructuring of two nearby towns.



The alteration to the structure plan approved by the ministers added Ravenscraig to the network of town centres in schedule 1(a) to the plan and provided the strategic context for its inclusion in the local plan. In reaching their decision, the ministers concluded that the sequential approach to potential town-centre development set out in National Planning Policy Guidance 8 (NPPG 8), whereby first preference was given to development opportunities in town centres, did not apply for the purposes of their consideration of the alteration.



L, which had invested in existing town-centre sites, argued that in deciding that the sequential approach set out in NPPG 8 did not apply to what was plainly an out-of-centre retail development, the ministers had misinterpreted NPPG 8; the ministers had been wrong to add Ravenscraig to the list of town centres in schedule 1(a) to the structure plan, since it was not an existing town centre.



Held, what the ministers had been asked to approve was an alteration that envisaged not simply a large retail development at Ravenscraig but a many-faceted development. The retail element did not stand alone but was an integral part of a scheme for the creation of a new town centre, which in turn was part of a larger scheme for the redevelopment of the whole area.



The sequential approach could not be sensibly applied to the issue that the ministers had to consider, namely an alteration to the structure plan that would support the development of a town centre at Ravenscraig. The sequential approach in NPPG 8 was designed to afford support to existing town centres, and it presupposed that the development in question was simply a retail or similar development that could take place in an existing town centre and for which the town centre should therefore have priority. The ministers had therefore been fully justified in taking the view that the sequential approach was simply not operable and therefore irrelevant to their consideration of the alteration.



Once it was accepted that the vision behind the structure plan was that one day, within the lifetime of the plan, there should be a town centre on the site as part of a larger development, it made sense for the plan to list Ravenscraig in schedule 1(a), and so try to promote investment in the site and to ensure that the viability of the future town centre was not undermined in advance by, say, large retail or leisure developments on other sites in the vicinity.



Appeal dismissed.



Heriot Currie QC, Jonathan Lake (instructed by Semple Fraser) for the appellants; Gerry Moynihan QC, James Wolffe (instructed by the solicitor to the Scottish Executive) for the first respondents; Richard Keen QC, James Mure (instructed by Simpson & Marwick) for the second respondents.





Employment



Detriment - findings of fact - pre-trial reviews - protected disclosures - time limits - employee subjected to detriment - link between acts of detriment outside and within limitation period



John Arthur v London Eastern Railway Ltd (t/a one Stansted Express): CA (Civ Div) (Lords Justice Mummery, Sedley, Lloyd) 25 October 2006





J appealed against a decision of the Employment Appeal Tribunal (EAT) that a number of alleged acts and failures by the respondent (L), following protected disclosures made by J, were not part of 'a series of similar acts of detriment or failures' for the purpose of bringing a complaint under section 48 of the Employment Rights Act 1996.



J had been employed by L as an on-train cabin crew member. J made protected public interest disclosures to the police and to L. J alleged that after he had made the disclosures, he was subjected to continuous detriment by acts and failures to act by L.



The employment tribunal at a pre-hearing review, without hearing any evidence, held that the acts and failures, the last of which had occurred within the three months before the presentation of J's originating application, were not part of 'a series of similar acts or failures' for the purpose of section 48(3) of the Act, and that the expression meant that there had to be a significant linkage between the events. The tribunal allowed the claim to proceed only in respect of acts that had occurred within the three-month period, holding that most of the acts and failures were out of time.



Held, the aim of section 48(3) of the Act was to exclude from the jurisdiction of tribunals any complaints that were not made timeously.



In general, a complaint to a tribunal had to be made within three months of the act complained of. However, Parliament considered it necessary to make exceptions to the general rule where an act or failure in the three-month period was not an isolated incident. An act extending over a period may be treated as a single continuing act, and the particular act occurring in the three-month period may be treated as the last day on which the continuing act occurred.



The provisions in section 48(3) of the Act regarding the complaint of an act that was part of a series of similar acts was also aimed at allowing employees to complain about acts of detriment that were outside the three-month period. However, there had to be a necessary connection between the acts in the three-month period and the acts outside it.



The acts had to be part of a series and had to be similar to one another. The last act or failure within the three months might be treated as part of a series of similar acts or failures occurring outside the period and, if it was, a complaint about the whole series of similar acts or failures would be treated as being in time.



The tribunal and the EAT had erred in law in determining the important time-limit point solely on the basis of legal argument and without hearing any evidence or making any findings of fact. It was not a particularly enlightening exercise to ask what made acts part of a series, or what made one act similar to another. It was preferable to find the facts before attempting to apply the law. To determine whether the acts were part of a series, some evidence was needed to determine what link, if any, there was between the acts in the three-month period and the acts outside the three-month period. It was possible to direct a preliminary hearing with evidence relevant to the time-limit point.



Even if it was decided at a preliminary hearing that there was no continuing act or series of similar acts, that would not prevent the complainant from relying evidentially on the pre-limitation period acts to prove the acts or failures that established liability. It would in many cases be better to hear all the evidence and then decide the case in the round, including limitation questions (Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686, [2003] 1 All ER 654 considered).



Appeal allowed.



Stephen Bartlet-Jones, Anisa Niaz (instructed by Toynbee Hall Free Legal Advice Centre) for the appellant; Lydia Seymour (instructed by Kennedys) for the respondent.





Landlord and Tenant



Legislation - jurisdiction - locus standi - service charges - statutory interpretation - tenancies



Oakfern Properties Ltd v Desmond Ruddy: CA (Civ Div) (Lords Justice Pill, Jonathan Parker, Moses): 25 October 2006

The freeholder (O) appealed against a decision of the Lands Tribunal in finding preliminary issues relating to service charges and jurisdiction in favour of the respondent subtenant (R).





The freeholder (O) appeaed against a decision of the Lands Tribunal in finding preliminary issues relating to service charges and jurisdiction in favour of the respondent subtenant (R).



O owned the head lease of 24 separate residential flats and a property management company (P) was the tenant. R was a sub-tenant of one of the flats. The sub-tenants were obliged to pay maintenance charges to P, which had been levied on P by O.



R sought to challenge the maintenance charge by relying on sections 18 and 19 of the Landlord and Tenant Act 1985 on the basis that it was a 'service charge' and was unreasonable in amount. Preliminary issues had been determined by the leasehold valuation tribunal in R's favour in that, first, the maintenance charge was a service charge within the meaning of section 18(1) of the Act because that section could be interpreted as an amount payable by a tenant of a dwelling, notwithstanding that the dwelling was part of a larger demise; and that, second, R did have, in his capacity as sub-tenant, the locus standi to challenge O, even though the obligation to pay O was with P and not R.



The Lands Tribunal upheld that decision and O appealed. O submitted that it could not have been Parliament's intention that a mesne landlord, such as P, should be able to take advantage of the service charge provisions of the Act. It maintained that P was the tenant of a plurality of flats and, as such, fell outside of the service charge provisions as the expression 'tenant of a dwelling' in section 18 of the Act referred to a dwelling only in a singular sense and not in the plural; Parliament must have intended some limits to be implied into section 27A of the 1985 Act in order to prevent any person whatsoever from being able to litigate.



Held, while anomalies would have resulted, whichever way a decision on the issue was reached, the correct approach was to construct section 18(1) in its legislative context and to determine whether the consequences of that construction were so absurd that Parliament could not have intended such an interpretation. The expression 'tenant of a dwelling' as contained in section 18 had to be given the meaning that, on its face, it bore. It had meant 'tenant of a dwelling' and not 'tenant of a dwelling and nothing else' (Heron Maple House Ltd v Central Estates Ltd (2002) 13 EG 102 applied). It did not refer to any other property of which the party may also have been a tenant.



Furthermore, section 38 of the Act, which defined 'dwelling', did not require that the tenant had to be in occupation of the dwelling, therefore it could include a tenant who had sub-let. P was a tenant of a building comprising a number of dwellings but was not a tenant of a building occupied as a separate dwelling.



However, notwithstanding that it owned the entire building, it was nevertheless a tenant of part of the building occupied as a separate dwelling. There was no satisfactory reason for construing the definition of 'dwelling' in section 38 so as to exclude a tenant from the definition merely because while he was the tenant of a dwelling which extended to only part of a building, he was also the tenant of other parts of the building.



There was no reason to give the legislative context a contrary construction. Section 3 of the Act was placed in an entirely different context to the context of service charge provisions and therefore a comparison with that section could not be relied on. Furthermore, there was no significant relationship between the service charge provisions and the Rent Act 1968, the Rent Act 1974 or the Rent Act 1977, as the policies underlying those statutes were materially different (Horford Investments Ltd v Lambert [1976] Ch 39 distinguished). The potential anomalies were not such as to compel any different conclusion as to the construction of section 18(1).



There was no justification for implying any restriction into the entirely general words of section 27A of the Act. Although the most common scenario was most likely to be the determination of a maintenance charge as between the paying party and the party seeking to levy the charge, it did not follow that that should inevitably be the case. There was no reason to restrict those entitled to apply for a determination for fear of abuses of process because the leasehold valuation tribunal had ample statutory powers to strike out vexatious applications.



Appeal dismissed.



Anthony Tanney, Lisa Busch (instructed by Russell-Cooke) for the appellant; Andrew Lane (instructed by the Bar Pro Bono Unit) for the respondent.