Property law reports

TOWN AND COUNTRY PLANNING: PLANNING PERMISSION

Application for planning permission - application determined on issue of total floorspace - no legislative definition of floorspace - inspector correct to use own discretion - appeal dismissed - leave to appeal granted

Morrison v Secretary of State for Transport, Local Government and the Regions and another: Queen's Bench Division (Mr Justice Sullivan): 25 April 2002

The claimant owned property in the New Forest.

In 2002, he submitted an application for planning permission to enlarge the ground floor and the roof space.

The application was refused, and the claimant appealed under section 78 of the Town and Country Planning Act 1990.

The appeal was dismissed, but the decision was subsequently quashed by consent.

In calculating the total floorspace in the property, it was agreed that the inspector had been wrong to exclude the boarded floor in the roof on the ground that the area was used solely for storage purposes.

The appeal was redetermined, and was subsequently dismissed by a second inspector.

He concluded that although the roof space had natural light, electricity and a boarded floor, its relative inaccessibility and minimal headroom meant that it should not be included in determining total floorspace.

The claimant contended that the inspector's decision was wrong, and that he had erred in law.

He subsequently applied, under section 288(a)(ii) of the 1990 Act, to quash the decision, and for the matter to be determined by the court.

Held: The application failed.

The first inspector was wrong to refuse planning permission on the ground that the roof space was used as storage.

However, it was open to the second inspector to refuse planning permission on other grounds.

He was right to exercise his discretion in considering whether to include the floorspace in the loft as part of the total floorspace.

His decision to consider the cumulative effects, that is to say the way in which the roof space was used, including access, the way in which the floor had been covered, the proportion of available headroom and the existence of natural light, when considering whether to count the floor in the roof as floorspace for the purpose of planning was correct.

It was agreed that there is no statutory or legislative definition of 'floorspace'.

The mere existence of a floor, for example, in a narrow crawl space in a cellar or roof, cannot be considered as internal floorspace for planning purposes.

The inspector was correct in applying his own professional judgment on the specific facts of the case.

Permission to appeal was granted.

Marc Willers (instructed by Batten, Yeovil) for the claimant; Timothy Corner QC (instructed by the Treasury Solicitor) for the respondents.

PROCEDURE: AUTOMATIC STAY

Application to lift automatic stay - effect on land - appellant's action for possession of land automatically stayed - judge refusing to lift stay - whether refusal sterilising land - whether effect on appellant disproportionate - appeal allowed

Overseas & Commercial Developments Ltd v Cox and another: Court of Appeal (Lords Justice Sedley and Dyson): 25 April 2002

The appellant was the registered proprietor of a plot on an industrial estate, having taken a transfer of the legal title from the owner, L, in 2000.

In 1991, L had agreed, subject to contract, to sell the plot to the first respondent, Cox.

Cox went into possession and paid 40,000, as part of the purchase price, pursuant to that agreement.

However, no contracts were exchanged.

The second respondent, D, took possession in 1993 as the transferee of Cox's business assets, and paid for improvements to the property.

In 1994, L and the appellant brought proceedings against the respondents for possession and mesne profits.

The respondents claimed that they held an interest in the land, based upon estoppel.

D counterclaimed for rectification of the Land Register.

The appellant's action was not actively pursued.

D subsequently went into liquidation, and Cox regained possession of the plot after taking an assignment of D's interest in the proceedings.

In 2001, the appellant made a procedural application to revive the action.

A district judge found that the proceedings had been automatically stayed under the Civil Procedure Rules 1998 (CPR), rule 51, practice direction 19, and, after applying the considerations set out in rule 3.9(1), declined to exercise his discretion to lift the stay.

The appellant's appeal against that decision was refused by a judge.

On a further appeal, the appellant contended that unless the action was allowed to proceed, the question of title to the plot would never be resolved, and the land would effectively become 'sterilised'.

Cox submitted that such a problem would not arise because, as the person in possession of the land, he had a right to possession that was good against all the world.

He further contended that since the sterilisation point had been raised for the first time on the appeal, the court should not overturn the district judge's decision unless it was satisfied that he would inevitably have lifted the stay had he heard that point, and unless Cox could be adequately compensated in costs.

Held: The appeal was allowed.

The effect of a refusal to lift the stay would be to sterilise the land.

So long as the proceedings were subject to the stay, the appellant's title would be subject to the unresolved claim for rectification and to Cox's possession.

A sale of the land would be virtually impossible, since there would be no way to remove Cox.

The matter might be resolved in Cox's favour if he were successfully to apply for registration of a possessory title, pursuant to section 75 of the Land Registration Act 1925.

However, Cox might choose not to make such an application, and the land would, in any event, be sterilised for several years until then.

The sterilisation point was an important one, and had not been considered by the district judge.

The only way for the appellant to avoid the serious consequences of a refusal to lift the stay would be to bring a new action.

Hence, the district judge should have considered the chances of a second action being permitted.

A second action would be impossible unless the appellant served a notice to discontinue the first, or Cox succeeded in an application to strike it out.

Even then, there was a high risk that the second action would be struck out as an abuse of process.

There was an analogy with cases where a first action was struck out for inordinate delay.

In such cases, following the advent of the CPR, a second claim would usually be struck out, even where the limitation period for such claims had not yet expired: Securum Finance Ltd v Ashton [2001] 1 Ch 291 applied.

The district judge's decision was flawed.

He had failed to consider the sterilisation point or to assess the risk of a second action being struck out.

That being so, the Court of Appeal was entitled to exercise the discretion afresh.

It did not need to be satisfied, before differing from the district judge, that the sterilisation point, had it been raised before him, would inevitably have led him to lift the stay.

Leaving the stay in place was a draconian and disproportionate measure in view of its serious consequences for the appellant.

Marilyn Kennedy-McGregor (instructed by Max Bitel Greene) for the appellant; Vivian Chapman (instructed by John Collins & Partners with Edward Harris & Sons, Swansea) for the respondents.