Property law reports

LOCAL AUTHORITY: POWERS

Planning application - delegated powers - council's chief planning officer granting permission for extension to dwelling - appellant objecting - judge refusing to quash permission - whether officer having authority to determine application - whether acting within scope of delegated powers - appeal allowed

R (on the application of Carlton-Conway) v Harrow London Borough Council: CA (Lords Justice Pill and Robert Walker and Sir Martin Nourse): 14 June 2002

The appellant objected to a planning application for an extension to the neighbouring property.

The respondent council's chief planning officer allowed the extension, using delegated powers under section 101 of the Local Government Act 1972.

The section permitted the council to delegate its functions under the Town and Country Planning Act 1990; but paragraph 1.9 of the delegation scheme ruled this out where the council had received written objections to the plan, 'except where the proposals do not conflict with agreed policies, standards and guidelines' laid down in the unitary development plan, supplementary planning guidance and the council's guidelines on house extensions.

The appellant brought judicial review proceedings, seeking to quash the permission on the ground that the officer had no delegated authority to determine the matter, since there was a conflict with agreed policies within the meaning of paragraph 1.9.

The appellant submitted that: the test under paragraph 1.9 was objective; the officer could not confer authority on himself by reaching the opinion that no conflict existed; and the question of whether such a conflict did exist was for the planning committee to decide.

Before the hearing, the committee resolved that it would have granted permission had the matter been referred to it.

Dismissing the appellant's claim, the judge held that it was for the officer to interpret planning policies and to determine whether there was a conflict, so long as he acted reasonably.

On an appeal by the appellant, the council contended that even if the officer had acted outside his powers, the court should refuse to quash the permission in the light of the council's resolution.

Martin Edwards (instructed by Merricks, of Chelmsford) for the appellant; Timothy Straker QC and Jonathan Moffett (instructed by the solicitor, Harrow Borough Council) for the respondents.

Held: The appeal was allowed.

The absence of the words 'in his opinion' in paragraph 1.9 did not entirely remove the officer's discretion to determine whether there was a conflict with planning policies.

The question was whether he reasonably concluded that the application accorded with the relevant policies.

An objector's point of substance did not, in itself, require him to refer the matter to the planning committee.

However, he did have to give real consideration to the question of whether the application fell within delegated powers.

Where both the facts of the case and the relevant policies were clear, it was not necessary to refer the matter to the committee.

But where real issues arose as to the meaning of policies and their application to the facts of the case, reference to the committee was required.

In the instant case, there was no evidence that the officer had established the facts or given consideration as to which policy applied to them.

It was not the type of case envisaged by the paragraph 1.9 exception, and the case should have been referred to the planning committee.

The planning permission would be quashed, and the appellant entitled to a fresh consideration of the application by the planning committee.

The committee's resolution did not alter that, since there was a real risk that it could have been motivated by a wish to support the officer and avoid judicial review.

Furthermore, the appellant should be given the chance to address the committee orally on a fresh application.

INSOLVENCY

Respondent obtaining charging order nisi over appellant's property - interim order imposing leave requirement for execution - charging order made absolute without leave - whether leave required - whether order absolute to be set aside ex debito justiciae - appeal allowed

Clarke v Coutts & Co: CA (Lords Justice Simon Brown and Peter Gibson and Sir Murray Stuart-Smith): 17 June 2002

The respondent bank obtained a judgment against the appellant in respect of debts owed to it, and was granted a charging order nisi over the appellant's house.

The appellant obtained an interim order, pursuant to section 252(2) of the Insolvency Act 1986, stating that 'no other proceedings, and no execution or other legal process, may be commenced or continued against the debtor or his property without the leave of the court'.

He did not inform the bank of that order.

The charging order nisi was made absolute at a hearing at which the appellant was neither present nor represented.

Six years later, he applied to have the order absolute set aside, arguing that: the making of the order absolute amounted to the continuance or execution of proceedings within the meaning of section 252(2); leave was thus required to make that order; and that, since leave had not been obtained, the order absolute should be set aside.

That application was dismissed by a master and later by a judge on appeal.

The latter held that, although leave had been required, the order did not thereby fall to be set aside ex debito justiciae, and so the court had a discretion as to whether to set it aside.

On a further appeal, the appellant contended that there was no such discretion, or if there were, the judge had exercised it wrongly.

The bank argued that execution was complete on the making of the order nisi, with the effect that the making of the order absolute did not fall within section 252(2) and no leave was required for it; or, if the order absolute was set aside, the order nisi remained in force.

At the hearing, it applied for retrospective leave.

Geraldine Andrews QC (instructed by SPR Avery Midgen) for the appellant; David Berkley QC and Andrew Butler (instructed by Farrer & Co) for the respondent.

Held: The appeal was allowed.

The rules laid down that the order was created at the nisi stage, but was only temporary and defeasible, and execution was not complete.

The making of the order absolute completed the process, and was a continuation of the execution.

Therefore, it fell within section 252(2) of the 1986 Act, with leave required where an interim order was in force: Roberts Petroleum Ltd v Bernard Kenny Ltd (in liquidation) [1983] 2 AC 192 and Calor Gas v Piercy [1994] BCC 69 applied; Haly v Barry (1868) 3 Ch App 452 overruled.

The judge had erred in finding that he had discretion to set aside the order absolute.

An order absolute obtained without leave, in a case where an interim order was in force, fell into the class of order that the appellant could apply to have set aside as of right, although it remained in force until that was done.

CPR 3.10 gave the court a discretion to hold orders to be valid notwithstanding any procedural error, but the discretion applied to breaches of procedural rules under the CPR, and could not defeat the mandatory statutory requirement under section 252(2) - otherwise, a creditor with only a defeasible right would be able to 'steal a march' on other unsecured creditors: Roberts Petroleum Ltd applied; Isaacs v Robertson [1984] 3 All ER 140 distinguished.

The court did have a discretion, on an application by the respondent, to cure the procedural error by granting leave retrospectively.

However, it had left it too late to make its application, and leave was therefore refused.

An order nisi was valid only until a decision was made as to whether to grant the order absolute.

It could not stand alone, so once the order absolute was set aside, the order nisi also fell away and the respondent could not rely on it.