Property law reports

Town and country planning: enforcement notice

Enforcement notice - waste - council issuing enforcement notice against appellant alleging deposit of waste - inspector upholding notice - whether materials complained of constituting waste - whether inspector entitled to take account of materials not covered by notice - whether inspector applying relevant guidance - appeal allowed

Fisher v Secretary of State for Transport, Local Government and the Regions: QBD: Administrative Court (Mr Justice Ouseley): 14 October 2002

The appellant owned land in Hastings that benefited from a 1993 planning permission for residential development.

In early 1998, the appellant brought various materials, including hardcore, onto the site, and moved subsoil and topsoil.

The county council, which was responsible for regulating waste, issued an enforcement notice, alleging that there had been operational development consisting of the deposit of waste material on the land, and required the removal of the waste.

The waste material was defined as including 'soils, subsoils, hardcore and building rubble'.

The appellant appealed to the respondent secretary of state, relying on grounds B, C and F in section 174 of the Town and Country Planning Act 1990.

The inspector dismissed the appeal, rejecting the appellant's evidence that she intended to use the relevant materials in developing the land pursuant to the planning permission.

In doing so, he treated as 'most important' the evidence of consultants retained by the appellant, which he considered supported his conclusion that the materials on the land were waste.

The appellant appealed under section 289 of the 1990 Act.

She contended that the inspector had, among other things, relied on irrelevant considerations in concluding that the materials were waste, by having regard to the nature of deposits outside the areas covered by the enforcement notice; failed to apply the guidance in annex 2 to circular 11/34 on the Framework Directive on Waste, which distinguished between deposits that were to be put to beneficial use and those that were being finally disposed of, with only the latter constituting waste; and, wrongly concluded that the alleged operations amounted to operational development.

Harriet Townsend (instructed by Morlings, Maidstone) for the appellant; Rupert Warren (instructed by the Treasury Solicitor) for the respondent.

Held: The appeal was allowed.

The inspector had been entitled to take account of the source and appearance of materials elsewhere on the land, together with evidence of the appellant's intentions, since they might inform his view of the nature of the materials that were subject to the enforcement notice.

Moreover, his approach had been consistent with circular 11/34.

He had been entitled to reject the appellant's evidence as to her intentions and to conclude that the materials enforced against were not to be put to further use but had been deposited on the land as a convenient final resting place.

However, he had misinterpreted the appellant's consultants' evidence, which clearly asserted that the material covered by the enforcement notice was not waste, but was 'cut and fill' intended for use in the appellant's development.

In treating that evidence as 'most important evidence pointing to the contrary view', the inspector had erred and had clearly failed to take into account a material consideration.

It was possible that he might otherwise had reached a different conclusion, and it was highly likely that, at the least, more specific explanation and reasoning would have been called for.

Therefore, the appeal would be allowed, and the case would be remitted to the secretary of state for reconsideration.

Compulsory purchase: Compensation

Respondent acquiring land by way of compulsory purchase order - Lands Tribunal determining compensation payment - appellant beating respondent's unconditional offer but falling short of full amount of claim - Lands Tribunal failing to award full costs to appellant - appeal dismissed

Purfleet Farms Ltd v Secretary of State for Transport, Local Government and the Regions: CA (Lords Justice Potter and Chadwick and Mr Justice Wall) 15 October 2002

The respondent secretary of state compulsorily purchased an area of land from the appellant for the purposes of constructing the Channel Tunnel Rail Link.

Under section 5 of the Land Compensation Act 1961, the compensation award was to be the open market value of the land.

The Lands Tribunal had determined the value at 475,000 per acre.

The respondent had argued for 460,000 per acre, and the appellant for 638,015 per acre.

Although the appellant had beaten the respondent's sealed, unconditional offer, the tribunal ordered the respondent to pay only three-quarters of the appellant's costs, on the ground that it found the appellant's suggested value to be particularly high.

The appellant appealed.

Held: The appeal was dismissed.

Michael Barnes QC (instructed by Mayer Brown Rowe & Mawe) for the claimant; Guy Roots QC and Robert Walton (instructed by Ashurst Morris Crisp) for the respondent.

A finding by the tribunal that the appellant's assessment of value was particularly high would not, in itself, have been a sufficient reason for the tribunal to disallow part of its costs.

In general terms, the proper approach for the award of costs to a successful claimant (which would include a claimant who was awarded more than the respondent's unconditional offer) would have been that the claimant was entitled to its costs, incurred in the proceedings, in the absence of some 'special reason' to the contrary.

It was for the tribunal to decide whether such special reasons existed, but such reasons would have included costs that could not, on any sensible basis, have been regarded as part of the reasonable and necessary expenses of determining the amount of the disputed compensation.

In assessing the disputed value of land, argument and difference of opinion as to comparable sites was a legitimate exercise of the court process.

Valuation was an inexact science.

Therefore, it was rarely appropriate to make an adverse costs order against a claimant on the basis that what the court found to be an unacceptable valuation had led the claimant to submit what was eventually found to be an 'exaggerated' claim.

However, the tribunal did have the power to make such an order where it concluded that such arguments and discussions had been introduced unreasonably, and a significant amount of the tribunal's time had been wasted as a result.

In the instant case, the tribunal considered that the proceedings were unnecessarily complicated and lengthened by submissions made by the appellant's expert witness.

Comparisons to other sites were found to be lacking in utility and were rejected.

Therefore, the tribunal's reasons for reducing the appellant's costs had not been based on the fact of whether the costs awarded were closer to the figure submitted by the appellant or the respondent, but on the fact that the appellant's unnecessary and unhelpful submissions had escalated their costs.