TOWN AND COUNTRY PLANNING: PERMISSION

Development - local plan policy - material considerations - whether inspector misunderstood effect of national planning policy - whether inspector's decision perverse - application dismissed

Chiltern District Council v First Secretary of State and another: QBD (Administrative Court): Mr Justice Evans-Lombe: 27 May 2004

The claimant, as the local planning authority, refused an application by the second defendant for planning permission to develop land in an industrial area.

The development involved a change of use from a car dealership to a mixed office and residential use.

The claimant took the view that, contrary to local plan policy, the development would deprive the area of an identified business site that would not be replaced.

The first defendant allowed an appeal by the second defendant against that decision.

An inspector concluded that material considerations justified a departure from the local plan policy, within the meaning of section 54A of the Town and Country Planning Act 1990.

In particular, she took into account section 3 of the planning policy guidance (PPG 3), which encouraged the re-use of poorly sited employment land for mixed-use development of the type proposed by the second defendant.

The claimant applied, under section 288 of the 1990 Act, to quash the inspector's decision, arguing that she had misused planning policy guidance that was still in draft and had no application to sites in current employment use, or that she had misunderstood the policy position in section 3 of the PPG and the emerging draft, which did not apply to the facts of the present case.

Moreover, no evidence existed to support the inspector's conclusion that the land was not needed for employment use.

Rupert Warren (instructed by Sharpe Pritchard, London, as agent for the solicitor to Chiltern District Council) for the claimant; James Maurici (instructed by the Treasury Solicitor) for the first defendant; Clive Newberry QC (instructed by England Palmer, Guildford) for the second defendant, Troy Homes.

Held: The claim was dismissed.

Reading the inspector's decision as a whole, it could not be said that she had misunderstood the effect of national planning policy, nor that her conclusions were perverse.

This was a matter for the inspector to exercise her expertise, her knowledge of planning policy, and her judgment of how the planning policy should be applied, bearing in mind that she had been addressing parties who were familiar with planning matters and the issues involved - Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P&CR 26 applied.

Although PPG 3 did not expressly contain the words 'poorly sited employment land', the planning preference was that industrial sites should be considered for residential development where their use as industrial sites was either no longer needed or was unlikely to be needed in the foreseeable future - South Somerset District Council v Secretary of State for the Environment [1995] PLR 83 considered.

A breach of local planning policy had to be balanced against the national need for more housing in small units.

Ample evidence existed for the inspector to conclude that converting a large percentage of land to residential use would not significantly reduce the stock of employment land that the claimant was seeking to preserve.

In the circumstances, the inspector had taken account of material considerations sufficient to meet the requirements of section 54A.

PROFESSIONAL NEGLIGENCE DAMAGES

Negligent advice - mitigation of loss - causation - barrister negligently advising landlords that lessee entitled to new leases - proceedings compromised and leases granted - whether compromise amounting to failure to mitigate loss - claim dismissed

Green and another v Alexander Johnson (a firm) and another: ChD: Mr Justice Peter Smith: 26 May 2004

The defendants were, respectively, a firm of solicitors and a barrister who had advised the claimants in respect of the leases of three flats in a building of which they owned the freehold.

On expiry of the leases, the lessee claimed the right to new leases pursuant to section 42 of the Leasehold Reform, Housing and Urban Development Act 1993.

Although the claimants initially disputed that right by way of counternotices, proceedings were compromised on the basis that these were of no effect, and the lessee was entitled to new leases of two of the flats.

Subsequent proceedings, in which the lessee contended that new counternotices served by the claimants were also invalid, were settled, with the claimants agreeing to grant long leases of the two flats for a premium of 190,000 each.

The claimants brought negligence claims against the defendants.

The second defendant admitted negligence in having failed to advise the claimants that the lessee had no right to acquire new long leases of the three flats, because each had been granted for a term of less than 21 years and, therefore, did not constitute qualifying lease for the purposes of the 1993 Act.

However, on the issue of damages, the second defendant contended that the claimants had failed to mitigate their loss.

He submitted that they should not have compromised the claims, but should have allowed a leasehold valuation tribunal to determine the premium to be paid by the lessee.

Had they done so, he argued, the claimants would have obtained the full market value for their interest in the flats, and would not then have suffered the loss arising from the negligence complained of.

Mark Wonnacott (instructed by Davenport Lyons, London) for the claimants; Andrew PD Walker (instructed by Weightmans, London) for the second defendant.

The first defendant did not appear and was not represented.

Held: The claim was dismissed.

The difficulties that arose over the counternotices could not be said to be a reasonable attempt to cope with the consequences of the second defendant's breach of duty.

It was those difficulties that had led the claimants to settle the claims, not the second defendant's negligence in conceding the lessee's entitlement.

Those were matters that would have arisen irrespective of whether the correct advice had been given.

It followed that, in calculating the claimants' loss, it was insufficient to give credit to the second defendant merely for the 190,000 obtained for the two flats.

The proper figure for which credit had to be given was the figure at which the Leasehold Valuation Tribunal would have valued the flats.