Ultra vires acts

One not infrequently hears of local authorities acting outside their powers nowadays, due primarily to ignorance as to the limits of those powers or of the steps required in order to exercise them lawfully, but in some cases there is more than an element of arrogance on the part of senior officers, even when third parties have pointed out that the Council cannot lawfully proceed in the manner proposed.

One such case reached the High Court earlier this year - R (Martin-Sklan) v. London Borough of Barnet [2010] EWHC 2482 (Admin) when Ouseley J granted an injunction ordering the removal of playground equipment installed by the London Borough of Barnet in creating a children's playground without the planning permission it needed and without the authority of the relevant committee or officers of the Council.

The Council accepted that the decision to create the children's play park was not taken by anyone with authority to take it and did not have the planning permission which it required, because its scale fell outside the scope of the permitted development rights for local authorities under Part 12 in the Second Schedule to the GPDO.

The Council whilst conceding that it had acted unlawfully sought to resist an injunction. However, Ouseley J noted that the claimant had been asking the Council to stop the development whilst various issues were resolved, but the Council had nonetheless proceeded to build out the playground. He accepted that the requirement that the equipment be removed and the ground be restored might lead to a waste of money, which would be regrettable, but he considered that that was the appropriate course. There would therefore be an order that the equipment be removed and the open space restored to its previous condition.

One hopes that this case will serve as a salutary reminder to local authorities and their officers not to act outside their powers. When I first started work in local government, over 30 years ago now, I had it drummed into me that I should always ask myself “What is my authority for doing this?” It is a question that local government officers should always have in the forefront of their minds.

Meanwhile, another case which has reached my ears concerns serious damage done by Monmouthshire Council to a Scheduled Ancient Monument – the Clawdd Du in Monmouth. The Council was repeatedly warned not to carry out the works to this ancient ditch which they proposed, but they carried on regardless. It took the intervention of CADW before work stopped, but not before significant damage had been done to the archaeological deposits . It remains to be seen whether the Council or its senior officers will be prosecuted for this serious offence. If it had been committed by a commercial developer, I have no doubt that they would have been arraigned before the Crown Court. There seems to me to be no reason why the Council and/or the officer or officers responsible for what has occurred should not be similarly dealt with.

© MARTIN H GOODALL

‘Mobile’ advertisements

Early in 2006, I commented on the issue of ‘mobile’ advertisements. Although that piece is still available in the archive, I have re-printed it below for ease of reference.

The issue came before a Divisional Court of the QBD earlier this year in Tile Wise Ltd v. South Somerset DC [2010] EWHC 1618 (Admin). This was an appeal by way of case stated from the Crown Court, in which judgment was given on 17 June.

The question before the Crown Court had been whether the exemption from advertisement control of "an advertisement displayed on or in a vehicle normally employed as a moving vehicle" granted by Regulation 1, paragraph 3, and Schedule 1 of the Control of Advertisements Regulations, applied to the advertisements which had been the subject of the prosecution in that Court. This exemption is subject to the qualification that “the vehicle is not used principally for the display of advertisements".

In the Crown Court the prosecutor agreed that the four vehicles in question were indeed normally (in the sense of usually) employed by the appellant in the collection and delivery of goods. Thus, the court had no difficulty in deciding that the appellant brought itself within the first part of the exemption. However, the qualification of that exemption presented some difficulty as to its interpretation.

Counsel drew the Court’s attention to Circular 3/2007, which gives the following on this exemption :

"Class B - An advertisement displayed on or in any vehicle normally employed as a moving vehicle. This includes boats (any vessel on any inland waterway or in coastal waters), trains or aeroplanes. This does not include any vehicles used principally for the display of advertisements, e.g. stationary vehicles or trailers in fields or lay-bys for advertising purposes".

This advice is not of course legally binding in any way, but the Court agreed that the guidance identifies the mischief which the words of the legislation themselves reveal. One frequently sees commercial vehicles advertising their owner's goods and services; in London, buses and taxis can be seen advertising goods, services and events. All these advertisements are exempt if the vehicles on which they are displayed are being normally employed as moving vehicles. Vehicles are not, however, exempt if they are used principally to display advertising.

The conclusion which the Divisional Court reached was that the exemption relates to the moment that the advertisement is being displayed by the vehicle and to the use to which the vehicle is then being put. However, there was a distinction between the drafting of the exemption (in column 1), which referred to an ‘advertisement’ in the singular, compared with the wording of the qualification (in column 2), which referred to ‘advertisements’ in the plural. When considering the reason for this distinction, it was necessary to ask what purpose columns 1 and 2 would achieve if they were both intended to refer to a generalised state of affairs. If that is the correct construction, it is striking that column 2 would be simply a mirror, in different words, of the exemption in column 1 (and would serve no useful purpose).

The Court therefore held that column 1 is concerned with the specific occasion on which the advertisement is being displayed and the use to which the vehicle is being put on that occasion. In the case, for example, of a commercial vehicle, if at any time it is not being normally employed as a moving vehicle it will not be exempt. Even if it is being normally employed as a moving vehicle, its advertisement will not be exempt if the vehicle is principally used for the display of advertisements. The Court did not accept the argument that this construction of column 1 would render advertisements on commercial vehicles ordinarily parked up liable to prosecution. Parking of a vehicle is an ordinary incidence of the normal employment of a moving vehicle. It will be exempt unless it is established it is principally used as a display of advertisements, in which case, the column 1 exemption will be dis-applied by the column 2 qualification.

In the present case, the appellant usually employed its vehicles on the road. When they were not so employed, the vehicles were used as stands on which to display advertisements. If the appellant's construction of the exemption (and of the qualification) was correct, it could avoid the objective of planning control by swapping vehicles. The logical consequence of the appellant's submissions would be that, as long as in practice, the appellant kept, in respect of each such vehicle, on the right side of "usual" employment, the advertisement could be kept permanently in place. That, indeed, appears to have been the objective of the appellant. Such a result, the Court decided, would render the control of advertisements control useless and cannot have been the intention of the Regulations. The Court accepted the prosecutor’s argument that the exemption must be read so as to apply to the use being made of the vehicle at the time of the alleged breach.

The Divisional Court was satisfied that, on the occasions when these vehicles were used as advertising hoardings, they did not come within the exemption. The appeal against conviction was therefore dismissed.


This is what I wrote in 2006:

‘Mobile’ Advertisements

[originally published on 12 January 2006]

The practice of placing large display advertisements on agricultural trailers or other vehicles close to a motorway or other road has been the subject of mounting controversy recently. It even formed part of the plot of ‘Heartbeat’ recently (along with arson, criminal damage and other everyday incidents of country life).

If anyone really thinks they can get away with displaying adverts in this way, then they clearly haven’t read the Control of Advertisements Regulations.

Whilst it is true that an advertisement displayed on a vehicle is among the classes of advertisement not requiring consent under the regulations, it is an important condition of Class C in Schedule 2 to the regulations that the vehicle is not normally employed except as a moving vehicle and also that it is not used principally for the display of advertisements.

What the draftsman of the Regulations clearly had in mind is that a trader such as ‘J. Prescott, Pantomime Horses and Theatrical Properties’ should be able to advertise his business on his van, but the regulations were never intended to permit (and do not have the effect of permitting) the current practice of stationing farm trailers or other vehicles in fields with advertisements on them, even on a purely temporary basis.

Admittedly, that still leaves some scope for legal quibbles where it is argued that the vehicle is one which is normally employed as a moving vehicle and that it is not normally used principally for the display of advertisements, but where a trailer has been left in the same position for some time with an advertisement mounted on it, magistrates would be likely in such circumstances to treat with scepticism a defence based on Class C of Schedule 2.

Generally speaking, the display of such advertisements would not have deemed consent as temporary advertisements either. Only a limited category of miscellaneous temporary advertisements are granted deemed consent under Class 3 in Schedule 3. Such advertisements are confined to the sale or letting of the property itself, the sale of goods or livestock on the land where they are situated or where the sale is to take place (but not including regular auction grounds) and an advertisement of current building work on the land. There is also deemed consent for an advertisement for a travelling circus or fair. Needless to say, all these deemed consents are hedged around with detailed conditions, including limitations as to number and size, etc.

It is a slight mystery as to why so many LPAs seem to have been under the impression that they could not prevent the display of general advertising on farm trailers and the like. Maybe a few well-publicised prosecutions would shatter any illusions that the advertisers might have as to their right to display these advertisements.

© MARTIN H GOODALL

A stitch in time

I often reflect that a significant proportion of the legal fees I earn arise from the fact that my clients have put off seeking my advice until the planning problems they are wrestling with have reached really serious proportions. It’s a bit like putting off going to the Doctor.

I certainly shouldn’t complain about this situation; it would be far less remunerative for me and certainly less interesting if clients sought my advice at the outset rather than letting the problem fester. Many planning problems would disappear very quickly with timely advice, and I would earn much less money as a result.

You may think that it is not in my interests to reveal this ‘professional secret’, but I don’t think there is any real danger that clients will suddenly start seeking my professional advice at a much earlier stage in the planning process. Human nature being what it is, most people prefer not to incur professional fees until they feel they absolutely have to, and there is also a degree of personal pride involved; people like to think they can sort things out for themselves without having to ask for help.

So I am confident that I shall continue to get instructions only when things have really begun to go pear-shaped, and it will take a fair amount of effort to sort out the resulting mess.

Of course, it is possible for clients to leave things so late that I can’t do anything to help them. Again, the analogy of putting off going to the Doctor comes to mind. I recall an old farmer who came into the office, and produced a very crumpled piece of paper which he had been carrying round with him for the past six weeks before he finally got round to coming in with it. It turned out to be an Enforcement Notice. The period within which he could have appealed had expired, and there was nothing I could do about it. The really frustrating thing was that he would have had a good case, but the time limit for appealing against an Enforcement Notice can’t be extended under any circumstances. Nor is there any other way of challenging it once it has come into force. The most you could do would be to apply for planning permission for the development alleged by the notice to have taken place – a pretty hopeless prospect in many cases.

Fortunately, most clients don’t leave it quite as long as that, and there is often a good chance of sorting out their planning problems, even if it might be more time-consuming (and therefore more expensive for them) than it would have been if they had instructed me at an earlier stage. So, long may procrastination reign! (But not for too long.)

© MARTIN H GOODALL

HMO rules to face High Court challenge?

I have still not found the time to get my head round the new rules for HMOs, which came into force on 1st October, but at first sight they certainly seem to give remarkable freedom of action to landlords to create HMOs as permitted development.

However, it seems that several LPAs are so unhappy about the changes that they are seeking permission from the High Court to challenge the changes by way of an application for Judicial Review. Successful challenges to subordinate legislation are few and far between, but are not impossible. Nevertheless I am inclined to be sceptical of the chances of persuading the court to upset the new rules. The first hurdle for these councils will be to obtain the Court’s permission to proceed, and they could conceivably fall at this first fence.

We shall see.

[This challenge initially failed to obtain the necessary permission from the High Court to proceed. However, following its initial dismissal in late October, the three authorities (Oxford, Milton Keynes and Newcastle) renewed their application for oral hearing, and permission was granted by Lindblom J at the end of January. The substantive hearing of the application for judicial review took place in April 2011, and was dismissed.]

© MARTIN H GOODALL

Sisman Nichols - R.I.P.

It is now over a year since I joined Keystone Law. Before that, I had been a consultant with Sisman Nichols Solicitors in Bristol for about 12 years. Although that consultancy had come to an end a little while ago, I still maintained friendly contact with the firm, and so it was a sad day when Sisman Nichols finally put up the shutters and ceased practising last week after close of business on 30th September. Most of my former colleagues have found berths elsewhere, and my planning clients had already transferred with me to Keystone Law.

Sisman Nichols was a small, friendly firm, but that ultimately proved to be its undoing, as it is becoming increasingly difficult for such firms to survive in the present day legal market. I am pleased to say that Keystone Law is a much larger and altogether more robust enterprise, which has nearly doubled its turnover in the past year. As our senior partner, James Knight, was heard to remark recently, “If this is a recession, goodness knows how we are going to cope with the workload when the economy picks up!”

It is sad to see smaller practices like Sisman Nichols closing down, but I am afraid the future really does lie with the larger firms like Keystone Law. Not that we are a faceless corporate giant – our clients really do get friendly personal service from their own solicitor, and won’t get passed down to some junior or trainee (because we don’t have any).

The next threat on the legal horizon is said to be the further ‘commoditization’ of legal services (so-called “Tesco Law”), but I am confident that well-founded legal businesses like Keystone Law, offering expert services in specialist areas will continue to thrive in the marketplace.

© MARTIN H GOODALL

Communications

I occasionally receive automatic notification of a comment left by a reader which turns out to be a request for contact details or some other communication. For example, I was recently asked if it would be possible to exchange links with this blog.

I would like to be able to respond, but the system does not allow me to do so, especially where the person trying to make contact is simply identified as “Anonymous”, and I have no contact details for the person concerned.

Rather than using (or attempting to use) the Comments facility, it would be much more effective to send me an e-mail in these circumstances. There is no secret as to what my e-mail address is – it is shown at several places in the blog, but if you still haven’t spotted it, it’s - martin.goodall@keystonelaw.co.uk

As I have pointed out in the Introduction, I cannot undertake to enter into open-ended discussions on the contents of the blog, but I have no objection to receiving e-mails on specific points. Spam will inevitably get ‘zapped’ by the automatic spam filter, so spammers would be wasting their time by adding this e-mail address to their databases, but bona fide correspondents can expect a polite reply, even if I am unable to respond in detail to points raised.

© MARTIN H GOODALL

From GDPO to DMPO

There has always been some potential confusion between the GDPO (General Development Procedure Order) and the GPDO (General Permitted Development Order), but such confusion is now a thing of the past. As you should all be aware by now, the General Development Procedure Order has been replaced by a consolidated Order which came into force on 1st October. This order picks up all the amendments made since the GDPO was originally made, and goes by the title of the TOWN AND COUNTRY PLANNING (DEVELOPMENT MANAGEMENT PROCEDURE) ORDER 2010. No doubt we shall all get used to referring to the ‘DMPO’ (or even perhaps ‘Dumpo’?)

One novelty which, according to the DCLG press release, has been introduced by the new Order is an amendment allowing applicants with partially implemented outline planning permissions to apply for a replacement planning permission with a new time limit. On a first trawl through the Order I could not find this, unless it is intended to refer to Article 18(1)(c). I await further enlightenment from DCLG in due course.

© MARTIN H GOODALL

Financial consequences – a further thought

When commenting on the Court of Appeal’s decision in Health & Safety Executive v. Wolverhampton City Council on 18 August, I mentioned that I thought there was judicial authority precisely on the point which was in issue in that case which supported the proposition that the financial consequences for the LPA of a planning decision made by them could be a material consideration in relation to that decision, but I had been unable to find the case I had in mind.

I have just come across that case in a note of the advice which I gave to a client on this very point a couple of years ago. The case I had in mind with regard to financial considerations (including a potential liability to pay costs or, in the case on which I was advising, substantial compensation) being properly taken into account by an LPA as a material consideration in the determination of a planning application is R. v. Royal Borough of Kensington & Chelsea (ex p. Stoop)[originally reported as Stoop v. Council of the Royal Borough of Kensington & Chelsea [1991] JPL 1129, [1991] EGCS 85, [1992] 1 PLR 58; The Times 10 September 1991.]

Officers had advised a planning committee of the possibility that costs could be awarded against the Council if they refused planning permission in this case. The chances of success on appeal were remote and there was a distinct possibility of a substantial amount of costs being awarded against the Council.

Otton J noted that the advice given at the meeting went predominantly to the prospects on appeal and to the possibility of an award of costs against the Council. He was satisfied that the officers had not abused their position. The advice was not improperly couched. In summary, the receipt of advice on the prospect of an appeal and costs fell within the statutory provisions. Such advice was a material fact to be taken into account by the committee.

He added that the officers were advising the committee not to refuse planning permission but to grant it. If the committee chose to go against the advice of their officers they were thereby making the local authority vulnerable as to costs. In his judgment, the officers were doing no more than giving advice as to what were sound and clear cut reasons for refusal [and what were not] and that to refuse planning permission would put the Royal Borough in a position whereby they were vulnerable as to costs. In his judgment, there was nothing wrong with this procedure or in the advice that was given or the consequences that flowed from the acceptance of that advice.

The JPL case editor also drew attention to a decision of the Local Government Ombudsman (reported at [1990] JPL 469) that the probability of costs being awarded against the authority was a proper consideration for members to take into account.

This does raise the possibility that the Court of Appeal’s judgment in the HSE case might possibly have been reached per incuriam. This, combined with the fact that Pill LJ also delivered a dissenting judgment on the point, suggests that the point could be decided differently if it were ever to reach the Supreme Court, or a differently constituted Court of Appeal in another case.

© MARTIN H GOODALL