THE CHARTERED INSTITUTE OF LEGAL EXECUTIVES UNIT 11 PLANNING LAW *

Transcription

1 12 June 2017 Level 6 PLANNING LAW Subject Code L6-11 THE CHARTERED INSTITUTE OF LEGAL EXECUTIVES UNIT 11 PLANNING LAW * Time allowed: 3 hours plus 15 minutes reading time Instructions to Candidates You have FIFTEEN minutes to read through this question paper before the start of the examination. It is strongly recommended that you use the reading time to read this question paper fully. However, you may make notes on this question paper or in your answer booklet during this time, if you wish. All questions carry 25 marks. Answer FOUR only of the following EIGHT questions. This question paper is divided into TWO sections. You MUST answer at least ONE question from Section A and at least ONE question from Section B. Write in full sentences a yes or no answer will earn no marks. Candidates must comply with the CILEx Examination Regulations. Full reasoning must be shown in answers. Statutory authorities, decided cases and examples should be used where appropriate. Information for Candidates The mark allocation for each question and part-question is given and you are advised to take this into account in planning your work. Write in blue or black ink or ballpoint pen. Attention should be paid to clear, neat handwriting and tidy alterations. Complete all rough work in your answer booklet. Cross through any work you do not want marked. Do not turn over this page until instructed by the Invigilator. * This unit is a component of the following CILEx qualifications: LEVEL 6 CERTIFICATE IN LAW and the LEVEL 6 PROFESSIONAL HIGHER DIPLOMA IN LAW AND PRACTICE Page 1 of 8

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3 SECTION A (Answer at least one question from this section) 1. (a) Explain the circumstances in which the High Court will review a grant of planning permission where the determination process contains an error of law. (10 marks) (b) Analyse how the High Court exercises its discretion to quash or not to quash a grant of planning permission affected by an error of law. (15 marks) (Total: 25 marks) 2. Explain how a prospective developer of land can ascertain: (a) the lawfulness of the existing use of the land; (b) the lawfulness of the proposed use of the land. (15 marks) (10 marks) (Total: 25 marks) 3. Assess the extent to which the planning controls governing proposals to develop listed buildings are special. 4. Analyse the importance of the concept of the planning unit in planning law. Page 3 of 8 Turn over

4 Question 1 SECTION B (Answer at least one question from this section) Hydroponics Ltd ( the Company ) grows tomatoes under glass at its nursery ( the Site ) in the Cornbrash Valley Regional Park ( the Park ). The Site consists of 18 hectares of farmland situated in Green Belt within the Park, which is administered by a park authority ( the Park Authority ). The Company wishes to increase its existing glasshouse complex by an additional 90,000 square metres, which would extend into an area occupied by two lakes. The lakes are frequented by protected species of overwintering waterfowl and are designated as a Special Protection Areas ( the SPAs ). The Cornbrash Local Plan includes the following policies: Policy GB1: there is a general presumption against inappropriate development in the Green Belt. Policy GB2: visual amenities of the Green Belt are not to be injured by development either within or conspicuous from the Green Belt. Policy GB3: permission will not be granted for new buildings or the extension of existing buildings in the Green Belt unless the proposal is for a use for the purposes of agriculture, horticulture or forestry or other uses which preserve the openness of the Green Belt. The local planning authority ( the LPA ) granted planning permission for the proposed development on the basis that: it was sustainable development and appropriate in the Green Belt; the adverse impact resulting from the proposal s conflict with the local development plan was outweighed by the benefit to the local economy; the effect on visual amenity would be acceptable; the LPA had complied with regulations protecting waterfowl by consulting Natural England, which had raised no objection to the grant of planning permission subject to the imposition of certain conditions relating to works of mitigation. However, the Park Authority considers that the LPA misdirected itself on three grounds, namely that it: (a) (b) (c) misinterpreted the National Planning Policy Framework (NPPF), in failing to consider the impact of the proposed development on the openness of the Green Belt; misinterpreted the Cornbrash Local Plan, by failing to give appropriate weight to any harm caused by the conflict with Policy GB2; wrongly delegated to Natural England the decision on the effect of the proposed development on the SPA; failed to incorporate in the planning permission the conditions that Natural England had stipulated to safeguard the SPA; and ignored objections submitted to it by the Royal Society for the Protection of Birds ( RSPB ), which had been dismissed by Natural England. The Park Authority wishes to apply to the Administrative Court for judicial review. Advise the Authority on its chances of success, should its application be granted. Page 4 of 8

5 Question 2 Landbank Holdings plc ( the Company ) owns six hectares of land ( the Site ) in the parish of Woodcroft, which lies within the administrative area of Cornbrash District Council ( the Council ). The Council is the local planning authority ( the LPA ). Part of the Site abuts the outlying dwellings of the town of Cornbrash. The Company wished to construct 120 houses on the Site and submitted an application for outline planning permission to the LPA. The Site was not identified for housing in the saved Local Plan to 2008 or in the emerging Cornbrash Local Plan ( the Local Plan ) or in the emerging Woodcroft Neighbourhood Plan ( the Neighbourhood Plan ). However, the Neighbourhood Plan stated that houses should be constructed in Woodcroft (subject to review early in the plan period), but did not identify specific sites. The LPA has not yet identified a fiveyear supply of housing sites. The LPA refused planning permission on grounds that are not relevant here. The Company appealed. In his decision letter, the Inspector concluded that: while there was a compelling case for releasing the Site for the proposed development, the proposal conflicted with, and was premature in relation to the Neighbourhood Plan; while the remaining stages for approving the Neighbourhood Plan might indicate that more land needed to be allocated for housing in Woodcroft, given the incomplete status of the Local Plan and the absence of an identified five-year supply of housing, it would be inappropriate to prejudge the outcome at this stage ; the Site had not been allocated for housing, whereas other sites had already been allocated in the draft Local Plan; the allocation of houses represented a cap. Accordingly, the Inspector tipped the balance in favour of the proposals in the Neighbourhood Plan and dismissed the appeal. By the time the Inspector issued his decision letter, the Neighbourhood Plan had been submitted to the Council for examination and was nearer to completion than the Local Plan. The Company considers that the Inspector: failed to implement the relevant policies contained in the National Planning Policy Framework ( the NPPF ) (Ground 1); misdirected himself on the question of conflict between the proposal and the draft Neighbourhood Plan (Ground 2); misinterpreted NPPF policy on prematurity (Ground 3). The Company wishes to apply for judicial review. Advise the Company on its chances of success should its application be granted. Page 5 of 8 Turn over

6 Question 3 Xanthe owns premises in the centre of Cornbrash, a market town. For some years, she has operated a Greek restaurant at the premises, for which planning permission was granted in She holds a licence to sell alcoholic drinks until 2 am. In August 2016, she applied to the local planning authority ( the LPA ) for permission to use the premises as a restaurant, bar and nightclub, but the LPA refused her application. However, in January 2017, Xanthe started to use the premises as a drinking establishment and nightclub featuring disc jockeys as well as a restaurant. In March 2017, the LPA served an enforcement notice, requiring Xanthe to cease the use of the premises as a drinking establishment and nightclub and to terminate the use of the premises by disc jockeys. The reasons given were that the unauthorised change of use resulted in: an increase of pedestrian movements and a change to their pattern and timeframe outside the premises to the detriment of the wellbeing of residents in nearby properties; an increase in noise vibration and disturbance having an adverse effect upon the health, environment and general amenity of the area. Xanthe wishes to appeal to the Secretary of State on Ground (f) of Section 174(2) of the Town and Country Planning Act 1990 ( the TCPA 1990 ), arguing that the requirements in the enforcement notice go beyond the LPA s alleged objective of remedying the injury to amenity caused by the alleged breach and, in particular, that: she needed to be able to sell alcoholic drinks to customers who were not dining in the restaurant; the ban on disc jockeys was unnecessary as the enforcement notice did not prevent the playing of recorded background music; the enforcement notice should be varied to enable her to use the premises as a drinking establishment if she undertook not to use the premises as a nightclub and to limit the number of customers not eating in the restaurant to 60 at any given time; in the alternative she should be granted a retrospective planning permission. Advise Xanthe on her chances of success, should she lodge an appeal. Page 6 of 8

7 Question 4 In 1994, Mr and Mrs Swain bought a smallholding consisting of a dwelling house and 20 hectares of agricultural land. In 1975, the local planning authority ( the LPA ) had granted planning permission for the construction of the dwelling house subject to a condition, namely: The occupation of the dwelling shall be limited to persons employed or last employed solely or mainly and locally in agriculture as defined by Section 290(1) of the Town and Country Planning Act 1971, or in forestry and the dependants (which shall be taken to include a widow or widower) of such persons. Mrs Swain has farmed the smallholding since She sends vegetables each week to market. Since February 2007, she has also operated three livery stables which she constructed on a small part of the smallholding, with an area set aside for the horses to graze. This activity engages her working week for about one half-day a week. The agricultural business makes a substantial loss in each year, but the livery stables make a small profit in most years. Mr Swain is a successful businessman who is not involved in his wife s farming and livery activities. The couple have four children. In March 2017, the LPA s enforcement officer wrote to Mrs Swain alleging that she and her family occupied the dwelling house contrary to the terms of the condition it had imposed when granting planning permission in He said she should apply for permission to regularise the positon. However, Mrs Swain immediately applied for a certificate of lawful use of the dwelling house. The LPA refused to grant a certificate on the basis that she was not employed solely or mainly locally in agriculture and that Mr Swain and their four children were not her dependants. The LPA has now served an enforcement notice on Mrs Swain, requiring her within 28 days to (a) cease her use and her family s use of the dwelling house, and (b) terminate the livery operation, demolish the stables and return the land to the condition it occupied before the stables were built. The LPA s Chief Planning Officer told the Planning Committee that Mrs Swain was no more than a hobby farmer. Mrs Swain considers that the LPA s action is unlawful and also infringes her right to family life. Advise Mrs Swain whether there is any basis on which she can resist the enforcement notice in relation to: (i) the alleged breach in regard to her livery business; (7 marks) (ii) the alleged breach in regard to the occupation of the dwelling house by herself and her family. (18 marks) (Total: 25 marks) End of Examination Paper 2017 The Chartered Institute of Legal Executives Page 7 of 8

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