Local Government Lawyer - 'The most read articles of 2012'

It turns out that my 29th May article 'Concealment, Enforcement and the Localism Act 2011' which was reproduced on the Local Government Lawyer website on 20th June has made their list of the most read articles of 2012.

I am of course extremely grateful but a little surprised to be included when there are so many other highly regarded public law lawyers writing for the website. I guess it's just a matter of the right article at the right time. 

My thanks to all who read it. I only hope it was of some interest or use.

Ho! Ho! Ho! Some seasonal reflections on Planning Law in 2012 and thoughts on what 2013 might bring

With the festive season rapidly approaching it is probably worth looking briefly at some of the issues that have caught the eye over the last 12 months. Indeed I have written on some of these subjects in earlier posts to which readers may want to refer back to (time permitting).

In short it has been a mixed bag for the whole development ‘industry’.

The Coalition have begun to deliver on its desires to see a reduction in the role of lawyers in the development process however what we have seen is the introduction of legislation, guidance and further proposals all of which appear to provide continued rich pickings for planning lawyers for some considerable time to come.

The Conservatives’ great idea of ‘Localism’ (quickly attacked as ‘the NIMBYs’ charter’) was trumpeted as the way forward with the proposed handing back of power from local planning authorities (LPAs) to local communities to control their own destinies and determine what development came forward within their areas.

One of the initial election campaign promises from Communities Secretary Eric Pickles to be attempted was the abolition of the Regional Spatial Strategies. This was part of the ‘Localism’ drive but floundered on the lack of any assessment of the environmental impact of such a proposal. At present, with the exception of the East of England Plan in respect of which an abolition order has now been laid in Parliament, the RSSs’ remain in force and continue to be material planning considerations subject always of course to the question of the weight to be attached thereto being a matter for the relevant decision maker.

Then Eric Pickles started to rely on prematurity arguments for rejecting planning applications, the argument being that approving them would close off options for development strategies in preparation. This provided equally fruitless after he was forced to quash his decision in a number of high profile proposals.

The emphasis has of course now shifted, in no small part as a result of recessionary pressures and the Treasury inspired ‘growth agenda’. There is much greater focus on LPAs’ five-year housing land supply (or lack thereof in a lot of cases) and the impacts of the National Planning Policy Framework (NPPF).

There is therefore an inbuilt tension between on the one hand ‘Localism’ and on the other hand the ‘growth agenda’. The raised expectations arising on both sides means that this may very well become an area in which the courts become involved particularly when looking at for example neighbourhood planning and questions associated with determining the extent of neighbourhood areas, defining the relationship between neighbourhood and local plan in any particular area, or deciding whether a neighbourhood plan can precede a delayed local plan.

The NPPF took effect on the 27th March 2012 with transitional provisions and one of its major planks is the presumption in favour of ‘Sustainable Development’. For plan-making this means that: LPAs should positively seek opportunities to meet the development needs of their area; Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole; or specific policies in the NPPF indicate development should be restricted. For decision-taking this means: Approving development proposals that accord with the development plan without delay; and Granting permission where the development plan is absent, silent or relevant policies are out-of-date unless: any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole; or specific policies in the NPPF indicate development should be restricted.

LPAs therefore now need to get local plans in place otherwise they risk losing the ability to control ‘Sustainable Development’. Additionally, it means that they cannot hide behind the prematurity argument to reject schemes although timing could still play a part if and where a LPA is close to adopting its local plan.

The NPPF has to that extent forced LPAs’ hands. Many LPAs are now progressing local plan preparation as a matter of urgency. Indeed it may be difficult for authorities who have to revisit already in force local plans in order to ensure that they are NPPF compliant in advance of the fast approaching end of the transitional period (i.e. next Spring). As part of that process they are grappling with the issue of the s.33A duty to engage and co-operate with adjoining authorities (s.33A Planning and Compulsory Purchase Act 2004 inserted via Localism Act 2011). This may be ripe for challenge particularly where timing means that the process may have begun pre-duty but where scrutiny and adoption fall post-duty. 

The Community Infrastructure Levy (CIL) was the new planning charge which took effect on 6th April 2010. This is governed by the Community Infrastructure Levy Regulations 2010 amended first by the Community Infrastructure Levy (Amendment) Regulations 2011 and then more recently by the Community Infrastructure Levy (Amendment) Regulations 2012. The purpose of CIL is to raise funds from developers to fund a wide range of infrastructure and operates on the basis of a charging schedule with a tariff based approach to different forms of development.

At the time of writing a number of LPAs have gone through the process and are now operating CIL. Newark & Sherwood (1st December 2011), Shropshire and Redbridge (both 1st January 2012), London Mayor (Crossrail) and Portsmouth (both 1st April 2012), Huntingdonshire (1st May 2012) and Wandsworth (1st November 2012) are all now operating CIL.  Numerous other LPAs are going through the process and are at different stages. Interestingly enough research apparently shows that 2/3rds of LPAs bringing forward a new development levy reduce their proposed rates between the 1st and 2nd rounds of consultation on their plans.

The latest Community Infrastructure Levy (Amendment) Regulations 2012 took effect on 29th November and the main changes ensure that s.73 variation applications do not trigger duplicate payments for the same development coupled with confirmation that CIL will not be payable on planning permissions replacing extant and unimplemented permissions granted before 1st October 2012. What the recent revised Regulations do not provide for are either the ability to apply receipts to the provision of affordable housing or the ability to pass a ‘meaningful proportion’ of receipts to neighbourhood bodies both of which had previously been trailed in the press.

The Mayor of London has announced a consultation on the Mayoral CIL. This involves issues such as the Use of planning obligations as a means of funding Crossrail; a change in the charges and contribution calculation on gross internal areas rather than gross external areas in a drive to secure consistency of approach; details of the policy on the use of the Mayoral CIL; the relationship between Crossrail contributions and the Mayoral CIL; the role of the Mayor in the setting of a borough's CIL; and practical implementation issues e.g. de minimis thresholds, measurement, phased development and collection. It is proposed that the new draft guidance is to replace the existing SPG published in July 2010 and the consultation closes on the 15th January 2013.

CIL looks like it will create continuing legal issues not least because some LPAs introduced unnecessary complexity into the process by having both zonal and differential approaches to their schemes. In some cases different sizes of development are liable to different or no charge e.g. large developments being subject to the charge while smaller schemes are not. This approach would appear to be ripe for challenge with the chilling prospect of approved schedules being thrown into doubt by a sucessful challenge. Whatever scheme is proposed needs to justified by objective evidence and the more complex a scheme the harder that becomes and the greater the chance of challenge. 

Viability is a live issue in the context of CIL. The NPPF says development schemes identified in local plans "should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened" and consequently LPAs are forced to give much more serious consideration to the question notwithstanding that they very rarely have in-house expertise to support charging schedule preparation or development control application consideration although to be fair developers need to disclose figures that they might not otherwise want to in order to convince the planners.

The Coalition has also been busy with its legislative proposals.

The Growth & Infrastructure Bill contains a package of planning reforms. These include:

A ‘special measures’ proposal to allow developers to bypass underperforming councils and submit major applications directly to the Planning Inspectorate is proposed. The proposal also provides that there would be no further recourse to appeal. There is uncertainty over how councils' performance will be measured and by whom and therefore there is scope for legal challenges around these decisions and permissions granted in consequence of them. Current potential selection criteria appear to be based on major applications determined within the relevant 13 week period over a two year period with a 30% threshold figure coupled with a 20% threshold figure in respect of major decisions overturned at appeal over the same period. This approach appears to target both speed and quality of LPA decision making.

  

Town and Village Green (TVG) reform to address the question of abuses of the process to prevent TVG applications stopping development proposals in their tracks or at best slowing down proposals while the claims are dealt with. The Bill would ban applications to register land as a TVG if sparked by a "trigger event" such as a planning application which means that vexatious claims can be largely prevented.

Proposed amendments to the prior approval regime for telecom masts in sensitive areas such as the National Parks are likely to be contentious but proposed changes to the stopping up & diversion of public highways and rights of way so that they can be dealt with within a single consent regime are more likely to be welcomed.

The Enterprise and Regulatory Reform Bill contains some welcomes changes to the Heritage Planning regime and will reform the way in which Listed Building and Conservation Area consents are approached and determined.

The Coalition is also looking at a package of reforms dealing with Permitted development rights in terms of Residential, Retail, Offices & Industrial development so that current thresholds are increased to take more proposals out of the need to secure planning permission. This also includes certain telecoms developments as part of the wider drive to increase Broadband coverage and capacity. This consultation exercise closes on 24th December. As previuosly stated the relaxation of permitted development rights to double the size of residential extensions in rear gardens is likely to give rise to tense neighbourly relations particularly where development which was previously rejected for good planning reasons is brought forward without any real significant benefit to the economy. It seems that Communities Secretary is already rowing back from these proposals if reports in the Daily Telegraph and Daily Mail of 14th December (both reporting an interview Eric Pickles did with 'The House' magazine) are to be believed.

Changes to the Use Classes regime are also in line to address ‘Pop up shops’ and to allow change of use from commercial to residential purposes subject to the provision for a local exemption where adverse economic impact can be shown.

As part of the ‘growth agenda’ and the drive to cut down on the time taken to secure and implement planning permission the Coalition is also looking at reform of the Appeal process (consultation closes on 13th December) and restricting the ability to Challenge decisions by way of Judicial Review.

Planning Judicial Review and statutory challenges form an insignificantly small number of the total number mounted and recent figures issued by the Ministry of Justice show that these have a higher success rate demonstrating the usefulness of the process in holding decision makers to account as well as preserving the rule of law. The Coalition would be well advised to refrain from tinkering with the system in so far as it relates to Planning should it wish to avoid more rather than less litigiation in this area.

However Chris Grayling, the Lord Chancellor and Secretary of State for Justice, issued a consultation paper entitled ‘Judicial Review: proposals for reform’ on Thursday 13th December.

The paper sets out the reforms the Coalition propose to make in three key areas of the Judicial Review process namely: (i) the time limits within which Judicial Review proceedings must be brought; (ii) the procedure for applying for permission to bring Judicial Review proceedings; and (iii) the fees charged in Judicial Review proceedings.

In respect of the first, the paper identifies two categories of case to which the proposed shorter time limit might be appropriate one of which is planning decisions although on the Coalition’s own figures this is certainly not an area responsible for the bulk of Judicial Review applications.

In coming up with its proposal the Coalition seeks to draw parallels with the statutory appeals process in planning. This is however unhelpful because Judicial Review deals with procedural failings which may not always be apparent at the time of the decision and certainly will not have been considered in any detail in the preceding considerations as opposed to the appeals process which deals with merits which will have previously been considered at the pre-application stage, at the determination stage and at the appeal stage before the matter ever reaches the court. This means that on the one hand one is looking at issues that are only just emerging from investigation and inter party exchanges including discovery and Freedom of Information requests as opposed to ones that have been argued and honed down very clearly in a number of different arenas.

In addition, the reduced time limit will not provide for sufficient time to deal with either the pre-action protocol requirements introduced to try and bring about a consensual resolution without the need to resort to the court or the funding issues that so very often arise when third party challenges are in contemplation.

Despite what the Coalition believes it is thought likely that this proposal will lead to more proceedings being issued if only to protect positions while the protocol ‘Letter before action’ and funding issues are addressed.

In addition there may be scope for other avenues of challenge.

For one, the judicial discretion to extend the time limit in limited exceptional cases may fall foul of European requirements of certainty particularly in Environmental Law cases. 

It is also noted that the proposed time limit is shorter than that allowed for challenging decisions of the European Institutions and may therefore be susceptible to challenge particularly in relation to those challenges which are based in Environmental Law on for example access to justice under the Aarhus Convention or failures to apply or properly apply European Directives dealing with Habits and Protected Species.

In respect of the second limb of reform the Coalition proposes changes to the procedure for permission to restrict the number of opportunities available. In cases where the claimant has been refused permission on the papers, and the matter is one which has been the subject of a prior judicial hearing, the claimant’s right to ask for an oral renewal of the application for permission would be removed and any appeal to the Court of Appeal would also be on the papers only.

Finally, in respect of the third limb of reform, the Coalition proposes that the applicant should pay a fee for an oral renewal of an application for permission to be set at the same level as for a full hearing of the Judicial Review (currently £215 but under current general proposals rising to £235). Where the application for permission is successful it is proposed that the further fee for a full Judicial Review hearing would be waived but it should be noted that the Coalition will consider the scope for adjusting fees further over time so that they reflect the full costs of providing the service.

The deadline for consultation responses is 24^th January 2013.

The Coalition has also launched consultation exercises in respect of expanding the ‘one stop shop for non-planning consents’ for major infrastructure and in respect of expanding the infrastructure planning regime to business and commercial projects (both consultation exercises close on 7th January 2013).

There have also been some notable cases which have caught my eye and may be of passing interest to readers.

The Queen (on the application of Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council, Golden Valley Paddocks Ltd & Secretary of State for Communities and Local Government [2012] EWHC 2161 (Admin) dealt with ‘Chicken sheds’ or ‘mobile poultry units’ which were held to not be development and did not require EIA based on size, permanence and physical attachment to the ground as a matter of fact and degree. This was held to be too narrow an approach to the meaning of ‘development’ in s.55 and ‘Building’ in s.336(1) was held to include ‘any structure or erection’. The court also expressed the view that ‘Other operations in, on, over or under land’ in s.55 should also have been considered

The Queen (on the application of) Ashley v Secretary of State for Communities and Local Government, London Borough of Greenwich & Taylor Wimpey UK Ltd [2012] EWCA Civ 559 took the view that the fairness of the appeals procedure is facts sensitive and a matter for the Court to determine. In that case the objector had fully engaged in the process and there was no reason to anticipate the submission of highly significant expert evidence at the very last minute. The court viewed the process as a breach of natural justice. In addition there was an invitation to clarify guidance to interested parties along with a query as to whether the written representation process was appropriate in the particular case

Lawrence v Fen Tigers Limited [2012] EWCA Civ 26, [2012] All ER (D) 180 (Feb), [2011] EWHC 360 (QB) looked at the first instance decision which held that the stadium / track noise amounted to nuisance. The Court of Appeal overturned that decision expressing the view that the grant of planning permission followed by implementation thereof might change the character of a locality and that whether particular activities constituted a nuisance had to be decided against the background of that changed character. The result of that approach is that otherwise offensive activities may cease to constitute a nuisance which has considerable implications for potential purchasers / certainty for landowners. This is now going to the Supreme Court on appeal for hearing in November 2013

Sea & Land Power and Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB) is an often cited case asserting that the Government’s encouragement of renewable energy sources does not have “primacy” over local conservation policies. This however was not the thrust of the decision which concluded that the reality was in fact two competing policies pulling in different directions and that weight is a matter for the decision maker. The decision doesn’t change the existing law but is interesting nevertheless.

Tesco Stores Limited v Dundee City Council (Scotland) [2012] UKSC 13 is a decision of some significance and concludes that policy statements should be interpreted objectively and should not be construed as if statutory or contractual provisions. The court decided that the application of development plan policy requires the exercise of judgment and that it is for planning authorities to do so unless irrational or perverse. However planning authorities cannot make the development plan mean whatever they would like it to mean and the question of what any particular word means cannot be answered by the exercise of planning judgment. This is a prior question on which planning judgment requires to be directed.

Winfield v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415 looks at and effectively endorses the softly, softly enforcement approach often adopted by LPAs. The court held that breaks of any duration in the display of advertisements arising as a consequence of threatened enforcement action were material breaks which brought to an end a period of continuous use. Furthermore, the use of property for advertising was not simply interrupted, it ended. If use recommenced, time started to run again. In addition it was held that a bare, unadorned structure is not an advertisement within the meaning of s.336 of the TCPA 1990.

As the old base level Chinese curse says, "May you live in interesting times". Although probably better that than the next level of curse which apparently says "May you come to the attention of  those in authority" which might mean a fate worse than death when dealing with the Communities Secretary and his suspicion of planning lawyers.

Merry Christmas and best wishes for a prosperous New Year.

Planning Law, Judicial Review and a hapless Prime Minister – a spivs’ charter?

David Cameron’s speech at the CBI Conference on Monday (19^th November) has caused something of a stir.

It was in essence about delivering what “British business needs” in order to deliver “the key steps to Britain thriving in the global race to succeed” and this rather betrays not only a lack of understanding on the PM’s part but also where he is getting most of his advice from.

But you could be forgiven for thinking that he had announced the end of public consultations as we know them; was preparing to repeal the Equalities Act; and as for Judicial Review, well light the blue touch paper and stand well back.  

The reality, in the cold light of day, is a little different.

The consultation element really reflects what had already emerged in the Cabinet’s new set of Principles in the summer. But he was wrong to say “When we came to power there had to be a three month consultation on everything”. The previous Code allowed for exemptions which Ministers frequently exploited. And the Government says it will continue to honour the 12 week rule where the Compact with the voluntary and community sector actually applies to rather a lot of consultations.

And as for the announcement that the Government will stop doing Equality Impact Assessments, it would appear that what he wants to do is stop civil servants wasting time on “reams of bureaucratic nonsense”. But that is what civil servants do. They do EIAs because it is good management practice to try to foresee the implications of policy-making. It should be about ensuring that doing so doesn’t impact on their ability to do so.

On the subject of judicial reviews he wants fewer of them. Don’t we all?

This will apparently be achieved by reducing the time limit in which people can apply to challenge a decision (currently promptly and in any event within three months of the date of the decision complained of); increasing fees for making judicial review applications to make it harder to get a challenge off the ground; and cutting the number of opportunities to challenge a refusal of permission for a judicial review from four to two.

But most of the massive growth in Judicial Reviews is in asylum and immigration cases which do not impact on business and its ability to compete both at home and globally. They do nothing to stop government from taking steps to assist business.

For a very helpful consideration of the statistics see Martin Goodall’s blog where he says that “Cameron’s assertion is grossly misleading”. Likewise, Angus Walker says the number of planning-related Judicial Reviews is actually quite small and does not appear to be rising.

For a wider consideration of the Judicial Review considerations see Adam Wagner and Mark Elliot.

The DCLG was keen to clarify the position with a spokesman saying:”This story (see The Telegraph – “End of the right to challenge planning rulings”) is misleading. We are not changing local residents’ rights to object to a planning application, nor are we changing the planning appeal process. There are a limited number of judicial reviews about planning decisions each year, and they generally relate to errors in law or failure to follow due process.” 

Chris Grayling the justice secretary in a statement released to coincide with the speech said that the government intends to seek views on a package of options. He said:

“The purpose of this is not to deny or restrict access to justice, but to provide for a more balanced and practicable approach, ensuring that weak, frivolous and unmeritorious cases are identified early, and that legitimate claims are brought quickly and efficiently to a resolution. In this way, we can ensure that the right balance is struck between reducing the burdens on public services, and protecting access to justice and the rule of law.”

So there you have it, nothing about making British business more competitive. But the story hasn’t been “Grayling disagrees with PM”. Maybe it should be. We will have to wait and see. 

But everything we find inconvenient is not inherently wrong. It is not malicious. Sometimes the only way that local people, and we mustn’t forget that both elements of the Coalition have ‘Localism’ in one shape or another very much at the heart of their respective philosophies, or businesses can prevent public bodies acting illegally is by way of a Judicial Review application. The most recent high profile example of this is the sucessful challenge by Virgin Rail to the West Coast Main Line franchise award which exposed fundamental flaws in the procedures adopted by the DfT. Judicial Review can be a major force for the public good along with instilling the necessary discipline of good honest open transparent administrative decision making.

But the suspension of normal legal process is not acceptable in ordinary peace-time conditions. Judicial Review is not just about planning decisions. It's about the ability to hold decision makers to account and preserve the rule of law. Jeffrey Jowell argues far more eloquently than I that we should not interfere with the right to challenge decision makers in his Guardian piece “Diminishing judicial review will reverse 50 years of legal progress”.

And of course the Courts have long had the discretion to stop proceedings e.g. abuse of process, vexatiousness or non-justiciablity; or even to refuse relief even where the claim has succeeded see e.g. Berkley v SoSE and Walton v Scottish Ministers.

In any event the reforms contemplated are going to be difficult to achieve while complying with EU law, particularly that concerning environmental protection. See for example the decision in Uniplex (UK) Ltd v NHS Business Services Authority dealing with promptitude and the principle of legal certainty where the Court held that cutting down the three month period by imposing a promptitude requirement was unlawful at least in European terms. See also Collins J in R (U & Partners) v Broads Authority [45] when he says “Having regard to the importance of promptness in challenging grants of planning permission, serious consideration should in my view be given to amending CPR 54.5 so as to impose a six week limit for all such challenges”.

But promptness survives in respect of claims based in domestic law and where claims are issued on both domestic and EU law points the promptness rule will apply to the former but not the latter see R (Berky) v Newport.

The time limit for challenges to decisions of European Institutions is two months and there could hardly be an issue if that was to be the new time limit for Judicial Review but anything shorter, in my view, betrays a lack of understanding of the system.

Judicial Review is not the same as a planning appeal statutory challenge where the issues and arguments have already been identified and distilled down as a result of the application, the officer’s report, the appeal papers and the Inspector’s report.

And there is always a great deal of time required in putting funding in place to mount a Judicial Review challenge. Indeed there is already a recognition that judicial review costs are already far too excessive for environmental groups to be able to use Judicial Review to address environmental wrongs. Reliance on the Aarhus Convention and Protected Costs Orders are ways in which potential complainants are seeking to still be able to bring their concerns before the courts. Indeed the most recent proposals appear to conflict with measures announced by the MoJ to reduce the cost risk for certain parties of bringing Judicial Review proceedings in environmental cases which do not however alter the fundamental provisions.

The Court of Appeal has modified the criteria for PCOs in planning cases involving points of EU environmental impact assessment law (see R (on the application of Garner) v Elmbridge Borough Council in respect of general public interest requiring an effective review process in environmental cases) and the courts are alive to exploitation of that e.g. R (on the application of Young) v Oxford City Council [2012] EWCA Civ 46 where Richards LJ held that even though the case could broadly be termed an environmental case it did not engage directly effective provisions of EU law.

That said there is a way to reduce the number of Judicial Review applications. Leaving aside the need for clear unequivocal legislation promulgated in a calm and thoughtful manner with transparent guidance and decision making processes (always a given!) I advise local planning authorities (and frequently did when in-house) that the easiest way to avoid sucessful Judicial Review is to make fewer and hopefully no avoidable mistakes in the decision making process.

Take into account that which you should, don’t take into account that which you shouldn’t and don’t act unreasonably or in any of the other ways that prompt challenges e.g. pre-determination, bias, conflict of interest etc.

The rule of law is not something to be toyed with. We are not some tin pot dictatorship (yet) and my own view, for what it is worth, is that the ‘make it up as you go along’ approach will almost certainly lead to more Judicial Review not less. Decision makers will feel emboldened; they will take advice on and ‘weigh-up’ the risk of challenge against the perceived benefits of corner cutting in the drive to make ‘business friendly’ decisions before cracking on regardless safe in the knowledge that they know best. It is in short a spivs’ charter and nothing good will come of it.

But the courts will not stand idly by.

Advertisements and "softly softly" enforcement

Local authorities who initiate enforcement action with a "softly, softly" approach, rather than moving immediately to formal sanctions, will be greatly heartened by the recent decision of the Court of Appeal in Winfield v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415 which has confirmed that time can stop running for a period of continual display of an advertisement without the local authority having served an enforcement notice or commenced proceedings.

The court upheld the High Court's decision (Supperstone J) [2012] EWHC 469 (Admin) on when a material break occurs in the display of an advertisement and the meaning of advertisement within s.336 of the Town and Country Planning Act 1990 holding that:

• Breaks of any duration in the display of advertisements arising as a consequence of threatened enforcement action were material breaks which brought to an end a period of continuous use. The use of the property for advertising was not simply interrupted, it ended. If use recommenced, time started to run again.
• A bare, unadorned structure is not an advertisement within the meaning of section 336 of the TCPA 1990.

The Law

The display of advertisements is controlled by the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (SI 2007/783) as amended by the Town and Country Planning (Control of Advertisements) (England) (Amendment) Regulations 2007 (SI 2007/1739).

Advertisement is defined widely in s.336 of the Town and Country Planning Act 1990 (TCPA 1990) as:

"any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used, or designed, or adapted for use, and anything else principally used or designed or adapted principally for use, for the display of advertisements shall be construed accordingly".

Consent is required from the local planning authority for the display of an advertisement, unless the advertisement is exempt from control or has deemed advertisement consent under one of 16 classes set out under the Regulations. Class 13 allows advertisements to be displayed on a site that has been used continually for the preceding ten years for the display of advertisements. 

The present case

In the Winfield case there was an application for a CLUED for use of the land for the display of advertisements claiming that the land had been used for advertising for more than ten years and so had the benefit of deemed consent under Class 13 of the Regulations. The application was refused on the basis that it had not been proved, on the balance of probabilities, that the structure had existed and been used continually for the preceding ten years for the display of advertisements. On appeal, the Planning Inspector concluded that the removal of the advertising banners, even for a short period, amounted to a material break in the use of the land for advertising purposes and the appeal was dismissed. The High Court refused the subsequent application for an order quashing the Inspector's decision.

In doing so, the High Court distinguished the decision in Westminster City Council v Moran [1999] 77 PLR 294 (which had held that "continually" meant regularly occurring, not continuous and it will be a question of fact and degree whether periods of non-use amount to a material interruption in use) finding that there is a difference between cases where a landowner interrupts its use of land voluntarily and cases where the interruption is because a local planning authority is threatening enforcement action. In the latter situation the advertising use is not simply interrupted, it ends.

The High Court also held that the words "employed, wholly or partly, for the purposes of advertisement, announcement or direction" meant that the structure needed to be used entirely or partly continually for those purposes to be an advertisement. The structure did not constitute an advertisement when it did not support advertising banners.

On appeal to the Court of Appeal, High Court's decision was upheld with the court holding that the reason for an interruption in use is relevant in deciding if there has been a cessation of use. The court agreed with the High Court that there is a difference between a landowner who stops advertising only because of the threat of enforcement action and who resumes as soon as he considers it safe to do so and an entirely voluntarily cessation. It was therefore correct to distinguish Moran. When the advertising was stopped because of the threat of enforcement action, this constituted a material interruption in the display of advertisements and negated a claim that there had been ten years continuous use. An interruption of the nature that occurred here will end continuous use, however short the duration of the interruption. Nothing turned on the use in Class 13 of the word "continually" as opposed to "continuous".

The court also agreed with the High Court on the interpretation of the definition of "advertisement" contained in s.336. The court held that a bare, unadorned structure is not an advertisement and therefore cannot support a claim that there is a continual display for the purposes of Class 13.

The court rejected the claim that the latter part of the definition of advertisement (that an advertisement "includes any hoarding or similar structure used or designed, or adapted for use...") meant that its wooden posts and structure were themselves an advertisement, irrespective of whether they ever carried any material which would be recognised as an advert. When the posts and structure were unadorned, they were not an advertisement within s.336. To accept otherwise would permit a landowner to erect a structure that it intended to use for advertising, but not in fact put anything on it, and after 10 years claim that it had deemed consent under Class 13. The court was quite clear that that cannot have been the intention of the legislation.

Sikhs, suppression and bloody revenge

I recently returned to India with the Memsahib.

We had been several times before and love both the country and its peoples. Indeed, we had spent our honeymoon in India all those years ago. And the circle is about to be squared because our daughter will be honeymooning there later this month.

But this is not the purpose of this post.

On the day we flew out from Heathrow (1st October) I noticed a brief story on the BBC about an attack in London on a retired Indian army general. One of those inevitable coincidences that occur in life, you might say, or is it the case that you just pay more attention when you hear the connector, in this case India?

What really caught my eye was the suggestion that far from the attack being some horrible street robbery gone wrong, there was potentially another more sinister explanation for the attack. It turns out that the officer concerned, Lieutenant General Kuldeep Singh Brar, led the bloody 1984 operation to remove Sikh separatists from the Golden Temple in Amritsar.

Amritsar, it turns out was to be our first stop on the trip, and this news heightened expectations because of course there is a long standing connection between the city and violent events both on the sub-continent and in London.

It is of course the site of what is known as the Jallianwala Bagh massacre which occurred on 13th April 1919. The unfortunate events of that day, ordered by Brigadier-General Reginald E.H. Dyer, led to the deaths of many hundreds of unarmed men, women and children by British army personnel. The site is now a memorial public garden which we visited and saw, rather poignantly, some of the bullet scarred walls retained as a permanent reminder of the tragedy.

Bullet scarred wall Jallianwala Bagh

Bullet shaped memorial Jallianwala Bagh

Brigadier-General Dyer left the army and died in 1927 but that was not the end of the matter.

Udham Singh Kamboj was present at the Jallianwala Bagh that day and witnessed the dreadful events. The British Lieutenant-Governor of Punjab, Michael O'Dwyer had approved Dyer's action and was believed by Udham Singh and others to be the main planner. Udham Singh planned to take his revenge by killing O’Dwyer and eventually travelled to England where on 13th March 1940 he did so by shooting and killing him. Udham Singh was convicted of murder and sentenced to death. He was hanged at Pentonville Prison on the morning of the 31st July 1940. Although buried later that afternoon within the prison grounds his remains were finally exhumed and repatriated to India in July 1974 where he is revered, particularly in Punjab, as a revolutionary and independence fighter.

More recently, there is ‘Operation Blue Star’, the 1984 Indian military operation, ordered by the then Prime Minister Indira Gandhi, and led by General Brar, to remove Sikh separatists from the Golden Temple in Amritsar.

Golden Temple Amritsar

Again many hundreds died in the assault on the Golden Temple complex itself but there were many other deaths to follow. Not least of all Indira Gandhi herself, murdered in a hail of bullets by two of her own Sikh bodyguards on 31st October 1984. One of the bodyguards was killed after both had surrendered and another was subsequently arrested as an accomplice in the murder. Both the surviving bodyguards, Satwant Singh and Kehar Singh were convicted, sentenced to death and hanged in Delhi's Tihar jail.  Following the cremation of Indira Gandhi, millions of Sikhs were displaced and thousands were killed in anti-Sikh riots.

Indira Gandhi statue Shimla

Indira Gandhi is remembered across India. There are many different buildings and institutions named after her. Statues have been erected to her. But in Amritsar I did not see any such public recognition or feel any great affection for her. 

In addition General Arun Shridhar Vaidya, the Chief of Army Staff of the Indian Army at the time of Operation Blue Star, was shot dead in Pune on 10th August 1986 while driving his car home from the market. In 1989, Sukhdev Singh Sukha and Harjinder Singh Jinda were sentenced to death for the killing and were hanged on 9th October 1992.

 

All of these events were faithfully recounted to us by our excellent guide and travelling companion, Vikram Singh Rathore, as we made our way through Punjab, Himachal Pradesh and Delhi. 

Vikram Singh Rathore and friends

We were fortunate enough to be able to visit the Golden Temple or Harmandir Sahib twice. Once to see the temple complex itself during the day and then later that evening to witness Palki Sahib when the Granth Sahib (Holy Book) is carried in procession along the bridge to its "bed" in the Akal Takht. This nightly ceremony provides a chance for male pilgrims and visitors to actively participate in the veneration of the Holy Book as the heavy palanquin is passed along the shoulders of the worshippers.

Palki Sahib

Which I suppose brings me full circle back to London. 

I do not know why General Brar was attacked and will not speculate on the reasons. On 4th October, Scotland Yard announced that they had arrested three people for the attack. Further arrests followed and two men, Barjinder Singh Sangha and Mandeep Singh Sandhu, were, on 8th October, charged with wounding with intent to do grievous bodily harm on the general. Barjinder Singh Sangha was also charged with common assault on the general's wife, Meena.

Westminster magistrates remanded them in custody and adjourned the case to 7th December when they are due to appear at Southwark Crown Court. These matters will fall to be considered by judge and jury applying due process but of one thing I am certain. Whatever the outcome, there will be no hanging.

UPDATE 1st August 2013 – The BBC reported that Mandeep Singh Sandhu, 34, of Birmingham, Dilbag Singh, 37, and Harjit Kaur, 39, of London were this week convicted at Southwark Crown Court of wounding with intent. Barjinder Singh Sangha, 33, of Wolverhampton, had admitted the charge. The trio, along with Singh Sangha, will be sentenced on 19 September.