Saturday, April 30, 2016

Enforcement notice served out of time is quashed


The case of R (Stern) v. Horsham District Council [2013] EWHC 1460 (Admin), in which judgment was given by Leggatt J on 1 May 2013, is a salutary reminder to LPAs and their officers of the need to ensure that statutory requirements in connection with the service of enforcement notices are strictly adhered to.

Section 172(3) of the 1990 Act provides that a copy of an enforcement notice must be served on the owner and on the occupier of the land to which it relates, and on any other person having an interest in the land (being an interest which, in the opinion of the LPA, is materially affected by the notice) not more than 28 days after the date on which the notice is issued, and not less than 28 days before the date on which it is to take effect.

In this case, two enforcement notices were issued on 6 December 2011, and specified 4 January 2012 as the date on which they were to take effect. To comply with section 172(3) the notices would need to have been served at the latest on 7 December 2011. The notices were in fact served on 9 December 2011, i.e. less than 28 days before the date specified in the notices as the date on which they were to take effect.

The claimant immediately instructed an agent to lodge an appeal under section 174, but due to some delay on the part of the claimant’s agent, and with the intervention of the Christmas and New Year holidays, the appeal did not reach the Planning Inspectorate until 4 January 2012, i.e. the day on which the enforcement notices took effect. This was a day late, as the appeal must reach the Planning Inspectorate no later than the day before the notice takes effect. The Planning Inspectorate has no power to extend time for appealing, and so there could be no appeal against these enforcement notices.

In the circumstances, the claimant sought to persuade the council to withdraw the enforcement notices and reissue them so as to give him the opportunity to appeal. However, the council refused to do so, and the claimant applied to the High Court by way of Judicial Review, seeking an order quashing the enforcement notices on the grounds that they had been served out of time (i.e. less than 28 days before they were due to take effect).

The claim for judicial review proceeded on two grounds. It sought first to challenge the validity of the enforcement notices, by reason of their late service. In the alternative, the claimant argued that, if the enforcement notices were valid, the council acted unlawfully in refusing to withdraw and re-issue the notices when the fact that the notices had not been served in accordance with section 172(3)(b) of the 1990 Act was pointed out to the council.

The council sought to defend its position by contending that the claimant could have ensured that the appeals reached the Planning Inspectorate by 3 January. They further argued that section 174(2)(e), when read together with section 285, has the effect that the validity of the enforcement notices issued in this case could not be questioned in any proceedings whatsoever on the ground that they were not served on the claimant within the time required by section 172(3). Therefore, they claimed, the claimant could not challenge the validity of the enforcement notices on that ground in these proceedings or in any other proceedings.

Leggatt J held that, interpreted in the context of the legislative scheme as a whole, the words of section 172(3) must, to avoid unfairness which cannot reasonably have been intended and to make sense of the scheme of the legislation, be interpreted as referring only to a situation where copies of the enforcement notices were not served at all as required by section 172. On this ‘narrow’ interpretation, Ground (e) in section 174 of the 1990 Act (alleging non-service of the notice) does not cover a situation where, as happened in this case, copies of the enforcement notice were served on the persons specified in section 172(2) but not within the period specified in section 172(3). Thus the preclusive provisions of section 285, on which the council relied, did not prevent the defective service that had occurred in this case being challenged by way of judicial review.

The claimant also ran an argument under Article 6 of the ECHR (the right to a fair trial). Article 6 applies to planning determinations including the issue of enforcement notices and, in the light of the decision of the House of Lords in the case of R (Alconbury Developments Limited) v Secretary of State for Environment [2003] 2 AC 295, this brings section 3(1) of the Human Rights Act 1998 into play (which states that "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."). His lordship pointed out that the interpretative obligation imposed by section 3(1) is a strong obligation. It requires that the more favourable interpretation of section 174(2)(e) must be adopted unless it is plainly impossible: see e.g. R v A (No 2) [2002] 1 AC 45. The interpretation of section 174(2)(e) that was more favourable to the claimant must accordingly be adopted in order to achieve compatibility with Article 6 of the Convention.

On the question of the exercise of the court’s discretion, one of the causes of the failure to appeal in time was the councils breach of statutory duty. That being so, the claimant had been substantially prejudiced by the councils breach of duty (as well as by the fault of his own agent). Hence, this was not a case where the Court should decline to make a quashing order.

Although, in view of his other findings, it was unnecessary for him to adjudicate on the claimant’s alternative argument (that, if the enforcement notices were valid, the council acted unlawfully in refusing to withdraw and re-issue the notices when the fact that the notices had not been served in accordance with section 172(3)(b) of the 1990 Act was pointed out to the council), Legatt J indicated that he would also have found in favour of the claimant on that ground.

What I really don’t understand about this case is why on earth Horsham didn’t just withdraw the enforcement notices as requested. Even if they had been issued and served right at the end of the four-year period, the council would still have another four years in which to issue and serve fresh notices under the ‘second bite’ provision – section 171B(4)(b). OK, so that would give the claimant a right of appeal under section 174, which they would otherwise have lost, but so it should. A theme which runs right through the judgment of Leggatt J is the need for fairness. It would be manifestly unfair for the council to seek to take advantage of their own procedural mistake to deprive the claimant of their right of appeal.

© MARTIN H GOODALL

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The government’s current consultation on further changes to the planning system, coming on top of all the other changes made by this government and their predecessors, has prompted a number of people (including me) to call for a more fundamental review of the whole planning system, so as to sort out the dreadful mess that the politicians have made of the planning system.

The latest contribution to the discussion has come for Leonora Rozee, one of the most highly respected members of the planning profession who, before her retirement, was effectively the Chief Planning Inspector (although without the formal title which her role should by rights have had). Writing on the RTPI’s discussion forum on Linked-in this week, she said:

We are rapidly reaching the stage where no-one will actually have any idea of what our English planning system is any more. (Have we already reached it?). The only sensible solution is a wholesale review from top to bottom of why we need a planning system and what it needs to comprise, with the result set out in a single Act supported by such regulations, policy and guidance as are necessary to enable all to understand it. We now have a complete mess as successive governments have fiddled and changed what is there without thinking through exactly what it is they are trying to achieve - other than the much expressed desire for a simpler system with increased community involvement! If this Government want to get rid of it completely, then be honest and do so - not death by a thousand statutes, regulations, policies and guides.

I absolutely and whole-heartedly agree with those sentiments. I have often said that we need to take a sheet of plain paper and start again. On reflection, though, I don’t think we need entirely to re-invent the wheel. Lewis Silkin’s 1947 Act (shorn of its attempt to nationalise the development value in land) was a fine piece of work, the basic structure of which is still at the core of our planning legislation. It is all the detritus that the legislation has acquired in the subsequent 65+ years (and particularly in the past 20+ years, since the legislation was last consolidated in 1990) that is the problem. I tend to think of it like a ship that has gradually picked up numerous barnacles and other marine growth, so that now it can barely make headway through the water. The hull is still sound, but the ship badly needs its bottom scraped to remove all the accumulated muck and rubbish.

At the same time, there is a case to be made for codifying the leading judicial authorities on planning issues which have come to be recognised as an important component of our planning law. Just to take one example, the concept of the “planning unit”, which was definitively established by the judgment in Burdle ought to be written into the new Act. I was also going to suggest that the concept of “curtilage” should also be defined by the legislation. The formulation proposed in Sinclair-Lockhart’s Trustees would be the basis of this definition, as refined by Skerritts of Nottingham and by Sumption. However, we should perhaps remove the concept of “curtilage” from the legislation altogether, and substitute the planning unit as the area of land to be referred to in what is currently section 55 of the 1990 Act, and in Part 1 of the Second Schedule to the GPDO, as well as various other places in the planning legislation (both primary and subordinate) where the word “curtilage” is currently used.

There are numerous other examples of judicial authorities that ought to be written into the legislation, and I know from correspondence I have had with Dr Charles Mynors that he, and others, are very much in agreement on this point. Just such an exercise was carried out over a century ago, leading to the Sale of Goods Act 1893. We should certainly be capable of carrying out a similar exercise in relation to planning law in the early 21st century.

The problem, I fear, is that politicians simply do not see such an exercise as a vote-winner. They are only interested in gesture politics, ‘quick fixes’ that can be spun as dynamic action in a press release (so that the electorate can, they hope, be made to believe that ministers are ‘doing something’) but which achieve nothing in reality, beyond further complicating an already over-complicated planning system.

Nonetheless, I live in hope. If enough people tell the politicians that this is the real problem, and that the politician who really tackles it will go down in history as one of the great reformers (as Lewis Silkin did), then maybe they will finally grasp the point and tackle it.

© MARTIN H GOODALL
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Cursing those big wakes

LIKE MOST PEOPLE who have gotten used to traveling slowly in sailboats, I have often been angered by the irresponsibility of powerboaters who drag large, dangerous wakes behind them.

Let me say straight away that this is not a rant against powerboaters per se. There are considerate powerboaters and inconsiderate ones, and while I’m quite sure the former vastly outnumber the latter, the memories of the latter are what stick in my mind.

I’ll never forget something Robert Hale, of Seattle, once wrote. He was the former respected publisher of the annual Waggoner Cruising Guide for the waters of the Pacific Northwest of the USA. In the 2003 edition he wrote:

“Shortly after going from sail to power, I came to understand what I call the First Rule of Powerboating: Never Look Back.

“Because, if we powerboat skippers would look back, we would be appalled at what we do to other boats.”

Coming from a powerboater, that was a very honest and refreshing statement. It actually inspired me to invent a curse for sailors to use when faced with enormous wakes that inconvenience other boats and even threaten to capsize or swamp smaller vessels.

It’s a curse that might help you to vent your fury harmlessly in circumstances where you might otherwise be tempted to reach for your rifle and let Nature take its course. This, in fact, is one of four examples in a chapter devoted to curses in my book How to Rename your Boat — and 19 Other Useful Ceremonies, Superstitions, Prayers, Rituals, and Curses.

This is what I wish for the powerboat wash-hogs, or PAFIs as I call them.*

A CURSE FOR LEAVING A LARGE WAKE

Woe to you, thou beslubbering speedhog!

May your filters choke and your injectors freeze.

May every ill befalling a boat bring you to your knees.

May you run out of whisky, and ice cubes, too.

May there be no more pleasure for you or your crew.

May all your bronze tarnish and your varnish all flake.

May your batteries die and your propellers shake.

May your anchors drag and your bilges overflow.

May you rot in a hell where they make you go slow.

Curse you! Curse you! My curse be upon you wherever you go!

*Power Assisted F...ing Idiots 

Today’s Thought

I sent down to the rum mill on the corner and hired an artist by the week to sit up nights and curse that stranger.

— Mark Twain, A Mysterious Visit

Tailpiece

It’s too bad that by the time we get old enough not to care what anybody says about us, nobody’s saying anything about us.
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Sam Sickles Steelhead Outfitters Open Dates

Steelhead Outfitters - Open dates for October and November

Guide Service: Steelhead Outfitters

Guide Name: Sam, Marni Sickles

Guided Rivers: Deschutes, Sandy, Clackamas

  • October 19th, 20th, 23rd, 25th, 27th, 28th

www.steelheadoutfitters.com
PO Box 115 
Hood River, OR 97031 
samsickles@gmail.com 
(541) 400-0855


Book your day(s) quick while they last.

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In order to help out some of our visitor that also participate and looking for d4 dinghy plans free in this great past-time, I decided to go above and beyond and include simple, easy-to-follow, step by step instructions with all of d4 dinghy plans free. Since I don't have the time to mentor every person I meet that is interested in learning to build boats, I felt like this was the best way to give back.

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Amalgamating two or more dwellings 2


Those of you who follow the comments on various posts in this blog may have seen that Andy Rogers contributed a comment on my previous piece about the amalgamation of dwellings to form a single enlarged dwelling, in which he drew attention to another appeal decision in London last October that led to the opposite conclusion to that reached in the appeal on which I reported in my last article.

For reasons that I shall explain, I do not see any inconsistency between these two appeal decisions. I made it clear in my first article that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use. A decision on this issue must necessarily depend on the facts of each case and on the relevant policy considerations that apply in that situation. I appreciate that people may be uncomfortable (as I am myself) with the proposition that what should in principle be an objective judgement as to the lawfulness of a change of use should be dependent in any way on the consideration of planning policies but, in light of the Richmond judgment, this would appear to be unavoidable in these cases.

The appeal to which my attention has now been drawn (3028049) was in the Royal Borough of Kensington and Chelsea and involved the amalgamation of two self contained flats to form one self contained residential unit, involving internal alterations. The appeal site was a mid-terraced property that was originally two houses, which had been amalgamated into one dwelling in 1949 and the building was subsequently converted into flats. The proposal involved the amalgamation of the flat at ground floor level and the flat above it on the first floor so as to create a single residential unit.

The main issue was whether the amalgamation of the two flats to create one residential unit would constitute a material change of use. The amalgamation of the two flats would have no material effect on the external appearance of the property and no harm would be caused to the character of the building or to the surrounding area. The Council did not allege that the proposed amalgamation of the two flats would have any effect on the character of the use of land other than through the loss of one residential unit. However, they argued that the “…scale of amalgamation currently under way in this Borough is having a material effect on a matter of public interest, namely it is significantly reducing the number of dwellings in the housing stock”.

The Inspector pointed out that prior to 2000 it was commonly accepted that a reduction in the number of dwelling units on land in residential use did not represent, and could not contribute to, a material change in use of the land. [Although it was not spelt out in the decision letter, this was by reason of the operation of section 55(2)(f) in the 1990 Act.] However, the judgment in the Richmond case, cited in my previous article, modified that view, and the Council sought to rely on this judgment in resisting the grant of an LDC in the present case.

The Inspector drew attention to the reference in the Richmond judgement to Mitchell v SSE [1994] 2 PLR 23, although it has always seemed to me that Mitchell was only of marginal, if any, relevance in the context of the Richmond case, because it dealt with an application for planning permission and was concerned with the material considerations that had to be taken into account under section 70, and so it would not appear to me to have been an appropriate foundation on which to base the judgment in Richmond (although that judgment might perhaps be justified on other grounds that do not depend on Mitchell, for example the passage I quoted in my last article from the judgment of Lord Denning in Wakelin). Nevertheless the Inspector accurately quoted the relevant passage from Richmond: “It is undoubtedly the law that material considerations are not confined to strict questions of amenity or environmental impact and that the need for housing in a particular area is a material consideration...…”. But he pointed out that, in order for it to be a material consideration, the need for housing must be expressed in and supported by local planning policy.

The Inspector observed that the High Court challenge in Richmond was successful because the Inspector in that case had failed to take into account a material consideration, namely the policy factor, which he considered to be “…a question of planning merit than of law”. The Inspector in the present case stated (correctly, in my view) that Richmond did not establish that the policy factor can be the sole determinative factor in an LDC case but one that must be taken into account with all other considerations. But, in the instant case, the Council was wholly relying on the policy factor.

The Inspector nevertheless, went on to consider whether this was a material consideration of any weight. Policy CH 2 ‘Housing Diversity’ of the Council’s Core Strategy (CS) states that the Council will, amongst other things, resist development which results in the net loss of five or more residential units. The proposed amalgamation of the two flats would result in the loss of only one residential unit. So the proposal did not conflict with CS policy CH 2. Saved policy H17 of the Council’s Unitary Development Plan (UDP) states that the loss of existing, small, self-contained flats of one or two habitable rooms will be resisted. Both flats had more than two habitable rooms, so the proposal did not conflict with UDP policy H17.

Policy 3.14 of the London Plan states, amongst other things, that the loss of housing should be resisted unless the housing is replaced at existing or higher densities with at least equivalent floorspace. The London Plan is a strategic plan and places an emphasis on the increase or preservation of residential floorspace rather than the number of housing units. This strategic objective is reflected in the LPA’s Core Strategy, but the relevant policy in this element of a local plan was considered in the passage in the decision letter referred to above. The proposed amalgamation of the two flats would not result in any loss of residential floorspace. The proposal did not therefore conflict with London Plan policy 3.14.

The Council had referred to similar LDC cases in a neighbouring London Borough but planning policy in place (or planning decisions made) in that area could not be imported to support the Council’s case. The scale of amalgamation in Kensington & Chelsea may be having a material effect on the number of dwellings in the housing stock but the proposed amalgamation of the two flats did not conflict with CS policy CH 2, UDP policy H17 or London Plan policy 3.14. The policy factor in this case, given that there was no policy conflict, was a material consideration of no weight. Given that the Council accepted that no harm would be caused to the character of the building or to the surrounding area, the proposed amalgamation of the two flats to create one residential unit would not, as a matter of fact and degree, be a material change of use that would constitute development as defined in Section 55 of the Act. Planning permission was not therefore required for the proposed use. The section 195 appeal thus succeeded, and the Inspector issued the requisite LDC.

I have no doubt whatsoever that this appeal decision is entirely compatible with the judgment in Richmond, and it clearly demonstrates the limits of what might be called “the rule in Richmond”. Re-reading that judgment myself while preparing this article has brought home to me the strictly limited application of that rule. One can see why it was applied in the appeal that I reported in my previous article, and on the facts of that case, that Inspector’s decision was also correct. In fact, my statement that the amalgamation of two dwellings (or in some cases, perhaps, more than two) will not automatically be a material change of use should perhaps be qualified, by saying that it will not be a change of use in the absence of clear policy objections, and that this in turn will depend the nature and scale of the proposed amalgamation. Clearly the amalgamation of only two residential units is going to be of less significance in policy terms than the amalgamation of a larger number of existing flats or houses, and is therefore rather less likely to be material in planning terms. Ultimately, of course, it is going to be ‘a matter of fact and degree’ in each case, taking all material considerations into account.

© MARTIN H GOODALL

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Friday, April 29, 2016

Weekly Fishing Reports February 16th

Weekly Fishing Report

Gorge Fly Shop Weekly Fishing Reports


"Fly Fish the World with Us"




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A Big Flippin Deal

For months Ive been wanting to flip the boat hull so I can start working on the topside. This is no easy feat as the thing is 8 foot wide by 20 foot long. It will take at least 12 people to flip it safely and lift it onto the trailer. I originally planned it for late last year but the scheduling didnt really work for people, and honestly there was a lot of stuff, particularly with the trailer, that could be done before the boat was flipped.


So here we are in early spring, and its time to flip the boat.  I sent out an invite to a few friends who I love working with or who had been dying to come see/work on the boat.

"There will be good beer (and rootbeer) and BBQ sausages and veggie burgers. It will be fun and harrowing and crazy. We will all feel like Superpeople at the end of it. Id like to find the weekend day that you can make it. If it doesnt sound like something you are into or are too busy, feel free to pass with no guilt."

I found a weekend that most everyone could make. I made arrangements with the nearby fire station for parking so we wouldnt be overrun by cars on Lawrences farm. Jen offered to run a shuttle back and forth.


This is the Final Details email that went out to the dozen friends who were planning to come:
"The Plan: We will be flipping the boat shortly after noon.  So maybe we will have a quick snack, a beer to calm our nerves, and discuss The Plan.  We will stand the boat on its side, then lower it down on its hull, then after we catch our breath, lift and carry the boat to the boat trailer. By the way, Ive seen video of a dozen people flipping the hull of this boat, so Im reasonably confident that this is possible."

It was important to me that this be a social and rewarding experience. The farm where the boat is being built is one of the most beautiful places in the world to hang out on a sunny day and I wanted to share that with my friends in style.
"BBQ and celebration: After the boat is flipped and safely on the trailer, we can celebrate with a BBQ!  Ill make sure there are sausages and veggie burgers and some beer at the BBQ. If you want, you are welcome to bring other BBQ/picnic style items.  Suggestions: hot dogs, chips, your grandmas potato salad, fancy homebrew, fruit salad, pie/cobbler, corn-on-the-cob, coleslaw, and sauerkraut."
Id checked in with the land owner and indeed they had some (gentle) reservations. I prudently added this to the communication with the Boat Flippers:
"Fine Print: The land owner may have concerns that someone will be crushed on his property (though I think it is unlikely), so I might ask you to sign something to release my generous boat-landlord from liability. Hope that works for you. I really want to work hard to respect any concerns that Lawrence and his family might have."

The day was bright and sunny, a perfect spring day. Jen shuttled people from the parking site. People arrived promptly, signed a release, and had a snack and a beer.


We took a while going over The Plan.  We talked about safety and how we wanted to protect our precious soft little bodies. We even demonstrated with our hands as a visual aid, precisely where everyone would stand as we flipped the boat.



At the end of our discussion about The Plan, just before we sprung into action, I asked the most important question:
"If any of you are thinking something right now, that later, after everything goes horribly wrong, you might say Yeah, I was wondering about that, or I thought that might be a problem, I urge you to share it with us now."
There were no strong concerns or reservations and so we sprung.


We fiddled with the trailer to make lifting the boat onto it easier and safer. We brought the tongue down and put a tire over the hitch mechanism to protect the hull.


We got into places with some butterflies in our tummy.


We went over The Plan one more time.



Jen had an important role.  She was responsible for making sure the hull landed on the tires that we had laid out to receive the boat.




Okay, wait, one more time. Just making sure we got The Plan.



With a count of ONE-TWO-THREE-LIFT! we lifted the hull to a vertical position.




At the ends, we needed people responsible for keeping the hull upright while everyone else transitioned to the other side.


 Alex and Myriam were at one end.  Kai and Frank were on the other.


Meanwhile, everyone else went around to the other side and prepared to lower the boat. James, Mikey, Charlie, Jason, Jeremiah, Baerie, and I.


Another countdown and we were slowly slowly lowering this crazy heavy object from a vertical position (which somehow seemed gnarlier than lifting it).



There was some concern that the bottom would kick out as we lowered it, but it didnt.




High-fives all around.


Now we took a deep breath and prepared ourselves for lifting the boat onto the trailer.


 How heavy will it be? Who knows?


Will we even be able to lift it? Hopefully, but we dont really know.


Someone suggested a test lift. Good idea! Lets see how heavy it is by just lifting it a little bit. We will lift it and then put it right back down.  Okay, ready, lift!


And up it goes! Its not a million pounds! This is do-able! Someone suggested (probably me), Fuck it, lets just do it. So we do it.


We lift and carry it to the trailer.


And on the trailer it goes.

Later, several people tell me that there werent really enough people at the front. So they werent up there thinking, "Oh, how light! How nimble!"  They were up there thinking, "Arrrggghhh! What happened to the Test Lift?"

Again, I am reminded -- as if I should need another reminder -- about the importance of sticking with The Plan.



A round of celebratory Boat Boarding! Kids, dogs, everyone!  Hadasa, Nitzi, and Ziva were the little ones who joined us on Boat Flip day.



And now its time for barbecue!



Kai and Hazel warmed up the BBQ.



After a few beers, it seems imperative that the boat building form must be removed from the boat right now.



More high-fives!


And we hang around for another several hours stuffing ourselves with sausages, cobbler, Baeries homemade cider, and beer.

Thanks to awesome friends who made this not only possible, but tremendously fun, my favorite boat work day so far. And thanks to Madrone who was official photographer for the day.

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Get Small Dinghy Boat Plans

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Small Dinghy Boat Plans



In order to help out some of our visitor that also participate and looking for small dinghy boat plans in this great past-time, I decided to go above and beyond and include simple, easy-to-follow, step by step instructions with all of small dinghy boat plans. Since I don't have the time to mentor every person I meet that is interested in learning to build boats, I felt like this was the best way to give back.

The illustrated small dinghy boat plans that I've created are of such high quality, that those that I've shared them with have said it's just not right to keep these stashed away in a private archive only to be seen by a select few. The plans for small dinghy boat plans offered here on the website are based upon my many years of boat building experience, you'll find no better source of information and proven boat plans anywhere on the internet!

>> Get small dinghy boat plans here <<
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