Forum Topic

Planning Manager - wrong in law again?  (TVU case)

Once again (please see the other posting re. the Hanwell case), the new Planning Manager directly acting for Head of Planning, Aileen Jones, has expressed a legal opinion, which it seems at the least is highly misleading if not simply wrong!In the TVU Ealing case, a certain area of land was required to be landscaped after demolition of all existing structures and the Council imposed a planning covenant on the burdened land to ensure this would be the case. The TVU now want to breach the restriction in order to develop and build housing on the open land.Neighbours pointed out to the Council that there is a Legal Agreement in force imposing a covenant on the land which obviously precludes use of the same land for housing.  The Planning Manager, Adrian Harding, recently wrote to one of the neighbours asserting that a new planning permission would effectively override the terms of the existing Legal Agreement and thus it would cease to have any legal effect. Mr Harding cited a Prudential court case to support his assertion.Mr Harding wrote:"....the local planning authority is required to determine the submitted application in accordance with the development plan for the area and taking account of any other material considerations. The implications of existing restrictive legal agreements in respect of the determination of later planning applications has been considered by the Courts. In Prudential Assurance Co Ltd v Sunderland City Council and Peel Investments (15/7/2010) the Courts found that the later grant of planning permission started a new chapter in the planning history of the site and that the earlier restrictions did not continue to apply. Therefore, if the local planning authority were to grant planning permission for the residential development proposed at the University of West London, having reviewed the proposal in the light of relevant development plan policies and all other material considerations, then the earlier legal agreement would no longer be of any effect. It is therefore not necessary for the University to formally apply to have the section 106 legal agreement removed....".But what Mr Harding did not say is that in the case he cites "Prudential Assurance Co Ltd v Sunderland City Council and Peel Investments", the Agreement there specificially envisaged that a new development could displace the status quo and that the terms of the Legal Agreement would thus be rendered ineffective. As far as I know, this is not the case in the Ealing TVU Agreement.I have just received the following comment from Gerald Moran, Solicitor in Lincoln's Inn on the assertion by Mr Harding and disputing it:"By clause 2.2 of the section 52 agreement there was an obligation that within a certain timescale the Developer (or its successor) would carry out landscaping in accordance with planning condition 8 "and thereafter retain such landscaping to the satisfaction of the local planning authority". Presumably it was thought than an agreement binding the land about this would add something to the requirement of planning condition 8 for replacing trees or plants which die or are removed within the first five years etc.Doubtless the development envisaged now is inconsistent with retaining the landscaping devised for the 1992 permitted development. It is understandable if the Council in its capacity as holder of the agreement may decide not to seek to enforce the obligation to certain landscaping that no longer satisfies a planning purpose.However, I do not go so far as Mr Harding who asserts that the section 52 agreement has ceased to have an legal effect. He relies on R o/a Prudential Assurance Co. Ltd v Sunderland City Council.  You will see at para.3 of the attached copy decision that clause 3 of the 1988 agreement made clear that, save for one exception, nothing in the agreement would prohibit or limit any development to be carried out in accordance with some future planning permission (on which the council would be able to consider the planning merits).  The Judge refers to this at para. 30 as being critical to the case and only capable of having one meaning.Although the 1992 agreement has the usual provision to make clear that it would not fetter the powers and duties of the council in particular as planning authority, I do not see anything to say that development under a new planning permission could be carried out even if inconsistent with some obligation under the agreement (such as permanent retention of landscaping)."The Judgment referred to can be seen at the following URL:https://dl.dropboxusercontent.com/u/14377445/R%20Prudential%20v%20Sunderland.pdfThis is the second occasion that the new Planning Manager has given legal pronouncements that do not appear to be correct!  The problem is (as well demonstrated in the recent Hanwell case) that Members of the Planning Committee rarely question what they are being told by officers and hence serious mistakes can occur to the detriment of both neighbours and the local enviornment.

Victor Mishiku ● 4154d8 Comments

I am so pleased the Planning Committee refused the application by the University of West London to remove the green, part wooded & protected area to replace it with intensive buildings.The university wanted to expand their Student’s Union building over 20 years ago.  Since they had exceeded their building to open space due to intensive building, a Planning Condition was required for this expansion: an area know as the Mandela site needed to be landscaped for the visual amenity of residents and the public as a whole.  Ealing Council failed to enforce this condition and it has now lapsed – unenforceable. Residents however asked for a Legal Agreement to ensure the area was landscaped.  This agreement still stands but not yet implemented.  Now it is time the university honoured their solemn promise to landscape the Mandela site.Since the time of the Legal Agreement over 20 years ago, the university has build more intensively including taking up valuable open space.  The university had planned to destroy the only precious little open, green and wooded area remaining on the site.Can the university be trusted now to honour their solemn agreement or will they try for a third time to negate on their promise to landscape the Mandela site by putting in another planning application?

Joel Mahair ● 3948d

Well done Victor and Gerald.This Council needs to go - they are hell bent on ruining our borough.  Friars Green in Acton is common land and Catalyst Housing propose taking it to enclose on their estate - the Council clearly back that idea.  We shall fight it tooth and nail.

Angela White ● 3957d

Bravo!It just shows how you have to be on the ball.

Philippa Bond ● 3957d

I am very pleased that the Planning Committee did not disregard the very valid issues raised about the Legal Agreement previously referred to, at Committee tonight (24th June 2015) when the Application was REFUSED.The Committee heard Cllr. Nigel Sumner confirm that the Legal Agreement in respect of the open space to be landscaped, etc was signed by The Mayor on behalf of the whole Council and that it should be respected.Another Councillor expressed concern about setting a precedent that developers could just totally ignore such planning legal agreements. Other Councillors were concerned about there being too much on the whole University land with little open space to soften the impact of all the new buildings.The application was REFUSED on the grounds of "Loss of Green Space" and that the development as proposed "would fail to preserve or enhance the character and setting of the Conservation Area", as required by law.24/6/15

Victor Mishiku ● 3959d

Dear Mr MahabirThank you for your further information in your above posting on the Forum.I note that Mr Adrian Harding has not corrected the misinformation he supplied to you to the effect that the extant Legal Agreement would "cease to have any legal effect" if Conditional Planning Permission was granted to build on the open green area protected by the covenant in the Legal Agreement and the grant of permission meant that "a new chapter" had opened up automatically negating the extant Legal Agreement.In these claims, Mr Harding cited a legal precedent.  However, as pointed out by Gerald Moran, that case is not on all fours with the TVU situation by any means.I suggest that you follow this matter up with Mr Harding's superior officer, Ms Aileen Jones, Head of Planning LBE. Aileen.Jones@ealing.gov.uk if you have not already done so, otherwise Mr Harding will do it again when the next case comes up on the TVU land!

Victor Mishiku ● 4046d

Mr Mishiku is entirely correct in his article.  I was the resident who complained to the council over their unwillingness to enforce the Section 106 legal agreement compelling the university of West London to complete the landscaping of an area for the visual benefit of residents.  The university has felled trees illegally, removed shrubbery and gravelled over much of the land, which is being used as an illegal car park.  This area could easily be a nature reserve, yet it has been made to look ugly to help gain planning permission to build on the site.  Mr Harding of Ealing Council told me that if planning permission were to be given, the legal agreement will be ignored.  Mr Mishiku kindly researched the matter with solicitors and found Ealing Council to be wrong.  Mr Harding has not apologised to me.It appears Ealing Council wants to pass a planning application by the University of West London to remove the protected landscaped area of mixed woodland and shrubs and to replace it with luxury houses, even though the application has not yet been considered.  The university is a multi-million pound organisation that consistently and regularly came near the bottom of the education league in the past.  Ealing Council has granted planning permission to the university for anything they wanted to the detriment of local residents.  The council also refuses to impose fines on the university for felling tress illegally in a conservation area while, at the same time, they fined an individual for cutting down a tree in his garden.  It is strange that the logo for Ealing Council is a tree yet Ealing Council wants to remove a protected green area in favour of supporting a large failing institution.We need many, many small green spaces scattered around the borough.  This helps alleviate depression and respiratory conditions.  Clearly Ealing Council is biased towards the university and not residents.  With a general election coming up, this may be a good time to question loyalties to main steam political parties in favour of a protest vote for lack of local support.

Joel Mahair ● 4064d

Dear Mr MahabirSometime ago, I recall that you contacted me about the supposed cessation of the Legal Agreement (TVU case) and the legal advice passed to you by LBE Planning Manager, Mr Adrian Harding, which Mr Gerald Moran (Solicitor with 40 years experience on property law) did not agree with, nor did I.I wonder if you have since received a corrected legal opinion since Mr Harding's error was discovered?  If not and if you do not challenge this with Mr Harding's superiors, then this error may well be compounded and not only in your case, causing other miscarriages of planning procedures!In a separate posting re. the Hanwell case where the Planning Committee was unfortunately misdirected by the new LBE Planning Manager (Mr Adrian Harding), you will note that Ealing Council is now supposed to be subject to the new Government directions set out in the "Local Government Transparency Code 2015". Please see this 40-page document at: https://db.tt/TN5PpzaOThis is clearly designed to assist local people's participation in the decision-making process and to open up the Council to greater transparency (and whether they like it or not!).Please let us know how the matter stands?Regards,Victor Mishiku 8/3/15"The Covenant Movement"vmfree@madasafish.com

Victor Mishiku ● 4067d

May I correct typing/text errors in the extract of my original posting of Gerald Moran's advice.  This should have read:"By clause 2.2 of the section 106 agreement there was an obligation that within a certain timescale the Developer (or its successor) would carry out landscaping in accordance with planning condition 8 "and thereafter retain such landscaping to the satisfaction of the local planning authority". Presumably it was thought that an agreement binding the land about this would add something to the requirement of planning condition 8 for replacing trees or plants which die or are removed within the first five years etc.Doubtless the development envisaged now is inconsistent with retaining the landscaping devised for the 1992 permitted development. It is understandable if the Council in its capacity as holder of the agreement may decide not to seek to enforce the obligation to certain landscaping that no longer satisfies a planning purpose.However, I do not go so far as Mr Harding who asserts that the section 106 agreement has ceased to have any legal effect. He relies on R o/a Prudential Assurance Co. Ltd v Sunderland City Council.  You will see at para.3 of the attached copy decision that clause 3 of the 1988 agreement made clear that, save for one exception, nothing in the agreement would prohibit or limit any development to be carried out in accordance with some future planning permission (on which the council would be able to consider the planning merits).  The Judge refers to this at para. 30 as being critical to the case and only capable of having one meaning."~~~~~~~~~~~~~~At last night's Scrutiny Committee (Planning), both my complaints in the Hanwell and Ealing case were reported to the Committee in the "Briefing Notes" (copies were not made publicly available).  These papers are "Background Papers" and are disclosable under the provisions of the "Access To Information Act (1985)", which pre-dates FOI provisions.  Similar "Briefing Notes" are produced for the Planning Committee Meetings and are always available along with hard copies of the Agenda containing all the application reports and Minutes of the previous Committee Meeting.The TVU Section 106 Agreement is quite different to the one that was the subject of the Prudential law case cited by the LBE Planning Manager since it does NOT contain the specific provision that was contained in the Prudential Legal Agreement.Thus, the fact that a new planning application may be made and granted does not negate the Legal Agreement, which is a Land Charge and would show up on searches. When the Legal Agreement was made, it was because the TVU were building elsewhere on their plot and the Council required demolition of old structures on the area of land now under threat of development.  The TVU got their new development but this land in question was to be cleared and then retained with landscaping "in the interest of the local environment".It seems that the TVU want to have their cake and eat it too!N.B.  A developer may apply to the Council under section 106A of the Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) for a variation of a Legal Agreement.  If declined, then an appeal may be made to the Secretary of State.In older Legal Agreements (then made under section 52), a developer could apply to the Lands Tribunal [now the Upper Tribunal (Lands Chamber)] for a variation.If it were the case, as Mr Harding suggests, that a new planning permission would start "a new chapter" and that the extant Legal Agreement ceases to have any effect, then one wonders why section 106A exists? Likewise section 106B?A copy of the original TVU Legal Agreement can be seen at the following URL.https://dl.dropboxusercontent.com/u/14377445/Legal%20Agreement_3rdSeptember1992.pdfMy original posting has the URL for the Prudential case law report.

Victor Mishiku ● 4153d