Environment
Designation - National Parks - opportunities for open air recreation
Meyrick Estate Management Ltd v Secretary of State for the Environment, Food and Rural Affairs: CA (Civ Div) (Lords Justice Chadwick, Wall, Lloyd): 1 February 2007
The Secretary of State for the Environment appealed against a decision [2005] EWHC 2618 (Admin) quashing in part an order confirming the designation of land in the New Forest as a National Park.
The Countryside Agency had made an order under the National Parks and Access to the Countryside Act 1949, designating the New Forest as a National Park. The respondent estate management company (M) lodged an objection to the designation order on the basis that some 800 acres of the estate, which M managed, should be excluded from the designated area on the grounds that it did not meet the criteria of natural beauty and opportunities for open-air recreation prescribed in section 5(2) of the Act.
An inspector conducted a local inquiry with the assistance of a landscape assessor. The assessor and inspector concluded that the land in contention met the natural beauty criterion and that it did afford opportunities for open-air recreation, despite the fact that it did not include rights of way or access land. Therefore, he rejected the objection to inclusion.
The judge quashed the order in respect of the land in contention on the ground that the inspector had applied the wrong tests in respect of natural beauty and open-air recreation. The secretary of state submitted that the phrase 'opportunities... for open-air recreation' in section 5(2)(b) of the 1949 Act included opportunities that might exist in the future.
Held, the inspector had given too wide a meaning to the criterion 'opportunities ... for open-air recreation'. It was inherent in the term 'opportunities' that one could look to the future, and that consideration was not limited to the present facilities for open-air recreation, such as the existing network of footpaths and bridleways.
However, the inspector had watered down the statutory requirement by applying a test of potential opportunities. The inspector had failed to explain how it could be said, when M was not willing to afford public access to the estate and there was no identifiable means of imposing rights of access, that the land in contention was capable of offering a superior recreational experience, and why he took the view that the opportunities for open-air recreation went beyond vague
or unrealistic aspirations.
Accordingly, M's challenge to the order was entitled to succeed on the basis that, on the material before the secretary of state at the relevant time, the criterion in section 5(2)(b) had not been met. The law had been changed by the Natural Environment and Rural Communities Act 2006 and section 5(2A)(b) of the 1949 Act required the extent to which it was possible to promote opportunities for the understanding and enjoyment of the area's special qualities by the public to be taken into account. It could not be said that that statutory criterion was met, with the result that a quashing order would serve no sensible purpose. It was far from self-evident that it was possible to promote opportunities for the understanding and enjoyment of the area's special qualities by the public in the absence of public access. It was unnecessary to consider the natural beauty criterion.
Appeal dismissed.
David Elvin QC, James Maurici (instructed by the solicitor for the Department for Environment, Food and Rural Affairs) for the appellant. Robert McCracken QC, Meyric Lewis (instructed by Lee Bolton & Lee), for the respondents.
Landlord and tenant
Business tenancies - houses - notices to quit - premises - statutory tenancies - premises let for mixed business and residential use - cesser of business use
(1) Phaik Seang Tan (2) Kit Yeng Tan v Julian Sitkowski: CA (Civ Div) (Lords Justice Ward, Thomas, Neuberger): 1 February 2007
A tenant (S) applied for permission to appeal against a decision in possession proceedings brought against him by the respondent landlords (T).
S had been granted a tenancy of the premises in 1970 by the local authority. He used the ground floor for his business and used the first floor as a residence with his family.
In 1989, S ceased using the ground floor for his business. In 1990, T became S's landlords and in 2003 served various notices to quit on S, at least one of which was effective to terminate his tenancy. The possession proceedings were determined against S, and although he refused permission to appeal, the judge expressed concern over one issue.
When S was granted his tenancy in 1970, it enjoyed the protection of part II of the Landlord and Tenant Act 1954, since S occupied part of the premises for business purposes. From 1989, the 1954 Act no longer applied to the tenancy.
S contended that, since he no longer used part of the premises for business use, section 24(3) of the Rent Act 1977 no longer applied, so that he enjoyed the protection of the 1977 Act. S submitted that, by the time the notice to quit expired in 2004, he was a protected tenant, and therefore became a statutory tenant on the expiry of the
notice to quit.
T contended that there was authority binding on the court that, if a tenancy was granted for mixed business and residential use, and was accordingly subject to the 1954 Act, the tenant could not, simply by unilaterally ceasing the business use, arrogate to himself protection under the 1977 Act; in such a case, the tenancy in question was not to be treated as being one of 'a separate dwelling' within section 1 of the 1977 Act.
S argued in the alternative that, even if his tenancy could not be treated as a letting of 'a separate dwelling' from or before 1989, it had become such a tenancy by the time the notice to quit expired, and accordingly he was nonetheless entitled to claim a statutory tenancy.
Held, in Pulleng v Curran (1982) 44 P&CR 58, Lord Justice Stephenson specifically suggested that premises let for a mixed-use purpose were not 'let as a dwelling' for the purposes of the 1977 Act. Lord Justice Taylor reached the same conclusion in Wagle v Trustees of Henry Smith's Charity Kensington [1989] 2 WLR 669. That was also the argued and explained ratio of the decision in Webb v Barnet LBC (1989) 21 HLR 228.
The reason behind those decisions was attributable to a change in the legislative policy. Under the previous legislation, premises could be treated as 'let as a dwelling' if they were let for mixed residential and business purposes. However, from 1965, the Rent Acts no longer applied to such premises, and applied only to premises used for purely residential purposes, so premises should not be treated as 'let as a dwelling' unless they were let for purely residential purposes.
Much of the reasoning in Pulleng, Wagle and Webb was either flawed or incomprehensible. However, the decisions had stood for more than 15 years and there was a practical and rational justification for them. It would not be appropriate to overrule them simply because some of the reasoning was flawed and because another court might have reached a different decision (Wellcome Trust v Hammad [1998] QB 638 considered).
Furthermore, it would be anomalous and somewhat unfair on the landlord if a tenancy granted for mixed business and residential use, which, when entered into, fell within the 1954 Act, could unilaterally be brought within the 1977 Act simply by the tenant ceasing business use. Accordingly, S could not claim protection under the 1977 Act because, having been let for mixed business and residential use, the premises were not 'let as a separate dwelling' within section 1 of that Act. Permission to appeal was granted, but the appeal was dismissed.
S's business use of the premises had ceased around14 years before the notice to quit expired, and T continued to accept rent throughout that period. Without more, it was difficult to see how that could amount to positive consent by T to the change of use (Wolfe v Hogan [1949] 2 KB 194 considered). T did not know of the cessation of business use and had always assumed the tenancy was within the 1954 Act.
The judge had been right to conclude that the nature of the tenancy did not change so as to bring it within the 1977 Act. Furthermore, the fact that T had received rent in the form of housing benefit direct from the local housing authority did not mean they were prevented from denying that they had consented to a change of use from mixed business and residential to purely residential once they had accepted rent in that way for a substantial period.
Regulation 10(4) of the Housing Benefit (General) Regulations 1987 made it clear that housing benefit could be paid in respect of rent due under premises used for mixed business and residential purposes. The application for permission to appeal on that point was refused.
Judgment accordingly.
The appellant appeared in person; Joshua Swirsky (instructed by Newman Law)
for the respondents.
Environmental Health
Criminal law - local government - contamination - food - pest control - regulatory offences - supermarkets
Asda Stores Ltd v Wandsworth London Borough Council DC: (Lord Justice Maurice Kay, Mr Justice Stanley Burnton):1 February 2007
A company (C) appealed by way of case stated against a decision of a magistrates' court that it had not been 'double charged' in respect of offences pursuant to the Food Safety (General Food Hygiene) Regulations 1995.
Environmental protection officers of the respondent prosecuting local authority had discovered food contaminated by mice at a store owned by C. C was charged with a number of offences pursuant to the regulations.
The two relevant charges were brought under schedule 1, part IX, paragraph 3 of the regulations. One charge alleged that C had failed to ensure adequate procedures were in place so that pests were controlled, and another charge alleged that C had failed properly to control the risk of contamination from the activities of such pests.
C contended that those two charges disclosed one offence of failing to protect food against contamination and that it had been 'double charged' and was at risk of being punished twice.
The magistrates' court rejected C's submission and C subsequently pleaded guilty to the offences as charged. On the instant hearing, an issue arose as to whether the wording of schedule 1, part IX, paragraph 3 created separate offences, or whether those words created one offence, such that C had been the subject of double charging and, accordingly, was at risk of being punished twice.
Held, the magistrates' court was correct to find that the charges in question did not relate to a single offence.
On its true construction schedule 1, part IX, paragraph 3 created more than one offence. The third sentence of schedule 1, part IX, paragraph 3, namely, 'Adequate procedures must be in place to ensure pests are controlled', was a freestanding sentence. Accordingly, in the instant case, the magistrates' court had been correct to conclude that C had not been 'doubly charged' as one charge related to mouse droppings found on confectionery at C's store, while the other charge related to the inadequacy of control procedures, which might have occurred over a longer period than a single occurrence.
Moreover, the protection for C against the risk of being punished twice lay in commensurate or proportional punishment that reflected the totality of offending.
Appeal dismissed.
Mark Turner QC (instructed by Eversheds) for the appellant; Samantha Riggs (instructed by Ashfords) for the respondent.
Criminal Procedure
Proceeds of crime - receivers - remuneration
Robert Capewell v Revenue and Customs Commissioners and Anor HL: (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance): 31 January 2007
Customs appealed against a decision ([2005] EWCA Civ 964, [2006] CP Rep 5) requiring it, under rule 69.7(2) of the Civil Procedure Rules to pay part of the remuneration of the receiver who had been appointed under section 77(8) of the Criminal
Justice Act 1988 to manage the assets of the respondent (C).
C had been charged with conspiring to cheat the public revenue and conspiring to contravene the Value Added Tax Act 1994. The issue was whether the Court of Appeal had been right to order part of the receiver's remuneration to be paid, not out of assets subject to the receivership, but by Customs.
Held, the Court of Appeal had been wrong to suppose that rule 69.7 had made (or could have made) a fundamental change either in the general law of receivership or in the position of receiverships under the 1988 Act and the other comparable statutory powers (Hughes v Customs and Excise Commissioners [2002] EWCA Civ 670, [2002] 4 All ER 633 approved).
The function of rule 69 was to set out a procedural code applicable to the generality of receiverships of all types. Its text gave no indication that its draftsman had particularly in mind the new species of receiverships in support of restraint orders and confiscation orders. No doubt its provisions did in general apply to such receiverships, but they could not override the scheme inherent in the detailed provisions of the 1988 Act.
That scheme was for the receiver's remuneration and expenses to be paid out of the receivership assets, but in a way that counted towards the satisfaction of any confiscation order, and subject to the statutory long-stop in section 88(2) of the Act. If an individual subject to a restraint order was not ultimately convicted and made subject to a confiscation order, section 89 gave a statutory right to compensation in some circumstances. But Parliament had deliberately framed the right to compensation in narrow terms. That was an aggrieved individual's only right to compensation as such. He would not normally have the benefit of an undertaking in damages since a prosecutor could not be required to give such an undertaking as a condition of obtaining the appointment of a receiver. An aggrieved individual's only other recourse would be to challenge the amount of the receiver's remuneration.
There was a similar scheme under the Proceeds of Crime Act 2002 and the Crown Court (Confiscation, Restraint and Receivership) Rules 2003 made under that Act, but in those new provisions it was made perfectly clear that receivership expenses and remuneration were to come out of the assets subject to the receivership.
Appeal allowed.
David Perry QC, Mark Sutherland WiIliams, Rupert Jones (instructed by the Revenue and Customs Solicitor) for the appellants; Andrew Mitchell QC, Abigail Barber (instructed by Olliers) for the respondent.
Immigration
Human rights - asylum seekers - entry clearances - error of law - indefinite leave to remain - right to respect for private and family life - exceptional circumstances
SB (Bangladesh) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Ward, Neuberger, Gage): 31 January 2007
S appealed against a decision of the Asylum and Immigration Tribunal (AIT) to uphold the refusal of the respondent secretary of state to grant her indefinite leave to remain in the UK. S was a citizen of Bangladesh. Her husband (H) and his first wife were UK citizens.
S was the second wife in a polygamous marriage. S's children, who had been living with her in Bangladesh, joined H in the UK but the youngest child later returned to Bangladesh.
H subsequently became ill and summoned S and the youngest child to the UK. S obtained a visa by telling lies. When she arrived in the UK, she went to live with one of her daughters and the youngest child went to live with H. Before the expiry of her visa, S applied for indefinite leave to remain as a dependent relative of a person present and settled in the UK.
H subsequently died and the respondent secretary of state refused S's application. S and her two youngest children eventually established a home together.
The AIT held that the circumstances of S's case were not 'truly exceptional' and that, although S's removal to Bangladesh would interfere with her right to respect for private and family life under article 8 of the European Convention on Human Rights, the interference was not disproportionate to the aim pursued, namely effective immigration control. The AIT considered the fact that, if removed, S could effectively expect to be able to re-enter the UK permanently under the immigration rules, as one
of her children was younger than 18.
S submitted that the AIT had wrongly taken into account its assessment of S's prospects of obtaining entry clearance once back in Bangladesh, and remaining indefinitely in the UK, as relevant to the issue of whether the circumstances of her case were truly exceptional.
Held, the issue of whether S satisfied the requirements of the rules would be for an entry clearance officer in Bangladesh to determine, if and when an application under the rules was made. It was not an appropriate issue for determination, when no such application had been made, by the AIT deciding a different question, at a different time, in a different country, and in different circumstances. It would also seem somewhat paradoxical if the stronger an appellant's perceived case for entry clearance under the rules, the more likely she was to be removed.
Furthermore, it would be unfortunate, in terms of time, effort and expense, if the AIT, when deciding whether a claim for leave to remain was truly exceptional, had to consider, almost as a matter of course, how likely an appellant, if removed from the UK, would succeed on a subsequent putative application for entry clearance to the UK. There was also a real risk of unfairness to an appellant if such a factor was taken into account because an entry clearance officer might take a different view of the
facts or the law, and the rules or the facts of the case might change.
In the instant case, the AIT, when deciding whether the removal of S to Bangladesh would be disproportionate, in other words, whether her case was truly exceptional, should not have carried out, or taken into account, its own assessment of her prospects of returning to the UK on an indefinite basis pursuant to an application that she might make from Bangladesh for entry clearance under the rules (Huang v Secretary of State for the Home Department [2005] EWCA Civ 105, [2006] QB 1 considered).
Appeal allowed.
Sonali Naik (instructed by Dexter Montague & Partners) for the appellant; Nicola Greaney (instructed by the Treasury Solicitor) for the respondent.
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