Many
practitioners these days are well aware of the drafting pitfalls to watch out
for when negotiating the terms of a planning agreement under section 106 of the
Town and Country Planning Act 1990 on behalf of a landowner or developer. It is
important, for instance, to ‘fix’ the form of the related planning permission,
to avoid covenants to comply with the conditions attached to that planning
permission, to ensure that the covenants which are given do not bind unless and
until the planning permission is implemented, and to provide for obligations to
be released and for the planning agreement automatically to be discharged in
appropriate circumstances.
While the
drafting aspects of a planning agreement are important, it is equally vital not
to overlook the need to consider its actual subject-matter and, in particular,
the extent of any planning gain provided for. The content of a planning
agreement must always satisfy the test of reasonableness set out in Circular
22/83.
This, in
summary, depends on whether what is required: (i) is needed to enable the
development to go ahead; (ii) in the case of financial payments, will
contribute to meeting the cost of providing such facilities in the near future;
(iii) is otherwise so directly related to the proposed development and to the
use of the land after its completion that the development ought not to be
permitted without it; (iv) is designed, in the case of mixed development, to
secure a balance of uses.
Provided one
of these criteria is satisfied, a further test has to be applied; namely
whether the extent of what is required or sought is fairly and reasonably
related to the proposed development. Finally, it has to be asked whether what
the developer is being asked to provide or help to finance represents a reasonable
charge on the developer. The circular points out, by way of example, that it
would not normally be reasonable to seek a contribution to road construction or
improvement in the immediate vicinity of a proposed development unless the need
for that arose wholly and substantially from the development.
The
application of these principles was recently considered in Safeway
Properties Ltd v Secretary of State for the Environment [1990] 3 PLR
87. Here, Safeway Properties had sought to obtain outline planning permission
for the construction of a food superstore on a site in Greenwich. The local
planning authority failed to determine the application and Safeway Properties
appealed to the Secretary of State. There were three main issues: the inspector
appointed by the Secretary of State found in favour of Safeway Properties on
two of these, but dismissed the appeal on the third issue, namely that the
increased volume of traffic which the development would produce would be
detrimental to the amenities of local people.
At various
stages Safeway Properties had offered as planning gain a contribution of up to
£1m which was intended to cover the approximate cost of a traffic management
scheme that the local planning authority wished to see implemented. It became
apparent that this scheme went far beyond anything which was required, in
planning terms, for the superstore to operate without disrupting local
residents.
The
inspector decided, on the evidence before him, that the need for the traffic
management scheme had not arisen wholly or substantially from the appeal
proposals and that, accordingly, the offer of planning gain did not meet the
test of reasonableness set out in Circular 22/83. He therefore declined to take
the offer into account in reaching his decision to dismiss the appeal.
Safeway
Properties then applied to the High Court, under what is now section 288 of the
Town and Country Planning Act 1990, to quash the decision on the ground, among
others, that the inspector had failed to deal adequately with their offer to
provide the cost of the traffic management scheme. The High Court upheld the
decision of the inspector and described his reasoning as ‘impeccable’.
There is now
an appeal outstanding to the Court of Appeal. It appears that one of the issues
which that court will have to decide is whether the offer of planning gain
should have been taken into account to the extent that it did relate to the
development in question, or whether what has been described as an ‘all or
nothing’ approach is correct.
Irrespective
of the outcome of any appeal, the present decision serves as a warning that an
excessive offer of planning gain may well result in a planning permission being
susceptible to a challenge in the High Court (which challenge may, of course,
emanate from a third party). It is vital, therefore, that practitioners do not
lose sight of the need to consider the substantive content of the planning
agreements which they negotiate.
liability for rampaging visitors
In 1932, as
is well known, Lord Atkm in Donogbue v Stevenson [1932] AC 562
laid down a general principle that one would be liable for negligently causing
foreseeable harm to others. However, it was apparent from a very early stage
that this general principle required considerable care in its application, and
that it was subject to a number of important exceptions. Among the latter was
(and still is) the common law’s undoubted reluctance to impose any positive duty
on one person to protect another from harm deliberately inflicted by a third
party. In short, I am not my brother’s keeper, in the sense either of
preventing him from harming you or of preventing you from harming him,
notwithstanding that the harm in question may be perfectly foreseeable.
The position
thus taken by the law of tort (which is based on the view that, while careless acts
should be penalised, careless omissions need not be) has led the
courts to some interesting conclusions. It was held, for example, that the
police could not be liable for failure to catch the ‘Yorkshire Ripper’, even if
this were due to negligence, so that an action by the parents of a later victim
must fail (Hill v Chief Constable of West Yorkshire [1988] 2 All
ER 238). Likewise, the owner of an empty and dilapidated building was not
liable for losses suffered by neighbours when it was used as a means of access
by thieves (P Perl (Exporters) Ltd v Camden LBC [1983] 3 All ER
161). Most controversially, perhaps, where an insurance company actually knew
that a broker was deliberately deceiving his client as to the extent of his
insurance cover, it was held by the House of Lords that the company still owed
no duty to the client to inform him of this dishonest conduct (Banque
Financiere de la Cite SA v Westgate Insurance Co Ltd [1990] 2 All ER
947).
The way in
which such decisions are commonly expressed by the courts is to deny the
existence of any legal duty to guard against the type of harm which has been
suffered. However, the courts recognise that there may be circumstances in
which such a duty will arise, notably where the defendant is in a position of
‘control’ over the third party (eg prison officers — Dorset Yacbt Co Ltd v
Home Office [1970] AC 1004) or in a ‘protective’ relationship with the
victim. It was at one time thought that these circumstances were the only ones
on which a duty could exist, but this was denied by a majority of the House of
lords in Smith v Littlewoods Organisation Ltd [1987] 1 All ER
710. According to that decision, while it will not be enough to show that the
third party’s intervention is foreseeable as a mere possibility or even on the
balance of probabilities, a duty can arise where that intervention is ‘highly
likely’.
Applying
this guidance, Drake J in the recent case of Cunningbam v Reading
Football Club Ltd, Independent, March 20 1991 reached a conclusion which
will surely strike fear into the hearts not only of football clubs but also of
pubs, clubs and discotheques — anyone whose premises are used as a stage for
violence. That case concerned a number of policemen who were on duty at a
fourth division match between the defendant club and Bristol City in 1984, and
who were injured when visiting fans went on the rampage in the ground. The fans
had been searched for offensive weapons before being allowed to enter the
ground — however, this did not prevent them from tearing lumps of concrete from
the terracing and using this to bombard the police.
In holding
the defendants liable to the injured policemen, the judge started from the
obvious proposition that they owed them a duty of care under the Occupiers’
Liability Act 1957. This duty, it was held, had been breached because the
concrete was in such a poor condition that it could fairly easily be broken off
and used as missiles. As to the ‘deliberate third party’ problem, his lordship
held that the fans’ actions, despite being the worst violence then seen by
witnesses at any football match, was ‘very likely’ to occur (indeed there had
been a similar, though less serious, outbreak at a match a few months
previously). As a result, it seems that an occupier with reason to anticipate
violence must check that his floor is not only safe to stand on but also
impossible to tear up and use as a weapon!
