Clarke Willmott LLP’s social housing team are delighted to provide you with our monthly case law update which includes cases within the last month from the higher jurisdiction courts in England and Wales that are relevant to the affordable housing sector.
We trust that this update will be helpful and we welcome any queries or further help that we can provide by contacting the partners mentioned below.
Keeping abreast of the latest case law is an important aspect of advice to our clients in delivering the highest quality legal services and we trust you will find this a useful update within your business.
 EWHC 33 Queen’s Bench Division
18 January 2017
Local authorities’ powers and duties – Homelessness – Costs
The Appellant Council appealed against a decision ordering them to pay the Respondent 85% of the costs of her appeal under s.204 of the Housing Act 1996. The Council’s original decision had been to refuse the Respondent and her family housing. The judge held that County Court had been wrong to order the Council to pay 85% of the costs of the appeal. Given the evidence before the court, it had been reasonable to conclude that the Respondent was neither homeless nor threatened with homelessness as accommodation was available to her. The appeal was allowed and the Respondent ordered to pay the costs of the appeal.
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Court of Appeal
25 January 2017
Contempt – Trespass – Easements
The Appellant bought a house with an easement attached to it for use only in the course of business as a greengrocer or fishmonger. The Appellant believed that the limitation referred only to vehicular access. The County Court disagreed, finding that he had walked over the Respondent’s land on several occasions, a decision the Appellant refused to accept. The Respondent took out an injunction to prevent him from trespassing, but further incidents occurred and a second injunction was made. This too was breached and the Appellant was sentenced to 28 days in prison for contempt. He appealed, arguing that the judge had erred by considering an irrelevant matter and by failing to properly take his evidence into account. Appeal dismissed.
 EWCA Civ 45
Court of Appeal
2 February 2017
Landlord and tenant – Leases – Service charges
The Appellant Council owned a large housing estate. The Respondent was a lessee within one of the blocks of flats on the estate which had been originally constructed with a flat roof. The Upper Tribunal (UT) held that the replacement of the flat roof with a pitched roof gave rise to a recoverable service charge, but that the replacement of the windows and cladding did not, concluding that it was an improvement. The Council appealed against that decision. The Respondent cross-appealed against other parts of the UT’s decision on costs. The Court of Appeal held that the Upper Tribunal had made no error of law and that the Council ought to have taken more account of the interests of the lessees, their views and of the financial impact. Appeal and cross-appeal dismissed.
 EWHC 69 Queen’s Bench Division
27 January 2017
Personal injury – Defective premises – Contract
The Claimant tripped over a paving stone when gardening at home. The fall had catastrophic consequences, leaving her wheelchair-bound. She brought proceedings against four defendants who had played a part in the building of the house. The claim was framed in contract as there was no claim in tort. The main issue was whether there existed a collateral contract under the terms of which the Second Defendant would attend to a list of identified items for repairs or maintenance. In addition, if there were implied terms of a collateral contract, was there a right to damages for the injuries suffered by the Claimant? It was held that there was no collateral contract and, therefore, the claim failed.
R (On The Application Of Leckhampton Green Land Action Group Limited) v Tewkesbury Borough Council & Redrow Homes Limited
 EWHC 198 Administrative Court
9 February 2017
Town and country planning – Planning permission – Environmental impact
The Claimant applied for judicial review of a decision by the Defendant Council to grant planning permission for a development of 377 dwellings. The Claimant disputed the decision on four grounds. They contended that the Defendant had failed to comply with current legislation, in particular with s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and the special regard local authorities need to take with listed buildings. They further argued that the Council had failed to follow governmental planning policy by not taking into account the cumulative impact of developing their entire draft strategic allocation for housing. The claim was dismissed on all grounds.
(1) Secretary of State for Communities and Local Government (2) Knight Developments Ltd v Wealden District Council
 EWCA Civ 39
Court of Appeal
31 January 2017
Town and country planning – National Planning Policy Framework – Alternative sites
These appeals were against a High Court ruling quashing an inspector’s decision to grant planning permission for a housing development. The High Court ruled that the inspector had erred in his consideration of the effects of the development in relation to the EU Habitats Directive and the Conservation of Habitats and Species Regulations 2010. The inspector also had not adequately evaluated alternative sites as specified in paragraph 116 of the National Planning Policy Framework (NPPF) for “major development in an Area of Outstanding Natural Beauty”. The inspector’s consideration of alternative sites had not misapplied the NPPF. However, he had not fully taken into account the effects of the proposed development in relation to Habitats legislation. The claim failed and the appeals were dismissed.