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Horatio Waller

Horatio Waller

Year of call: 2014

Practice areas: Planning, Environment, Licensing, Compulsory Purchase and Compensation, Rating, Local Government, Major Infrastructure Projects, Town and Village Greens and Open Space

Public Access

Horatio Waller

Practice Profile

Horatio specialises in planning, environmental, education, licensing, and wider public/ administrative law. He is an experienced advocate, appearing regularly in court and in planning inquiries. Horatio has experience appearing before judges and planning inspectors in person or via telephone and video link. In addition, Horatio is frequently instructed to provide oral and written advice on matters within his practice areas. His clients include developers and operators, central government / public authorities and other interested parties including pressure groups and action groups. He will in appropriate cases act pro bono.

Recent / significant cases include:

High Court

  • Craggs v Secretary of State and Others CO/780/2020, Horatio is acting for the claimant in a challenge to an inspector’s decision in refusing to issue a DMMO. The case turns on the meaning and effect of an C18 Inclosure Award and arguments in respect of severance. The claim was recently granted permission to proceed by David Elvin QC (Sitting as a Deputy High Court Judge) following a permission hearing.
  • Handy v Stafford Borough Council CO/2925/2020, Horatio is acting for the claimant in a judicial review challenge to a discharge of notice authorising works having considerable impact on the amenity of neighbouring occupiers. The challenge is made later than the 6 weeks time period permitted for judicial review challenges to planning decisions, and involves an application to extend time.
  • Manchester City Council v Secretary of State CO/2314/20, CO2315/20, Horatio is acting for a local authority in s288/s289 proceedings challenging an inspector’s decision on an enforcement appeal.

Inquiries

  • Church Field, Hilperton, Horatio is instructed to appear at a two-day village green inquiry concerning a site in Wiltshire.
  • Agri-Tech Park, Hinxton, Horatio appeared as junior counsel on behalf of a planning authority in a four-week planning inquiry concerning the development of a substantial agri-tech park in South Cambridgeshire.
  • Broden Stables, Hampshire, appeared on behalf of a Rule Six party in a four day s78 inquiry concerning residential development in Hampshire.
  • Great Lees Field, Semington, appeared on behalf of the applicants in a four day inquiry to determine an application for a village green in Wiltshire.

Crown Court

  • Horatio is acting for a defendant facing confiscation proceedings under the Proceeds of Crime Act 2002 following his conviction for failing to comply with enforcement notices.
     

 

Experience

Planning Law
Environmental Law
Licensing and Gambling
Highways
Compulsory Purchase
Infrastructure
Rating and Income Tax
Education Law
Information Law
Equality Law
EU Law
POCA, Police and Anti-Social Behaviour Law
Markets
Ecclesiastical
Village Greens
Other Experience

Planning law

Horatio advises on planning matters and has represented local authorities and claimants in planning inquiries, planning appeals, local plan examinations and hearings in the High Court.

s78 Planning inquiries

Broden Stables, Hampshire, Horatio appeared on behalf of a Rule Six party in a four day s78 inquiry concerning residential development in Hampshire.

Agri-Tech Park, Hinxton, appeared in 2019 as junior counsel on behalf of a planning authority in a four-week planning inquiry concerning the development of a substantial agri-tech park in South Cambridgeshire.

Land North of Luton Road, Offley, in 2018 Horatio appeared as junior to Suzanne Ornsby QC on behalf of a planning authority in a five-day planning inquiry into a residential development of 70 houses in North Hertfordshire.

During his pupillage, Horatio assisted with the drafting of opening and closing submissions for a five-day planning inquiry concerning development at Manston Airport, Kent. He also shadowed Richard Honey during a week-long compulsory purchase inquiry concerning an estate regeneration scheme in Brent.

Local plans

Emerging North Hertfordshire Local Plan, Horatio appeared (as junior to Suzanne Ornsby QC) before a planning inspector on behalf of North Hertfordshire District Council during the examination into its local plan.

Emerging Guildford Local Plan, Horatio has advised a parish council on its involvement in the examination into the emerging Guildford Borough Council local plan and on the relevance of issues of deliverability and sustainability to the consideration of proposed housing allocations.

During his seat with Suzanne, Horatio gained considerable experience drafting written opinions on local plan matters, including the correct interpretation of development plan policy, minerals policy and the allocation of strategic sites. 

Planning enforcement

Horatio is acting for a defendant facing confiscation prodeedings in the Crown Court under the Proceeds of Crime Act 2002 following his conviction for failing to comply with enforcement notices.

Prosecutions. Horatio has acted for local authorities prosecuting planning offences, including for example a prosecution of a contravention of a temporary stop notice concerning a green belt site in South Gloucestershire.

S215 Notice, the Colosseum, Huddersfield. Horatio is appearing as junior counsel on behalf of an appellant challenging a s215 notice.

Committal hearings. Horatio appeared before the High Court on two occasions on behalf of two individuals who had failed to comply with a s187b planning injunction. This instruction involved advising these individuals how they could “purge” their contempt and then mitigating before the Court in order to achieve the lowest sentence possible.

Ingst Farm, Olveston, appeared in 2019 on behalf of a planning authority in a two day inquiry into an enforcement notice.

Cherry Lodge, Iron Acton, appeared in 2019 on behalf of a planning authority in a three day inquiry into two enforcement notices issued on a site in South Gloucestershire, which culminated in applications for costs on both sides.

The Elms, Tockington, appeared in 2019 on behalf of a planning authority in a week-long inquiry into an enforcement notice it issued on a site in South Gloucestershire as well as a related s78 appeal.

Ali, Shaik and Mohammed v London Borough of Newham, Horatio appeared (as junior to Douglas Edwards QC) before the High Court in a case concerning an application to suspend an injunction granted under s187B of the Town and Country Planning Act 1990. This complicated enforcement case concerned the construction of a large Mosque without planning permission on a site in east London.

Land known as Kemberland Farm and Druids Farm, Canterbury, Horatio appeared for two appellants in an enforcement inquiry. The inquiry turned on the application of the periods in which enforcement must be taken for a breach of planning control and the issue of whether a structure was a building or a caravan.

Horatio has experience representing local authorities making applications under s78 of the Criminal Justice and Public Order Act 1998 regarding the unauthorised occupation of sites and in applications for committal following breach of injunctions.

Horatio advises local planning authorities and claimants on enforcement matters, including enforcement notices, s215 notices and s187B injunctions. During his seat with Cain Ormondroyd, Horatio assisted with the conduct of two enforcement appeals.

Judicial review/statutory challenges

  • Handy v Stafford Borough Council CO/2925/2020, Horatio is acting for the claimant in a judicial review challenge to a discharge of notices authorising works having considerable impact on the amenty of neighbouring occupiers. The challenge is made later than the 6 weeks time period permitted for judicial review challenges to plannning decisions, and involves an application to extend time.
  •  Manchester City Council v Secretary of State CO/2314/20, CO2315.20, Horatio is acting for a local authority in s288/s289 proceedings challenging an inspector's decision on an enforcement appeal.
  • Wokingham v Secretary of State CO/1470/2019, instructed by the claimant as junior counsel to Cain Ormondroyd in a planning statutory review concerning residential development in Wokingham
  • Tewkesbury Borough Council v Secretary of State and Others [2019] EWHC 406, representing a local planning authority as junior counsel to James Pereira QC in a High Court case concerning the interpretation of the NPPF policies regarding the calculation of five year housing land supply.
  • Wardlaw v Milton Keynes Council and Others [2019] EWHC 669, acting on behalf of a claimant in an out-of-time judicial review challenge concerning a substantial warehouse development which was granted permission without several planning conditions that the Council's development control committee intended to impose
  • William Terry v Tonbridge and Malling Borough Council and Others [2018] EWHC CO/4789 (Admin), acting on behalf of a local authority defendant in a judicial review challenge concerning a housing development.
  • Crondall Parish Council v Secretary of State and Others [2018] EWHC CO/3900 (Admin), acting on behalf of a claimant in a s288 challenge regarding a housing development outside defined settlement boundaries in Hart District.
  • Arrowsmith v Fareham Borough Council and Lidl UK ltd [2018] EWHC CO/2282 (Admin), appeared before the High Court on behalf of a claimant applying for judicial review of a decision to permit the redevelopment of an employment park in Fareham to a Lidl store.
  • Various Claimants v Secretary of State for Transport (re Heathrow Runway 3) with [2018] EWHC CO/2760; CO/3071; [2018] 3089/2018; [2018] 3147/2018; [2018] 3149/2018, instructed as junior counsel by the Secretary of State to assist with defending applications for judicial review against the decision to designate an Airports National Policy Statement supporting a third runway at Heathrow.
  • Driver v Maidstone Borough Council and Others [2018] CO/5627 (Admin), appeared on behalf of the claimant in the High Court in a s113 statutory challenge against the adopted Maidstone Borough Local Plan.
  • McGrath v Leeds City Council and Land Property Investment Services [2017] CO/3818 (Admin), appeared on behalf of a claimant in a judicial review application in the High Court concerning a housing development within a conservation area.

Horatio is instructed by a local authority as junior counsel in a judicial review claim challenging the decision of an ombudsman.

Horatio has considerable experience drafting pre-action letters, statements of facts and grounds and skeleton arguments for judicial reviews and statutory challenges.

Planning hearings

Horatio has experience appearing before planning inspectors in planning hearings. He has acted for a claimant in a planning hearing concerning a back-garden development.

Advisory work

Horatio has advised on a wide variety of planning issues, including (by way of example only):

  • CIL and vacant building credit.
  • Certificates of lawfulness of existing use or development.
  • S106 agreements.
  • The community infrastructure levy (CIL).
  • Minerals policy.
  • Prior-approval for change of use under the GPDO.
  • "Saved" policies.
  • The loss of use rights through concepts such as abandonment.
  • Development in the Green Belt.
  • The listing of assets of community value.
  • The dedication of highways.

Environmental Law

Horatio has acted on behalf of individuals bringing private prosecutions against their neighbours on the basis of excessive noise and statutory nuisance under the s82 of the Environmental Protection Act 1990.

Horatio appeared on behalf of the successful claimant in the seminal case of Crondall Parish Council v Secretary of State and Others [2018] EWHC CO/3900 (Admin), which addressed the implications in domestic law of the habitats case of the Court of Justice in Case C-323/17 People Over Wind [2018] PTSR 1668.

As a preliminary matter, the Judge who granted permission also decided in the Claimant’s favour that the claim is an Aarhus Convention Claim that benefits from the Aarhus costs capping provisions. That decision is now the leading authority on the eligibility of parish councils for Aarhus costs caps.

Horatio has experience advising property owners on the common law of nuisance and statutory nuisance, including the relationship between these matters and planning law.

Licensing and Gambling

Horatio has advised in respect of applications for premises licences for adult gaming centres.

Appeared on behalf of a licensing authority in an appeal in the magistrates’ court against a refusal to grant a premises licence for shop premises in London.

Queens Head, London, E14, Horatio appeared on behalf of a pub operator before a licensing sub-committee considering a review of the pub’s licence.

LA Confidential, Horatio appeared on behalf of a planning authority before the Crown Court in relation to an SEV appeal.

Horatio has assisted in advising gambling operators, for example on issues related to proceeds of crime and restitution.

Marks & Spencer v London Borough of Islington, Horatio is acting on behalf of a supermarket operator in a licensing appeal.

London Grace, 35 Camden Passage, Horatio appeared on behalf of a local resident in a sub-committee hearing which heard her objection to the renewal of a special treatments licence on the basis that the business was causing her noise and odour nuisance.

Carshalton Athletic Football Club v. London Borough of Sutton, Horatio represented a premises licence holder in a two-day licensing appeal hearing in Camberwell Magistrates' Court. The case turned on whether conditions limiting the use of outside areas to licensed premises and requiring doors and windows to be shut at night were appropriate in light of the public nuisance licensing objective and objections from neighbours about noise.

Premises formerly known as Club M, Horatio represented the West Midlands Police in a licensing hearing to review a premises licence following a fatal stabbing outside the premises.

Premises formerly known as Dominique’s Bar, Horatio represented Staffordshire and West Midlands Police in a hearing to determine an application for a premises licence which the Police objected to.

London Borough of Waltham Forest v Still Bar & Restaurant Ltd, represented the owner of a bar and restaurant in a four-day rehearing in Snaresbrook Crown Court of an application made by a licensing authority for a closure order under s80 of the Anti-Social Behaviour Crime and Policing Act 2014.  during the re-hearing, Horatio cross-examined seven witnesses who appeared for the Council and police.

Fenland District Council v Grove Country Park Ltd, Horatio represented a defendant in a criminal prosecution alleging a failure to comply with a compliance notice issued under the Caravan Sites and Control of Development Act 1960.

Horatio has appeared before magistrates' courts in licensing cases, for example regarding the revocation of a premises licence.  He has also assisted in advising a local authority faced with a judicial review challenge against its policy on licensing sex establishments.

During his pupillage, Horatio assisted with providing written opinions on a range of licensing topics, such as HMO licensing and proposed licensing conditions for taxis.

Highways

Horatio has experience advising on the declaration of highways and their creation by statute. He is currently instructed for the Claimant in Craggs v Secretary of State, an important case concerning the proper approach to be taken to resolve ambiguity in inclosure awards. The case has the potential to expand the scope for replying on ancient inclosure awards to justify applications for definitive map modification orders to recognise public rights of way.  The application was recently granted permission on renewal by David Elvin QC sitting as a Deputy High Court Judge.

Compulsory Purchase

Horatio gained experience of compulsory purchase matters during his pupillage. He assisted in the drafting of statements of case on behalf of acquiring authorities in reference proceedings before the Upper Tribunal (Lands Chamber). He also assisted with written opinions on matters regarding certificates of appropriate alternative development, the Mines (Working Facilities and Support) Act 1966 and Transport and Works Act Orders.

Infrastructure

Various Claimants v Secretary of State for Transport (Heathrow Runway 3), Horatio is instructed as junior counsel by the Secretary of State to assist with defending several legal challenges mounted against the designation of an Airports National Policy Statement supporting a third runway at Heathrow.

Horatio has assisted with advising on a number of infrastructure matters including (by way of example only):

  • An energy company seeking advice on environmental impact assessment in relation to the decommissioning of a nuclear power station.
  • A business in relation to a proposed DCO to acquire a disused airport.
  • A harbour authority seeking to oppose a compulsory purchase order under the Water Industry Act that affects its statutory undertaking.
  • A public transport authority in respect of the acquisition of rights over land owned by a harbour authority.
  • A waste management company in respect of the construction of HS2.

Rating and Income Tax

Royal Borough of Kingston v Wimbledon Magistrates Court, instructed in a case stated appeal in the High Court concerning the decision of a magistrates court to award costs to a respondent in council tax liability order proceedings.

140 New Cavendish Street, instructed by a ratepayer in business rates liability order proceedings.

Royal Borough of Greenwich v Richard Leahy, Horatio represented a landowner against applications for liability orders for non-payment of council tax.

Claus Prom and Valerie Prom v Sevenoaks District Council, acting on behalf of a billing authority in enforcement proceedings concerning unpaid business rates

Stratford On Avon District Council v James, Hugh and Emma Forsyth, acting on behalf of a local authority in council tax enforcement proceedings.

Nottingham City Council v Elory Student Accommodation Ltd, Horatio represented a landowner against applications for liability orders for non-payment of business rates demands.

Horatio has given advice to landowners on how to alter the rateable value of their business premises while they are undergoing redevelopment.

During his seat with Cain Ormondroyd, Horatio assisted in advising on a broad range of issues related to business rates, such as rates relief, the identification of hereditaments and the assessment of rateable value.

He assisted Cain in proceedings before the Upper Tribunal which dealt with the identification of hereditaments and the correct method of assessing rateable value. Horatio also assisted in the drafting of grounds of judicial review challenging a refusal to grant business rates relief.

Education law

Horatio has considerable experience appearing in the First-Tier Tribunal (Special Educational Needs and Disability). Horatio has built up extensive experience in both contents and placements appeals.

Horatio is currently advising a local authority in respect of a variety of complex legal matters concerning a failure in secondary transfer placement. The case raises interesting points concerning the definition of a school, the status of alternative resource provisions and the obligations to deliver special educational provision set out in an EHCP.

Horatio has experience representing parents making complaints to schools regarding their approach towards disciplining SEN children, including exclusions, and advising on claims based upon the public sector equality duty. He has also attended hearings of the First-Tier Tribunal (Special Educational Needs and Disability) in relation to the choice of schools for SEN children.

Information Law

Horatio has experience advising applicants and local authorities on requests for information made under the Freedom of Information Act 2000 and the Environmental Information Regulations 2004.  He completed a secondment to the FIO department of a local authority where he assisted in advising on exemptions and drafting responses to requests for information.

Horatio has also advised public authorities on their duties under the Data Protection Act 1998 regarding sensitive personal data and the exemptions to the non-disclosure duty”.

Equality Law

Horatio has experience advising local authorities on the public sector equality duty under the Equality Act 2010.  He is currently assisting a local authority facing a challenge against its decision to adopt a policy on sex establishment licences on the basis that it breached the public sector equality duty.

EU law

Horatio has significant experience advising on EU law matters. Horatio is assisting in advising the Secretary of State for the Environment, Food and Rural Affairs on the system he should devise to replace the role of the European Commission in enforcing environmental law standards after Brexit.

Many of Horatio’s judicial review cases raise matters of EU law. For example, the case Crondall Parish Council v Secretary of State and Others [2018] EWHC CO/3900 (Admin), in which Horatio acts for the Claimant, raises an EU law point arising out of the Habitats Directive and the Court of Justice decision in Case C-323/17 People Over Wind [2018] PTSR 1668.

During his pupillage, Horatio assisted in advising on EU law matters, regarding state aid and the EIA Directive (85/337/EEC). Prior to coming to the Bar, Horatio worked as a stagiaire in the Court of Justice of the European Free Trade Association where he assisted in the drafting of an important judgment on state aid law.

POCA, Police and anti-social behaviour law

Horatio frequently appears before the Crown Court and magistrates' court in forfeiture applications/appeals under the Proceeds of Crime Act 2002, and in applications for orders, or variations of orders, under the Anti-Social Behaviour, Crime and Policing Act 2014 and the Sexual Offences Act 2003, including closure orders, community protection notices, criminal behaviour orders, sexual risk orders and sexual harm prevention orders.

Cases of note include:

R v Krzyzyk, appeared on behalf of the Metropolitan Police Service before the Crown Court to respond to a costs application regarding a sexual assault trial

Zahed v Commissioner of Police of the Metropolis, appeared on behalf of the Metropolitan Police Service in an appeal against a community protection notice lasting two days and involving evidence from over ten witnesses.

Markets

Horatio advised a borough council on its proposals to provide street-markets in light of challenging legal constraints, which arise from local statutory provisions and highways law.

Ecclesiastical

Horatio has experience assisting clients in obtaining faculties for the development of churches and churchyards. He is particularly experienced in helping clients to devise solutions to overcome barriers to development imposed by Church of England Measures.

Examples include advising the owner of one of England’s iconic castles on how to obtain a faculty in respect of a consecrated private chapel in the castle grounds and advising a local authority on the lawful use of former burial grounds which are now highway land.

He has experience of appearing in the Consistory Court, having been involved in proceedings concerning an alteration of a listed church in the Diocese of Southwark.

Village Greens

Friends of Great Lees Field, Horatio is instructed to appear on behalf of a TVG applicant in a five day inquiry due to take place in October 2019.

Oakleigh Gardens Town or Village Green application, Horatio submitted written representations on behalf of the Oakleigh Gardens Community and Action Group in support of their application to register a town or village green.

Horatio assisted Cain Ormondroyd in a village green inquiry by providing a note on the issue of statutory incompatibility. He has assisted advising developers on village green matters, including development on village greens and de-registration.

Other Experience

Horatio has assisted in advising on contribution proceedings in respect of historic sex abuse.

Horatio is currently instructed in relation to an appeal against a forfeiture order under the Proceeds of Crime Act 2002.

Qualifications

  • BPP Law School, Bar Professional Training Course (Very Competent) 2013-14.
  • Sidney Sussex College, University of Cambridge, LLM 2012-13.
  • University of Manchester, LLB (First Class - top of the year in 2011) 2009-12.

Scholarships and Awards

  • Megarry Scholarship, The Honourable Society of Lincoln's Inn (2016).
  • European Law Scholarship, The Honourable Society of Lincoln's Inn (2015).
  • Kennedy Scholarship, The Honourable Society of Lincoln's Inn (2012).
  • Hardwicke Entrance Award, The Honourable Society of Lincoln's Inn (2012).
  • Evan-Lewis Thomas Scholarship, Sidney Sussex College, Cambridge (2012).
  • R G Lawson Scholarship, University of Manchester (2011).
  • Dauntesey Prize in International Law, University of Manchester (2012).
  • R G Lawson Prize for Mental Health Law, University of Manchester (2012).
  • R G Lawson Prize for Public International Law, University of Manchester (2012).
  • R G Lawson Prize for Company Law, University of Manchester (2011).
  • R G Lawson Prize for Land Law, University of Manchester (2011).
  • R G Lawson Prize for Contract Law, University of Manchester (2011).

Previous Experience

Prior to coming to the Bar, Horatio spent a year working for the Law Commission as a research assistant where he worked on a project to reform the law on mental capacity and the Deprivation of Liberty Safeguards. He also worked for four months at a planning law firm and for four months as a stagiaire in the Court of Justice of the European Free Trade Association within the cabinet of President Carl Baudenbacher.

Horatio has worked on a pro bono basis for the Free Representation Unit and for the law clinics of Manchester University and BPP Law School.

Horatio spent many years working part-time at the Primavera Gallery in Cambridge while studying at school.

Professional Memberships

Horatio is a member of the UK Environmental Law Assocation (UKELA), the Planning & Environmental Bar Assocation (PEBA) and the Compulsory Purchase Association (CPA).

Publications

Case C-461/13 Bund fur Umwelt und Naturschutz Deutschland eV: could this case change the current of EU environmental law or will it just wash over? European Law Reporter 2016.

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Events

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Webinar: Covid-19 Regulations: A dose of legal medicine

In this one hour morning webinar for public authorities on 4 December from 10.00 - 11.00am, barristers from FTB will provide an overview of the new strenghtened tier system, whilst also discussing two particular issues that are causing headaches for public authorities: 

  1. Precisely what powers do local authorities have in enforcing the regulations, and what is the best way of ‘designating’ officers to utilise those powers in order to mitigate the risk of a legal challenge? 
  2. Do the Regulations bestow powers of entry to those with enforcement responsibilities?
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