Category Archives: Planning Appeals

Planning: Secretary of State should have allowed parties further representations

In the High Court case of Gladman Developments Ltd v Secretary of State for Communities And Local Government & Anor [2017] the Secretary of State rejected the Inspector’s recommendation to grant planning permission on appeal.

Gladman’s first ground for seeking judicial review was that the Secretary of State proceeded unfairly and irregularly by relying on “facts”, set out in paragraphs DL29 and 30 of his decision letter, obtained by him subsequent to the Inspector’s report from the Council’s website, without complying with Rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 [S.I.2000 No. 1624] (“the 2000 Procedure Rules) and providing an opportunity to the parties to challenge those facts and make representations.

The court said Secretary of State was taking into account new evidence which led him to a materially different factual finding: namely, that the housing land supply fell in the bracket of 3.7 to 5 years, rather than the 3.73 years as found by the Inspector.

Had representations from the parties been invited, the Secretary of State would have been informed that (1) the LPA did not “currently claim a more than 5-year supply”, and (2) the real contest between the parties was between Gladman’s figure of 3.65 years and the LPA’s figure of 4.15 years.

Rule 17(5) of the 2000 Procedure Rules had been breached. Both sub-paragraphs (a) and (b) were applicable, although the principal focus should be on (b).

The Secretary of State had differed from the Inspector on a matter of fact (a).

The reason why he had done so was because he had taken into account new evidence (b).

“Rule 17(5) [was] not activated if the Secretary of State discovers new evidence but decides at that juncture not to take it into consideration (see the opening words of (b)), but if he does, or is minded to, he must at that stage seek further representations from the parties if he considers that the new evidence is likely to form the basis, in whole or in part, for the ultimate recommendation reached. The Secretary of State does not have to be satisfied that the new evidence would constitute the sole reason for a different recommendation; it merely has to form part of the decision-making process.”

Furthermore, the Rule says “disposed to disagree” which imported a lower threshold.

In summary Rule 17(5) would not apply if the Secretary of State has reached the firm and fixed conclusion that the new evidence will not be taken into account or was clearly immaterial; otherwise, however, it does apply.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Old policies can remain part of a development plan

Where planning applications fall to be considered what is the position where old policies remain part of the development plan?

The starting point, for the purposes of decision-making, remains section 38(6) of the Planning and Compulsory Purchase Act 2004.

This requires planning decisions to be made in accordance with the development plan – and, so, in accordance with those old policies and any others contained in the plan – unless material considerations indicate otherwise.

The National Planning Policy Framework (“NPPF”) and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations.

The mere age of a policy does not mean it ceases to be part of the development plan. The policy continues to be entitled to have priority given to it.

Paragraph 209 and Paragraph 210 to 215 in Annex 1 to the NPPF provide as follows:

“209. The National Planning Policy Framework aims to strengthen local decision making and reinforce the importance of up-to-date plans.”

“211. For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.

212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.

213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.

214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.”

Paragraph 215 sets out the approach to be adopted in relation to old policies and requires an assessment to be made as to their consistency with the policies in the NPPF.

The fact that a particular development plan policy may be old is irrelevant in any assessment of its consistency with NPPF policies.

“215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

In the Court of Appeal case of Gladman Developments Ltd v Daventry District Council & Anor [2016] Gladman had made an application for planning permission in May 2014 for residential development of up to 121 dwellings on two fields next to Weedon Bec village. It was not in-fill development of the village. The application was directly contrary to saved Local Plan policies HS22 and HS24.

The Council refused planning permission, especially relying on those saved policies.

Gladman argued that reduced or no weight should be given to policies HS22 and HS24 as they were out of date.

This was based on two principal arguments:

1. the Local Plan related to the period 1991-2006, and its evidence base related to that period, and the Structure Plan, which had been superseded and was no longer a statement of current planning policy; and

2. policies HS22 and HS24 related to housing supply and the Council could not show that it had a five year supply of deliverable sites for residential development, so those policies were deemed to be out of date under para. 49 of the NPPF.

In fact the Council was able to show that with current saved housing policies it had a five year supply of deliverable sites for residential development and also that policies HS22 and HS24 reflected a high degree of consistency with a range of policies in the NPPF, not just housing policies, and so they ought to be given considerable weight despite the length of time they had been in place.

The fact that the Council was able to demonstrate that it had the five year supply showed that there was no unmet housing need which required policies HS22 and HS24 to be overridden in that case. In short the current policies were not “broken” since they could be applied here without jeopardising the five year housing supply objective.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: inspector’s mistakes irrelevant to outcome of appeal

On an application for judicial review it is not for the court to second guess what the outcome of a planning appeal would have been if certain errors of law had not been made.

If that court finds errors of law and is inclined to exercise its discretion not to grant relief, it must be satisfied that the decision-maker would necessarily have reached the same decision even if the legal error had not occurred.

It is insufficient for the court to think that the decision:

– probably would have been the same, or
– very likely would have been the same, or
– almost certainly would have been the same

but for the decision-maker’s error.

It must be persuaded that the decision would necessarily have been the same.

In the Court of Appeal case of Secretary of State for Communities and Local Government v South Gloucestershire Council & Anor [2016] the planning inspector, on appeal, misconstrued the implications of paragraphs 47 and 49 of the National Planning Policy Framework which require there to be a five-year supply of land for housing in the council’s area, and planning permission was granted for a mobile caravan to the disadvantaged applicant and his family.

At first instance the High Court exercised its discretion to quash the planning permission.

On appeal the Court of Appeal said the High Court should not have quashed the planning permission.

– The personal circumstances of the applicant,
– the fact that the planning permission would have been merely personal to him, and
– the planning permission’s negligible impact either way on the objectively assessed housing
requirement for the area

were all factors which meant the planning inspector would have granted the planning permission even if the errors of law had not been made at the appeal.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Enforcement notice only partially superceded by planning permission

In an operational development case there may be more than one unauthorised building or in an unauthorised use case there may be a mixed uses on different parts of the site.

An enforcement notice requiring all the buildings to be demolished may be followed by a planning permission to retain one of the buildings.

In an unauthorised use case, an enforcement notice may be followed by planning permission to carry on that use in one part of the site.

There is no rule that the steps in an enforcement notice have to be exercised in full for it to remain effective.

If it were otherwise, a landowner could totally frustrate the effect of an enforcement notice against the unauthorised construction of a building, by obtaining a planning permission for the retention of a smaller building which includes an element of its predecessor.

Section 180 of the Town & Country Planning Act 1990 (“the 1990 Act”) protects from enforcement any development which has had an enforcement notice made against it, and then is the subject of a planning permission, if and to the extent that the retention of that development is not at variance with that later planning permission.

The effect of Section 180 is to cancel the effect of an enforcement notice, but no more or less than than the notice is “inconsistent” with a later planning permission “for any development”.

Section 180 causes the notice to “cease to have effect so far as inconsistent with that permission”.

The protection afforded by section 180 does not depend upon the implementation of the later planning permission. It is triggered by the very fact that the later planning permission is granted.

Nor does Section 180 require that the site in respect of which the planning permission is granted, after the enforcement notice, must be identical to the site against which the enforcement notice has been served.

Nor does Section 180 require the development covered by the later planning permission to be exactly the same as is the subject of the enforcement notice.

Nor does the imposition of conditions on that permission restricting or regulating the development detract from the overriding effect of the later permission.

These principles apply whether the later planning permissions are permissions for changes in the use of land or permissions for operational development.

If a local planning authority serves an enforcement notice against an operational development and planning permission is later granted, the issue for Section 180 is whether or not, and if so to what extent, the enforcement notice is inconsistent with that permission?

The main question is not whether the later planning permission permits the unauthorized development to be retained on its own, but whether there are elements of development common to both the permission and the enforcement notice.

If there is fabric which forms part of what the planning permission approved, the enforcement notice cannot thereafter be relied upon to attack that much of the development. There may be parts of the development subjected to the enforcement notice which are physically subsumed in the development for which planning permission is later granted.

However, the enforcement notice will remain effective against so much of the fabric as is not approved by the later planning permission.

An unauthorised vertical structure permitted up to 7 metres high on a particular alignment is consistent with a later permitted structure of similar materials 10 metres tall on the same alignment, even if some adaptation and further construction will be needed in order to incorporate the original 7 metres into the taller development covered by the subsequent permission. There is no need to take the original 7 metre wall down in its entirety only to be put up again on the same alignment and using the same or similar materials.

In Goremsandu v Secretary of State for Communities and Local Government & Anor [2015] a pitched roof and an area projecting beyond the building line, part of property subjected to an enforcement notice, were not to be retained in the development later covered by planning permission so the Court of Appeal said the demolition of those parts could not be inconsistent with the permission.

Indeed the permission was designed to achieve the removal of those unacceptable elements, and the retention of that which was acceptable.

So notwithstanding the operation of Section 180 on the remainder of the development, the enforcement notice still required removal of the pitched roof and the projecting part of the extension.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Examining planning inspector’s recommendations could extend to rewriting parts of draft local plan

As originally enacted, section 20(7) of the Planning and Compensation Act 2004 (“2004 Act”) provided as follows for inspectors appointed to examine local planning authority local plans:

“(7) The person appointed to carry out the examination must –

(a) make recommendations;

(b) give reasons for the recommendations.”

In IM Properties Development Ltd v Lichfield District Council & Ors [2015] the claimant said that the examining planning inspector had exceeded his powers in recommending the main modifications to the local plan.

However the High Court said section 20(7) – 20(7C), introduced into section 20 by section 112 of the Localism Act 2011, contemplated that changes of substance could be made to the local plan.

Section 20(7C) of the 2004 Act permitted a local planning authority to request an inspector to recommend modifications to a plan in order to make it sound or legally compliant.

The statutory power could extend to the redrafting of text, or the deletion of a particular policy and changes that were either so significant or so extensive that they amounted to re-writing the plan.

The amendments to section 20 increased the opportunity for planning inspectors to recommend changes so as to enable local plans to be found sound.

Hitherto plans would have to be found to be unsound and so unable to proceed to adoption.

The Localism Act 2011 had changed that. There was no limitation in the statutory language preventing a “rewrite” of the local plan, when any change amounted to a rewrite.

The Planning Inspectorate’s Examining Local Plans Procedural Practice 2013 guidance was no way inconsistent with that. Whilst under section 19(2)(a) of the 2004 Act regard must be had to guidance, that guidance must give way to the legislative intention. In any event it did not claim to be exhaustive (e.g. “may consist…” in paragraph 4.24).

Anyway, the nature and extent of the modifications were a matter of judgment for the planning inspector.

The inspector had considered the rival submissions about strategy, and concluded that the release of the green belt sites was consistent with the plan’s urban and key centre strategy. The courts would not interfere with an exercise of planning judgment.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Report on emerging Core Strategy was material consideration

In planning the duty to have regard to material considerations applies up to the time the decision maker (in an appeal the inspector) makes his decision.

Under rule 19 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000, the decision on the appeal is made when the parties are notified of the decision in the decision letter.

That means that up until that time the appeal inspector is seized of the appeal even though he may have submitted his or her decision letter to the Planning Inspectorate (“PINS”) some weeks earlier.

In Wiltshire Council v Secretary of State for Communities and Local Government & Ors [2015] the report of another inspector on the emerging Wiltshire Core Strategy (“EWCS”) cast doubt on the admission made by the Council in the appeal that it did not have five years housing land supply and/or updated the assessment from one of shortfall at the inquiry to one where a different housing situation now appeared likely to be the case.

In short, the report affected the position on housing needs in Wiltshire which were one of the main issues in the appeal. The report also advanced the Core Strategy nearer to adoption so increasing the weight to be attached to it.

The final report on the EWCS was sent to the case officer in the appeal at PINS by email at 0928 on 3 December 2014. It was not forwarded to the relevant appeal inspector before he sent in his decision at 1610 also on 3 December 2014. His witness statement confirmed that at no time was it forwarded to him.

The High Court said that the appeal inspector in this case did not have to follow the findings of his colleague but he needed to take them into account and express reasons for how he dealt with those findings.

The fact that PINS had not even given him the chance to consider them at a time when his decision had yet to be issued meant that that decision to grant planning permission on appeal had failed to have regard to a material consideration and had to be quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Council’s assessment of housing needs was unduly “policy on” and so insufficient

On housing, the National Planning Policy Framework (“the NPPF”) differed from the earlier national guidance in two major respects:

1. Consistent with the Localism Act 2011, the NPPF substituted localism for the regional, “top down”, approach to housing strategy, with planning authorities now being required to cooperate with neighbouring authorities to develop housing strategy themselves.

2. The NPPF emphasised the need to significantly increase the supply of housing. Paragraph 47 of the NPPF requires a two-step approach: first, an objective assessment of full needs for market and affordable housing (“FOAN”) (“policy off”), and then secondly a distinct assessment as to whether (and, if so, to what extent) other NPPF policies – including those designed to protect the environment – dictate or justify constraint in planned housing provision (“policy on”).

In Oadby and Wigston Borough Council v Secretary of State for Communities and Local Government & Anor [2015 the Council’s adopted Oadby & Wigston Core Strategy Development Plan Document arrived at housing needs figures which it said were “policy off”.

The Council’s justification for not adopting a FOAN figure incorporating housing needs based on employment projections had been that those needs could be met by increased commuting, coupled with increased housing in the nearby authority of Leicester City for those commuters.

In this case, the developer successfully challenged the Plan as failing to provide an accurate projection of 5 years’ housing supply needs, as required by NPPF, because this was in fact a “policy on” decision by the Council not to meet an element of identified need for housing in the Borough and there was no evidence that that need would in fact be satisfied in any adjacent authority.

Rejecting the Council’s attempt to overturn the developer’s planning permission granted on appeal, the High Court said the Inspector had been right – and, certainly, entitled – to conclude that the Council’s figures for housing requirements for Oadby & Wigston were “policy on” and thus not the appropriate figures to take for the FOAN housing requirement for the relevant five year period. So the Inspector had been entitled to approach the issue of five-year housing land supply on the basis that the FOAN – and thus the relevant housing requirement – was no less than 147 dwellings per annum.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Removal of noise condition within boundaries of committee’s planning judgement

Paragraph 123 of the National Planning Policy Framework (“NPPF [123]”) deals with noise caused by new development:

“Planning policies and decisions should aim to:

• Avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of new development;

• Mitigate and reduce to a minimum other adverse impacts on health and quality of life arising from noise from new developments, including through the use of conditions.”

Footnote 27 which applied to both states:

“See Explanatory Note to the Noise Policy Statement for England (Department for the Environment, Food and Rural Affairs).”

NPPF [123] as boosted by the Explanatory Statement is a hierarchical policy. Where, the noise caused by the proposed development crosses the “lowest observed adverse effect level” (the lowest level at which an adverse effect can be observed) (“LOAEL”) the decision maker must at least give consideration to the question whether there are any further steps that can reasonably be taken to reduce the impact of noise.

In the Court of Appeal case of May, R (on the application of) v Rother District Council & Others [2015] the Appellant’s house and garden were next to a Multi-use Games Area (a “MUGA”). The MUGA was subject to a planning condition which limited its hours of operation to between 0900 hours and the earlier of sunset and 2030 hours. Contrary to the advice of it’s Environmental Health Officer and Planning Officer, the Rother District Council removed that condition. The Appellant challenged this.

The court said that the Noise Policy Statement for England said noise impact is to be minimised “within the context of Government policy on sustainable development”. It is not a free-standing requirement. The policy is to be interpreted as minimising noise as far as reasonably practicable. The Noise Policy Statement also makes it clear that considerations of noise do not trump everything else. It says that the relevant part of the policy does not mean that adverse effects from noise cannot occur.

Lastly the opening part of NPPF [123] describes the noise policy as an “aim” rather than as a rule. This was contrasted with other parts of the NPPF which, for example, require decision makers to apply a sequential test to applications for town centre uses.

Whether the imposition of a condition is a “reasonable step” is one of planning judgment for the planning authority.

It is a judgment on which reasonable people can disagree. Whether a step is a reasonable step is a judgment which may take into account both the position of the would-be developer and also the position of those who would be affected by the development.

NPPF [123] was consistent with the decision maker balancing conflicting considerations. If, as the committee concluded, the noise was neither unreasonable nor substantial, it was difficult to see what further reasonable steps they were required to consider.

Paragraph 206 of the NPPF restates the position that a planning condition should only be imposed where is it “necessary, relevant to planning, enforceable, precise and reasonable in all other respects.” The planning committee here decided that the condition did not “solve the problem” and that the noise itself was neither unreasonable nor substantial. The committee had concluded that the condition “no longer served a useful purpose”. Once the committee had reached that conclusion they could not have justified retaining the condition. If it served no useful purpose, it could not be “necessary”?

Whether or not it did in fact serve a useful purpose might have been highly controversial; but the answer to that question was one of fact or planning judgment. It showed no error of law.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Secretary of State had placed unwarranted reliance on neighbourhood plan assessments

In the High Court case of Gladman Developments Ltd v Aylesbury Vale District Council [2014] a decision to “make” a neighbourhood plan was challenged basically because it was claimed that the law did not allow a neighbourhood plan to include policies for the allocation of housing sites and the drawing up of settlement boundaries until such time as the local planning authority had adopted a local plan containing strategic housing policies to address the objectively assessed housing needs of the district. Gladman’s challenge was unsuccessful. The High Court judge ruled:

(i) Paragraph 8(2)(e) of schedule 4B to the Town and Country Planning Act 1990 (“the 1990 Act”) only requires general conformity with the strategic policies of the development plan – if such policies exist. If they do not exist, paragraph 8(2)(e) is not engaged, but that does not prevent a neighbourhood plan being prepared and formally “made”.

(ii) If a local planning authority finds that housing needs in its area are not being met, it should review it’s development plan documents. Once adopted such policies will prevail over any previous neighbourhood plan that is inconsistent with them (section 38(6) of Planning and Compulsory Purchase Act 2004 (“the 2004 Act”)).

(iii) If a neighbourhood plan (or one or more of its policies) gets out of date, that could be a material consideration justifying that plan being departed from and planning permission for development being granted in breach of those policies.

(iv) A neighbourhood plan may contain policies on the location and use of land for housing (or other development) and may address it’s areas local needs but such policies should not be equated with the “strategic policies” of a development plan document. It is not the function of the body responsible for a neighbourhood plan to prepare strategic policies to meet the assessed development needs across a local plan area.

Whilst Gladman’s got leave to appeal they decided not to pursue it.

In the High Court case of Woodcock Holdings Ltd v Secretary of State for Communities And Local Government & Anor [2015] the claimant sought planning consent for 120 dwellings, community facility/office space, and care home and retail units. The Secretary of State had rejected their appeal against refusal.

The court said there was no evidence before the Secretary of State as to whether or when the District Council would carry out an up to date objective assessment of housing need against which to test the proposals in the draft neighbourhood plan or that it would be carried out before the examination of the neighbourhood plan.

There was no legal requiement for such an assessment to be carried out to meet the statutory “basic conditions” for the preparation and approval of a neighbourhood plan.

Neither would the examination of the neighbourhood plan consider whether the policies of a plan were “justified” by a proportionate evidence base (the “soundness” test).

However, in this case the Secretary of State had assumed that the remaining stages of the neighbourhood plan “may show that more land needs to be allocated”.

However given that the District Council had not made any proper needs assessment, and the limited statutory ambit of the process for the preparation and examination of a neighbourhood plan, the Secretary of State had made an assumption, not based upon any evidential or legal justification, which had been the basis of his dismissing the planning appeal.

So on this ground alone the Secretary of State’s decision to refuse the appeal must be quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Core Strategy Housing delivery target was not a requirement

In Local Development Plans there are two quite separate concepts:

– the “requirement” and

– the “target”.

It is the distinction between a “need” and an “aspiration”.

A “requirement” is something that is needed, and that must be provided.

A “target” is more ambitious; it is a goal or aspiration that is set, which may or may not be attained.

The “requirement” is the required minimum, which must be met whether or not the “target” is reached.

In the High Court case of Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government & Ors [2015] Policy SS2 of the Council’s Core Strategy had the core objective to ensure the delivery of a minimum of 350 dwellings each year from 2006/2007 until 2030/2031.

It also set the target of providing 8,000 dwellings by the end of 2025/2026, which would mean an average delivery of 400 dwellings per year.

The court said Policy SS2 differentiated consistently between those two concepts.

It imposed a requirement for not less than 350 new dwellings per year to be delivered each year throughout the Core Strategy period.

The claimant’s interpretation forced one to read the word “target” as if it meant “requirement”, which was wrong.

The planning inspector had understood Policy SS2 correctly, and had applied it lawfully at the appeal in having the Secretary of State grant planning permission.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.