Category Archives: Planning Appeals

Planning: Core Strategy preparation cured early defects in sustainability approach

Article 3 of the SEA Directive requires a strategic environmental assessment of certain plans and programmes, including a local planning authority’s Core Strategy draft Development Plan Document (“CS”).

In the case of No Adastral New Town Ltd v Suffolk Coastal District Council & Anor [2015] the Court of Appeal upheld the High Court judgement (q.v.).

The High Court Judge had found two deficiencies in the SEA process, namely:

(i) the failure to carry out an SEA early in the preparation of the CS, prior to the Preferred Options consultation, and

(ii) the failure to consult on the alternative options to the disputed “Area 4” when an increase in housing allocation to 2000 dwellings was proposed.

But the High Court Judge found that each of those two deficiencies was later cured and that the requirements of the SEA Directive and implementing regulations had been fulfilled with by the time the draft CS was submitted for examination by the inspector in anticipation of its adoption.

However the appellants said on appeal:

(a) as a matter of law, the earlier deficiencies were incapable of being cured later in the process, and

(b) in fact, they were not so cured.

The Court of Appeal found against them (a) and (b).

When the Council decided to proceed with the CS, it was fully informed of the environmental implications on all alternative areas and knew the outcome of the public consultation as to the effect of 2000 dwellings on all 5 of the original option areas.

The judge had been right to find that the earlier deficiencies in the SEA process had been cured.

Under the Habitats Directive any plan or project:

– not directly connected with or necessary to the management of a site but

– likely to have a significant effect on it, either individually or in combination with other plans or projects,

shall be subject to appropriate assessment (“AA”) of its implications for the site in view of the site’s conservation objectives.

Screening assessments are carried out to determine whether a full AA is required

The second ground of challenge was that the Council was in breach of the Habitats Directive by not carrying out an initial screening assessment until too late in the CS process.

In the legislative material examined by the Court of Appeal it could not see even an obligation to carry out a screening assessment, let alone any rule as to when it should be carried out.

If it is not obvious whether a plan or project is likely to have a significant effect on a Special Protection Area (“SPA”) like this, it may in practice be necessary to carry out a screening assessment in order to ensure that the substantive requirements of the Habitats Directive are ultimately met.

It may be wise, and likely to reduce delay, to carry one out an early stage of the decision-making process. However there was no obligation to do so.

So there was no breach of the Habitats Directive by failing to carry out a screening assessment in this case until well into the process.

A full AA was in fact carried out and led to a properly based conclusion that the allocation of housing proposed in the CS would not have an adverse effect on the integrity of the SPA. That met the relevant requirements of the Directive.

The third ground of challenge was that the Council had breached Article 6 of the Habitats Directive by leaving mitigation measures over for assessment at the later stage of the Area Action Plan or specific planning applications, in circumstances where sufficient information had been available to assess the effectiveness of such measures at the CS stage.

To leave matters of mitigation to lower-tier plan-making or specific project stages was claimed to be contrary to the scheme of the Directive if the relevant information had been known at an earlier stage.

The Court of Appeal said the important question was not whether mitigation measures were considered at the CS stage in as much detail as the available information allowed, but whether there was sufficient information at that stage to enable the Council to be satisfied that the proposed mitigation could, in practice, be achieved.

There was an obligation to have continuing regard to the avoidance of harm to the SPA at all subsequent stages of the planning process.

If some unforeseen adverse impact was subsequently identified which could not be resolved by mitigation, the development would be cut back to the extent necessary to ensure that there would be no adverse effect on the integrity of the SPA.

That was a sensible precautionary measure in a CS that set the framework for development until 2027.

That sort of an approach was in accordance with Article 6 of the Habitats Directive, not in breach of it.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Retrospective planning consent imposed current obligations

Section 73 of the Town & Country Planning Act 1990 (“TCPA”) enables an application to be made to proceed with a development without complying with conditions attached to a planning permission whether the development has not yet commenced, or is in progress, or has been completed.

If the development has not yet commenced, a new grant of permission will take effect prospectively.

If the development is partially completed the permission may take effect prospectively or, using the power under section 73A, both retrospectively and prospectively.

However, if the development has been completed in breach of a pre-condition, retrospective planning permission may be granted under section 73A subject to conditions imposed under section 70. No part of it can be prospective since (i) there remains no proposed development in respect of which any permission can be given and (ii) since there is no proposed development, any conditions, as varied, could only be imposed as a current obligation.

Court of Appeal case of Lawson Builders Ltd & Ors v Secretary of State for Communities and Local Government & Anor [2015] turned on whether the appellants had, in 2010, successfully appealed against the refusal of an application under section 73 of the Town & Country Planning Act 1990 (“TCPA”) for the variation of planning conditions attached to an earlier permission or whether the appellants the planning inspector’s decision constituted the grant of retrospective planning permission for the dwellings under sections 73A and 75(3) TCPA, so rendering the development lawful, and the conditions attached to the permission enforceable.

No carriageway works were undertaken in compliance with the conditions on the 2010 permission and the council served a Breach of Condition Notice (“BCN”). The first appellant took no action and was convicted of failing to comply with the BCN contrary to section 187A(9) TCPA.

The appellants accepted that the development for which the first appellant was seeking planning permission had already been completed in breach of a 2004 planning permission because the appellants had failed to carry the carriageway works out as a pre-commencement condition.

It followed that any new planning permission granted by the local planning authority (or the planning inspector on appeal) whether or not subject to conditions had to be retrospective in its effect.

New conditions could not be grafted on to the 2004 permission – that was not the way section 73 worked.

Subject to qualifications in subsections (4) and (5) (not applicable here), section 73(2) made it plain that the local planning authority must either grant a new permission with no conditions or grant a new permission with different conditions or refuse the application.

1. The first appellant had not been seeking permission for a “proposed development” it had been seeking permission for a completed development.

2. The first appellant was seeking the variation of pre-conditions to the original development. Any conditions attached to the fresh permission could not be pre-conditions to the construction of a “proposed development” because the development had been completed and the existing breach was irremediable. If the conditions were to be varied in the terms sought they could only be conditions that took effect at the date of the grant of the retrospective planning permission or at some other specified time in the future.

It was implicit that if the 2010 application had been successful it would result in a grant of planning permission retrospectively and the imposition of new conditions for the carriageway works that would take effect on or after the date of grant.

An application merely to change the specification of the carriageway works referred to in the 2004 planning permission could not have assisted the first appellant because the carriageway works were a pre-condition to the development. What was done was done. The first appellant could only achieve what it wanted by a grant of fresh planning permission retrospectively subject to revised conditions imposing new current obligations as to the carriageway works.

The first appellant could not implement the 2004 permission because its failure to comply with the carriageway pre-commencement conditions attached to it was irremediable and it had already ‘implemented’ the 2010 permission by completing the development before permission was granted so that the conditions of that permission had immediate practical application.

The original purpose of the conditions being pre-conditions to the 2004 permission (i.e. to prevent building and occupation before the conditions were fulfilled) could no longer be achieved. The development was already causing harm from additional traffic and “it [was] essential that the scheme be submitted and completed in a short time”. The first appellant could not reasonably have understood that compliance with carriageway conditions had been optional.

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

Planning Appeal: Council’s housing needs’ assessment insufficient

Paragraph 47 of the National Planning Policy Framework (“NPPF”) requires local planning authorities to “boost significantly the supply of housing” by ensuring that their Local Plan meets the “full, objectively assessed needs” for market and affordable housing.

They must identify a supply of specific deliverable sites, enough to provide five years of housing in respect of their housing requirements, plus and extra ‘buffer’ expressed as a percentage.

If they cannot demonstrate a five year supply of deliverable housing sites, their policies for the supply of housing must be treated as out-of-date (paragraph 49).

In the High Court case of Cheshire East Borough Council v Secretary of State for Communities and Local Government & Anor [2015] , the Council said 1150 dwellings per annum (‘dpa’) were needed for the District based upon evidence which had supported the figures in the now revoked Regional Spatial Strategy (‘RSS’) for the North West of England.

At appeal the Planning Inspector had rejected this and found “little objective and up-to-date evidence to support any need figure significantly below 1350 dpa”, for the following reasons:

a) The RSS figures were based on 2003 household projections and more recent projections were available.

b) The strategy underlying the RSS figures directed growth to the large North Western conurbations making for less growth in the Cheshire East District. 1150 dpa did not even meet the household projections and economic growth of the District at that time. So it was not a “full objectively assessed” figure.

c) In the Council’s own emerging Local Plan, the “full objectively assessed” figure was assessed as 1350 dpa in both the March 2014 Housing Background Paper and Policy PG 1. Though the policy had yet to be publicly examined and might be objected to, so the final adopted figure had not been ascertained yet.

d) In fact, the developer’s evidence indicated that 1800 dpa would be required to address suppressed need and to support the economic growth identified in the emerging Local Plan.

The Court said the Inspector had been within his rights to conclude that the Council had not been able to show that it had a 5 year supply of deliverable housing sites for “fully assessed objective needs” of 1350 dpa.

It was a planning judgment which the Inspector was entitled to reach on the evidence before him and the Inspector’s conclusion could not be challenged in court as irrational.

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

Planning Appeal: Inspector should have been told of planning refusal

In Carroll v Secretary of State for Communities and Local Government & Ors [2015] the Defendant applied for planning permission to change use from office use Class B1 to residential use Class C3. This was refused.

At the time of the refusal the site was in B1 office use, but by the appeal at the centre of this case the offices had been converted to storage under permitted development rights and the building was now in B8 use.

The Defendant made a second planning application for demolition of the existing building and change of use of the land from B8 storage to C3 residential. A planning officer report on the application concluded that the current use was probably B8 and that planning permission should be granted. The council’s agents sent that report to the Planning Inspectorate.

But the Inspectorate was not informed that council members had subsequently rejected the officer recommendation and resolved to refuse the application on the grounds that the scheme was contrary to the Strategic Objective CO2 of the Core Strategy which sought to protect B1 use of floorspace notwithstanding the exercise of permitted development rights.

The Inspector knew of the second planning application for a change of use from B8 to C3, having received a copy of the Officer’s Report enclosed with the council’s agents’ letter. However he was unaware that the Officer’s recommendation was rejected, and that the Second Defendant refused the application or of the reasons for that decision.

The Planning Court ruled that the decision to refuse planning permission for the change of use from B8 to C3 and Strategic Objective CO2 of the Core Strategy were material considerations to which the Inspector should have had regard.

Since the Inspector proceeded to determine the appeal as a B8 to C3 change it was material that the council had just refused a planning application at the Property for just such a scheme. However the Inspector was unaware that the Officers’ recommendation had been rejected and that the Committee had refused the application or why. If the Inspector had seen the council’s decision on the second planning application he would have seen mention of policy CO2 and would have been obliged to have had regard to it.

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

Planning Appeal: mistake of fact gave rise to mistakes of law

The case of Ecotricity Next Generation Ltd v Secretary of State for Communities and Local Government & Anor [2015] was an application made under s.288 of the Town and Country Planning Act 1990 to quash the decision of the Inspector to refuse an appeal to grant planning permission for a wind energy development including the erection of one wind turbine.

In East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] , the Court of Appeal gave guidance on the approach under Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990:

“Parliament’s intention in enacting s.66(1) was that decision makers should give ‘considerable importance and weight to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise’.”

A failure properly to understand and apply a relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration and will, therefore, be an error of law, open to challenge in the courts.

In the Ecotricity Next Generation Ltd case the local church was a Grade 1 listed building. The Inspector mistakely found that the church tower would be seen in the same views as the turbine and so “the turbine would be apparent in the setting of this heritage asset.”

Whether or not “the church tower would be seen in the same views as the turbine” was not a matter of planning judgment within the exclusive domain of the decision maker.

A decision maker is under a duty to properly inform himself of the information relevant to his decision.

A mistake on an established fact which was uncontentious and objectively verifiable giving rise to unfairness is a separate head of challenge on a point of law if it can be shown that the mistake had played a material, though not necessarily decisive, part in the tribunal’s reasoning.

The Inspector’s finding that “the church tower would be seen in the same views as the turbine”, was “a mistake as to an established fact which was uncontentious and objectively verifiable” and played a material part in the Inspector’s reasoning.

The error gave rise to unfairness to the Claimant and amounted to an error of law.

Or it could be said that the Inspector fell into error by failing to properly inform herself of evidence indicating only one location at which there could be a view of the church tower, behind the proposed turbine – and then only distant.

Having regard to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, there was at least the possibility that the overall balance would have been different if the Inspector had proceeded to determine the appeal on the correct factual basis. Accordingly the High Court quashed the Inspector’s decision to refuse 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.

Appeal Inspector had failed to justify departure from planning precedent

Consistency in decision-making is a well established principle in planning, which has been supported in many decisions of the court. A previous appeal decision is capable of being a material consideration. Like cases should be decided in a like manner. Consistency is important to both developers and development control authorities so that they know where they stand. It also secures public confidence in the workings of the development control system.

An inspector must always exercise his own judgment. He may upon consideration disagree with the judgment of another but should first have regard to the importance of consistency and give his reasons for departure from the previous decision.

To say like cases should be decided alike assumes the earlier case is alike and is not distinguishable in some relevant way.

If it is distinguishable it may still be material in some other way.

Where it is indistinguishable from the current application it will usually be a material consideration.

The inspector must ask himself whether deciding a case one way or the other will be necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case?

Agreement or disagreement may occur (amongst other things) on:

– interpretation of policies
– aesthetic judgments and
– assessment of need.

Where there is disagreement the inspector must weigh the previous decision and say why he is departing from it.

In the case of disagreement on aesthetics, the explanation could be short. In other cases the reasons may have to be elaborate.

In Butterworth v Secretary of State for Communities and Local Goverment & Anor [2015] the single ground of challenge was that the appeal inspector had failed to have proper regard to the two previous appeal decisions for roof extensions to other buildings nearby.

The ground comprised two alternatives:

– either the inspector failed to regard the importance of consistency in decision-making or
– she had not properly explained the reasons for her decision.

The High Court said the previous appeal decisions on proposed roof extensions in the same terrace were not peripheral in Mr Butterworth’s appeal. They had been carefully analysed by his agents and were prominent in the representations his agents made to the appeal inspector on his behalf.

Moreover the design of his proposed development had been carefully informed by that of the roof extension at 4 St Stephen’s Gardens, for which planning permission had been granted on appeal.

The inspector had failed to say clearly whether she accepted what Mr Butterworth’s agents had said about the approach adopted by the other inspectors, whether she thought that was the right approach, or how she saw this case as being materially different on its facts. She said the design of the proposed development was “unacceptable” but she did not differentiate the design of Mr Butterworth’s proposal from those aspects of the roof extensions proposed in the previous successful appeals in St Stephen’s Gardens.

Although the inspector was not bound to:

– agree with the other inspectors in their approach or

– find that Mr Butterworth’s case could not be materially distinguished on its facts from the appeals they had had to decide

it was not enough that she had left the parties to deduce her reasons for differing from those inspectors. She should have given an express and unambiguous explanation of her approach given the previous decisions, and specifically addressing the points Mr Butterworth’s agents had made.

The inspector’s failure to provide intelligible and adequate reasons had caused substantial prejudice to Mr Butterworth. They did not have to be elaborate. It could have been quite succinct. But there was nothing to show she had really got to grips with what Mr Butterworth’s agents had said about the previous appeal decisions, or that she had had regard to the importance of consistency in planning decision-making, or that she had resolved both whether and why she was differing from the other inspectors.

Accordingly her appeal decision was quashed and the appeal was sent back to the Secretary of State to be decided.

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

Secretary of State had insufficient evidence to reject appeal inspector’s findings

On an Appeal the Secretary of State is not entitled to disagree with the Planning Inspector’s assessment of the facts unless there is a sound evidential basis for the Secretary of State doing that.

If the Secretary of State does take a different view from an Inspector on issues of fact where there is no sound evidential base for doing that the Secretary of State will be exposed to challenge under the “Wednesbury principle”.

That’s to say, the Secretary of State must not act perversely. His decision may be overturned by the court if the court considers that:

“no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion that he did reach.”

In the High Court case of O’Connor v Secretary of State for Communities and Local Government & Anor [2014] the claimant challenged the Secretary of State’s decision:

– to dismiss his appeal against the refusal of planning permission for residential caravans; and,

– to uphold an enforcement notice to stop them.

The High Court found that the Secretary of State’s decision was due to:

– his view that the Inspector hearing the appeal had failed to take account of the Sequential Test. However the High Court found that this did not “stand scrutiny”; and,

– the Secretary of State’s failure to take any account of the Inspector’s factual conclusions and judgment about flood risk at the appeal site. Nothing in the decision letter explained why the Secretary of State did not accept that the whole of the appeal site should be treated as being within Flood Risk Zone 2 or why the Secretary of State took a different view of the flood risk from his Inspector.

So, the Secretary of State’s conclusion about the flood risk on the appeal site was unreasonable and/ or it failed to take account of material considerations namely the factual conclusions made by the Inspector and the Inspector’s judgment as to the flood risk based upon those factual conclusions. Therefore the Secretary of State’s decision to refuse the planning appeal was tainted by illegality and had to be quashed.

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

Circumstances justified withholding of commercially confidential planning information

If land may be granted a planning permission which may have an adverse impact on third parties’ land, but which may not be viable, the viability of the scheme would appear to be a material factor.

Where viability may be critical, developers may need to give confidential information to council planning officers who will then have to consider what should be put before the planning committee.

However, what may properly be considered confidential at a particular stage of an application for a proposed development scheme may at a later stage not be.

Confidential information need not be disclosed. The leading decision was by Ouseley J in R (Bedford) v London Borough of Islington [2003]. But there are three important qualifications:

1. the information the officer gives to the committee must not be misleading and must include any information which would materially affect the decision to be made;

2. the committee must not receive and act on information which is not provided to would-be objectors; and

3. the information withheld must be confidential.

In the High Court case of Equiom (Isle of Man) Ltd & Ors v London Borough of Croydon [2014], the claimants included the current leaseholders of the Whitgift Centre in Croydon were opposing a massive redevelopment of it.

Deloitte produced a report to the Council dealing with the overall viability of the scheme . Deloitte had entered into a confidentiality agreement with the developer and so the report did not detail any confidential information. The draft report, was nevertheless considered confidential so that it was not disclosed to any objectors or to the planning committee members but any its conclusions that were material were included in the planning officer’s report to the planning committee.

The claimants pointed to the fact that the planning application was covered by the Aarhus convention guaranteeing a right of access to information and public participation in the decision-making process and said the councillors had been rightly informed that viability was a matter to be taken into account in considering whether the affordable housing requirement of any planning permission could be met.

However the High Court said the Aarhus requirements do not override confidentiality withholding disclosure of particular information.

There was no breach as the planning committee had not been given any information not disclosed to any objectors, had been given proper information and had not been misled.

Where a reputable developer puts forward a scheme which he intends to pursue, viability is not generally speaking a proper reason for refusing permission. It may have been particularly material to the affordable housing element but that element here was a mere 15%. Overall viability had not been a matter to be considered in detail at the outline planning permission stage since it was never going to be a ground for refusing it.

Since a Compulsory Purchase Order would be needed, deliverability would have to be demonstrated at that stage. The viability of the scheme would be tested on the information available at the CPO inquiry. Thus the objectors’ rights would be protected.

The claimants had not suffered any prejudice from non-disclosure.

It would have been interesting to see if the decision on this aspect would have been the same had the affordable housing element been larger and/or the developer less substantial.

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

Planning Challenge for lack of Environmental Impact Assessment premature

Where a proposed development is “EIA development” within regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“EIA regulations”), Regulation 3(4) of the EIA regulations says:

“The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”

However the environmental statement under the EIA regulations is only required to include such information as is reasonably required to assess the environmental effects of the development and as the applicant can reasonably be required to build into it based on current knowledge.

It is for the local planning authority to determine whether the environmental statement meets the requirements of the EIA regulations in any particular case subject only to “Wednesbury principles” i.e. they are still open to challenge if no reasonable body of councillors properly advised could have concluded that the environmental statement did meet those requirements.

Where the installation and use of Combined Heat and Power Pipes (“CHP pipes”) is probable, the environmental effects of laying them down and using them should normally be assessed.

In the High Court case of Khan, R (On the Application Of) v London Borough Of Sutton [2014] the proposed development was “EIA development” within the meaning of the EIA regulations. The claimant pointed out that:

– the development included the provision of underground pipelines for the delivery of heat to the site boundaries in order to allow for onward connection to customers. Two pipelines were proposed; and

– the environmental statement which accompanied the planning application did not assess the environmental impact of the CHP pipelines running from the boundary of the site onwards to customers for the heat.

Dismissing the claimant’s judicial review challenge to the planning permission, made on this basis, the High Court said it was not the case that the Council had overlooked the issue.

It was more the case that until the end users and likely route were known it would be virtually impossible to include a description of the likely significant environmental effects of the relevant pipe work. Once that was known an EIA of the offsite pipe work, including an assessment of the cumulative effect of the pipe work coupled with the proposed development, could be conducted as part of that planning application. Until then it is an unrealistic expectation to argue that that should have been required as part of the application now at issue.

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

Loss of “community facility” did not require like for like replacement

The Court of Appeal case of Chalfont St Peter Parish Council v Chiltern District Council [2014] concerned a proposal to grant planning permission for a disused private convent school and playing fields to be redeveloped.

One major issue was whether the District Council’s Core Strategy Policy CSF2 required a like-for-like replacement of the school use. The District Council and the High Court Judge had interpreted them as not doing as did one Court of Appeal Judge.

The majority of the judges found Policy CSF2 to establish the following priorities:

1. Consideration must be given to the existing community facility or service which would be lost under the proposed development. The Council must ask itself whether there is a continuing need for that facility (or service).

If there is, then it cannot be sacrificed to the proposed development, unless a “like for like” replacement is provided.

2. If there is no ongoing need for the existing facility or service, but the same building or land is needed for some other community use, then the existing facility cannot be sacrificed to the development unless, again, a suitable replacement is provided. That replacement would have to be suitable for the alternative community use, but need not be “like for like” since that would unnecessarily build in suitability for the previous now redundant use.

3. If the facility is not needed EITHER for its existing community use, OR for any alternative community use, then it may be sacrificed to the proposed development, without any need for replacement, whether:

3.1 “like for like”; or

3.2 by a non identical facility for alternative community use.

The planning committee had not been advised to adopt this interpretation of Policy CFS2.

But the majority of judges found that the outcome of the planning application would have been no different if the planning committee had proceeded on a correct interpretation of the policy.

The convent and school buildings were no longer required for their former use and nothing suggested that any of them, apart from the retained chapel, could be put to any other community use. Nor had it been suggested that the playing fields were required for community use. Redevelopment of one kind or another was the only realistic option. If there were any doubt about whether the existing facility could have been put to community use the matter would have to be sent back to the planning committee to enable them to consider the question.

The requirements of sub-paragraph (ii) of Policy CSF2 were therefore satisfied even if the Committee had based its actual decision on an incorrect interpretation of that policy.

The minority judge on this issue thought the Council had been right to conclude that Policy CSF2 would not, in any event, have required a like-for-like replacement of a community service or facility on the site where a particular community use would be lost.

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