Category Archives: Planning Law

Community donation immaterial consideration invalidating planning permission

The High Court case of Wright, R (on the application of) v Forest of Dean District Council & Anor [2016] concerned whether or not a local community donation, based on turnover generated by a wind turbine, amounted to a material consideration which it was lawful for the council to take into account when granting planning permission for the wind turbine.

The Environmental Report accompanying the planning application had offered benefits including:

“Annual community donations will also be made based typically on 4% of turnover (estimated at an average of around £15k to £20k each year for 25 years of operation – up to £500k to help address current and future community needs)…..”

The main ground of challenge to the permission was that this was not a material consideration that the council could lawfully have taken into account.

The court agreed:

“Simply being a contribution for community benefit related to a local strategy for health, social or cultural wellbeing does not make that contribution in and of itself material to a planning determination. It must pass the Newbury test and be for a planning purpose and be fairly and reasonably related to the development proposed. It is difficult to see how the provision of waterproof clothing for a play group or lunches for senior citizens has any proper bearing on the issues relevant to the regulation of land use and control of development which are at stake when considering whether or not to grant planning permission for a wind turbine. The opportunity to make provision for them from the turnover of the scheme is not a planning purpose and is not fairly and reasonably related to the development.”

The council was not entitled to take into account the offer of the local community donation as a material consideration in their planning decision. As a consequence the decision was unlawful.

The court “was not prepared to accept that there would have been no substantial difference to the outcome of the members’ decision-making process had they appreciated that they could not take account of the community donation in determining whether consent should be granted.”

The council’s decision should 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.

Earlier extension discounted under permitted development rights

In relation to householders’ permitted development rights what is the meaning of “the enlarged part of the dwellinghouse” in Class A of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development)(England) Order 2015?

This grants planning permission for the “enlargement” of a dwellinghouse. Paragraph A.1(g) says that development is not permitted where the “enlarged part” would have more than one storey, and would (i) extend more than 6 metres [or 8 metres for a detached house] from the rear wall of the “original dwellinghouse”, or (ii) be more than 4 metres in height.

In the High Court case of Hilton v Secretary of State for Communities and Local Government [2016] Mr Hilton had already constructed a two-storey rear extension pursuant to an express planning permission. He then applied for prior approval for a single storey rear extension. Collectively the existing and proposed extensions would extend less than 6 metres from the rear wall of the original dwellinghouse.

However, on appeal under Section 78 of the Town and Country Planning Act 1990 the Inspector ruled that the “enlarged part” went beyond the extension proposed under the permitted development right; it also included the earlier extension. So the proposal was not permitted development because the previous extension had more than one storey. This was consistent with the Secretary of State’s guidance on householder permitted development rights.

The High Court said that the Inspector (and by implication that guidance) was wrong, and that the “enlarged part” of a dwellinghouse under Class A meant only what was being proposed.

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

Contractual requirement for notice to remedy breach did not apply to repudiation

A contractual termination clause may impose a requirement first to give the other party notice to remedy the breach if it can be remedied.

Will this apply to a contractual termination clause where a party terminated at common law following the other party’s repudiatory breach of contract?

In Vinergy International (PVT) Limited v Richmond Mercantile Limited FZC [2016] the High Court) said clause 17 provided 6 contractual rights to terminate, including on insolvency. So it was to be inferred that the 20 day notice requirement only applied to the specific right to terminate under clause 17.1.1 (a breach which could be remedied) and not to any other express rights to terminate under clause 17, nor to the common law right to accept a repudiatory breach of contract as ending the contract.

However the case turned on the interpretation of the clause. Other clauses may be interpreted differently so it would be dangerous to think the notice procedures can be bypassed in every case involving a repudiatory breach of contract.

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

Service of Enforcement Notice: owner’s address could be from Land Register

In the High Court case of London Borough of Newham v Miah & Anor [2016] it was ruled that if a local authority is not provided with a current address by the owner of property, it is entitled to use the proprietor’s address on the Land Registry’s Land Register, for the land, as the proper address to serve an enforcement notice.

Thus Mr Miah was properly served with the enforcement notice by the Council.

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

Out of date assessments no barrier to development plan or CIL Schedule

Challenges to a local planning authority’s adoption of a development plan document will rarely succeed. The task of testing the soundness of a development plan document is a matter for planning judgment, exercised within the relevant statutory scheme and against the background of relevant policy and guidance, rather than for the court.

In the Court of Appeal case of Oxted Residential Ltd v Tandridge District Council [2016] :the issue was: was it lawful for a local planning authority to adopt a development plan document and a Community Infrastructure Levy (“CIL”) charging schedule to underpin a core strategy prepared under national planning policy for housing land supply that had been superseded by the National Planning Policy Framework (“the NPPF”) in March 2012?

The first issue

In Gladman Developments Ltd. v Wokingham Borough Council [2014] Lewis J. had concluded that the inspector was “not required by reason of [the NPPF] to consider an objective assessment of housing need in order to assess whether this development plan document was sound”.

The Court of Appeal said whether a particular policy of the core strategy, or of the local plan was up to date within paragraph 49 of NPPF was a question that would arise in the making of a decision where an application had been made for planning permission for housing development – when it might be contended that the council is unable to demonstrate a five-year supply of housing land so that it’s “[relevant] policies for the supply of housing should not be considered up-to-date”.

So the council had not been required to consider an objective assessment of housing need before adopting the local development plan document.

The second issue

Given that there was no up to date local plan the appellant said:

1. it was impracticable for a charging authority to make a rational assessment of the need for infrastructure in it’s area.

2. Any calculation of the contributions to be made by developers in the form of CIL would depend on the amount of development properly planned for.

3. If there was no up to date local plan, with the required five-year supply of housing land, and the authority continued to rely on an out of date plan, the CIL charging schedule would bear no reasonable relationship to the infrastructure required or the source of contributions to that infrastructure.

Disagreeing the court said there was no statutory obstacle to the adoption of a CIL charging schedule when a relevant development plan document is, or may be considered, out of date in the light of subsequently issued national policy or guidance.

There is no requirement in the legislative framework which required a recently adopted plan to be in place before a CIL Schedule can be adopted, and there is no legal reason why a charging authority can only produce a CIL schedule if it has recently produced a plan.

Far from it being necessarily unreasonable for a charging authority to adopt a CIL charging schedule in such circumstances, it would often be the most practical approach to take

It had not been unreasonable for the examiner to accept the council’s argument that, although a review of the core strategy was now anticipated, in the meantime, it would be logical and sensible to have a CIL charging schedule in place to deal with the development planned in the core strategy as adopted, and to revise the CIL charging schedule in the light of the review of the core strategy, or earlier, under the legislative power to do so in section 211(9) of the Planning Act 2008.

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 planning condition abolished claimants’ loss

In the Court of Appeal case of Bacciottini & Anor v Gotelee and Goldsmith (A Firm) [2016], the appellants had acquired a residential property in May 2007. The respondent solicitors had negligently failed to advise them that there was a planning restriction attached to the property restricting it’s residential use. Later, after the purchase had been concluded, the appellants successfully secured the removal of the planning restriction.

The appellants claimed the sum of £100,000 (with interest) being the difference between the value of the property in May 2007 without the planning restriction and the value of the property at that date with the planning restriction.

But the trial Judge merely awarded the appellants damages of £250, being the cost of the application to the local authority to remove the planning restriction.

Dismissing the appellants’ appeal, the Court of Appeal said the measure of damages ordinarily is:

“….that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation.”

(Lord Blackburn in Livingstone v Rawyards Coal Co.(1880)).

The Court of Appeal in Bacciottini said the core principle set out in Livingstone v Rawyards Coal Co. (cited above) would determine the outcome of the appeal.

In The New Flamenco [2015] Longmore LJ of the Court of Appeal had said:

“The important principle which emerges from these citations is that, if a claimant adopts by way of mitigation a measure which arises out of the consequences of the breach and is in the ordinary course of business and such measure benefits the claimant, that benefit is normally to be brought into account in assessing the claimant’s loss unless the measure is wholly independent of the relationship of the claimant and the defendant. That should be a principle sufficient to guide the decision of the fact-finder in any particular case.”

Mr Bacciottini and Ms Cook had had no realistic option but to make an application for the planning condition to be lifted by way of mitigation. That was the course that any sensible owner and occupier in their position would have taken.

So the act of mitigation, in applying to the council to get the restriction removed, which generated the benefit, “arose out of or was sufficiently connected with [the solicitors’] breach [of duty to the appellants as] to require [it] to be brought into account in assessing damages.” (Mance J in The Fanis [1994].)

By reason of the subsequent removal of the restriction the appellants had suffered no loss and there was nothing in respect of which they could require to be compensated.

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

Affordable housing contribution could be removed despite occupation of all residences

Section 106BA of Town & Country (Planning) Act 1990 (“the Act”) says an English planning obligation that contains an affordable housing requirement can be modified, replaced, removed or discharged by the planning authority so that the development becomes economically viable.

In Medway Council v Secretary of State for Communities and Local Government & Ors [2016] the permitted development comprised 332 residential units (which had already been built) and 5,738 sq m of commercial floorspace divided into 16 units (which had yet to be built), public open space, new and modified accesses and car parking at Chatham Quays.

Under the related Section 106 Agreement the Developer was to make affordable housing contributions, which the council had agreed be deferred until after the 300th residential unit was occupied. This had happened some time earlier.

The development, taken as a whole, was unviable even without having to make the contribution, as the affordable housing contribution being removed (around £1.3M indexed to October 2014) would be insufficient to off-set the loss (around £12.3M).

With the houses already built and occupied was it too late to get the requirement to contribute removed from the Section 106 Agreement?

The High Court said the development must be seen as a whole, and was still on-going, and not complete, as to its second commercial phase.

In the circumstances the fact that the residential element was already complete and in excess of the trigger number of habitations did not prevent the Developer applying under Section 106BA of the Act.

Whilst the modification applied for would not make the scheme viable, it would improve the viability of the scheme and make it’s completion more likely.

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

Planning: Dangers of delaying Judicial Review applications

CPR Part 54.5(5) provided with effect from 1 July 2013:

“Where the application for judicial review relates to a decision made by the Secretary of State or a local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose.”

In Gerber, R (on the application of) v Wiltshire Council & Ors [2016], at the time the Council took its decision to grant planning permission the CPR Part 54.5(1) applied also to such applications and provided:

“The claim form must be filed –

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose.”

The court had a discretion under CPR Part 3.1(2)(a) to extend time for compliance with this rule.

Section 31(6) of the Senior Courts Act 1981 provides that the court “may” refuse to grant relief where “the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person” or where it “would be detrimental to good administration.”

The Court of Appeal said where a judge at first instance has interpreted the law correctly and has had regard to relevant considerations the court would not overturn his exercise of discretion under section 31(6) unless the ultimate conclusion reached was clearly wrong and outside the range of legitimate choices which might be made in the circumstances.

The Council had posted notices of the planning application at prominent places in the vicinity of the site in accordance with article 13 of the Town and Country Planning (Development Management Procedure) Order 2010, including at the end of the lane leading to Mr Gerber’s Hall but he had not noticed them. Notice of the application was also given in the local newspaper, and on the Council’s website, but Mr Gerber did not know about the application until he noticed development work being carried out on the site on 19 March 2014, when he discovered that an application for planning permission had been made and had been granted.

On 20 March 2014 he wrote an email to the Council to object to the development on the grounds of the detrimental impact it had on the setting of his Hall. Eventually Mr Gerber commenced this claim for judicial review.

On 20 October 2014 Dove J granted permission for the application for judicial review to be brought.

The judge granted Mr Gerber an extension of time for bringing his claim. The judge found that the four substantive grounds of challenge were made out. The Court of Appeal agreed with three of them.

But the Court of Appeal said Mr Gerber had no proper grounds for delaying commencing legal proceedings as he did after 19 March 2014. The High Court judge had been wrong to extend time under CPR Part 54.5 for Mr Gerber to bring his judicial review claim.

As regards the exercise of the court’s discretion not to quash the planning permission, there was no need to rule on this further point but had the Court of Appeal allowed the extension of time and needed to substitute it’s own discretion, it would have said Mr Gerber had a fair opportunity to bring proceedings to challenge the planning permission in proper time but there was unjustified delay and the extent of the prejudice to the developers from quashing the planning permission militated decisively against this.

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

Deemed planning consent to change of use depends on existing use

Part 3, Class A of Schedule 2 of the Town and Country Planning (General Permitted Development) Order 2015 (the GPDO) permits development consisting of a change of use of a building from a use falling within Class A4 (drinking establishment) to a use falling within Class A1 (shops).

Noquet & Anor v Secretary of State for Communities and Local Government & Anor [2016] concerned a former public house last used as a mixed use of A1 (sale of wood burning stoves etc) and residential use. That mixed use was unauthorised under the planning rules.

The claimant’s case was that the rights under Part 3 operated so as to grant planning permission for change of use from A4 to A1 as the claimants were entitled to resume the A4 use of the property under section 57 (4) of the Town and Country Planning Act 1990.

The High Court said the claimant could not rely on the GPDO to grant deemed planning consent to a retail use. The fact that there had been actual A4 use in the past was irrelevant.

What had to be compared was the present use and the proposed use.

The court was not concerned to consider a notional A4 use which could be exercised without the need for further permission, as would be the position here should the claimants revert to use of the property as a public house, for which no planning permission would be required.

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.