Tag Archives: Judicial Review

World Heritage Site Planning: Council did not breach duty to notify Government

Sub-paragraph (2) in paragraph 18a-036 of the Planning Practice Guidance requires information to be provided to enable the Government to comply with it’s obligations, under the 1972 World Heritage Convention, to warn the World Heritage Committee of any proposals which may have an adverse effect on a World Heritage Site’s Outstanding Universal Value.

In Save Britain’s Heritage, R (On the Application Of) v Liverpool City Council & Anor [2016] the applicant said the respondent had failed to do this in breach of the above and the World Heritage Committee’s Operational Guidelines. The site lay within the buffer zone of the World Heritage Site and included The Futurist Picture House.

The main issue before the Court of Appeal was whether the city council was, or was not, required, to notify the Department for Culture, Media and Sport of the proposal, or at least to consider doing so, in the light of the guidance in paragraph 18a-036 of the Planning Practice Guidance.

The applicant said the city council was required by that guidance to at least consider referring the planning application to the Department for Culture, Media and Sport (“the DCLG”), and, through that department, the World Heritage Committee, as a proposal that “may affect” the Outstanding Universal Value of the World Heritage Site. The applicant said the words “may affect” must mean “may affect in a negative, neutral or positive way”, not merely “affect adversely”.

The court said the words “may affect the Outstanding Universal Value” meant “may have an adverse impact on the Outstanding Natural Value” – the kind of harm to a World Heritage Site or it’s setting that is contemplated in the second part of paragraph 18a-036.

To interpret the words “may affect” as meaning “may affect in a negative, neutral or positive way” would not reflect:

– the concept of effects requiring “appropriate solutions to ensure that the Outstanding Universal Value is fully preserved”, or

– the policies for the conservation of heritage assets, including World Heritage Sites, in the National Planning Policy Framework (“NPPF”)

and it would be at variance with the equivalent previous guidance in paragraph 7.12 of the document “The Protection & Management of World Heritage Sites in England” published by English Heritage and the two government departments in 2009 in response to paragraph 172 of the World Heritage Committee’s Operational Guidelines – which in turn referred to “an adverse impact on Outstanding Universal Value”.

Whether a particular proposal “may affect” Outstanding Universal Value so as to justify informing the World Heritage Committee was a matter for the Government, with the advice of Historic England. But such a discretion for the Government did not imply an obligation for a local planning authority to consult Historic England and the DCLG on any proposal that the authority considered might affect Outstanding Universal Value whether harmfully or not.

Where the guidance referred to the action that local planning authorities can take, it was not in mandatory or even directory terms, but encouraging or, “advisory”.

If a local planning authority did not do what was “very helpful”, it could not be said to have breached any requirement in the guidance or any relevant policy in the NPPF.

There was a sufficient paper trail to show that the City Council had considered the position.

By consulting Historic England first in March 2015 and then in June, the city council enabled them to consider, at a sufficiently early stage, whether the proposed development would have an effect on the Outstanding Universal Value of the World Heritage Site, and, if necessary, to bring the proposal to the attention of the DCLG so that a view could be taken on referral to the World Heritage Committee.

Historic England either had no concerns or were insufficiently concerned about the application so as to advise the DCLG to call it in. In deciding not to call-in the application the Secretary of State must have considered any effect on the World Heritage Site or it’s setting.

There was nothing to suggest that the DCLG would have onward referred the application in any event. Not every proposal for development, that could have an effect upon Outstanding Universal Value, could be referred to the World Heritage Committee.

The fact that the city council did not:

– directly consult the DCLG, or indeed notify it of the proposal, until 25 August 2015, was not a material failure to follow the guidance in paragraph 18a-036;

– refer to the guidance in paragraph 18a-036 in it’s correspondence with Historic England and the two government departments did not mean that it acted inconsistently with that guidance. The question was:

“not whether it explicitly or even consciously followed the guidance, but whether it failed to act in accordance with the guidance in such a way as to vitiate it’s decision on the application for planning permission. In my view it plainly did not. I should add that there is no evidence to suggest that it was unaware of the advice in paragraph 18a-036. But in any event, whether knowingly or not, it acted consistently with that advice.”

……. I reject the concept that the effect of new development on the setting of a World Heritage Site must necessarily be an adverse impact, or indeed an impact of any kind, on it’s Outstanding Universal Value. That concept is not to be found in government policy in the NPPF, or in the Planning Practice Guidance. ……. development in the setting of a heritage asset, in this instance development in the buffer zone of a World Heritage Site, will bring about some physical and visual change within the setting. Such change may potentially affect the “significance” of the heritage asset, in this instance the Outstanding Universal Value of the World Heritage Site. I emphasize “potentially”. There might or might not be an impact on Outstanding Universal Value, and the impact might or might not be adverse. Whether the impact, if harmful, is such as to militate against the grant of planning permission is ultimately a question for the decision-maker to determine in the light of relevant policy, including policy in the NPPF. This will be a matter of fact and judgment in every case.”

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

Planning: Sequential test sites must disregard applicant’s circumstances

Planning authorities must “require applications for main town centre uses to be located in Town Centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered.” That is the “sequential test”.

The High Court case of Aldergate Properties Ltd v Mansfield District Council [2016] concerned an application for planning permission for a large Aldi foodstore in a business park, just over 3 miles outside Mansfield town centre.

Aldi already had, in the vicinity, a current store and another that had got planning permission.

The claimant argued that planning permission for this third store resulted from a misinterpretation of the sequential test which had caused a failure to take into account a material consideration.

As it would not have made commercial sense for Aldi to build in such proximity to it’s other stores the planning authority had excluded Mansfield town centre from the sequential test.

The Court said “suitability” and “availability” for the sequential test did not depend on the commercial characteristics of any specific retailer. The test could not be dictated to by any particular trader’s preferences, or what opportunities a retailer had.

Instead the planning authority must look broadly at the proposed development’s approximate size, type and range of goods and at the sites that are available for 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 condition not ultra vires as requiring neighbouring drainage improvement

A planning condition might require the preparation and approval of a surface water drainage scheme, before the approved development is begun, if that planning condition fairly and reasonably relates to the development permitted.

However a condition requiring the submitted scheme to achieve some improvement in the drainage of other land next to the site or nearby would offend the principle that planning conditions must fairly and reasonably relate to the development permitted. It might also be so unreasonable that no reasonable planning authority could have imposed it.

In the Court of Appeal case of Menston Action Group v City of Bradford Metropolitan District Council [2016] the claimant challenged a planning permission.

Condition 15 of the permission said:

“15. Development shall not begin until a surface water drainage scheme for water passing through the site, based on sustainable drainage principles has been submitted to and approved in writing by the local planning authority. This must include details of how the surface water run off rate of 8.2 litres/second/ha will be maintained for up to and including the 1 in 100 year (plus climate change) rainfall event.

Reason: To prevent flooding by ensuring the satisfactory storage/disposal of surface water from the site.”

The claimant argued that condition 15 required the submission of a surface water drainage scheme in which “sustainable drainage principles” were properly represented. The claimant contended this would require it to be shown that the potential for reducing existing flooding, both on the development site itself and also in the surrounding area, had been considered. The claimant said a document submitted under condition 15 that failed to demonstrate that this had been done would not be capable of discharging the requirements of the condition.

Dismissing the claimant’s contentions the court said the condition “did not stipulate any improvement – or “betterment” – to the drainage of neighbouring land, or the alleviation of existing flooding beyond the boundaries of the development site.

…….The only measurable requirement in condition 15 is that the submitted surface water drainage scheme “must include details of how the surface water run off rate of 8.2 litres/seconds/ha will be maintained for up to and including the 1 in 100 year (plus climate change) rainfall event”. This specific requirement must clearly be in keeping with “sustainable drainage principles” in the sense in which that concept is used in the condition. And the reason given for the imposition of the condition – “[to] prevent flooding by ensuring the satisfactory storage/disposal of surface water from the site” – must also accord with those principles. The expression “[to] prevent flooding” here cannot extend to include the amelioration or elimination of existing flooding on neighbouring land. It can only mean “to prevent flooding arising from this development” – because it is, after all, the development itself to which the condition must fairly and reasonably relate. The means of preventing flooding is “by ensuring the satisfactory storage/disposal of surface water from the site” – that is, the site once developed.”

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

Offices to flats: Deemed planning consent convertible to have lesser conditions

In the High Court case of Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] the Claimant, applied to the Defendant Council for a determination under the Town and Country Planning (General Permitted Development) Order 1995 whether prior approval was required before making a change in use from an office into three self contained residential flats. The Council granted prior approval for the change of use. That approval amounted to deemed planning consent under Article 3 and Class O of Part 3 of Schedule 2 of Town and Country Planning (General Permitted Development) Order 2015. However that approval was subject to fourteen conditions. Some required the later submission, approval and implementation of schemes to deal with things.

The question raised was whether or not an application under section 73 of the Town and Country Planning Act 1990 may be made for the grant of planning permission for the development of land without complying with conditions subject to which a prior approval was granted for development where (as here) planning permission was granted not expressly by the local planning authority but granted instead by virtue of a development order made by the Secretary of State.

The court said such an application could be made. Any conditions subject to which prior approval was granted were “conditions subject to which the relevant Class O planning permission was granted.”

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

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.

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.

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.

Must a planning committee consider the availability of alternative sites?

Is the availability of a preferable alternative site for development a material planning consideration when a decision maker is considering a planning application?

In the Court of Appeal case of Smech Properties Ltd v Runnymede Borough Council & Anor [2016], planning permission had been granted for the mixed use redevelopment of part of a brownfield site.

The council planning officer’s report advised planning committee members that such availability was not a material consideration.

A nearby owner sought judicial review of the planning permission. One of their main objections was that this advice was wrong.

Disagreeing with that challenge, the High Court had, at first instance, said there is nothing in the Town and Country Planning Act or the Planning and Compulsory Purchase Act which forced a decision maker to have regard to alternative sites.

Nor was there anything in planning policy which expressly or impliedly obliged the decision maker to consider alternatives.

Generally, the fact that there is other land on which the proposed development would, for planning purposes, be more acceptable does not justify planning permission being refused upon an application site.

The fact that in this case the decision maker was considering inappropriate development in the greenbelt did not, of itself, require alternative sites to be considered.

The application site was previously developed land which was a key site specific characteristic. Any requirement to consider alternative sites risked ignoring that.

In fact, neither the neighbouring land owner nor any objector had suggested any site as an alternative for the development proposal as a whole.

On appeal from the High Court, the Court of Appeal said that the High Court judge had been entitled to conclude it “inevitable that if the planning committee had been properly advised about the position in relation to housing need in the Council’s area it would have made the same decision to grant planning permission for this development on the Green Belt.”

The Court of Appeal would not have thought her decision based on that assessment could be said to be “wrong”, even if the Court of Appeal might have made a different overall assessment of the position had the Court of Appeal been deciding the matter afresh.

As it happened, the Court of Appeal agreed with the High Court judge’s assessment.

Given the obligation of the Council “to comply with applicable national planning policy, the pressing nature of the objectively assessed housing need in its area and the especial suitability of the Site for development to make a significant contribution to meeting that need”, it was inevitable that, even if the Council’s planning committee had been properly advised, it would still have decided to grant planning permission for the development.

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