recent developments in planning case law
TRANSCRIPT
Recent Developments in Planning Case Law
JOHN PUGH‐SMITH1
INTRODUCTION
The aim of this annual article is to provide a coherent and reasonably comprehensive review of case law over the last twelve months. Once again, there continues to be a breadth of issues upon which the High Court and the Court of Appeal have had to consider; and my choices primarily highlight cases which contain new or clarified principles of law. Nevertheless, I have also provided some useful examples of judicial thinking on existing issues. For ease of delivery, they have been arranged under subject headings in alphabetical order.
DEVELOPMENT PLAN CHALLENGES
I start by considering three cases on reasons. In the first, UK Coal Mining Limited v North Warwickshire Borough Council 2, inadequate reasons were found but the judge, Mr Justice Wyn Williams, declined to quash the relevant part of the plan due to the lack of substantial prejudice to the claimant. This was the type of scenario where the local plan inspector had found in favour of the claimant recommending that its land should be allocated due to a lack of sufficient housing land supply; but the council had decided not to accept that recommendation by using a later start date for the relevant time period but failed to mention that there was still going to be a shortfall. Therefore, the council had not explained why it considered that shortfall to be insignificant. The judge then goes on to explain that the most potent way of testing whether or not the claimant had been substantially prejudiced was to look at the relief it sought. The deletion of the words “within the development boundaries of which” from Core Policy 2(1) would achieve, in substance, nothing for the claimant, and, the same arguments about lack of adequate housing provision could, in reality, be made in support of any subsequent planning application. In refusing to exercise his discretion to quash, the judge also graphically illustrates the difficulties with the section 287 process. He
1 Barrister, 39 Essex Street Chambers, London. This article is based on the joint paper given at 39 Essex Street’s Annual Environmental and Planning Law Update by John Pugh‐Smith and Martin Edwards on January 15, 2009 which has been updated to reflect some later cases as at May 2009. 2 [2008] EWHC 23 (Admin)
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remarks that the consequences of any quashing order would remove from the Core Policy the concept of development boundaries, and, at least the possibility, in its amended form, of encouraging widespread uncertainty as to what may or may not be permitted development not just in terms of housing but the forms specified in Core Policy 2. Furthermore, following a quashing order no further work would be possible on the Local Plan so that it would remain in its same form after quashing for the whole of the plan period. Therefore, the manner suggested would be a disproportionate consequence of such prejudice.
The second is Ribble Industries Estates Limited v Burnley Borough Council 3 . Here, the claimant had applied for an order quashing an employment land chapter of a replacement local plan, having again been partially successful before the local plan inspector. It held an option over a greenfield site which had been identified as potential employment land. The inspector had recognised that development depended on two companies agreeing to work being undertaken and recommended that the plan should be modified and that the council should carry out further consultation to determine the feasibility of the site being developed within the plan period. As no reason had been given in the council's response document for departing from the inspector's recommendation to carry out a feasibility study the judge accepted, to that extent, that there had been a breach of the Regulations4. However, he considered that it was very significant that the council had stated that a feasibility study would have resulted in a delay to the adoption of the local plan of nine to twelve months. Accordingly, its reason given for departing from the recommendations in that one respect appeared to be entirely rational.
In contrast, and more robustly, in Dinedor Hill Action Association v Herefordshire District Council5, Mr Justice Collins upheld a reasons challenge against an LPA’s rejection of a UDP inquiry inspector’s recommendation that a greenfield site should not be allocated for housing. He made clear that where there was an exercise of planning judgment based on a balancing of prospective housing need against the disadvantages of development on a particular site, the LPA’s reasons had to enable readers to understand how the balance had been struck and why it did not accept the inspector's judgment. When such a balance had to be struck, it was not solely a matter of subjective planning judgment; and since there was a need to balance any disadvantages in planning terms against potential gains, some such reasons were needed.
I now turn to challenges of Core Strategies under section 113 of the Planning and Compulsory Purchase Act 2004. In Blyth Valley Borough Council v Persimmon Homes
3 [2008] EWHC 178 (Admin) 4 Town and Country Planning (Development Plan) (England) Regulations 1999 reg.27. 5 [2008] EWHC 1741 (Admin)
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(North East) Ltd & Ors 6 a successful challenge at first instance7 was upheld by the Court of Appeal. Here, the LPA appealed against a decision to quash the affordable housing target contained in its Core Strategy. The target, of at least 30 per cent, had been based on a housing needs survey which had been carried out in 2004 prior to the publication of PPS3, following which low cost market housing has been excluded from the meaning of "affordable housing", and, that targets for affordable housing had to be based upon an assessment of their economic viability. The inspector had concluded that the Core Strategy was sound, as there was no evidence to indicate otherwise, and it was consistent with the target in a neighbouring authority within the same housing market. He also found that PPS3 had not undermined the housing needs survey. However, as the 2004 survey used the earlier and broader meaning of affordable housing, no viability exercise carried out on the old basis could be considered valid for the purposes of assessing the viability of a particular proportion of affordable housing as defined in PPS3 and the core strategy the survey did not amount to a robust and credible evidence base. Similarly, the percentage of affordable housing adopted in the neighbouring district must have been arrived at on the old meaning of affordable housing and was therefore of no evidential value. Of wider interest was the Court’s concern that the inspector had appeared to have approached the issue of soundness on the basis that a policy was presumed to be sound unless evidence was produced demonstrating the contrary, as that was what the 2004 version of PPS12 had stated. Rather, as section 20(5) of the 2004 Act was couched in neutral terms its effect was more appropriately reflected in the later version of PPS12 which had dropped the presumption of soundness and now (at para. 4.49) merely states: “The starting point for the examination is the assumption that the local authority has submitted what it considers to be a sound plan”. The affordable housing policy was therefore legally flawed. The decision is also a reminder of the consequences of an LPA not following the advice in PPS3 of proceeding to an early plan review rather than contending that their submitted plan complied with the PPS.
The erroneous belief by Inspectors that there was a legal presumption of soundness also led to a quashing of the policies of the Surrey Waste Plan which, addressing both strategy and site specific allocations, identified the now infamous Clockhouse Brickworks as a proposed waste incinerator facility. In Capel Parish Council v Surrey County Council 8Mr Justice Collins, following Blyth Valley, also criticizes the lack of rigour undertaken by the appointed Inspectors in their examination as to whether the policies were sound. He remarks that “they would have not only to consider any specific points made by objectors but also any material matters which could indicate unsoundness. This would, in relation to specific allocations, include consideration of whether the process whereby the sites were chosen and others said to be more
6 [2008] EWCA Civ 861 7 [2008] EWHC 1258 (Admin) 8 [2009] EWHC 350 (Admin)
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appropriate rejected was satisfactory.” It is to be hoped that the Planning Inspectorate, in the light of this further judgment, will encourage its Inspectors to, indeed, apply a more rigorous process to their examination process even if that leads to a modest extension of sitting days!
In Associated British Ports v Hampshire County Council & Ors9, the successful challenge was against the Hampshire Minerals and Waste Core Strategy. The main complaint was that although the Core Strategy identified Hampshire's need for crushed rock, it did not earmark a site at Dibden Bay near Southampton docks as a possible location for the berthing of vessels bringing crushed rock to the south coast by sea. As it did not take account of the need to set out the strategy for ensuring that the anticipated demand for crushed rock would be met to a subsequent review, the Core Strategy had not followed the guidance in PPS12, including the need to safeguard potential sites at which crushed rock could be landed from inappropriate development. Furthermore, a number of the considerations that contributed to the inspector's decision not to recommend safeguarding the Dibden Bay site should not have been relied on by him, undermining his conclusion that, with recommended, those parts of the Core Strategy would be sound.
Turning to other issues, further lessons can be learned from Wimpey’s battles with the Tewksbury Local Plan. Last year, at first instance, in George Wimpey UK Limited v Tewksbury Borough Council10, this housebuilder had had a partial success in the quashing those parts of a local plan that included some allocated sites for housing development would be quashed. However, in relation to Wimpey’s own site the judge had found that there had been no deficiency of reasoning. Ironically, Wimpey and the LPA were then taken to the Court of Appeal in MA Holdings Limited v George Wimpey UK Limited & Tewksbury Borough Council 11 by the owner of the land that had been allocated for residential development, and, the subject of that part of the successful Wimpey challenge. It succeeded in obtaining permission to appeal upon the basis that its appeal did have a real prospect of success, even though it had not been a party in the proceedings at first instance. .
Another case, Ashwell Property Group plc v Cambridge City Council12, has also been reviewed by the Court of Appeal. There, the issue concerned the alteration of green belt boundaries, the need to demonstrate exceptional circumstances and the interpretation of RPG6 policy. That gave preference to the development of green field sites on the edge of the town over development in the outlying areas and the requirement for local development plans to review the extent of the green belt in
9 [2008] EWHC 1540 (Admin). Keith J. The other defendants were the New Forest National Park Authority, Portsmouth City Council, Southampton City Council and Hampshire Minerals and Waste Authority 10 [2007] EWHC 628 (Admin) 11 [2008] EWCA Civ 12 12 [2008] EWCA Civ 1151
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order to deliver that approach. The Cambridgeshire Structure Plan EIP Panel’s report had rejected Ashwell’s previous submission that its site should be removed from the green belt as a result of which the revised draft version of City’s Local Plan had not allocated the area for development. Ashwell then put forward a smaller site for release. The subsequent local plan inspector’s recommendation, which was binding on the City, rejected the objection on the basis that there were no exceptional grounds for altering the green belt boundary in the location. Upholding the decision of Mr Justice Forbes13 the Court of Appeal held that the review required by RPG6 required only a single act of review by the concerned LPAs, which the structure plan process had discharged by rejecting Ashwell’s proposal. Of wider interest, was the Court’s view on two aspects. Giving the leading judgment, Sir Robin Auld stated the general proposition that any release of land from the Green Belt was to be kept to the minimum, and granted only where it would do the least harm to the Green Belt, and where and when it is needed and suitable on conventional planning terms. He remarks: “Like all or most planning decisions, whether of local planning policy or at the development control stage, it is a composite exercise of planning judgment, guided, pursuant to section 12(6) of the 1990 Act, by all material national and local planning policy guidance and all other material planning factors appropriate to the exercise” . He also expressed the view that if Green Belts were to retain the level of protection that PPG 2 required, and which regional guidance, of which RPG 6 was part, acknowledged, they should only be altered, when matched against proposed or potential development, where in overall planning terms there were "exceptional circumstances" for alteration. Otherwise, "banks" of released locations could arise, each one of which would be more vulnerable than hitherto to grants of planning permission to potential developers who, in seeking permission, would no longer have to show "exceptional circumstances" at any stage. It is also of note that the City’s inspector had also rejected the suitability of the objection site on accessibility and flooding grounds.
In Hague v Warwick District Council 14a local plan inspector had erred in concluding that the only reason land had been excluded from a green belt was administrative convenience, and had also erred in concluding that exceptional circumstances existed that necessitated a change to the classification of the land so as to include it in the green belt.
Finally, in R (Stamford Chamber of Trade & Commerce and FH Gilman & Co) v Secretary of State for Communities and Local government and South Kesteven District Council 15the High Court (Mr Rabinder Singh QC sitting as a Deputy High Court Judge) had to consider an application for judicial review of an LPA’s decision not to request the saving of a safeguarding policy by the Secretary of State (SSCLG) without public consultation and the SSCLG’s acceptance of the LPA's decision that there was no need
13 [2007] EWHC 1753 (Admin) 14 [2008] EWHC 3252 (Admin) 15 [2009] EWHC 719 (Admin)
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to retain that policy. The claimants were an unincorporated association responsible for promoting business and tourism in the local area and making representations to various bodies and a company concerned about local traffic problems which had participated in relevant planning and highway matters. The deposit version of the local plan had been produced at a time when the Department of Transport and the relevant highway authority were proposing various relief roads in the area. As a consequence, that version included those schemes within a safeguarding policy, the effect of which was that planning permission for any development that would prejudice the construction of the new roads would be refused. Following the bringing into force of the Planning and Compulsory Purchase Act 2004 (Commencement No.2, Transitional Provisions and Savings) Order 2004, the LPA had not included the safeguarding policy in the list of policies it wished to see saved as all the schemes which it expected to be completed had been, so that that policy was no longer needed. Refusing the application, it was held that on the facts the claimants had not made out their primary case that the LPA had created a legitimate expectation that there would be public consultation before it decided not to request the secretary of state to save the safeguarding policy of the local plan. There was no established practice of consultation and certainly no express promise of consultation. A legitimate expectation needed to be founded on a statement that was clear, The judge also noted that, here, it was significant that, in the development of planning policies, a duty of consultation was often required either by legislation or pursuant to an express statement of policy, but, the lack of such an express duty was a powerful indicator that no such obligation should be imposed. As there was no legal principle which imposed on the local authority a duty of public consultation in the absence of any express promise that there would be one the SSCLG’s acceptance of the LPA's decision not to save the safeguarding policy was rational and, therefore, lawful.
DUE PROCESS
The operation of the determination process at council level case has been the subject of two decisions of the Court of Appeal. In the first, Neath Port Talbot County Borough Council v Ware16 , a local resident had applied for judicial review of the council’s decisions to grant planning permission and a hazardous waste consent for an above ground installation or facility that allowed high‐pressure gas to be reduced in pressure so as to be suitable for local gas supply. Four of the councillors who sat on the planning committee and who formed a non‐politically aligned group had attended a meeting where opponents of the proposed development had discussed their objections. The councillors had not expressed any view as to the merits of the application and had later made a declaration to that effect. In advance of the committee meeting, a monitoring officer had advised that the individual members should make a site visit to the
16 [2007] EWCA Civ 1359 on appeal from [2007] EWHC 913 (Admin)
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proposed development and that a failure do so, whilst not precluding a member from the decision‐making process, might call into question the decision‐making process and result in a challenge. Subsequently, at the committee meeting, following advice from a monitoring officer, the four councilors, had not participated further. The planning application was approved by 13 votes to 12. Granting the application to quash the consents, Mr Justice Collins had determined that the advice given to the councillors by the monitoring officer had been wrong in the impression that it gave and was intended to give, which had been tantamount to a suggestion that they had better not remain and take part in the decision‐making process. On the evidence it was plain that the councillors had wanted to remain and take part in the process but for the advice that they received. They had not had the opportunity of independent advice and their absence might have affected the committee's vote and the decision reached. By the time the matter reached the Court of Appeal fresh consents had been granted for the National Grid development. Nevertheless, despite the respondent’s submissions that the appeal was academic the appellant council wished for the appeal to be determined as it would resolve issues of wider importance to the local government process concerning the extent of the ability of the court to intervene. However, leaving these points for another case, the sole substantive judgment, from Lord Justice Mummery, simply focuses on the shortcomings of the first instance judgment, holding, in particular, that the advice that the judge had held to be wrong was not the advice that had, in fact, been given! Therefore, there had been no procedural irregularity vitiating the grant of the consents. The instant case underlined the importance of the evidence and of the court identifying correctly, and, with precision, the advice that was in fact given to the councillors and the respects (if any) in which it was wrong.
In the second, Persimmon Homes Teeside Limited v R (Lewis) 17, the Court of Appeal again questioned the nature of the evidence before the first instance judge, Mr Justice Jackson. Here, the principal issue concerned pre‐determination and the difficulties of maintaining such an allegation at local government level. The site, in question, was owned by Redcar & Cleveland Borough Council and allocated for a major leisure and housing development. It was also near a Special Protection Area protected under the Habitats Regulations 1994. This aspect is addressed separately below. The local Labour Party was opposed to the development in contrast with the ruling Coalition Despite local authority guidance that decisions on controversial matter should be avoided in election periods a special meeting of the planning committee took place at which a resolution was passed to grant planning permission. Following the election there was a change of political control. The essence of the Court of Appeal’s judgments is that as councillors act in a situation of “democratic accountability” rather than in a judicial or quasi‐judicial capacity the freedom that is given to them is much broader. When taking a decision, the members had to have regard to material considerations, but they were not required to cast aside views on planning policy they would have formed when seeking election; and provided they addressed the planning issues before them fairly
17 [2008] EWCA Civ 746
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and on their merits they did not have to be impartial. Accordingly, it was legitimate for them to approach the issues with a predisposition in favour of one side of the argument. It was for the Court to assess whether the circumstances gave rise to a real risk of closed minds. The importance of appearance was less relevant in this context. Here, the imminence of the local elections did not demonstrate an apparent risk of predetermination; and there was no basis on which the absence of dissent by coalition members could amount to "unusual circumstances" that could contribute to a decision to quash, which was unjustified in the circumstances.
In R (Carroll) v South Somerset District Council 18 , “a slightly unusual claim for judicial review” came before the court, as Mr Justice Collins remarks at the outset of his judgment. There, the claimant was the council leader seeking to quash a grant of planning permission due to the issuing of the consent prematurely without the necessary section 106 agreement being in place. The development itself was a substantial housing scheme on a greenfield site on the outskirts of Wincanton with affordable housing, education contribution and highway improvements forming the bulk of the section 106 requirements. The battle in court was between the council, acting through the claimant, and the landowner, Hopkins Developments Limited, as second interested party seeking to preserve the consent but having already sold the land to Wimpey to take the land. Holding that Hopkins remained an interested party, it was argued on its behalf, amongst other matters, that there had been nothing in the committee resolution which had indicated that the section 106 agreement had to be put into effect before planning permission was granted. The judge, having remarked about the ability of a council to revoke and to pay compensation, finds that the only sensible construction is that the 106 agreement must be in place before the permission is granted. On the issue of the judge’s discretion not to quash, the judgment is also of interest as the judge remarks that although Hopkins had indicated its willingness to enter into a subsequent section 106 agreement the Council would have been at a disadvantage because they would have been negotiating from a position of weakness having already granted planning permission.
An interesting case involving potential bias involving councillors determining planning applications involving fellow councillors is R (Michael Gardner) v Harrogate BC and Atkinson 19. Here, the judicial review was, again, brought by the council leader against a decision of his council’s planning committee to grant planning permission, against officer’s advice, for the erection of a house in an AONB. The councillor was from the same political party as the chairman of the planning committee on whose casting vote the decision to grant was made and the two councillors often shared a car to council meetings. The Local Government Ombudsman found that the chairman’s involvement in the decision amounted to maladministration. Mr Justice Sullivan quashed the grant of planning permission in fairly strident terms. He concluded a fair minded and
18 [2008] EWHC 104 (Admin) 19 [2008] EWHC 2942 (Admin).
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informed observer would conclude that there was a real possibility of bias in the decision and that the integrity of the planning system required the offending permission to be quashed so that the matter could then be redetermined by the council in accordance with the law. The public should not be required to pay compensation to the councillor in revocation proceedings for the loss of a planning permission that should not have been granted. A not entirely dissimilar situation arose in the context of a planning appeal in R (Ortina Ltd) v Secretary of State for Communities and Local Government 20when Mr Justice Collins quashed a planning appeal decision refusing an appeal where the inspector determining the appeal had, until 2003, worked in the planning department of the County Council which was the main objector to the appeal development. The judge held that the fundamental issue was whether the circumstances would lead to a fair minded and informed observer concluding that there was a real possibility or real danger that the tribunal was biased. In this case he concluded that there was a possibility of bias. Furthermore, the Planning Inspectorate should not have been assigned the appeal once it was known that the objection to the appeal decision came from the County Council. It was important for the Planning Inspectorate to appreciate that they were in the same position as judges, albeit employed by the Secretary of State, and had independence akin to that provided for judges. Consequently, they should adopt the same approach that judges would adopt in deciding whether they should recuse themselves.
ENFORCEMENT
A rare decision on section 215 notices is Toni & Guy (South) Limited v London Borough of Hammersmith & Fulham.21 Notices were served in respect of a building which had different occupiers on the ground, 1st, 2nd and 3rd floors. The first appellants were the lessees of the ground floor shop which was sub‐let to the second appellants. Remedial works were, however, only required to the upper floors. By specifying that the notice related to the whole of the building, the LPA had acted outside its statutory power as the ground floor was not in such a condition so as to cause harm to amenity. There was also no purpose in serving a notice upon persons who had no ownership or occupation rights. The notice was therefore quashed. Procedure following the remission of an enforcement notice appeal decision to the Secretary of State was considered in R(Perrett) v Secretary of State for Communities and Local Government.22 Five enforcement notices had been upheld on appeal. A High Court challenge on ground (a) (whether planning permission should be granted) was
20 [2008] EWHC 3207 (Admin) 21 [2009] EWHC 203 (Admin). 22 [2009] EWHC 234 (Admin)
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successful, but there was no challenge to the ground (d) decision that the activity was not lawful. The appellant judicially reviewed the decision to confine the redetermination to ground (a) but that challenge was unsuccessful. As the ground (d) decision was legally sound there was no reason to reopen it. The judgment does not suggest that only part of the issues relevant to whether planning permission should be granted should be reopened, with Mr Justice Mitting remarking:
“Mr Beard for the Secretary of State does not suggest, and nor do I, that when an error of law has been made in relation to an appeal under Ground (a), that the matter should not be remitted for re‐hearing and determination de novo with a blank sheet, but the fact that that aspect of an appeal is remitted for re‐hearing and determination de novo does not require the remaining grounds, with the probable exception of Ground (g), to be re‐opened.”23
However, issues might also arise where the Secretary of State submits to judgment on certain of the grounds of challenge and the other grounds are consequently not resolved in those proceedings. Could the Secretary of State reasonably refuse to re‐open the ground (d) appeal if a challenge had been brought to that part of the decision but not determined because of a submission on ground (a)? Attention is also drawn to the two cases involving gypsies, Harber and O’Brien , covered below. ENVIRONMENTAL IMPACT ASSESMENT
In R (Mellor) v. Secretary of State for Communities and Local Government 24 the Court of Appeal referred this case to the European Court of Justice as to whether it should follow the Marson 25, that the secretary of state was not obliged to give reasons either as a matter of national law or as a matter of EC law, for declining to require an EIA. However, ECJ decisions since Marson could be construed as indicating that under European law, reasons should be given. In addition, the European Commission had brought infringement proceedings in relation to the court's decision in Marson before the ECJ. The question depended on the interpretation of the Council Directive and was fundamentally a question of law. As the ECJ would be able to come to a conclusion on the question of interpretation much better informed as to the policy considerations throughout the Community than the UK courts. On 22nd January 2009 the ECJ’s Advocate General published his opinion that reasons should be given. Judgment is currently awaited from the ECJ.
23 Para. 36 24 [2008] EWCA Civ 213 25 R v Secretary of State for the Environment, Transport and the Regions ex parte Marson (1999) 77 P&CR 202
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In Finn‐Kelcey v Milton Keynes Borough Council 26 the Court of Appeal, as part of judicial review permission proceedings in respect of a wind farm, had to consider the scope and legal basis of a request for additional information27. In response to a request from the LPA the developer had supplied supplementary environmental information including CDs containing the raw wind data obtained from an anemometer mast which had been erected on the site. A paper copy of the supplementary information was put on the LPA’s planning files and sent to objectors but not the developer’s covering letter and the CDs. Before the permission judge the point upon the erroneous basis that there had been a breach of the 1999 EIA Regulations as amended by the EIA (Amendment) Regulations 2006. In fact the case was governed by the 1999 Regulations in their unamended form. In any event, there had not been a breach of Regulation 19 because the provision of the wind data had been in response to a non‐statutory request. Furthermore, the requirement under the Environmental Information Regulations 2004 was only to make the information available. The way in which technical information was "made available" could consist of the use of some electronic format, so long as the relevant planning file itself indicated its existence and availability. In the instant case the supplementary environmental information gave a sufficient indication to any interested reader that there was raw wind data available and that it could be obtained on request. In those circumstances the information was made available in the sense required by the 2004 Regulations and by the Directive 85/337/EC (as amended). In R (Louisa Baker) (By Her Next Friend Catherine Baker) v Bath & North East Somerset Council 28part of the ongoing Hinton Organics litigation concerning unpleasant odours from a “green” waste composting facility, the issue was whether the 1999 EIA Regulations adequately implemented the EIA Directive 86/337. The context of the judicial review was a challenge to the grant of three further planning permissions for further development of the facility which would intensify its use. No EIA had been undertaken. The Secretary of State, as first interested party, contended that the permissions were modifications to an already authorised development so that the further development did not cross the Schedule 2 threshold and that the screening provisions in the Regulations provided the necessary protection for the environment, and the interests of the public as it was open to the Secretary of State to direct that any development was development that required an environmental impact assessment before being approved and a member of the public could make an application for such a direction. Robustly rejecting these submissions, Mr Justice Collins concluded that as it was clear from Annex II to the Directive that an EIA was
26 [2008[ EWCA Civ 1067 27 See also Hulme v Secretary of State for Communities and Local Government [2008] EWHC 637 (Admin) where Mitting J. dismissed a claim brought in part on a failure of the promoter to disclose background noise readings. Permission to appeal was subsequently granted and a submission was made to judgment by the SSCLG. 28 Judgment February 19, 2009 – neutral citation awaited
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required; for as Member States could adopt a case by case approach to projects such as waste development, and, that "Any change or extension of projects listed in Annex II, already authorized which may have significant adverse effects on the environment " required a fresh consideration of whether an EIA was necessary “it was plain beyond any peradventure, jurisprudence and the purpose behind the Directive”. Accordingly, he found that Sch.2 para.13 column 2 to the Regulations did not properly implement the Directive as it sought to limit the application of the threshold to the further development rather than assess the cumulative effect that that development would have on the development as a whole. Furthermore, as Article 10A of the Directive required that members of the public concerned with a development should have access to a review procedure to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive it was clear that there was an obligation on the Secretary of State to make clear to concerned members of the public that they had a right to make an application to her to consider whether it was appropriate for there to be an EIA before the development was approved. Accordingly, any decision to grant planning permission should await that decision. He also noted that the current reg.4(8) procedure did not comply with Article 10a as there was no requirement or obligation provided for concerned members of the public to be informed of their right to address the Secretary of State29. In respect of the SEA Directive (2001/42/EC), following the Northern Ireland decision, last September, in the successful challenge by Seaport Investments Limited 30, an unsuccessful challenge was mounted in R (Howsmoor Developments Ltd) v South Gloucester District Council 31on a judicial review by five developers of the South Gloucestershire Council’s SPD Development Brief for the Emersons Green East site that the environmental report was not sufficiently robust to meet SEA requirements. The Brief provided an indicative framework as to how the local plan policy would be carried forward but did not itself make an allocation. Whilst the local plan had been adopted before the SEA Directive came into force, the Planning and Compulsory Purchase Act
29 In doing so it was appropriate to distinguish the Court of Appeal’s remarks in Berkeley v Secretary of State for the Environment, Transport and the Regions (No3) (2001) EWCA Civ 1012 on the requirements for the need for public consultation as at the date of that decision Article 10A of the Directive had not been in force 30 2007] NIQB 62, where Mr Justice Wetherup held that the procedures used in respect of draft plans had failed to comply with the Directive in various respects, including the lack in the Northern Irish system of an independent consultation body as required by Article 6.2. Another issue was the failure of the domestic legislation to set sufficiently precise timeframes for consultation, so as to infringe the principle of legal certainty. It was also held that there had been inadequacies in the environmental reports in various respects and that there had not been substantial compliance with the requirements of the Directive. Emphasis was also placed in the judgment on the need for the environmental report and draft plan to keep in step so that the report could properly influence the plan, which would not be the case if the plan became largely settled, even as a draft, before publication of the environmental report. 31 [2008] EWHC 262 (Admin); Sir George Newman
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2004 made it mandatory for supplementary planning documents, such as the Brief, to be subject to an sustainability assessment and also SEA was required. It was possible in principle to satisfy both requirements through a single document. It was argued that under articles 5 and 13 of the SEA Directive, that the LPA had been required to subject each policy of the local plan to SEA. This submission was summarily rejected as amounting to an attempt to give the Directive retrospective effect by submitting policies adopted before the relevant date to the new regime. There being a lawful local plan, the strategic development with which the Brief was concerned was related simply to indicative proposals for siting a multi‐modal interchange and bridge. There was no obligation to assess the rationale for and alternatives to development overall, or the environmental considerations of the allocation that had been made by the local plan, or to justify the overall mix of development, or the general infrastructure requirements.
An SEA ground was also raised in R(Bard Campaign) v Secretary of State for Communities and Local Government)32. The challenge also concerned lack of adequate consultation by the Government on the principle of, and key criteria for, eco‐towns. There, the claimants sought a declaration that the SEA Directive was applicable to “the eco‐towns policies” on the specific stage at which the challenge had been brought, concerning a consultation document issued in April 2008 entitled “Eco‐towns ‐ Living a Greener Future” (ELGF). Bard claimed that an eco‐town is an urban development project as listed in Annex II, paragraph 10 of the EIA Directive and that the identification of eco‐towns is a programme as it had been adopted by an authority at national level as the Secretary of State intends that the identification of the eco‐town locations will influence regional and local planning policy and development control decisions through a proposed PPS. Before the Court it was stated that the Secretary of State would undertake a SA in full compliance with the SEA Directive. Accordingly, for the most part, the issue of whether the draft PPS is subject to the SEA Directive is academic. The only live issue was then whether the SEA directive required a SA no later than the time when ELGF had been issued. Noting that one pre‐requisite in the SEA Directive and the Regulations concerned the existence of a legal or administrative requirement and that the obligation would only arise when what is under consideration is a plan or programme Mr Justice Walker took the view that this would be any earlier than the shortlisting stage. As ELGF was not concerned to be a full consultation on shortlisting he considered that the SEA Directive and the Regulations did not impose requirements at the ELGF stage.
32 [2009] EWHC 308 (Admin)
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GREEN BELT
Attention has already been drawn, above, to the challenges in the Ashwell and Hague cases on the issue of exceptional circumstances and the fixing of Green Belt boundaries. In R (Heath & Hampstead Society) v Camden LBC 33the substantive legal issue was whether a replacement building was "materially larger" so not appropriate development. The existing house on Hampstead Heath had a floor space, arranged on two floors, of 146 square metres or 186 square metres if a garden shed was included. The floor space of the proposed new building was 626 square metres over three floors. The Camden officer had recommended that permission be granted and had taken into account a number of qualitative factors such as visual intrusion and the effect on the character and setting of the Metropolitan Open Land, and concluded that the proposed development was appropriate development that was capable of maintaining the openness of the Metropolitan Open Land. Upholding the judgment of Mr Justice Sullivan34 that the wrong test had been applied by Camden and that the permission had to be quashed, the Court of Appeal held that even a small increase in floor space in absolute terms could be judged material in planning terms, because of the design of the building and its position on the site. The test was whether the replacement was "materially larger". Had it been intended to make appropriateness dependent on a broad "no greater impact" test, those words could have been used. Instead the emphasis was on relative size, not relative visual impact. PPG2, paragraph 3.6 as a whole was dealing with size. The words "replacement" and "not materially larger" read together and in context indicated that size was the primary test. The use of the word "materially", notwithstanding its use in planning law more generally, did not import a broader planning judgment as to whether the new building would have a materially greater impact than the existing building on the interests which the policy was designed to protect. The general intention was that the new building should be similar in scale to that which it replaced. Had the LPA properly understood the policy, it could not reasonably have concluded that a building more than twice as large as the original in terms of floor space, volume and footprint was not "materially larger”.
Next are two cases on the application of the “very special circumstances” test. The first, Brentwood Borough Council v Secretary of State for Communities and Local Government 35 , concerned the grant of temporary planning permission to a group of gypsies and travellers. Here, the consent was quashed as the planning inspector had erroneously treated the requirement to find very special circumstances as a mere balancing exercise, assuming that, because in her opinion the factors she had considered outweighed the environmental harm caused, those factors were to be described as very special. Rather, the factors relied on had to be very special in character before they could justify the grant of planning permission, whatever weight
33 [2008] EWCA Civ 193 34 [2007] EWHC 977 (Admin) 35 [2008] EWHC 1001 (Admin), Cranston J
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they might carry. In the subsequent case of Wychavon District Council v Secretary of State for Communities and Local Government 36 the Court of Appeal took a more generous view holding that the word "special" in PPG2, para. 3.2 connoted not a quantitative test but a qualitative judgment as to the weight to be given to particular factors for planning purposes. The special position of gypsies was reflected in Circular 01/2006; and the loss of a gypsy family's home, with no immediate prospect of replacement, was capable in law of being regarded as a "very special" factor for the purposes of PPG2. There was no reason in terms of policy or common sense why the factors which made a case very special should not be the same as, or overlap with, those which justified holding that green belt considerations were clearly outweighed. The two questions were linked and the starting point was that inappropriate development was by definition harmful to the purposes of the green belt.
This approach was followed by Sir George Newman in SB Herba Foods Ltd v Secretary of State for Communities & Local Government and South Cambridgeshire DC 37 which concerned a proposed extension to a factory where the main building lay outside the green belt but where the extension would be built within the green belt. The court considered that Mr Justice Sullivan’s approach in the Chelmsford Borough Council 38 case led the inspector into error and that his approach in Doncaster MBC v SSETR 39 which had been preferred by the Court of Appeal in the Wychavon case should have been adopted. To be fair to the inspector the confusion between the two Sullivan decisions was not cleared up until the Court of Appeal’s decision in Wychavon and the judgment in that case was delivered after the inspector had issued his decision letter.
It has also been followed by Robin Puchas QC, sitting as a Deputy High Court Judge, in Summers Poultry Products Limited v Secretary of State for Communities and local Government and Stratford on Avon District Council40, another factory extension though with all the buildings within the Green Belt. The Inspector had correctly applied a qualitative judgment as to the weight to be given to a particular factor. In reaching that conclusion, his primary consideration was the inappropriateness of the development and its impact on the open character of the countryside and that it had not been shown that the need for compliance with relevant regulations on food hygiene and animal welfare through the proposed development was the only way to secure compliance. The point of interest in the case was the judge’s rejection of the argument that placing the development on a brownfield site did not amount to an encroachment of the green belt, remarking that as open countryside ranged from farm fields to dwellings and agricultural structures agricultural hard‐standing or similar structures could be classified as developed land, yet still be open countryside.
36 [2008] EWCA Civ 692 37 [2008] EWHC 3046 38 [2003] EWHC Admin 2978 39 [2002] JPL 1509 para 70 40 February 16, 2009 –neutral citation awaited
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GYPSIES
As so often happens, a variety of planning issues have been considered by the Courts when dealing with cases involving gypsies. Reference has already been made to the Brentwood and Wychavon cases on Green Belt “very special circumstances”.
In Clee v First Secretary of State 41 Mr Justice Wyn Williams draws attention to the fact that Circular 01/2006 does not lay down any “tests”, as lawyers would usually use the word as to when a temporary planning permission should be granted. Rather, the Circular obliges a decision maker, when faced with an application for planning permission for a caravan site for gypsies and ,where there is a demonstrable unmet need for such a site but no readily available alternative to the application site, to “give consideration” to granting temporary permission”. This simply meant that a decision maker had to consider such a grant but was not required to grant permission even in circumstances where there was a demonstrable need and no alternative was available.
An interesting Court of Appeal decision which has potentially wide implications is R (Baker) v. Secretary of State for Communities and Local Government42 concerning the application of the Race Relations Act 1976. A planning inspector had considered an appeal against refusal of permission for a gypsy caravan site in the green belt and had concluded that the need for the appellant to live there did not outweigh the harm to the green belt. It was argued the inspector had acted in breach of section 71(1)(b) by failing to have due regard to the need to promote racial equality of opportunity. It was held that the duty arose whether or not the point was raised by any of the parties to the appeal. However, the duty was not to achieve a result, namely, to eliminate unlawful racial discrimination or promote equality of opportunity and good relations between persons of different racial groups. Rather, it was a duty to have due regard to the need to achieve those goals. Here, the inspector had been alive to the inequality of educational opportunity between the gypsy community and the general community and had taken this into account; and her failure to mention section 71 in her decision letter had not been indicative of a failure in that regard; but the Court felt it would be good practice to make reference to it in all cases where it was in play.
In South Cambridgeshire District Council v Secretary of State for Communities and Local Government 43 the issue concerned the availability of alternative sites. Finding that there was no burden of proof, the Court of Appeal held that it was a matter of planning judgment for the LPA or, in the instant case, the inspector. Here, she had concluded that whilst the appeal proposal (for a personal permission for a rural site) was not in accordance with the development plan and would cause harm to the character and appearance of the local area, that harm was outweighed by other material considerations, most particularly the exceptional circumstances of the family and the
41 [2008] EWHC 117 (Admin) 42 [2008] EWCA Civ 141 43 [2008] EWCA Civ 1010
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needs of their disabled daughter. She had also found that the applicants had in fact searched for alternative sites butt hat none had been available.
In Sevenoaks District Council v Harber 44 the issue concerned compliance with enforcement notices. The landowner, a gypsy, relied upon the statutory defence under section 179(3) of the TCPA 1990 that he had done everything he could to secure compliance with the notice and highlighted the practical difficulties of securing its removal. The Divisional Court held that the question that had to be considered was whether it had been within Mr Harber's power to comply with the enforcement notice without the assistance of others. Issues of hardship and the reasonableness of compliance were irrelevant as those matters fell for consideration at the time of service of the notice and the appeal against it. Here, as he was able to leave the caravan on the site and thereby cease to use the site for residential caravan purposes Mr Harber had not done everything he could reasonably be expected to do to secure compliance with the notice.
Lastly, in the case of O’Brien (Margaret) v South Cambridgeshire District Council 45 the Court of Appeal considered planning injunctions under section 187B of the TCPA 1990. Emphasing the very broad discretion that LPAs and the courts were given, Lord Justice Keene points out that merely because it was said that the LPA had left a material consideration out of account would not deprive the court of jurisdiction as it could take into account any matter overlooked by the LPA. In any event, that line of argument depended on it being shown that the LPA was guilty of alleged failings but that was not the case. Indeed, the only error made by the judge had been to regard the need to carry out a race impact assessment (as required by the Code of Practice on the Duty to Promote Race Equality) as not applying to the LPA's decision to apply for an injunction; but even that error had not vitiated the conclusion to which he had come to, in consequence of which the judge had been entitled to exercise his discretion and grant the injunction.
HERITAGE Attention is drawn to a number of cases which raise disparate but interesting points. In R (Arndale Properties Limited) v Worcester City Council 46 it concerned the correct approach to the designation of conservation areas. Following the Council’s failure to have listed a cricket pavilion, which was in poor condition, it sought to designate a conservation area which included the pavilion. Rejecting the conservation officer’s evidence that his desire to retain the pavilion was only the initial impetus for considering designation Mr Justice Sullivan stresses that an LPA must identify, following a thorough assessment, the special architectural and historic character of an
44 [2008] EWHC 708 Admin 45 [2008] EWCA Civ 1159 46 [2008] EWHC 678 (Admin)
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area. The fact that there are buildings of historic or architectural interest for which consent is required is not of itself material to the decision to designate. In Chambers v Guildford Borough Council 47 the issue concerned the correct approach to determining whether listed building consent was required. Having been refused listed building consent for its demolition, the landowners sought a declaration that a pillbox was not included within the listing of a 17th century farmhouse, although it lay within its curtilage, and, that its removal would not constitute alteration of the listed building that would affect its character. On behalf of Mr & Mrs Chambers, it was submitted that there was no statutory procedure enabling a landowner to find out, in case of doubt, whether listed building consent was required for intended works, so it was a matter for the courts to decide. The Council contended that this issue could be decided on a statutory appeal against the refusal of consent. Staying the proceedings to enable a fresh application to be made and any appeal to be brought, and, expressing surprise that the matter had come before the High Court, Mr Justice McCombe held that it must be implied that the initial decision on whether consent was necessary was one for the LPA, and subsequently, if necessary, by the Secretary of State on appeal. In Derby City Council v Anthony48 the procedural consideration was an injunction by the Council to stop a property owner from executing demolition works to a listed building under section 44A of the Planning (Listed Buildings and Conservation Areas) Act 1990 pending the determination of its application for listed building consent for total demolition of the building. On the facts, the judge, Mr Justice Wyn Williams, finds that that there is no urgent need on the grounds of risk to the public to require its demolition. In East Riding of Yorkshire Council v Hobson49 the issue concerned the scope of unauthorised works to a listed building. Mr Hobson, an architect, had been granted consent to undertake extensions and alterations of a stable block. In the event, the works went significantly beyond those permitted and led to it being wholly dismantled and then reconstructed with some of the original bricks being used. The question before the Divisional Court was whether, where a defendant was charged with effecting unauthorised works of alteration by dismantling a listed building under section 9 of the 1990 Act, the court was to limit its consideration to those works as charged or to consider further unauthorised works of reconstruction or restoration to judge the effect on the special architectural or historic character of the building. The council contended that the wording of s.7 of the Act referred to the execution of "any works" for the alteration of a listed building which affected its character and were unauthorised, and that the Act did not delineate a period of time over which the effect
47 [2008] EWHC 826 (QB) 48 [2008] EWHC 895 (QB) 49 [2008] EWHC 1003 (Admin)
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on the character was to be assessed so that once it was found that the dismantling works by themselves affected that character, the offence was proved. Mr Hobson argued that it was not open to a prosecutor to select one element in a package of unauthorised works, to demand that the remainder be left out of account and to judge the effect on the character of a building at that stage. The Court held that as the purpose of the statutory provisions was to protect the special character of listed buildings, which, by their nature, were entities which endured for some time, the law was not concerned with their temporary or transient position, if such it was. If what was being done by way of works or alteration involved both a stage of removal and dismantling and a stage of replacement or rebuilding, it could not be right to cease the assessment of the effect of such works of alteration in an artificial manner part of the way through. That approach did not, however, inhibit the planning authority in the exercise of its powers to serve an enforcement notice or to seek an injunction under the Act. The Court went on to remark that nothing in the instant judgment should be taken as encouraging owners of listed buildings to carry out works of alteration without consent unless they were obviously works which would not affect the character of the building as one of special interest. To embark upon works of alteration without consent ran the considerable risk that, even after the replacement or rebuilding stage, it would be held that that character had been affected and then a criminal offence would, as a result, have been committed. Further, to demolish a listed building without consent was an offence without any issue about the effect upon its special character.
Lastly, in Enertrag (UK) Limited v Secretary of State for Communities and Local Government50 the High Court (Ms Frances Patterson QC) upheld the findings made by an inspector that had essentially been about the degree of impact six wind turbines would have on the settings of a number of listed Norfolk churches and other historic buildings. The fact that the inspector had recognised the overlap between that and the setting of the listed buildings did not mean that he had not been conscious of the broader landscape impact. He had also considered the individual viewpoints recognising the distinction between the wider landscape impact and setting. These were matters of planning judgment with which it was not for a court to interfere.
HIGH COURT CHALLENGES
In two cases Mr Justice Collins has sought to introduce new rigour into the initial stages of a statutory challenge relying on the Court’s case management powers, in particular those contained in the CPR 3.1(2)(m) to make any orders to achieve a just
50 [2009] EWHC 679 (Admin)
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result51. In the first, a local plan challenge under section 287 of the TCPA 1990, Dinedor Hill Action Association v Herefordshire District Council52, he stated that when initiating a claim under sections 287 or 288 0f the 1990 Act, or their successors, a claimant should, if he considered it appropriate, apply in the claim for an order for directions as to the filing of any evidence and defence by a defendant or any interested party. There was no need for the defendant, which would normally be a LPA or a Secretary of State, to be given advance notice of any claim. The general rule was that if directions were sought, evidence and summary grounds of defence should be lodged within 10 weeks. If a shorter period was sought it would have to be requested specifically and good reasons given for the shorter time. Equally, if a defendant or interested party wanted a longer time, they should make a specific request, again giving good reasons.
The second, Bovale Ltd v Secretary of State for Communities & Local Government & Herefordshire District Council 53 is currently the subject of a further appeal to the Court of Appeal. The matter came before Mr Justice Collins as an appeal against an order made by Deputy Master Knapman, in section 288 proceedings, to file and serve evidence and any grounds of resistance alternative or additional to those lodged by the defendant LPA as the Secretary of State’s position had not been clear. In the event, it was submitted that she was not intending to serve any evidence so that there was no need for the order made by the Deputy Master in that respect. Having acknowledged that that there had been a problem in s.288 cases where, due to the dispensing of the need of a formal Acknowledgement of Service, it was often not until the last minute, usually when the claim had a hearing date, that the defendant got round to preparing a defence. Accordingly, he recommends that an appropriate period for lodging evidence and grounds for resisting the claim should be 10 weeks, and, if the claimant has good reason for such service then a specific application can be made for service. Where the defendant chooses not to put in any grounds, it is for the defendant to put in the first skeleton argument. The resumed hearing took place in January and judgment is still awaited. However, the Court of Appeal has subsequently held54 that Mr Justice Collins had acted beyond his powers by purporting to lay down a practice to be followed which was contrary to the provisions of the CPR Part 8 and the CPR PD 8; for his judgment had not simply provided guidance as to the interpretation an application of the rules and practice directions but had attempted to vary them for which he had no power to do that. For the sake of completeness it is worth noting that in the substantive hearing Mr Justice Sullivan held that where an applicant for planning permission argued that there was a need within a particular area which outweighed a development plan objection to
51 See also the attempt to introduce a filter mechanism for s.288 challenges by Collins J in South Gloucestershire Council v SSCLG [2008] EWHC 1047 and by Sullivan J in Davies v SSCLG [2008] 52 [2008] EWHC 1741 (Admin). 53 [2008] EWHC 2143 (Admin) 54 [2009] EWCA Civ 171
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the use of a site for the proposed development, it would be appropriate to consider whether there were other sites within the area on which the need could be met55. The case of Coyle v Secretary of State for Communities and Local Government and Basildon District Council 56 is also of note. There, the Council applied under CPR Part 3.4(2)(a) to strike out a section 288 challenge upon the basis that it disclosed no reasonable grounds. The planning appeal concerned permission to site gypsy caravans on land within the Green Belt which had been the subject of much litigation and at least two planning appeals. Granting the application in part, Mr Justice Mitting confirms the appropriateness of the procedure57. He also provides the context for the application, being a delay of just over a year since the claim had been issued. In R (Roudham & Larling Parish Council) v Breckland District Council and Paul Rackham Ltd 58 the Court of Appeal has given further guidance on defendant claims for costs in judicial review proceedings. Following its earlier decisions in Ewing and Davey59 the Court confirmed that it was now an established principle that when preparation costs were sought in addition to acknowledgment costs, it was for a defendant to justify those costs before the permission judge. Recognizing, here, that rather than being faced with a claim by a litigant in person, or with a fairly standard planning dispute pursued by an individual but rather with a claim by a public authority advised by a solicitor who was extremely experienced in environmental legislation and in the judicial review process, Rackhams had been to think that every page of the grounds and accompanying bundle was relevant to the claim and had to be taken seriously. The claim had also been based on certain factual assumptions that needed correction, hence the need even at the permission stage to submit evidence. In order to save a remission back to the trial judge the Court made its own assessment in the sum of £5,00060 awarded for the acknowledgment of service but stressed that that sum was not to be regarded as any sort of benchmark or guide for trial judges. Continuing concerns by the Courts about the operation of the Aarhus Convention, access to environmental justice and the exercise of the judge's discretion as to costs are increasingly being reflected in a number of costs determinations. This has been
55 [2008] EWHC 2538 (Admin) 56 [2008] EWHC 2466 (Admin) 57 The judgment refers to Evans v Secretary of State [2003] EWCA Civ 1523 in which the Court of Appeal accepted that there was available in section 288 challenges opportunity to apply for summary judgment under Part 24 and to R (Blyth Borough Council) v First Secretary of State [2006 ]EWHC 3619 in which Burton J determined that he should apply the same sort of test as if determining an application for permission for judicial review 58 [2008] EWCA Civ 714 59 Ewing v Office of the Deputy Prime Minister [2006] 1 WLR 1260; Davey v Aylesbury Vale District Council [2007] EWCA Civ 1166; [2008] 1WLR 878 60 £17,500 had been sought by Rackhams and £12,500 ordered by way of an interim payment. The acknowledgment of service had been 20 pages with an accompanying bundle of 400 pages which Burton J had found of particular help.
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given added significance by the publication of the 2008 report of the working party under Mr Justice Sullivan on "Ensuring access to environmental justice in England and Wales". For example, in R(Lewes Friends of the Earth) v East Sussex County Council61 the three claimants were two local groups and a town council. Mr Justice Sullivan considered that the County Council’s costs of £54,560, whilst not unreasonable, would be prohibitively expensive under the Aarhus Convention if ordered against the Claimants. He therefore adopted the claimants’ suggestion that they each pay £10,000 towards the County Council’s costs. In the Buglife case62 Mr Justice Mitting had capped the claimant’s costs at £10,00063. The Court of Appeal took the view, when considering the Trust’s subsequent application for a protective costs order (PCO)64, that costs should in general be modest in this type of litigation. If a defendant wished to make a case for an order capping its liability, it should make it in the acknowledgement of service. Both parties should follow the guidelines in Cornerhouse65 as now set out in Compton66. In the instant case, the just order was to limit Buglife’s further costs to £10,000 if it lost the appeal, as it subsequently did67. It also held that it was also right to cap the local authority’s liability to £10,000 as well.
A further Court of Appeal case concerning costs in the context of a nuisance case from smells from a composting site, Hinton Organics68, deals more extensively with the effect of the Aarhus Convention on access to environmental justice. Written submissions were received by the Court from the Coalition for Access to Justice for the Environment (CAJE), which comprises several leading UK Non‐Governmental Organisations concerned with the environment. However, DEFRA declined an express invitation to offer comments on the relevance of the Aarhus Convention. The judgment of Lord Justice Carnwath provides a useful summary of the relevant considerations69 as they stand at present:
i) The requirement of the Convention that costs should not be “prohibitively expensive” should be taken as applying to the total potential liability of claimants, including the threat of adverse costs orders.
61 [2008] EWHC 1981 (Admin) 62 R (Buglife – the Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corporation and Rosemound Developments Ltd 63 [2008] EWHC 475 (Admin) 64 [2008] EWCA Civ 1209 65 R ( Corner House Research) v Secretary of State for Trade and Industry (2005) EWCA Civ 192 66 R (Compton) v Wiltshire Primary Care Trust (2008) EWCA Civ 749 67 [2009] EWCA Civ 29 68 Morgan v Hinton Organics (Wessex) Limited [2009] EWCA Civ 107 69 Para. 47
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ii) Certain EU Directives (not applicable in this case) have incorporated Aarhus principles, and thus given them direct effect in domestic law. In those cases, in the light of the Advocate-General’s opinion in the Irish cases, the court’s discretion may not be regarded as adequate implementation of the rule against prohibitive costs. Some more specific modification of the rules may need to be considered.
iii) With that possible exception, the rules of the CPR relating to the award of costs remain effective, including the ordinary “loser pays” rule and the principles governing the court’s discretion to depart from it. The principles of the Convention are at most a matter to which the court may have regard in exercising its discretion.
iv) This court has not encouraged the development of separate principles for “environmental” cases (whether defined by reference to the Convention or otherwise). In particular the principles governing the grant of Protective Costs Orders apply alike to environmental and other public interest cases. The Corner House statement of those principles must now be regarded as settled as far as this court is concerned, but to be applied “flexibly”. Further development or refinement is a matter for legislation or the Rules Committee.
v) The Jackson review70 provides an opportunity for considering the Aarhus principles in the context of the system for costs as a whole. Modifications of the present rules in the light of that report are likely to be matters for Parliament or the Civil Procedure Rules Committee. Even if we were otherwise attracted by Mr Wolfe’s invitation (on behalf of CAJE) to provide guidelines on the operation of the Aarhus Convention, this would not be the right time to do so.
vi) Apart from the issues of costs, the Convention requires remedies to be “adequate and effective” and “fair, equitable, timely”. The variety and lack of coherence of jurisdictional routes currently available to potential litigants may arguably be seen as additional obstacles in the way of achieving these objectives.
LAWFUL DEVELOPMENT CERTIFICATES
The continuing jurisprudence on LDCs has been added to this year by the case of Hillingdon LBC v Secretary of State for Communities and Local Government & Autodex
70 In November 2008 (in a press release issued by the Judicial Communications Office) it was announced that the Master of the Rolls had requested Jackson LJ to conduct a “fundamental review” into the costs of civil litigation.
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Limited 71. There, the Council challenged an LDC permitting storage use, upon the basis that the Inspector had failed to define, with sufficient particularity, what level storage she had found to have been established use, the location of the primary and ancillary uses within the site and what she meant by “ancillary purposes”. The judge, Michael Supperstone QC, finds that that it would have been unnecessary and unrealistic for the LDC to have sought to provide such descriptions. The other issue he considers is whether section 57(4) of the TCPA 1990 allows reversion to a use that has become lawful because of the passage of time and the operations of sections 171B and 191(2) of the Act. In the judge’s view the effect of section 191(2) is to make certain uses “lawful” for the entirety of the Act. In consequence, the Inspector had not erred in not excluding a separate part of the appeal site, the subject of an enforcement notice and a concurrent but dismissed appeal, from the scope of the LDC, the enforced use being for skip hire which the Inspector finds to be “sui generis” rather than a Class B8 use.
NATURE CONSERVATION In R (Buglife – the Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corporation and Rosemound Developments Ltd,72 Buglife challenged the grant of permission for development of a Royal Mail distribution depot on the site of the former power station in Thurrock. Natural England had initially objected to the proposal but had later withdrawn its objection, subject to the Corporation approving a phasing plan to help secure the survival of the invertebrates and the conservation and enhancement of the ecology in the area. The Corporation had concluded that while short‐term harm might be caused to the wildlife the long‐term benefit of the proposals justified the grant of planning permission subject to compliance with proposed conditions, including a phasing plan, and the terms of a s.106 planning obligation. This case is a reminder of the statutory obligations on planning authorities as required by section 40(1) of the Natural Environment and Rural Communities Act 2006 as well as under Section 74 of the Countryside and Rights of Way Act 2000 on Ministers of the Crown. The primary statutory duty under section 40 of the 2006 Act is supplemented by National Policy and in particular PPS9 the final paragraph of which concludes that: "Planning authorities should refuse permission where harm to the species or their habitats would result, unless the need for and benefits of the development clearly outweigh that harm." Before the Court of Appeal Buglife challenged the lawfulness of the decision on the basis that insufficient regard had been paid by the Corporation to PPS9 in that the Corporation had failed to examine local possible alternative sites for the development, it had failed to decide whether the desirability of protecting the site for the wildlife outweighed the need for the development, and, it had failed to ensure that the mitigation measures proposed were subject to and part of the EIA by failing to have a phasing plan in place before permission was granted. The Court of Appeal
71 [2008] EWHC 198 (Admin) 72 [2009] EWCA Civ 29
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accepted that a phrase‐by‐phrase analysis of PPS9, which was not to be interpreted as a statute, had not appeared in the officers' report or the minutes. However, considerable evidence on the main issues had been available and had been sufficiently analyzed by the Corporation and by Natural England in the context of the Corporation's overall duty to have regard to the purpose of conserving biodiversity. Its approach and its conclusion had been justified, that the harm which might be caused by the development was not significant in the terms of PPS9. It had also been entitled to take into account the mitigation proposed and the assessment of its effect when making its decision, and, to give considerable weight to the representations of Natural England, the expert statutory consultees. The difficulties arising from the impact of new residential development upon the Thames Basin Heaths Special Protection have been judicially considered by Mr Justice Sullivan in two cases. In the first, R (Hart District Council) v Secretary of State for Communities and Local Government 73 the issue was the correct approach under reg. 48 of the Habitats Regulations as to when account should be taken of alternative SANG74 provision. Holding that avoidance or mitigation measures could be taken into account at the first “screening” stage rather than at the “appropriate assessment” stage the judge found that as a matter of common sense such mitigation measures should be taken into account at the earliest possible stage. However, that did not mean where the competent authority did not agree with a proponent's notion of effective levels of mitigation, it should not require an appropriate assessment in order to exclude the risk on the basis of objective information. Under reg. 48(2) more information could also be requested about the project, including any proposed mitigation not merely for the purposes of carrying out an appropriate assessment but also in order to determine whether an appropriate assessment was required in the first place. The judge also stated that consideration of proposed mitigation measures at the screening stage would not frustrate the purpose of the legislation by pre‐empting any particular form of enquiry. Accordingly, unlike with EIA, an appropriate assessment under reg.48(1) did not have to be in a prescribed form; and obtaining the opinion of the general public was optional. In the second, Millgate Developments Limited v Secretary of State for Communities and Local Government75 the focus of attention was on the physical location and extent of SANG provision itself. Upholding the decision letter, the judge also found that the issue was pre‐eminently a matter of planning judgment for the inspector.
An unsuccessful challenge on nature conservation grounds was also brought in the Lewis litigation 76, where it was argued that no “appropriate assessment” had been made by the committee members. At first instance, Mr Justice Jackson had held that
73 [2008] EWHC 1204 Admin 74 Suitable Accessible Natural Greenspace to attract dogwalkers and ramblers away from the SPA 75 [2008] EWHC 1906 Admin 76 [2007] EWHC 3166 Admin; [2008] EWCA Civ 746
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no specific method for carrying out an assessment was required and the method adopted could not be said to have been unlawful. The developer had provided the necessary information, the Council had consulted with Natural England and RSPB and had responded to their concerns. The relevant officer had undertaken an iterative process which could properly be described as making an appropriate assessment. Before the Court of Appeal, in response to a respondent’s notice, essentially the same approach was endorsed. As the issue had received expert consideration and the committee had received that expert advice it could assume from the source of the advice that the appropriate test had been properly applied by those persons and bodies.
In R (Boggis and another) v Natural England and Waveney District Council 77 the claimants applied for judicial review of Natural England’s decision to notify and confirm its decision to declare a section of Suffolk coastline a Site of Special Scientific Interest under its duty in section 28 of the Wildlife and Countryside Act 1981. The challenge only related to a small section of the coastline within the SSSI. The interest in the land arose from the fact that the cliff faces erode at the rate of few metres a year to expose fossils. The claimant had properties close to the cliff edge and had built sea defences to protect them from destruction. These needed on‐going maintenance because they continually eroded. Natural England decided to enlarge the SSSI to include an area both inland and seaward of the cliffs which affected the claimant’s properties and sea defences. The claimant argued that Natural England had acted unlawfully in designating the land as an SSSI and that the designation of the SSSI was a “plan or project” for the purposes of article 6(3) of Council Directive 92/43 so that Natural England had been obliged to consider the need for or to carry out an appropriate assessment of the implications of the SSSI designation on Special Protected Areas. Blair J. rejected the first ground of the challenge but on the second ground he accepted that the notification and confirmation of the SSSI had included a formal statement of an intended future course of action in relation to the sea defences and was in that respect a “plan” within the meaning of article 6(3) of the Directive. He held that, on the evidence, the risk of a significant effect on the SPA’s conservation objectives could not be objectively excluded. In any event, the court was not entitled retrospectively to dispense with the requirement of an appropriate environmental assessment on the ground that the outcome would have been the same. Consequently Natural England’s notification and confirmation of the SSSI was unlawful so far as it applied to the area on the seaward side of the cliffs where the sea defences were situated and the land behind the cliffs, but was otherwise lawful. It is worth noting, however, that this case is on appeal to the Court of Appeal.
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PLANNING APPEALS
Attention is drawn to two High Court challenges and the role of the inspector. In the first Francis v First Secretary of State 78, following an appeal hearing concerning the variation of a condition to permit cooking at a café, the inspector ruled that a high‐level vent was required but that without a firm proposal it was not possible to assess, adequately, tits effect on the conservation area and the extent to which it would be detrimental to the living conditions of adjoining residents. As the appellant had submitted a design for a low‐level ventilation, approved by the Council’s environmental health department it was argued that it was her and her advisor's perception that the issue of the ventilation had fallen away and that they conducted the appeal on that basis. However, the Court of Appeal took the view that where the appellant was represented by a planning consultant the inspector had been entitled to rely on the case put to him and that it was not his duty to root out the case which the appellant had failed to put. Here, the inspector had been entitled to assume that the appellant knew of the issue of the high‐level duct. On the other hand in Poole v Secretary of State for Communities & Local Government and Cannock Chase District Council79 it was held that procedural unfairness had arisen as an issue, the effect of development on a protected tree, had not been clearly flagged up in advance of an inquiry. It is noteworthy that the Council had failed to serve a Statement of Case, that a Statement of Common Ground had agreed that all the trees shown for retention on the application plans could be retained, that the Council’s witness had raised a number of matters not particularized in her proof and that the Inspector had refused a request for an adjournment by the appellant. Whilst recognizing that, as a matter of law, the inspector was entitled to use her own planning expertise, and, was not bound by the Statement of Common Ground Mr Justice Sullivan also draws attention to the emphasis of the Rules and procedural guidance which encouraged the parties to focus their evidence and submissions on matters in dispute. Here, as the question whether the tree could be retained was the determining issue, and, there had been a departure Statement of Common Ground on technical arboricultural grounds, then the appellant should have been given a reasonable opportunity to call arboricultural evidence. Accordingly, there was procedural unfairness in the manner in which the inspector reached her decision.
77 [2008] EWHC 2954 (Admin) 78 [2008] EWCA Civ 890
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PLANNING APPLICATIONS & PERMISSIONS
In R (Park Pharmacy Trust) v Plymouth City Council 80 an interesting point was considered by Mr Justice Sullivan concerning the misidentification of the applicant on the prescribed form. The application form had identified the applicant as being "Emeris Coolart Ltd". In reality, it consisted of two individual companies, "Emeris Ltd" and "Coolart Ltd", acting in a joint venture for the purpose of the housing development. The claimant objected to the application on the basis that the development was inappropriate for a conservation area. In dismissing the claim for judicial review, the judge held that although it was important that an application for planning permission correctly identified the applicant so that the LPA knew with whom it had to deal, primarily for purely practical matters such as being able to communicate with an applicant through correspondence. However, save in the exceptional case, for example, of a personal planning permission, as a matter of principle, the identification of an applicant for planning permission could be regarded as irrelevant; for in reality the task of the LPA was to consider the merits of the planning application before it. In the instant case, no issue in relation to the identity of the applicant for planning permission had arisen. The form had clearly identified the interested party's agent who could have clarified any uncertainties that arose. Further the local authority had considered the merits of the application. Nobody had been misled and nobody had been prejudiced by the name that had been stated on the application form. The general rule when interpreting planning permissions is clear and, some ten years ago, was summarised by Mr Justice Keene in the Shepway case 81. In essence, he found there to be a prohibition on examining the planning application or other extrinsic evidence save for limited and certain identified circumstances. However, does this rule prevent examining plans approved with the permission which clearly delineated the curtilage of the property? This issue arose in the context of an enforcement appeal in Barnett v Secretary of State for Communities and Local Government 82 where Mr Justice Sullivan held that plans were an essential part of any grant of planning permission, and it could not be said that such a grant was to be interpreted without having regard to the plans that accompanied it. The extent to which those plans would matter would vary from case to case. In this case he held that the inspector was entitled to conclude, having regard to the plans that were before him, that the planning permission for an extension to a building had not extended the curtilage and that it remained as marked on the plans for the original grant of planning permission.
79 [2008] EWHC 676 (Admin) 80 [2008] EWHC 445 (Admin) 81 R v Ashford Borough Council ex parte Shepway District Council (1999) PLCR 12 QBD 82 [2008] EWHC 1601 (Admin)
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PRECEDENT CONDITIONS The issue of whether conditions precedent had been complied with thus rendering a planning permission lawfully implemented and the consequences of unlawful implementation has continued to entertain the courts. In Bedford Borough Council v Secretary Of State for Communities and Local Government83 the Court followed the obiter judgment of Sullivan J in Hart Aggregates that there was a distinction between conditions which said there should be ‘no development’ before something had been done and those which required certain matters to be agreed prior to the commencement of development. He held that a planning inspector had been correct in concluding that two conditions attached to the planning permission for the conversion to a dwelling of a thatched barn did not amount to true conditions precedent and therefore the principle in the Whitley84 case had not been engaged so that breaches of the conditions had not rendered the development as a whole unlawful. In R(London & Stamford Investments Ltd) v Stoke on Trent City Council 85 Sullivan J was faced with a case where a landowner sought a declaration that a planning permission granted to the interested party had not been validly implemented. The argument centered on whether the planning permission had not been lawfully implemented because the construction of a building and its subsequent occupation and use were in breach of a number of conditions on the permission. Undoubtedly work began before a number of conditions had been discharged but well before the expiration of the permission. However shortly after work began the developer sought to regularise the position with the result that, with one exception, all the conditions that have been satisfied prior to commencement were so satisfied before the permission was due to expire. Consequently the permission was to be treated as having been lawfully implemented in accordance with the principles set out in Whitley & Sons v Secretary of State for Wales 86. On a true construction of the one condition that appeared to have been breached – a landscaping condition – Mr Justice Sullivan held that the relevant part of the condition did not require satisfaction before the development could have been lawfully begun. Thus applying the Whitley principles, the permission had been lawfully implemented. A contrary outcome arose in R (Casey (Enviro) Limited) v Bradford MBC 87 where the developer had been granted planning permission to quarry limestone and thereafter landfill against opposition from local residents who had unsuccessfully challenged it.
83 [2008] EWHC 2304 (Admin). 84 Whitley & Sons Co Ltd v Secretary of State for Wales (1992) 64 P & CR 296 85 [2008] EWHC 2746 Admin 86 [1992] 64 P & CR 296, pages 305 and 306 87 [2008] EWHC 2543
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The permission required the submission and approval of a detailed landscaping scheme prior to implementation. A scheme was submitted before the deadline set by the permission and work commenced shortly before the deadline passed. Unfortunately the subsequent approval of the scheme was quashed by the court with the consequence that at the time the permission had been implemented and at the expiration of the deadline the landscaping condition had not been complied with. The developer sought to get round this by treating its original application as extant and by submitting an addendum to the scheme. The local authority refused to entertain the addendum and issued a planning contravention notice. The developer challenged this approach on the basis that it was an abuse of power for the local authority, having previously approved the scheme, to rely on a deficiency that it had not previously identified and for it, having expressly agreed to the deficiency, to take enforcement proceedings. Mr Justice Underhill rejected both aspects of this challenge and went on to hold that there was nothing in the facts of this case that were equivalent to those in Whitley. Some might consider the judge’s approach to be somewhat harsh in the circumstances. Finally, in Secretary of State for Communities and Local Government & Peak District National Park Authority v Bleaklow Industries Limited88 the Court of Appeal has restated that the word "winning" meant the process of accessing the desired mineral, and "working" meant the process of removing it from its position in the land. Any minerals, whether limestone or any other rocks, which had to be removed in working the specified minerals were not being "worked" in the sense used in planning law. The host rock had to be treated as waste and disposed of accordingly. The mere fact that it might have a commercial value did not take it outside the scope of the condition relating to waste in the planning permission. SECTION 106 AGREEMENTS Since the introduction of the concept of the planning obligation in 1991, there have been very few cases dealing with issues arising from the drafting or operation of planning obligations – whether unilateral undertakings or agreements. One reason for this may be that the amended section 106 contains some specific drafting requirements that need to be observed in full. Consequently, provided the requirements of section 106 are followed strictly then what problems that do arise ought to be limited to straightforward breach of terms. However, the importance of strictly observing the drafting requirements of section 106 were highlighted in Southampton City Council v Hallyard Ltd89. In this case in the Chancery Division Mr Justice Morgan held that a local authority was unable to rely upon section 106(3) to enforce a planning obligation upon a successor in title where the agreement had failed
88 [2009] EWCA Civ 206 89 [2008] EWHC 916 (Ch).
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to specify the original obligor’s interest in the land and therefore the agreement had not met the formal requirements imposed by Parliament in section 106(9). In a time where developers are increasingly keen to renegotiate the terms of planning agreements this decision could prove crucial.
TREES The law on TPOs continues to grow. In Northampton Borough Council v Perrin90 the Court of Appeal considered the application of section 198(6)(b) of the 1990 Act, which permits TPO’d trees to be cut down, uprooted, topped or lopped so far as may be necessary for the prevention or abatement of a nuisance. It held that as the underlying purpose of the legislation was to preserve trees it would be wrong to ignore what steps might be taken other than to the tree itself. Alternative engineering solutions were relevant to the determination of the question whether the cutting down, uprooting, topping or lopping of a tree was necessary for the prevention or abatement of a nuisance. Now, in Palm Development Limited v Secretary of State for Communities and Local Government91 Mr Justice Cranston has considered the scope of woodland TPOs. He found that the absence of explicit pronouncements as to size exemptions in TPO legislation, unlike for conservation areas, was compelling evidence that the legislation intended no comparable limitation, in consequence of which saplings of whatever size were protected by a woodland TPO. Furthermore, there was nothing illogical in such TPOs applying to future trees; for as the purpose of a woodland TPO was to safeguard the woodland as a whole, which depended on regeneration or new planting, it had to extend to trees which grew or were planted after the TPO was made. The vegetation ordinarily called trees could not be considered in isolation from the scrub, shrubs and saplings within it. USE CLASSES ORDER
Finally, the case of Tendring District Council v Secretary of State for Communities and Local Government 92 raises an interesting point on the broad approach to the classification of uses within the Use Classes Order 1987. The property in question had originally been built as a dwelling house, but had subsequently received consent for use as a nursing home. That activity had continued for some years until it was purchased by a provider of mental health services. The LPA took enforcement action alleging the new use was not within the meaning of "nursing home" and was therefore not in breach of the planning permission. Upholding the appeal inspector’s decision, Mr Justice Sullivan expressed the view that there were no clear lines to be drawn between hospitals, nursing homes and residential care homes. In consequence,
90 [2007] EWCA Civ 1353 91 [2009] EWHC 200 (Admin) 92 [2008] EWHC 2122 (Admin)
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they should not be placed, for the purposes of the UCO, into watertight compartments but rather that they represent a spectrum of care provided to those who need it, whatever their disability, whether that be caused by their physical or mental condition. Accordingly, the question was whether the new use could reasonably be described in ordinary language as a nursing home even though it might equally be described as a hospital or as a residential care home. The new use could fairly be described as nursing home use.