39 Essex Street Manchester Update

Top 10 Planning Cases of 2014-2015

Rose Grogan

Top 10 Cases of 2014-2015

• Green Belt• Housing and the

NPPF• Neighbourhood

Plans• Called In Appeals• Heritage• Enforcement

Green Belt and the NPPF

• Section 9 of the NPPF • Paragraphs 87, 89 and 90:

– all development is inappropriate (and thus can be permitted only in very special circumstances) unless it is either • development falling within one or more of the categories set

out in paragraph 90 or • is the construction of a new building or buildings that comes,

or potentially comes, within one of the exceptions referred to in paragraph 89.

• Jury is out on whether simplicity and clarity have been achieved.

Redhill Aerodrome Limited v SSCLG

• Paragraph 88 NPPF• Does “any other harm” mean only harm to the green belt

(in addition to harm by reason of inappropriateness)?– River Club v Secretary of State for Communities and Local

Government [2009] EWHC 2674, Frances Patterson QC, held that the words “any other harm” within paragraph 3.2 of PPG2 included any harm caused by the proposal, whether it was to the Green Belt or to other interests.

– The issue in this case was whether the approach in the NPPF means that “any other harm” should be confined to harm to the green belt.

Redhill Aerodrome Limited v SSCLG

• NPPF vs PPG2– PPG2

“3.2 … Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify the inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations…” – NPPF

“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.”

Redhill Aerodrome Limited v SSCLG

• In the High Court, the case came before Mrs Justice Patterson:– Held that the NPPF set thresholds for refusal of planning

permission (e.g. noise and “significant impact”).– If impact of a scheme does not reach that threshold it cannot be

considered as “any other harm”– NPPF marked a “considerable policy shift”

• In the Court of Appeal:– No radical departure from PPG2– Required to consider “other considerations” for VSC, cannot

exclude non-green belt harm from other side of the balance.

Moore v SSCLG

• Consistent practice of SSCLG calling-in appeals for caravan pitches in the green belt.

• Disproportionate effect on enthic group (Romany gypsies and Irish Travellers)

• Challenge under Equality Act 2010 for indirect discrimination, breach of the PSED and breach of ECHR.

• Claimant successful– Discrimination not proportionate– No “due regard”– Delay to decisions was a breach of article 6 ECHR

Other Cases:

– R (Timmins) v Gedling Borough Council [2015] EWCA Civ 10 Paragraph 89 concerns the construction of new buildings as appropriate facilities for an existing cemetery, but not a material change of use to a cemetery.

– Copas v Secretary of State for Communities and Local Government [2014] EWHC 2634: Written ministerial statement of July 1, 2013 on development in the Green Belt and unmet housing need.

– Europa Oil and Gas Limited v Secretary of State for Communities and Local Government [2014] EWCA Civ 825 upholding [2014] J.P.L. 21 at 35. Oil and gas exploration and appraisal is part of mineral extraction for the purposes of paragraph 90 of the NPPF.

– Lloyd v. Secretary of State for CLG and Dacorum BC [2014] EWCA Civ 839, “new buildings” in paragraph 89 of the NPPF, do not include a mobile home.

Housing and the NPPF

• Paragraph 47 NPPF:• Use their evidence base to ensure that their Local Plan meets the

full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;

Gallagher Homes v Solihull MBC[2014] EWHC 1283 (Admin)

• The NPPF has effected a “radical change”• Local Plan not supported by a figure of full objectively

assessed housing need (FOAHN)• Cannot transpose the PPS3 approach• RS data must be treated with “extreme caution”• What happens where no FOAN?

– South Northamptonshire Council v Secretary of State for Communities and Local Government and Barwood Homes

– South Northamptonshire Council v Secretary of State for Communities and Local Government and Barwood Land.

5 Year Supply and Sustaintable Development

• Paragarph 14 NPPF• William Davis v SSCLG

– Preliminary issue whether appeal proposals “sustainable development”

– Presumption in favour under the NPPF only applies to “sustainable development”

– “The Lang test” based on her acceptance of the submissions made by counsel for the SSCLG

Dartford BC v SSCLG

• Patterson J: – No legalistic approach– If paragraph 14 applies because there is a shortfall,

no need to also consider whether proposed development is sustainable development until you carry out the planning balance.

– Sustainable development should be permitted, unsustainable development refused(para. 54).

• Decision in Pulley Lane, Droitwich– Rejection of Lang J’s approach to sustainable

development– Buffer should be applied before shortfall

Neighbourhood Plans

• R (Gladman Developments) v Aylesbury Vale DC– NDP can include allocations for housing where no

strategic allocations in the Development Plan.– Consistency can simply mean that future

development might be allocated in the same area as the NDP

– Later, inconsistent, policies in Development Plan would prevail.

• Appeals liable to call-in where emerging Neighbourhood Plan

Called-In Appeals

• R (Ecotricity (Next Generation) Ltd) v Secretary of State for Communities and Local Government– Onshore wind– SOS disagreement with inspector– No requirement for SOS to carry out own site visit

• Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government– Rejected argument that duty to consider site visit and

give reasons– Rejected argument that a higher standard of reasons

applies when SOS disagrees with inspector

Heritage

• Barnwell Manor Wind Energy Ltd v. East Northants DC and others – S.66(1) “special regard”– Inspector found “some” but “less than substantial”

harm– Weight to be attached to harm – must be

“considerable”– Finding of harm creates a “strong presumption”

against permission– Not a case of whether benefits outweigh harm, must

sufficiently outweigh to rebut presumption

Enforcement

R (Ahmed) v SSCLG [2014] EWCA Civ 566

• Inspector failed to consider “obvious alternative” of lesser scheme after wrongly concluding he had no power to grant planning permission for the lesser scheme.

• Inspector does have the power if the lesser scheme is “part of” the scheme enforced against.

R (Ioannou) v SSCLG [2014] EWCA Civ 1432;

• Ahmed distinguished. Inspector has no power under ground (f) to bring about deemed permission for scheme which was not in existence at the time of the EN.

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Planning and Environmental Law

Update

3 February 2015