Planning Court victory for Sainsbury’s

We successfully acted for Sainsbury’s in defending a judicial review seeking to challenge planning permission for the supermarket’s new store in Whittlesey, Cambridgeshire. The application for permission was dismissed by the newly formed Planning Court on 22 May 2014 as “totally without merit“, just under four weeks from Sainsbury’s serving its grounds resisting the challenge.

Sainsbury’s new store in Whittlesey will comprise some 5,306sq.m (GEA) and also provide a new Country Park and shuttle bus service to the town centre.

Having been part of the team involved in securing planning permission for the scheme, we advised Sainsbury’s on the subsequent judicial review of the planning permission, including the new procedures for the recently formed Planning Court, in particular, to dispose of the challenge as quickly as possible.

Dave Lazenby, Town Planning Manager at Sainsbury’s, commented: “Dentons guided us seamlessly through each stage of this process and we are very pleased that the right and proper decision was reached so promptly.”

Michele Vas said: “It is pleasing that this development, which has much local support, has not been delayed any further through protracted court proceedings. This swift and decisive decision of the Planning Court signals a new era that court proceedings can no longer be used tactically to bring development to a halt.”

The Dentons team comprised Michele Vas and Katie Scuoler.

Reducing contributions

Another developer has successfully appealed under Section 106BC of the Town and Country Planning Act 1990 to reduce its affordable housing contribution on viability grounds.

The appeal by Tamewater Developments Limited followed the refusal of Oldham Borough Council to discharge three outstanding affordable housing contributions totalling £283,525 for a development consisting of 19 flats and 25 dwelling houses (£383,525 being the total sum secured as an off-site affordable housing contribution under the original S106 Agreement).

o-HOUSE-PRICES-POUNDS-facebookThe Inspector accepted the viability evidence presented by the Developer and allowed the appeal, reducing the overall affordable housing contribution to £100,000 for a period of 3 years from the date of the decision.

Interrogating viability information supplied by developers does appear to present a challenge for Councils in an appeal situation.  In a market where housing values are rising (albeit perhaps not as quickly in Oldham), Councils determining applications under S106BA should be pressing for a greater use of viability review mechanisms as a form of modification to the original affordable housing provisions, rather than simply refuting the viability evidence presented by the developers, particularly where there is not the expertise to robustly defend this position on appeal.  At the very least, the provision of some affordable housing may be secured by a more solution based approach.

The Planning Chamber

Yesterday the Government published its response to its Autumn consultation on the reform of Judicial Review.  Following last year’s reforms, the  response affirms the Government’s intention to continue to reduce the role judicial review can play in delaying and/or frustrating development.

The response confirms:

  1. a new specialist Planning Chamber is to be set up, but within the High Court rather than the Upper Tribunal (as previously proposed);
  2. a new permission filter will be introduced to S.288 appeals in order to weed out weak claims early on;
  3. a new threshold will be set which allows the court to refuse to grant leave or relief where the outcome for the claimant is unlikely to have been substantially different from that complained of;
  4. no proposals will be introduced to restrict “standing”;
  5. cost capping and tighter rules are being introduced for the use of Protective Cost Measures, but this will not extend to proceedings relating to environmental cases;
  6. measures be put in places to allow costs to be awarded more regularly against claimants following  refusal of permission at oral hearings; and
  7. the ability to “leapfrog” cases straight to the Supreme Court will be less restricted.

Some of these measures have already found their way into the Criminal Justice and Courts Bill.  It is expected that changes to the Civil Procedure Rules will be introduced to deal with the operation of the Planning Chamber.  It will be interesting to see if the reforms have a genuine impact both in deterring third parties from lodging judicial proceedings.  The key issue is to ensure that the Planning Chamber is properly resourced so that any delays are kept to a minimum.  That will always be far more important than the other measures.

Market restrictions

housing-bubbleForeign investment is being blamed for contributing towards a “housing bubble” in London.  I was asked, while speaking at a conference last week, whether the planning system could be used to dampen the ardour of foreign buyers inflating the value of London’s property market by restricting the sale of new market units to UK residents.

Aside from the fact that we have laws which seek to police and prevent discrimination  (of which such a restriction would normally fall foul), this is not an inherent UK “problem” but rather a London-centric one.  How well does this sit with the active promotion of the UK by the Government for foreign investment?

If local authorities are intent on introducing a restriction, there will need to be justifiable and evidenced planning reasons for doing so, ideally enshrined in a local policy.  The policy will have to be justified, for example, on the basis that the local housing market is not meeting the needs of local residents.  Possible means of addressing this may be to require new development to be marketed locally for a prescribed period, or, more restrictively, require a certain percentage of units to only be made available (both of first sale and re-sale) to local residents but with cascade provisions allowing others with local connections to buy units if there is not enough local interest.  However, I question how easy such a restriction would be to monitor and control.

The fact is that foreign investment in residential property, even if largely within London for the time being, provides wider regenerative benefits for the UK as a whole in contributing to economic growth via the creation of new jobs, new homes and infrastructure. Is this not what good planning should achieve?  Whilst the UK is still coping with the effects of austerity, any investment, whether national or international, should be welcomed unless there is a very clear harm which can be “planned away”.

As Lord Rogers recently noted there is a separate issue about houses being bought but not occupied.  Care is needed not to confuse the two points.

Resisting the duty to co-operate

Joined up thinking and co-operation within, and between, local authorities is integral to successfully delivering new development.  It makes for effective decision making and engenders greater confidence in the planning system.  Those Councils which view the “duty to co-operate” as an alien concept, have been given short shrift by the Planning Inspectorate, being sent back to the drawing board on their Local Plans where there has been a failure to engage and told to play nicely with their neighbours.  It is a culture change which is welcomed and should encourage Councils to take ownership of decisions.

A recent decision of the Local Government Ombudsman is testament to the step-change needed to the internal workings of some local authorities.  The case concerned a complaint by Mr X to the Ombudsman following a refusal of his application to the Council’s highway department to construct vehicle crossovers from the highway, across a grass verge, to his driveway.  Mr X had already obtained planning permission for the crossovers on appeal (following the Council, as local planning authority, refusing his application.)  The Council’s highway department refused Mr X’s application on exactly the same grounds as the refusal of the planning application, failing to acknowledge the planning inspector’s reasons for granting planning permission and rigidly adhering to the Council’s policy that “it will refuse” any crossovers 3 metres or more in width.  The decision highlights a dogmatic determination by Council officers (in two separate departments) to ignore the merits of individual applications, even in the context of the application of the policy by an independent third party which resulted in planning permission being issued.

The Ombudsman investigator rightly concluded that there had been maladministration in how the Council had dealt with Mr X’s application.  However, the more interesting part of the decision is the veiled criticism of the failure of the planning and highway departments to coordinate with each other in making the decision and, more importantly, make a decision which was inconsistent with the decision to grant planning permission.  The principle is found in the choice quote from R v Warwickshire County Council Ex parte Powergen Plc:

“Is it reasonable for a highway authority, whose road safety objections have been fully heard and rejected on appeal, then quite inconsistently with the Inspector’s own factual judgement on this issue, nevertheless maintain its own original view?  To my mind there can be but one answer to that question: a categoric no.”

"Let’s hope this decision, and others like it, means those few local authorities who are resistant to co-operation in any form, take warning that the “computer says no” attitude is outdated and has no place in the modern planning era.

Getting a fair deal over permissions

Developers and local planning authorities have become more disciplined in ensuring that section 106 obligations comply with regulation 122, since CIL’s introduction. This requires obligations to be necessary and to have a direct relationship to the proposed development, both in terms of the nature of the obligation itself and in terms of it being proportionate to the scale of development.

The appeal decision on Barratt Southern Counties’ Bishopdown Farm scheme in Salisbury raised the issue of whether the regulation 122 test is an irrelevance when proposed community benefits are incorporated as part of an actual planning application.

Barratt’s application for 500 homes included 51 hectares of land to be turned into a country park. Opponents suggested that the country park was simply a sweetener to secure planning permission. The inspector concluded that the park was not necessary to make the housing development acceptable in planning terms. But the secretary of state disagreed, stating that the inspector had been “misguided”. The park was part of the application and the agreement simply provided for its provision and transfer into public ownership, he decided.

A cynic might say that this decision is simply another form of repackaging flexibility in planning obligations conferred by cases such as R v Plymouth City Council ex parte Plymouth and South Devon Co-operative Society [1993] and is simply the planning system finding yet another way to escape the shackles that the CIL regulations and Circular 05/05 impose on development. If the Bishopdown Farm approach is followed, the death of section 106 obligations as we know them may not be imminent after all. But when the issue of “buying” planning permissions is a highly topical issue, particularly in light of proposed amendments to the Localism Bill, who guards the guardians?