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The right to know why

Is there now a presumption that reasons be given for planning decisions? Within the last year, we have seen a surge of significant cases in which an absence of reasons being given for planning decisions has proved to be decisive. This happened despite the abolition in 2013 of the statutory duty to give reasons for the grant of planning permission. While the contexts have varied – ranging from delegated decisions, environmental impact assessment (EIA) development and planning committee decisions contrary to officer recommendation – the outcome has been the same each time: reasons for granting permission should be given.

Read the full article

This article was first published in Property Law Journal (March 2017) and is also available at http://www.lawjournals.co.uk/.

 

Planning TV – Spotlight on the Housing White Paper

In this episode of Planning TV, Ian Fletcher, Director of Policy (Real Estate), British Property Federation, Richard Crawley, Planning Advisory Service and Stephen Ashworth, Partner, Dentons discuss the implications of the Housing White Paper released by the government in February.

Dentons Planning TV is a new and innovative platform for engaging in and reacting to the latest developments in the dynamic world of planning. Its mission statement is simple: to provoke debate and facilitate engagement at all levels in the planning process.

Brought to you by Dentons and We Plan London, and Alice Lester MBE from Brent Council, it draws on the knowledge of a core panel of experts from across the sector, supplemented with special guests hand picked for their particular expertise. From Greenbelt to Brownfield, national planning policy to local plan-making and everything in between, Dentons Planning TV provides a unique insight into the thoughts of those involved at the sharp end.

When does a condition restricting use remove PD rights?

Article 3(4) of the GPDO 2015 provides that permitted development (PD) rights will not apply if they are ‘contrary to any condition imposed by any planning permission granted or deemed to be granted under Part 3 of the [TCPA 1990] otherwise than by this Order.’  Must such conditions refer explicitly to the GPDO? If not, what is enough?

Backstory

The Courts have held in some cases that conditions that do not expressly exclude PD rights do not implicitly restrict them (Carpet Décor (Guildford) Limited v Secretary of State for the Environment and Another (1981) 261 EG 56 and Dunoon Developments v Secretary of State and Poole Borough Council (1993) 65 P. & C.R. 101). The cases fall short of establishing that conditions cannot, legally, implicitly exclude PD rights:

  • In Carpet Décor, the High Court held that a condition excluding PD rights had to be ‘in unequivocal terms’. This suggests a strict approach, though arguably it does not definitively rule out the possibility of implicit restrictions.
  • In Dunoon, the Court of Appeal made several statements – some strict, some looser.  Indicating the strict approach, Farquharson LJ said: ‘The purpose of the General Development Order is to give a general planning consent unless such a consent is specifically excluded by the words of the condition.’ Indicating the looser approach, Farquharson LJ specifically addressed whether a preclusion of the GDO was ‘…to be implied from the words themselves, in the context in which they are used…’. He went on to consider whether the non-explicit wording of the condition was sufficiently ‘emphatic’, ‘conclusive’ or ‘wide’ to preclude the GDO. Sir Donald Nicholls VC, agreeing with Farquharson LJ , concluded that in this case there was ‘no explicit or implicit intention to negative development pursuant to any existing or future [GDO].’ These passages only make sense if implicit exclusion of PD rights is actually possible.

Who Dunnett?

In the first opportunity to revisit this in 2 decades, the High Court decision in Dunnett Investments Limited v SSCLG [2016] EWHC 534 (Admin) suggests that implicit exclusion of PD rights can work.

  • The claimant relied on PD rights to change from Class B1(a) offices to Class C3 dwelling houses. Its existing permission included a restrictive condition:

“1. This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.

REASON: “In order that the Council may be satisfied about the details of proposal due to the particular character and location of this proposal.”

  • The LPA failed to determine the claimant’s PD prior approval application and the claimant applied for a Certificate of Lawfulness (which the LPA refused, based on the condition).
  • The claimant challenged the decision, relying on Carpet Décor and Dunoon as requiring the strict approach (i.e. that the language must be explicit and unequivocal to exclude PD rights).

The Court rejected this, on the basis that:

  1. The second part of the condition serves no other purpose than to prevent the operation of the GPDO. “Without that meaning the second part is irrelevant to the condition”.
  2. The words ‘for no other purpose’ prohibit any other purpose including any other purpose otherwise permitted by the GPDO.
  3. The word ‘whatsoever’ is “emphatic and, in context, refers to any other use, howsoever arising or under any power. Read together, and considering the plain and ordinary meaning of the words used, in my judgment, it is clear that the GPDO is excluded”.
  4. The words “without express planning consent from the local planning authority first being obtained” have no sensible meaning unless they remove GPDO rights.
  5. The reason for the condition confirmed that, due to the particular character and location of the site, any other use would need to be the subject of an express application.

The judgment treats the loose approach as ‘entirely consistent with the cases of Dunoon and Carpet Décor’.

Clear as mud

For the time being, the outcome reflects the prevailing uncertainty for landowners, developers and LPAs, because:

  • it is unclear which elements of the reasons at 1-5 above were decisive,
  • the outcome was said to be fact sensitive.

Dunnett has been appealed to the Court of Appeal and will be heard this month (March 2017). The Court of Appeal could reject the loose approach altogether. If, however, the Court confirms the principle of implicit exclusion of rights, it would be helpful if it clarifies:

  • the forms of wording which will do the job (and those that will not); or
  • whether the effect of the condition entirely depends on the wording read in the context of the reason and the condition as a whole.

In a period where PD rights are increasingly valuable, the outcome will be important.

With thanks to Ralph Kellas for preparing the blog and researching the cases.

The pendulum swings: case comment on David Wylde and Other v Waverley Borough Council (9 March 2017)

A new judicial review case concerning the interface of development agreements, judicial review and public procurement has recently been decided by the High Court.

The case concerned changes made to a historic development agreement (awarded in 2002) relating to the East Street area of Farnham.  Under the original agreement with Waverley Borough Council, the developer needed to pay at least £8.76m for the Council’s land.  The changes to the agreement appear to allow the developer to proceed with a far lower minimum land valuation of £3.19m (as well as other changes relating to the developer’s profit element).

The changes met with resistance in the form of five claimants, two of whom were parish councillors of Farnham, with the other claimants being members of local civic societies.

On its face, the case has some startling similarities with the Gottlieb v Winchester City Council case, where Cllr Gottlieb challenged his own Council’s proposals to unlawfully amend a historic development agreement (the changes also had the objective of making the scheme viable for the developer).  Cllr Gottlieb was successful and the development proposal came to a juddering halt after 12 years.

So in view of the similarities, was the same result reached here?  No.

Mr Justice Dove decided that the claimants did not have “legal standing” to bring judicial review proceedings, because they do not have a sufficient interest in the outcome of the competition (in contrast to the position of Cllr Gottlieb in his case).  So none of the arguments concerning public procurement were explored.  No doubt this is a bitter blow to those towns folk who are struggling to understand why a developer should be allowed to re-write the terms of a deal in their favour (resulting in the viability of a development scheme they vehemently oppose).

Standing in judicial review cases

There have been a number of cases on standing in judicial review, and Dove J’s reasoning is largely consistent with those rulings.  Some have resulted in permission being granted.  Others not.  This is a case where the pendulum has swung back in favour of the defendant public authority.

It cannot be disputed that the vagaries of the case law means that merely being a council tax payer is probably not enough (alone) to get standing to bring judicial review proceedings.

That said, Mr Justice Dove is critical of the Gottlieb decision.  We think that this criticism is misplaced.  Unlike a parish councillor complaining about a decision of the borough of which his/her parish forms part, Cllr Gottlieb was (and is) an elected member of the authority of who had taken the unlawful decision.  In our view this would have given him standing anyway, given his special ability to enforce the general public law obligations and fiduciary duties of the council – but this point was never properly addressed in the Gottlieb case.  The proper approach would have been for Dove J to distinguish the circumstances in Gottlieb from those of Wylde.

The judgment will no doubt be a relief to developers facing significant local opposition to their schemes, but, to make a broader point, we believe that it is in some ways regrettable that council tax payers are written out of the picture when it comes to judicial review in public procurement cases. The public procurement rules ensure fair play between bidders, encourage competition which is not only about price (or receipts for land disposal) but quality.  The inability to enforce those rules robs the public of an opportunity to influence place, something in which they certainly have a legitimate interest.

(Dentons acted for Cllr Gottlieb in his successful challenge against Winchester City Council.)

Planning TV: Committees and Good Decision Making

In this episode of Planning TV, Hannah David, director of Planning Futures, joins Alice Lester MBE, Head of Planning at Brent Council and Jamie McKie, Dentons Planning and Public Law Team, to discuss the role of planning committees and good decision making.

Dentons Planning TV is a new and innovative platform for engaging in and reacting to the latest developments in the dynamic world of planning. Its mission statement is simple: to provoke debate and facilitate engagement at all levels in the planning process.

Brought to you by Dentons and We Plan London, and Alice Lester from Brent Council, it draws on the knowledge of a core panel of experts from across the sector, supplemented with special guests hand picked for their particular expertise. From Greenbelt to Brownfield, national planning policy to local plan-making and everything in between, Dentons Planning TV provides a unique insight into the thoughts of those involved at the sharp end.

Care needed in applying local green belt policies

In R (Lensbury Ltd) v Richmond-Upon-Thames London Borough Council [2016] EWCA Civ 814 the Court of Appeal disagreed with the High Court and agreed to quash permission for a hydro-power installation at a weir on Metropolitan Open Land (MOL). The appellant hotel owner succeeded on the grounds that the authority had, in applying its own policies on MOL development, failed to apply the stricter London Plan policies.

London Green Belt

The London Plan gives MOL equivalent status to green belt (applying NPPF policies – i.e. inappropriate development should not be allowed unless there are ‘very special circumstances’ (VSC)). The local plan policies allowed the development to be classified as ‘appropriate development’ in a way that the London Plan policy did not. The authority considered only the local policies.

Failing to refer to the specific (London Plan) policy in the committee report which provided the rationale for the decision was not fatal when considering the extent of compliance with the development as a whole (under Section 38(6) Planning & Compulsory Purchase Act 2004). The analysis did, however, have to make clear that “a particular policy has been brought into account“.

VSC need to be clear

By failing to identify the development as inappropriate in the context of London Plan MOL policy, the authority had failed to ask whether VSC existed which justified the exceptional grant of planning permission. The S.38(6) duty – to determine in accordance with the development plan as a whole, or identify reasons for a different approach – had therefore not been discharged.

The judgment is a reminder that the Courts are pragmatic on the application of S.38(6). The duty does not require a mechanistic treatment of each policy (City of Edinburgh Council v Secretary of State for Scotland [1977] 1 WLR 1447).  An overall finding of “compliance or conflict” with the development plan as a whole is sufficient, whether express or implicit.

The judgment notes that the dilution of the London Plan approach by the local plan policy appeared to have been overlooked. One oddity of the case is that agreement between the parties that the two policies did not take precedence over each other does not appear to reflect S.38(4), which provides that where there is conflict the most recently adopted policy trumps the older one.

SEA change

There has been a spate of recent cases concerning the requirement for plan makers to consider ‘any reasonable alternatives’ as part of the plan-making process and the role Strategic Environmental Assessment (SEA) plays in how that should be approached. This article looks at the recent decisions concerning the role that strategic environmental assessments play in the plan-making process, and the consideration of reasonable alternatives.

Read the full article

This article was first published in Property Law Journal (February 2017) and is also available at http://www.lawjournals.co.uk/

Neighbourhood Plans First But How Long Will They Last?

Judgment has been handed down in the first Neighbourhood Plan (NP) case to reach the Court of Appeal, reinforcing the position that NPs can come forward in the absence of up to date Local Plans.

As discussed previously, developer DLA Delivery Limited judicially reviewed the decision to hold a referendum on the draft NP as, in addition to environmental concerns, DLA claimed that the plan was not in accordance with the appropriate strategic policies.  The NP had been prepared in accordance with the policies of the unadopted, emerging Local Plan, rather than the expired strategic plan.

In the High Court, Foskett J dismissed the claim, allowing permission to appeal on the ground of conformity with strategic policies.  Permission was subsequently given to appeal on additional grounds.

Conformity with what?

On the first ground, whether the district council misunderstood and misapplied the requirement that the NP be in general conformity with the strategic local policies, Lord Justice Lindblom agreed with Foskett J that a NP could proceed in the absence of a strategic development plan document. Lindblom LJ added that where the local plan is historic, a NP cannot logically lack general conformity, as the plans are made for wholly different periods.  The judgment makes clear that a NP can come forward in the absence of an up to date local plan.  Both the National Planning Policy Framework (NPPF) and Planning Policy Guidance (PPG) references to a NP being in general conformity are intended to prevent the “mischief” of a NP frustrating an up to date local plan, rather than requiring a local plan to be in place first.

Properly assessed, but not explained

On the second ground, whether the NP failed to meet Habitats Directive requirements due to the lack of evidence that the Suitable Alternative Natural Greenspace (SANG) required to mitigate the proposed development would be provided.  Lindblom LJ found that the examiner was not irrational to have considered that SANG would have to be provided, despite the timing and location being uncertain (unlike the level of certainty needed when dealing with a planning application).  The examiner failed to address the lack of evidence for SANGs, and should have done, but Lindblom LJ did not consider this to be fatal, finding that addressing the lack of evidence would not have changed the conclusion.

Early Warning

This judgment clearly demonstrates that NPs can come forward in the absence of an up to date local plan. However, the groups preparing NPs in such areas should be aware of the risk that their NPs may become “out of date” when a local plan with a higher objectively assessed housing need is adopted.  The Written Ministerial Statement, as clarified by the Housing White Paper, provides protection for NPs unless there is a significant lack of delivery in the local planning authority area – but this will be outside the control of the NP group.  Many NP groups and local authorities will also be reassured by Lindblom LJ’s robust defence of the current way of appointing examiners.

The judgment also flagged other areas of caution for NP bodies. Lord Justice Lindblom found the consideration of the environmental mitigation by the examiner was not wholly correct, whilst concluding that it was not fatal to the plan.  The conclusion that the screening opinion was actually in breach of some habitats legislation will be a particular red flag.  Screening opinions and SEA considerations raise particular risks for NPs.  NP forums need to give careful attention to their proper preparation, which can be tricky where groups may have limited experience of such documents.

Daylight/ Sunlight Error Fatal To Permission

In Watt, R (on the application of) v London Borough of Hackney & Anor [2016] EWHC 1978 (Admin), the High Court quashed the grant of permission for a mixed use development likely to adversely affect sunlight reaching adjacent open land used by the neighbouring school for children’s play. The application had been considered on the basis the redevelopment of the vacant site would have enhanced the character and appearance of the conservation area.

Latent defects

The authority relied on a daylighting report addressing the extent of reduction in daylight to the play land at different times of year. A claim for judicial review was made on several grounds and independent assessment – carried out after the claim – identified flaws in the original report, exaggerating the existing levels of daylight and so understating (by a third) the effect of the new scheme on the play land.

The judge admitted the new report as part of a ground of claim alleging an error of fact. The defendant authority offered its own evidence in response, but – crucially – did not object to its admission.

Errors of fact can be fatal

The judgment confirms that the error of fact justified quashing the permission in the circumstances: there was a factual error which created a misleading picture; the fact was ‘established’, in the sense of being uncontentious; neither the appellant (nor his advisers) were responsible; and finally, the error played a material part in the reasoning (on the basis that it was impossible to say that had not done so, applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306).

Get your facts right

The daylight reaching the play area was above the relevant policy threshold with the correct analysis (just less far above than the original assessment had, wrongly, suggested). Despite the fact that the error may not have been decisive in the overall decision, though, the judge was prepared to quash the permission.  The judgment therefore confirms the risk that faulty technical work creates for planning decisions, even where the error itself is not decisive.

Court of Appeal Confirms Full OAN Benchmark for Sensitive Area Developments

We commented on Knight Developments saga applying for 100 homes in the Ashdown Forest last year. Although upholding the High Court’s decision to quash the appeal permission, the Court of Appeal has confirmed that authorities resisting applications in National Parks and AONB will need to push the boat out on the duty to co-operate at the Local Plan stage to avoid being caught out on appeal.

Mitigation certainty

The High Court quashed an Inspector’s decision granting permission following errors in relying on recreational mitigation measures to offset traffic-related nitrogen deposition impacts on the Special Protection Area (SPA) and Special Area of Conservation (SAC).  The Court of Appeal agreed – by failing to identify any ‘solid’ S106 mitigation proposals, it was impossible to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered for the purposes of applying the precautionary principle to assessing SAC/SPA harm.

Exceptional Circumstances

The High Court also rejected the Inspector’s approach to considering Objectively Assessed Needs (OAN) when applying the NPPF116, which states that (emphasis added):

“Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:

  • the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy
  • the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way
  • any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.

The Inspector dismissed the alternative sites put forward by the authority not because they were unsuitable, but because ” the existence of other sites, which collectively still fall short of the full OAN, does not amount to an alternative“. He therefore did not use the constrained version which the Core Strategy was designed to meet (taking the SAC/ SPA and other constraints into account).  The High Court judgment appeared to suggest that alternative sites must be considered in detail, regardless of whether they would meet the FOAN.

Clunking Fist of OAN

The Court of Appeal disagreed:

  • There is nothing in the NPPF requiring alternative sites to be looked at across the whole of a local planning authority’s administrative area, or to an area larger or smaller than that. The area of search will be fact specific.  As a matter of fact, the Inspector had looked at both the local and the wider District housing land supply position.
  • Because most of the district was within the AONB, there were few alternative sites suitable for housing development that were “not equally constrained” as the appeal site.  The view that such other available housing sites were unlikely to meet unconstrained OAN was a matter of planning judgment.

Although it upholds the High Court judgment on the SAC/ SPA mitigation point, the Court of Appeal judgment nonetheless expressly endorses the use of FOAN as the benchmark for considering the relevance of alternative sites in National Parks, the Broads and Areas of Outstanding Natural Beauty. Where up to date Local Plans are adopted to deliver a constrained OAN, these areas are still open to appeals where the level of housing need not being met through the duty to co-operate is less than the up to date FOAN (and the decision-maker is prepared to give meeting needs exceptional weight).