The Thirty-Nine Essex Street Annual Review of Planning Case Law

Transcription

1 The Thirty-Nine Essex Street Annual Review of Planning Case Law February 18 th 2014 Jon Darby & John Pugh-Smith

2 Topics: Enforcement Permitted Development Change of Use Planning policies and judgments Bias Standing Aarhus/Costs EIA

3 JD & JPS s Taster Menu: Enforcement Planning policies and judgments Standing Aarhus/Costs EIA

4 Enforcement R (Ioannou) v SSCLG [2013] EWHC 3945 (Admin) Scope of an Inspector s power to grant permission on appeal under s.289 for remedial works under ground (f) R (Evans) v Basingstoke & Dean BC [2013] EWCA Civ 1635 Compatibility of time limits for taking enforcement action in EIA cases No extension to the 10 year rule

5 Changes of Use R (Peel Investments) v Hyndburn BC [2013] EWCA Civ 1680 Differentiation between planning permissions regarding building works and change of use R (Sienkiewicz) v South Somerset DC [2013] EWHC (Admin) Conflict between development plan and NPPF Useful reminder on law and policy on planning conditions

6 Planning policy interpretation: re-stated principles Tesco Stores Ltd v Dundee City Council [2012] UKSC 13: a local planning authority must proceed on a proper understanding of the development plan... policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context [para.18]... planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean [para. 19] A provision in the development plan which required an assessment of whether a site was "suitable" called for judgement in its application. But the question whether such a provision is concerned with suitability for one purpose or another was not a question of planning judgement: it is a question of textual interpretation, which can only be answered by construing the language used in its context... [para.21]

7 Interpretation of planning policy: another example R (TW Logistics) v Tendring DC [2013] EWCA Civ 9 As a local plan was to be objectively construed the public was, in principle, entitled to rely on it as it stood without having to investigate its provenance and evolution A local plan might include policies which were not in complete harmony; and where different parts of the local plan pointed in different directions it was for the planning authority to decide which policy should be given greater weight in relation to a particular decision. Conservation Management Plan promoting re-generation as part of reorganisation of Mistley Port not in conflict with Local Plan policies; so the fact that the local plan did not specifically promote the reorganisation of the port or the redevelopment of a warehouse for nonport-related purposes did not entail the converse proposition that either of them was prohibited.

8 Interpretation of planning policy: another example R (Manchester Ship Canal & Peel Holdings) v Environment Agency [2013] EWCA 542 Categorisation of Canal sluices as formal defences Downgrading of surrounding land to Flood Zone 3 Internal policy as to categorisation either as formal flood defences or as de facto flood defences Absence of categorisation of whole of Canal as a formal flood defence Agency had created a new (implied) third category and should have published a policy to that effect Court leaves unanswered whether a policy must always have one uniquely correct meaning

9 Other examples R (RWE Npower Renewables) v Milton Keynes BC [2013] EWHC 751 (Admin) Entitlement of LPA to produce Wind SPD but unlawful as separation distances in conflict with adopted development plan R (Houghton & Wyton PC) v Hunts DC [2013] EWHC 1476 (Admin) St Ives West Urban Design Framework held unlawful as scope went further than SPD.

10 . Localism issues (1) What it is not? Tewksbury BC v SSCLG [2013] EWHC 286 Admin) Proposals for 1,000 dwellings Absence of a five year housing supply Emerging Core Strategy to which only limited weight could be given NPPF considerations on housing land supply, expeditious preparation of local plans Prematurity argument to regulate the position No fundamental shift resulting from the Localism Act as relevant national planning policies would continue to apply to which the SSCLG had correctly had regard But see also Larkfleet Ltd v SSCLG & South Kesteven DC [2012] EWHC 3592 (Admin) and R (Save Our Parkland Appeal) v East Devon DC & Axminster Carpets [2013] EWHC 22 (Admin) that prematurity argument not applicable where plan not yet formally submitted for examination

11 Localism issues (2) Neighbourhood empowerment? R (Daws Hill Neighbourhood Forum) v Wycombe DC & Taylor Wimpey [2013] EWHC 513 (Admin) Designation as neighbourhood forum under s.61g TCPA 1990 Neighbourhood area smaller than requested excluding two large housing sites (covered by other LPA policy documents) LPA has broad discretion over neighbourhood area designation No useful purpose in wider designation area as time delays in neighbourhood plan process against progression of the two sites through planning applications Court of Appeal outcome awaited

12 Planning judgments and the NPPF William Davis v SSCLG [2013] EWHC 3058 (Admin) SSCLG s recovered appeal decision Site in long-designated green wedge Local Plan (2006) housing provision out of date NPPF para. 49 Preliminary issue whether appeal proposals sustainable development Presumption in favour under the NPPF only applies to sustainable development Policies for the supply of housing is a reference only to policies which positively provide for housing not Green Wedge policies Permission to appeal being sought from Court of Appeal against Laing J s judgment See also Hopkins Development v SSCLG in Court of Appeal

13 Planning judgments and the NPPF Cotswold DC v SSCLG [2013] EWHC 3719 (Admin) Meaning of NPPF para. 47: a record of persistent under delivery of housing increase the buffer to 20% No requirement for Inspector to have regard to previous decisions not cited to him Meaning and application of NPPF para. 49 See forthcoming judgment of Collins J in Barrow PC v SSCLG on para and the meaning of deliverability the realistic prospect test and its proof? Ongoing debate over application of Sedgefield approach for s.78 appeals against Liverpool approach where local circumstances permit e.g. Green Belt releases

14 Planning judgments and the NPPF Fordent Holdings v SSCLG [2013] EWHC 3719 (Admin) Distinctions between former PPG2 and NPPF paras. 87, 89 and 90 Effect of these paras. read together is that all development in the Green Belt is inappropriate unless it is specifically identified in NPPF i.e. either development falling within one or more of the categories in para. 90 or building which falls within para. 89. So, if change of use inappropriate (agriculture to caravan site) then do VSC outweigh harm to Green Belt? Aston v SSCLG [2013] EWHC 1936 (Admin) NPPF paras : major development in AONB Not same test in DMPO 2010 and Circular 02/09 Judge not persuaded uniform meaning intended in NPPF!

15 Other Matters: Hunston Properties v SSCLG [2013] EWCA Civ 1610 Proper construction of NPPF para. 47: meeting 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 Decision utilising revoked RSS as basis for housing requirement quashed. Fox Land & Property v SSCLG [2014] EWHC 15 (Admin) SSCLG overturning his Inspector's recommendation not to allow housing development on Green Belt land at Casle Point upheld: not irrational! Now see latest Written statement to Parliament on Green Belt on 17 th January 2014

16 STANDING JB Trustees Ltd, Phillip & Sandra Jeans v SSCLG and Dennis Jeans Development Ltd [2013] EWHC 3555 (Admin) The meaning of persons aggrieved Claimants had withdrawn their objections during the appeal process whilst also saying nothing to the inspector about: o any planning concern; or o any private interest of their own; or o Suggested conditions if planning permission were to be granted owalton v Scottish Ministers [2012] UKSC 44 considered.

17 AARHUS/COSTS Venn v SSCLG [2013] EWHC 3546 (Admin) Entitlement to costs protection SSCLG submitting: claim not an Aarhus Convention claim; fell outside scope of costs protection provided by CPR because it was not an Aarhus Convention claim and not a claim for judicial review; court s inherent jurisdiction to make PCOs could only be made on the criteria set out in Corner House (which she could not fulfil); even if claim under Aarhus Convention it should not benefit from any relaxation of the Corner House principles for environmental claims because it did not come within the scope of the Directives implementing the Aarhus Convention into EU or UK law; CPR rule is limited to judicial review proceedings only Despite section 288 applications and judicial review claims frequently rais[ing] the same public law issues BUT the wording of CPR refers to claims not issues (also paragraph [27]).

18 Inherent jurisdiction Corner House v. Secretary of State for Trade and Industry [2005] 1 WLR 2600 ( Corner House criteria ) Consequential relaxation in relation to environmental claims would enable the court to give effect to the requirements of the Convention R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006) Venn treated the public importance and public interest for making a protective costs order as met because the claim raised environmental matters within the scope of the Convention (para. [36]).

19 EIA: The wider perspective Sheer volume of case law the challenge is to understand the significance of a case! Three broad considerations: The development of domestic law materially influenced by European Union law EIA is as much a part of planning as environmental law which, itself, is now a distinctive body of public law Ongoing tensions between statutory regulation and the development of land in the public interest

20 EIA: Some of the cases Burridge v Breckland DC [2013] EWCA Civ 228: project splitting; tougher approach to discretion despite legal error decsion not quashed R (Save Britain's Heritage) v SSCLG [ 2013] EWHC 2268 (Admin): salami slicing what constitutes the project is a question of judgment subject to review on Wednesbury grounds R (Shadwell Estates) v Breckland DC [ 2013] EWHC 12 (Admin): intensity of Court s review of EIA distinction between matters of judgment and legal error (an error so bad the ES cannot be called an ES) R (Treagus) v. Suffolk C.C [ 2013] EWHC 950 (Admin): mitigation measures can be taken into account in deciding environmental impacts. Views of statutory consultees highly relevant

21 EIA: Some more cases Champion v North Norfolk DC [2013] EWCA Civ 1657: Decision that EIA and AA were not required followed a sequential process. Engagement of statutory consultees (EA and NE) had ensured that mitigation measures had been properly addressed R (Baker) v Bath & North East Somerset Council & Hinton Organics [ 2013] EWHC 946 (Admin): EU law permitted the grant of retrospective planning permission in respect of EIA development, albeit in exceptional circumstances R (Catt) v Brighton & Hove CC [ 2013] EWHC 977 (Admin): If a negative screening opinion is adopted before the planning permission is granted and that screening opinion turns out to be legally flawed the consequent flaw in the process as a whole cannot be put right by a second process carried out later. However the Judge then exercised his discretion not to quash the planning permission.

22 EIA: And yet more R (Thakeham Village Action Ltd) v Horsham District Council [2014] EWHC 67 (Admin): Wide scope of LPA s screening opinion of proposal for 146 houses on the site of a former mushroom farm despite being contrary to the development plan. R (Mouring) v West Berkshire Council [2014] EWHC 203 (Admin) : WBC fails to consider whether an 800 square metres warehouse development (with ancillary offices) in the AONB was EIA development (i.e. falling with Sched. 2, para. 10(b) as an urban development project ). R (Bucks CC and Others) v SST [2014] UKSC 3: Was a command paper subject to SEA? No It doesn t set framework for future development consent. Is the hybrid bill procedure (subject to political party oversight) compatible with EIA regime? Yes (though the question whether it is in public interest to proceed with projects like HS2 may be matter of national political significance).

23 EIA cases: Exercise of judicial discretion Though many arguments as to breach of the EIA Directive and Regulations are unsuccessful, the provisions provide many opportunities for identifying procedural (and substantive) flaws in decision-making. However, Walton v Scottish Ministers [2012] UKSC 44 demonstrates that the domestic courts are to balance the principle of effectiveness in exercising rights under European law with the practical effect of any breach and the public interest, Lord Carnwath finding (at [139]): Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach has caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source.

24 EIA cases: Judicial reluctance to refer cases to ECJ Clear judicial reluctance to refer environmental law cases to the EU court, despite dominance of EU law in environmental cases. However, the Supreme Court referred in R(ClientEarth) v Secretary of State for Environment Food and Rural Affairs [2013] UKSC 25. See also Lord Carnwath s comments in the HS2 case [2014] UKSC 3 :. Experience has shown that that case law now provides sufficient guidance to enable national courts and tribunals - and in particular specialised courts and tribunals - to decide many cases for themselves without the need for a reference...

25 Q&A (and then, if you don t have to fly, please join us for drinks)! Thirty-Nine Essex Street Chambers, 39 Essex Street, London, WC2R 3AT john.pugh-smith@39essex.com Jon.Darby@39essex.com Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered office at 39 Essex Street, London WC2R 3AT Thirty Nine Essex Street's members provide legal and advocacy services as independent, selfemployed barristers and no entity connected with Thirty Nine Essex Street provides any legal services. Thirty Nine Essex Street (Services) Limited manages the administrative, operational and support functions of Chambers and is a company incorporated in England and Wales (company number ) with its registered office at 39 Essex Street, London WC2R 3AT