Recent Developments in Planning Case Law

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1 Recent Developments in Planning Case Law a presentation by JOHN PUGH-SMITH Monday 6 th March 2006 Barrister, 39 Essex Street Chambers. Comments and suggestions from his co-presenter. Stephen Tromans and fellow colleagues, Martin Edwards, Richard Harwood, and Gordon Nardell are also gratefully acknowledged.

2 OVERVIEW This paper looks at a number of specific topics though, unlike, with previous years, it does not identify any particular trends. It starts by charting the principal decisions raising Environmental Impact Assessment points. It highlights the number of cases concerning gypsies which have produced a number of decisions upholding their right to be treated fairly, as with those involved in mobile phone litigation. Several cases have also contributed to the case law based jurisprudence on plan-making. Finally, attention is drawn to a many and varied number of cases on development control issues. ENVIRONMENTAL IMPACT ASSESSMENT Each year has added further jurisprudence; and it will be recalled that, following the wide view taken by the European Court of Justice in Wells 1 of what constituted a development consent (in the context of old mining permissions) a similar judgment was to be expected in Barker (the Crystal Palace case). However, so far as I am aware, the ECJ has still to hear the preliminary reference made by the House of Lords in June 2003 as well as the infraction proceedings brought by the Commission against the UK 2. Given the potential significance of this case as to whether, in appropriate circumstances, EIA should be carried out at the reserved matters stage where none has been undertaken before the grant of outline consent this is surprising. Against this backdrop, the Court of Appeal in June 2005 determined the case of R (The Noble Organisation) v Thanet District Council 3, currently still the only domestic challenge which has been taken on the point since Wells. However, unlike in Barker, the council had undertaken a screening exercise at reserved matters stage notwithstanding 1 Case C-201/02: R (Wells) v. Secretary of State for Transport, Local Government and the Regions; 7 January Infraction proceedings have also been instituted in respect of the White City litigation involving CPRE: see R v Hammersmith & Fulham LBC, ex parte CPRE [2000] Env LR 532 (Richards J); [2000] Env LR 544 (Court of Appeal); [2000] Env LR 532 (Harrison J). 3 [2005] EWCA Civ 782; [2006] 1 P&CR 13; [2006] JPL 60

3 its decision at the outline stage that an EIA had not been required in respect of a leisure development on a business park. Noble argued that, as a matter of EC law, the council should have looked behind the formal validity of the earlier decisions and examined the adequacy of the consideration previously given to the need for an EIA. The Court of Appeal disagreed, highlighting that the domestic remedy of judicial review can afford adequate protection for community law rights which could have been exercised here through a challenge of the alleged inadequacy of the screening process. An application for a reference to the ECJ for the resolution the appeal was also dismissed. Lord Justice Auld, giving the lead judgment, expressed a note of dissatisfaction as to the way in which the remedy of judicial review can be exploited as a commercial weapon by rival developers and urged rigorous examination by the single judge at the permission stage for such challenges. In respect of other EIA issues, a series of points have been considered by the Courts at first instance. In R (Kent) v First Secretary of State 4 the principal point concerned the overlap between the requirements of the EIA Regulations 1999 and the Pollution Prevention and Control Regulations 2000 in the context of the storage of waste in rock salt caverns. The judge, Sir Michael Harrison, held that whilst the decision maker in the planning process had to set the parameters within which the likely significant effects of the development could be assessed, within those parameters, he was entitled to take into account that there were matters which could properly be left for subsequent consideration and determination, whether by way of planning condition or as part of the PPC permit process. Provided that those parameters were determined, within which the future details could be worked out, reliance could be placed in the EIA process on the proper operation of those controls. On the facts there had been sufficient information in the environmental statement ( ES ) for the Secretary of State to identify and assess the main effects and to set the parameters, even though the description was of generic waste types rather than specific ones. 4 [2004] EWHC 2953 (Admin) ; [2005] 2 P&CR 16 3

4 In Hereford Waste Watchers Limited v Herefordshire Council 5 the primary issue concerned the duty on the decision maker to obtain further information on the significant environmental effects of a waste treatment and recycling facility before granting consent. Here, the reporting officer had expressed concerns over the efficacy of a proposed system for controlling emissions, based on advice from the council s own environmental health officer. As a consequence, one of the planning conditions stated that no development should take place until a report had been prepared specifying the expected levels of all pollutants from the facility and their predicted emission level into the atmosphere. Mr Justice Elias found that the council should have insisted upon the provision of the additional information before granting planning permission. By taking the latter course it was effectively depriving consultees the opportunity to be consulted on the likely environmental impact. The planning permission was accordingly quashed on this ground. Another EIA case, R (Anderson & Others) v City of York Council 6 also happened to be heard by Mr Justice Elias, again on the issue of planning conditions and other mitigation measures being taken into account but in respect of the earlier stage of making a screening opinion. There, the claimant (who was obliged to act in person) submitted that the City Council had erred in law in assuming that the subsequent steps in the planning process, including the imposition of conditions, would enable the elimination or successful mitigation of adverse environmental effects so as to justify negative opinions. It was also submitted that insufficient information had been available at the screening stage to decide properly that no EIA was required. Mr Justice Elias dismissed the claim, finding that a screening opinion did not have to state exhaustively the reasoning of the officer involved and should not be read like a statute. On the issue of taking into account of mitigation measures, the officer had been clear in the view that there would be no significant adverse environmental effects, but that it was desirable that there be some further consideration of the detailed proposals in order to minimise fully any adverse effects which there might be. This was compatible with the finding as to no adverse 5 [2005] EWHC 191 (Admin); [2005] JPL [2005] EWHC 1531 (Admin). 4

5 effects and it had been proper for the officer to rely on the fact that there would be mitigating measures. Whilst the position might be otherwise if such measures were unusual or novel, those in the present case had been tried and tested and commonly adopted for the difficulties in question. The case of Humber Sea Terminal Limited v Secretary of State for Transport 7 concerned a challenge to a harbour revision order permitting Associated British Ports (ABP) to construct five roll-on, roll-off births at Immingham and its impact on the Humber Estuary special protection area (SPA). Amongst the issues for consideration 8 was whether ABP s ES had been inadequate, giving insufficient details of the proposed compensatory measures which ABP had entered into an agreement with English Nature and other bodies. On this point, Mr Justice Ouseley held that a rigid distinction should not be drawn between a project and the compensatory measures to be taken in consequence of it. He found that there was no evidence that the proposed compensatory measures would be the main or likely significant effects of the project, in consequence of which the omission of some of them from the ES did not prevent it from being an ES in law. Finally, in R (Candlish) v Hastings Borough Council 9 the EIA issue centred around the phasing of a 67 ha. development site for residential, office and retail purposes. The developer had submitted a detailed planning application in respect of the infrastructure works for the site which the council had determined did not require an EIA. The claimant, a local resident, challenged that consent upon the basis that whilst these works were not, of themselves, likely to have significant effects on the environment they formed part of a wider development that would. Mr Justice Davis took the view that there was no justification for treating the word development within the 1999 Regulations as though it meant project of some wider kind as the Regulations were 7 [2005] EWHC 1289 (Admin); [2006] 1 P&CR 5 8 HST also failed in its challenges that (i) the SST had not been entitled to apply Article 6 of the Birds Directive permitting projects of overriding public interest where no alternative solution could be found and (ii) that Regn 53 of the Habitats Regns. did require compensatory measures to be in place before consent was granted, there being no reason at that date for saying that the agreement was bound to fail its objective. 5

6 geared to the actual application for development consent. It is also noteworthy that, in giving his reasons for a reference to the ECJ, the judge remarked that if Phase 2 took place then there would be in any case an EIA but also that there was no question of a deliberate device or ploy to circumvent the EIA regime arising here, perhaps, the two underlying considerations of particular interest to a practitioner. GYPSIES The perennial issue of inadequate gypsy site provision and the consequences of unlawful encampments continues to involve both councils and the courts in longrunning enforcement battles, some of which make the news headlines whilst an even greater number seem to now feature in case law updates within the last twelve months! In consequence, attention is drawn to the following recent decisions. The case of Mid-Bedfordshire District Council v Brown 10 concerned the appropriateness of suspending a final injunction prohibiting a change of use of agricultural land, within the green belt and an area of great landscape beauty, to use as a gypsy residential site. In breach of an interlocutory injunction the defendants had moved onto the land. The judge had granted a final prohibitory order but had suspended it pending the determination of the planning application on the ground that the interests of the young children on the site overrode the objective of safeguarding the environment. However, the Court of Appeal took the view that as the practical effect of suspending the injunction would be seen as condoning the breach, which would diminish respect for court orders and undermine the authority of the court and subvert the rule of law. In consequence, these public interest considerations far outweighed those supporting the suspension of the injunction, the order for which would be discharged other than for a period of four weeks to give the defendants reasonable time to move their caravans and vehicles from the land. 9 [2005] EWHC 1539 (Admin); [2006] JPL [2004] EWCA Civ 1709; [2005] 1 WLR

7 In Wilson v Wychavon District Council 11 the claimant, a Romany Gypsy, sought a declaration that the stop notice provision in section 183(4) of the TCPA 1990, which permits such action against caravans but not dwelling-houses, was incompatible with article 14 of the European Convention on Human Rights(prohibition of discrimination). The LPA had served enforcement and stop notices as well as an injunction (although that had been stayed to give time for the current proceedings). Mr Justice Crane held that as a higher proportion of gypsies and travellers rather than any other relevant group were likely to be affected by stop notices there was therefore indirect discrimination in effect in relation to a group protected by Article 14 of the convention. Accordingly, the onus was on the state to justify, objectively, the provision. He found that the provision could be justified but the fact that usually a change of a building to a dwelling would cause less environmental damage than the stationing of a residential caravan. A regime including possible exemptions for caravans such as those that existed in the case of temporary stop notices 12 was not required by considerations of proportionality. A stop notice was only issued after a full balancing exercise had been carried out as required for an enforcement notice. Accordingly section 183(4) was not incompatible wit the Convention. In R (Evans) v First Secretary of State 13 it was decided that, as a matter of principle, gypsy status alone could not be determinative of an appeal concerning the grant of planning permission in the green belt. In another green belt case originally before the same judge, Mr Justice Newman, Simmons v First Secretary of State 14 the challenge turned upon whether there was an evidential burden upon a gypsy to establish that he had carried out searches for alternative sites. In the Court of Appeal 15, allowing the Secretary of State s appeal, the view was taken that the availability of alternative sites in a particular area was only logically relevant once it is established that there were very special circumstances which required a site in that area, and that those circumstances are in themselves sufficiently compelling to overcome Green Belt policy. 11 [2005] EWHC 2970 (Admin) 12 Under the T&CP (Temporary Stop Notice) (England) Regulations) [2005] EWHC 149 (Admin) 14 [2005] EWHC 287 (Admin); [2005] 2 P&CR 25 7

8 Here, without addressing the wider point, attention was drawn to the fact that Mr Simmons had failed at the first hurdle since he had failed to establish a special requirement to be located in the Sevenoaks district area; but even if he had been able to make such a case, it did not follow as a matter of policy that the Secretary of State would be bound to have regard to it as a sufficient reason to grant permission. In Mole Valley District Council v First Secretary of State 16 it was held that the relevant very special circumstances were those directly applicable to the applicant even if there were others in the same or a very similar position. In R (Green) v First Secretary of State 17 it was found to be a material consideration for a planning inspector to make a reasoned determination as to whether the units on a site were caravans or mobile living accommodation, as defined by the Caravan Sites and Control of Development Act Finally, in potentially the most controversial decision, the Court of Appeal held in N Smith v First Secretary of State 18 that an inspector was not entitled to take into account fears and concerns of crime as a material consideration where those concerns rested on an assumption, not supported by evidence, as to the characteristics of future occupiers. As Lord Justice Buxton pointed out, a caravan site is not like a polluting factory or a bail hostel, likely of its very nature to produce difficulties for its neighbours. MOBILE PHONE MASTS There are now reported to be more mobile phones than people in the UK 19. Equally, a continuing flow of cases prompts me to include this subject within this paper. By way of a positive boost to the industry the Court of Appeal found in T Mobile (UK) Limited & Ors v First Secretary of State 20 that the operators in question had, in effect, met international guidelines for public exposure in respect of emissions from mobile phone 15 [2005] EWCA Civ [2005] EWHC 1079 (Admin) 17 [2005] EWHC 691 (Admin) 18 [2005] EWCA Civ million mobile phone subscriptions. Planning magazine, July 29,

9 masts. The appeal arose out of a decision of an inspector dismissing an application for a new mobile phone mast relying on the perception of health risk and that there was insufficient assurance that there would be no harm to children at three schools situated nearby. However, in making such findings the inspector had departed from national policy advice in PPG8 (2001) that the planning system was not the place to determine health safeguards and provided the proposal met the International Commission on Non- Ionising Radiation Protection ( IC-NIRP ) guidelines for public exposure the health aspects did not need to be considered further. Having not identified any exceptional circumstances or stated why compliance with IC-NIRP guidelines was not sufficient to allay perceived fears the decision letter had to be quashed. In the subsequent case of R (Nunn) v First Secretary of State 21 the issue concerned a breach of the claimant s rights under Article 6 of the ECHR in the context of the application of permitted development rights under Part 24 of the General Permitted Development Order 1995 ( GPDO ). The challenge arose out of a successful enforcement appeal by the operator following the council s late issue of a notice refusing prior approval out of time. As a result of the appeal being allowed upon the basis that there had been no breach of planning control the representations by the claimant and others concerning the effects on health and the value of their homes had not been considered by the inspector. In the opinion of the Court of Appeal, there had been a breach of Article 6 because the council had failed to make an effective determination in respect of her representations. However, the scheme under the GPDO was compatible with the ECHR and it was not possible to add in words into the legislation to force a third party to remove what it had the right to erect. Accordingly, the claimant s remedy was against the council only, either for damages under the Human Rights Act 1998 or through the Local Ombudsman scheme. In R (Orange PCS Limited & Ors) v Islington London Borough Council 22 the council had issued notice that prior approval was not required by Orange for the siting and 20 [2004] EWCA Civ 1763; [2005] Env LR [2005] EWCA Civ 101; [2005] Env LR 652 9

10 appearance of an installation. It was then constructed. Subsequently, the site was included within a conservation area designation. Orange and other operators then installed further equipment that had not been included in the originally submitted plans. The council issued an initial enforcement notice requiring the installation to be brought into line with the plans but, before the work was completed, the council withdrew that notice and issued a fresh one requiring the removal of the entire installation upon the basis that the conservation area designation removed the permitted development rights. Allowing the claimants judicial review, Mr Justice Crane found that the acquired rights had accrued once prior approval had been given for the submitted plans, and thus the extent and nature of the permission was thus crystallised and defined. As the legislation did not sufficiently indicate that conservation area designation took away rights that had previously been crystallised and defined it was appropriate for the court to grant a remedy on the particular facts. The judge also drew attention to the power which the council could have exercised under Article 4 to the GPDO requiring a specific application for planning permission. The matter has now been the subject of consideration of the Court of Appeal which, on 19 th January 2006, gave judgment 23 dismissing the Council s appeal, the arguments centering around the permitted development issue. On this point, the Court held that the GPDO had to be read as a whole. In a case that involved prior approval, once the work had started, the conservation area status could not make the development unlawful. As planning permission accrued or crystallized on approval of the application by the LPA the judge had been right to reach the conclusion he had. The interpretation of Part 24 of the GPDO was the subject of specific consideration in Airwave mmo2 Limited v First Secretary of State 24 in the context of what constitutes antenna. The challenge had arisen out of an inspector s request as part of a written representations determination, as to whether the support booms on the mast were apparatus or antennae for the purposes of applying the GPDO provisions to apparatus 22 [2005] EWHC 963 (Admin) 23 Neutral citation awaited and official transcript awaited. 10

11 not exceeding 15 metres above ground. The inspector had, in the event, decided that the supports were apparatus which exceeded the permitted height and had refused prior approval. On this specific issue, Judge Gilbart QC, sitting as a Deputy High Court judge, determined that, as a matter of law, one has to look at the part of the installation in question and ask as a matter of fact and degree whether it is part of the antennae part of the installation, or part of the installation that supports them. One will then form a judgment about where the dividing line falls. It is not enough simply to ask whether the bit in question is actually transmitting or receiving In the event, this determination, itself, turned out to be a hypothetical exercise as full planning permission had been granted one month after the proceedings had been issued, a point which was not disclosed until the end of argument. In consequence, judgment was given for the defendant. DEVELOPMENT PLAN-MAKING Given the extent to which the reforms introduced by the Planning and Compulsory Purchase Act 2004 are now underway it is, perhaps, timely, that this area of case law should have been the subject of scrutiny by the Court of Appeal twice during In the first case, Wealden District Council v Martin Grant Homes Limited 25, the issue concerned the transitional arrangements and the ability of a local planning authority to withdraw a local plan. Contrary to the view taken by Mr Justice Collins at first instance 26, that, because of the transitional arrangements, the right would arise only exceptionally (where the authority was satisfied that its proposals could not be adopted, even if modified) the Court of Appeal took a more robust view, finding that there was no express or implied limitations on the exercise of such discretion, other than this should not be irrational or unreasonable in the public law sense. So far as the transitional provisions were concerned, there was nothing within them that compelled the Council to continue with its local plan and withdrawal was not contrary to anything 24 [2005] EWHC 1701 (Admin) 25 [2005] EWCA Civ [2005] EWHC 453; [2006] 1 P&CR 11 11

12 contained within Schedule 8 of the 2004 Act, concerning the stages up to which an authority is allowed to continue to promote an emerging local plan. As the effect of the Council s decision to withdraw its local plan review was that the transitional provisions ceased to apply there was no question of it acting contrary to the transitional provisions in its decision to withdraw the plan. In Persimmon Homes (Thames Valley) & Ors v Stevenage Borough Council 27 the limited supervisory role of the court under section 287 of the TCPA 1990 was emphasised when dealing with a challenge to the LPA s view of the requirement that a local plan should be in general conformity with a structure plan pursuant to section 36(4) of the 1990 Act. The Hertfordshire Structure Plan Review identified a number of strategic housing allocations for Stevenage, including a requirement for 1000 houses west of the A1(M). The Local Plan identified certain land for this level of provision but, following the local plan inspector s recommendation, provided that the land in question was to be safeguarded from development pending reconsideration and acceptance of its strategic justification. In the High Court the promoters were partly successful in quashing certain parts of the local plan. However, in dismissing their appeal (Lloyd LJ dissenting), Lord Justice Laws (with Wall LJJ supporting) held that a more flexible approach should be taken to the phrase general conformity to allow considerable room for manoeuvre within the local plan so as to meet the various and changing contingencies that could arise. However, such flexibility was not unlimited; and measures of this kind must respect the structure plan policies as they are, whilst allowing for the possibility that they may be changed. In consequence, the court s task under section , with this type of issue, was not one of statutory construction but rather one of Wednesbury review. 27 [2005] EWCA Civ In the subsequent case of Ensign Group Limited v First Secretary of State [2006] EWHC 255 (Admin), when quashing part of a Regional Spatial Strategy leading to a housing policy gap, Sullivan J remarked that it was most unfortunate that the Act did not enable the court to deal with the matter by way of declaratory relief as the power to quash or not was a blunt instrument 12

13 Finally, in Corus UK Limited v Erewash Borough Council 29 judicial confirmation was provided by Mr Justice McCombe that the appropriate procedural rules governing an application for an extension of time for an application under section 287 were those contained in CPR rule 3.1. The judge noted that whilst certainty was required in planning matters, and for that reason delay was to be firmly discouraged, it was also the function of the Administrative Court to ensure that public authorities acted lawfully and that the public were not artificially deprived of an opportunity to challenge the legality of a public act, which, here, would persist for three years if uncorrected. In all the circumstances it would not be unjust to refuse an extension for two or three days, the claim form having been issued on September 20 but not served until September 23, OTHER DEVELOPMENT CONTROL ISSUES Section 106 Agreements The case of Patel v Brent London Borough Council 30 concerned the recovery of a highways contribution. Under an initial section 52 agreement, in connection with the grant of a 1990 planning consent for the development of a temple on the site of the former Neasden. High School, the claimants ( the Mission ) agreed to pay 550,000 to the council in respect of certain contemplated highway works. The Mission, in the end, decided not to implement that consent but negotiated the sale of the site to a housebuilder. A 1992 consent for 149 dwellings led to the Mission entering into a section 106 agreement which required the deposit of 550,000, which sum was to be solely attributable to paying for highway improvements and/or traffic management measures necessary to improve access arrangements to/from the site. The council undertook to use its reasonable endeavours to complete the works by a specified stage. The relevant date in October 1994 passed. By August 1999 the Mission s solicitors demanded the return of the contribution. Finally, in two phases, in 2001 and 2003 a 29 [2005] EWHC 2821 (Admin) 30 [2005] EWCA Civ 644; [2006] P&CR 7 13

14 scheme of signalisation and associated footpath widening was carried out using most but not quite all of the contribution plus accrued interest. At first instance, Mr Justice Hart 31 had held that the statutory status of a planning obligation meant that it could not be discharged by breach, only by discharge or modification under section 106A. Before the Court of Appeal 32 it was contended that the Mission had already discharged their sole obligation which was to pay the contribution to the council. This submission did not find found favour but the Court held that the deposit of the contribution had created a form of trust on which the Mission remained the beneficial owners unless and until it was drawn down for the intended purpose. In consequence, as nothing indicated that the works undertaken by the council had been necessary for one or more of the intended purposes under the agreement a master should hold an inquiry into the extent of the work that satisfied those requirements and any consequential orders. In Stroude v Beazer Homes Limited 33, another Chancery case, it was held that a section 106 agreement which imposed an obligation upon a landowner and a developer to build a bypass before residential development could commence gave the landowner an implied right of access onto the developer s property for that planning obligation to be discharged. Whether it was appropriate for the law to impose mutual rights and obligations depended upon whether they were concurrent in the sense that each party undertook the same obligation by virtue of the same agreement. Here, it was both a concurrent and a joint obligation for the parties to construct the bypass even though the purpose of the section 106 agreement was to implement the statutory planning code. Mr Stroude s rights of access were proprietary in nature and capable by protection by notice on the register. 31 [2004] EWHC 763 (Ch) 32 [2005] EWCA Civ 644; [2005] JPL

15 Advertisements In Butler v Derby City Council 34 the issue before the Divisional Court 35, by way of case stated, was whether a banner, approximately 2 metres by 0.85 metre in size, bearing the words Save Five Lamps in red capital letters along with a logo and contact details of the action group, Derby Heart, opposed to certain land development proposed by the City Council, was capable of constituting an advertisement. The Court so concluded. Parliament had intended the word advertisement was to be given a very broad meaning for the purposes of the relevant legislation 36. The words advertisement, announcement or direction used in the statutory definition 37 were not mutually exclusive and an announcement were not mutually exclusive and an announcement could be a direction or an advertisement and vice versa; though whether a banner displaying only a message or political message such as Save the Whales or Ban the Bomb could be fairly be described as announcements and therefore advertisements fell to be considered in another case. Here, the district judge had found that the contact details on the banner constituted a direction and that, as such, the banner was an advertisement. On a human rights point, the district judge had been correct in determining that the commencement of the criminal proceedings had not engaged Mr Butler s right to freedom of expression under Article 10 of the Convention since he had neither applied for nor been denied consent to display the banner, which had simply been tied on the front of his property. Accordingly, the Court did not accept that the 33 [2005] EWHC 2686 (Ch) 34 [2005] EWHC 2835 (Admin) 35 Collins J, Sullivan J 36 Town and Country Planning (Control of Advertisements) Regulations, reg.5 and the Town and Country Planning Act 1990, s Town and Country Planning Act 1990, s.336(1) 15

16 statutory controls on the display of advertisements were, in principle, an unlawful interference wit the right to freedom of speech; and the relevant legislation provided a framework within which a reasonable balance could be struck between an individual s right to impart information and the rights of those to whom the information is to be imparted. Alternative Sites The decision of Mr Justice Sullivan in R (Chelmsford Car and Commercials Limited) v Chelmsford Borough Council 38 adds yet more case law to the issue as to the existence of an alternative site is a material consideration. As the judge points out, the leading authorities are all fact sensitive, in consequence of which they must be approached with a degree of caution. Here, there were two competing applications beyond the settlement boundary to meet a single identified need for affordable housing in a village. Although the claimant s site was closer The council had refused the claimant s request for a comparative assessment and refused its planning application on the grounds that in terms of affordability and deliverability. Allowing the judicial review challenge of the rival s planning permission it was held that, in this case, common sense suggested that a comparison would inevitably be a material consideration. Conditions In Orchard(Development) Holdings plc v First Secretary of State 39 the appellant challenged the refusal of the grant of planning permission to demolish a football stadium and the construction of a residential development on site. The issue before the High Court was the use of a negatively worded condition addressing the provision of the replacement stadium. The appellant had proposed that residential development should not be begun until it had provided an alternative football ground that had equivalent or better recreational facilities and community facilities to those available at 38 [2005] EWHC 1705 (Admin) 39 [2005] EWHC 1665 (Admin) 16

17 the appeal site. The Inspector had found that this wording was too imprecise and dismissed the appeal. The judge, HH Judge Gilbart QC, held that as this was the exercise of a planning judgment it would be inappropriate to interfere. The decision provides a useful summary of the relevant case law on conditions as well as a useful reminder of the need for careful scrutiny of conditions offered as part of the appeal process. Consultation In R (Weir) v Camden London Borough Council 40 the council had granted consent for residential and restaurant use against a background of amenity and highway safety objections. The boundary between Camden and Westminster ran along the centre of the road but, as a statutory consultee, it had failed to respond within the consultation period; but when it finally did so it objected on these grounds though these were not referred to in the officer s report to committee as a result of which the members were unaware and granted permission. As a result local residents brought the challenge contending that Camden had failed to take account of a material consideration. Mr Justice Collins agreed, remarking that no sensible planning authority would have approved such an application without first liaising with the other authority. He also concluded that the defect was not such that, notwithstanding the error, the decision would have been the same. On the other hand, in R (Wembley Field Limited) v Brent LBC 41, a number of local residents, who had formed a company to preserve and protect their interests, failed in a challenge, the primary ground of which was a failure by Brent to comply with the consultation time limits under the GDPO Here, the interested party had submitted a planning application to redevelop a school site. In accordance with the GDPO 42 and the EIA Regulations 43 a notice had been placed in the local newspaper inviting anyone who wished to make representations about the application, to write to Brent, as the 40 [2005] EWHC 1875 (Admin) 41 [2005] EWHC 2978 (Admin) 42 T&CP General Development Procedure Order, article 8 43 T&CP (EIA) Regulations 199, reg.14 17

18 LPA, within 21 days of the date that the notice was published. The claimant wrote expressing concerns about the proposed scale and impact of the development. Thereafter, the Planning Committee met on the evening of the last day upon which representations could have been made and resolved to grant planning permission. A judicial review was mounted upon the basis that the decision exceeded the LPA s jurisdiction and had been ultra vires as the required consultation period had not expired until midnight on the last day of the consultation period. However, Mr Justice Crane held that the failure to comply with the exact letter of the GDPO had not necessarily been fatal to the LPA s decision as the consultation purpose of the GDPO and EIA Regulations had been substantially complied with. As no prejudice had been caused to the claimant, in all the circumstances of the case, the LPA s decision would be upheld. Flood Risk The increased formal involvement of the Environment Agency in the land-use considerations affecting new development is currently the subject of consultation following the publication in early December 2005 of draft PPS25 (Planning and Flood Risk). However, such appear to be the growing concerns of the Agency about decisionmaking in flood risk areas since the serious nationwide floods in the winter of 2004/5, including the River Medway around Tonbridge that the judicial review brought by the Agency against that local planning authority for granting consent for a McCarthy & Stone retirement housing scheme in a Zone 3A flood risk area should not have come as a surprise. In his judgment in R( Environment Agency) v Tonbridge and Malling Borough Council 44. Mr Justice Lloyd-Jones addressed a number of interesting points regarding the application of the current PPG25 sequential test, and, that it should be applied when drawing up development plans and individual applicants, even though they may be in respect of previously developed sites, identified in an Urban Capacity Study, despite the time-consuming and expensive nature of the exercise. Although the Council contended that their re-consideration of alternative sites had led to no other 44 [2005] EWHC 3261 (Admin). I am grateful for a copy of the note of the judgment prepared by my colleagues, Gordon Nardell and Alex Ruck Keene who appeared for the Agency ion that case. 18

19 alternative sites being found in the same category this did not mean that relief should be refused. Green Belt development In Kemnal Manor Memorial Gardens Limited v First Secretary of State 45 the principal issue before the Court of Appeal was the correct approach as to the assessment of a mixed proposal was appropriate development within the green belt. The appellant had applied for outline planning permission to redevelop a privately owned sports ground and pavilion into a cemetery and crematorium including a chapel, garden of remembrance and new access road. The scheme involved demolishing the sports pavilion and replacing it with a new building for the cemetery and crematorium. The chimney stack for the crematorium was not shown on the illustrative plans but was likely to reach a height of about 12 metres. The Inspector had concluded, on balance, that the elements of the proposal would cumulatively reduce the openness of the green belt and that there were no very special circumstances to outweigh the harm. Before the High Court the appellant had contended that the Inspector had failed to identify which part of the buildings were not essential to cemetery use (the basement area and the chimney stack) and so had failed to assess the harm to the green belt from those issues. However, in the Court of Appeal the concession was made that the proposal was in part inappropriate development. No doubt with this consideration in mind, Lord Justice Keene expressed the opinion of the Court, in his lead judgment, that it was not appropriate for the decision-maker to try dividing the development proposal into segments into those parts which would be appropriate and those parts which would be inappropriate. Furthermore, a development is not to be seen as acceptable in green belt policy terms merely because part of it is appropriate. Here, the Inspector had already taken into account any benefit form demolition of the pavilion as he had concluded that the proposal would cause a reduction in the openness of the site and so had carried out a comparative exercise between the circumstances prior to and after the development. Therefore, to bring that consideration in again as part of the very special circumstances that might outweigh the harm was double-counting. 19

20 Implementation of planning permission The case of R (Hart Aggregates Limited) v Hartlepool Borough Council 46, in the context as to whether a condition requiring the restoration of a quarry had lapsed, raises again the question of the extent to which failure to comply with a condition precedent rendered a consent lawful, last touched upon by the Court of Appeal in the cases of Henry Boot 47 and Prokopp. 48 Now in Hart, Mr Justice Sullivan draws a distinction between two types of condition precedent: those which merely require something to be done before the development commences; and those which so expressed as to go to the heart of the planning permission so that failure to comply will mean that the entire development, even if completed years ago, must be regarded as unlawful. In the alternative, he holds that the approach taken by Ouseley J in the Hammerton 49 case and endorsed by the Court of Appeal in Prokopp, that of irrationality of enforcement action, should be applied, so ensuring that a judge-made principle is not applied inflexibly as to produce results which defy common sense and serve no useful planning purpose 50. Nature Conservation designation In R (Newsum) v Welsh Assembly Government (No.2) 51 the ongoing battle to attempt quarrying by the trustees to the Duke of Westminster s estates in this part of Wales raised issue concerned the retention of Halkyn Mountain in North East Wales as a candidate Special Area of Conservation ( SAC ). By the time the case reached court the Assembly contended that the proceedings had been rendered pointless by the subsequent designation of the site as an actual SAC so were now being brought out of time. Mr Justice Richards, accepting that the proceedings did serve a useful purpose but 45 [2005] EWCA Civ 835; [2006] 1 P&CR [2005] EWHC (Admin); [2005] JPL Henry Boot Homes Limited v Bassetlaw District Council [2002] EWCA Civ 983; [2003] 1 P&CR R (Prokopp) v London Underground Limited [2003] EWCA Civ 961; [2004] 1 P&CR R (Hammerton) v London Underground Limited [2003] JPL 984 in which Ouseley J rejected LUL s submission that the Court could consider a breach of condition to be minor and so not lead to its planning permission lapsing. He asked whether it would be irrational for a lpa to enforce against the carrying out of an entire project i.e. what is the breach of planning control. 50 The reader is referred to Richard Harwood s commentary in [2005] JPL 1623 for an attempted, but failed, reconciliation of Sullivan J s approach. A useful resume of the law is also to be found in the obiter comments of Laws LJ in Norris v First Secretary of State [2006] EWCA Civ 12. However, no mention is made of the Hart case in the judgment 20

21 rejecting the challenge, took the view that the consultation process, taken as a whole, had been more than adequate and had given the claimants a fair opportunity to put forward their representations. Of interest, is the view taken by the judge that if a site otherwise meets the criteria for inclusion as a candidate SAC it cannot be lawful for a Member State to exclude it from the list of candidates on the ground that the habitats or species it contains will or may be affected by implementation of an existing planning permission or licence 52. Previously Developed Land In Fenchurch Residential Limited v First Secretary of State 53 the issue before the court was whether the keeping of bulls for the production of semen for artificial insemination fell within the definition of agriculture 54 and so precluded a rural site from falling within the definition of previously developed land under Annex C of PPG3. Mr Justice Crane so found. On a sensible approach the keeping of such bulls bore all the hallmarks of agriculture as it involved feeding and caring for them; and whilst they did not produce a product specifically set out in the statutory definition they were kept to produce a kind of product, namely semen. Vexatious litigants In Ewing v Office of the Deputy Prime Minister 55 a number of procedural questions arose from an attempted challenge by Mr Ewing, a vexatious litigant. Because of the procedural constraints placed upon him, Mr Ewing had teamed up with a Mr 51 [2005] EWHC 538 (Admin) 52 In Case C-6/04, Commission v. United Kingdom (judgment 2 nd October 2005) the Commission allegation that the UK had failed to transpose adequately various provisions of the Habitats Directive 92/43/EEC was upheld by the Second Chamber of the ECJ in a number of respects. Among the breaches found by the Court was failure to transpose adequately Art. 6(3) and (4) in relation to the failure within the UK to treat development plans as a plan or project within the meaning of Art. 6(3), particularly given their development control significance under s.54a. This has recently led to ODPM issuing a letter dated 28 February 2006 notifying Chief Planning Officers of a forthcoming amendments to the Habitats Regulations 1994 requiring land-use plans to be the subject of Appropriate Assessment of their implications on SPAs and SACs. Public consultation is due to commence in early April with the amending regulations coming into force on 1 September [2005] EWHC 3014 (Admin) 54 s.2336(1) TCPA

22 Hammerton (of Bishopsgate Goods Yard fame) to bring judicial review proceedings, as heritage campaigners under the banner of the Euston Trust, to stop the demolition of a former hotel on the front at Weston-Super-Mere, to make way for retirement housing. In the lead judgment, Lord Justice Carnwath provides useful guidelines both on the procedures that should be adopted in such circumstances as well as the responses from defendants and interested parties in planning judicial review cases, urging them to join forces together to save costs. The judgments also provide further guidance on the (limited) ability to recover costs under the principles previously articulated in the Mount Cook case 56. Withdrawn Planning Appeals The case of R (Corbett) v First Secretary of State 57 raises an interesting procedural point as to whether the Secretary of State has the power to reinstate a withdrawn appeal. The developer of a golf course, for which outline consent had been granted, had appealed as a result of non-determination of its reserved matters application. Subsequently, as a result of a developer entering into negotiations with the council, and following an enquiry to the Planning Inspectorate, the appeal was withdrawn in the belief that the application would revert to the council. The Inspectorate later revised its position. By that point the time for seeking reserved matters approval had expired and it was too late for the developer to make a fresh application. Accordingly, the view was taken that the defendant had the power to reinstate and that he should do so where it had been withdrawn in reliance upon misinformation form the Inspectorate. The claimant, who opposed the golf course development challenged that decision. Allowing it, Mr Justice Ouseley confirmed that there was no power to reinstate an appeal once it had been withdrawn. It is also of note that the judge went to express the view that no injustice had resulted as it had been a matter of choice for the developer as to whether to withdraw its appeal, that it had not sought its own legal advice on the proposed course 55 [2005] EWCA Civ Mount Cook Land Limited v Westminster City Council [2003] EWCA Civ 1346; [2004] 2 P & CR [2005] EWHC 2433 (Admin) 22

23 of action and that it was not the task of the Planning Inspectorate to advise either on that subject or the powers of the local planning authority. CONCLUDING REMARKS Is it Me Or Is it Getting More Complicated? was the snappy title chosen for last September s (33 rd) Joint Planning Conference; and in the opening to his Planning Law Update Charles George QC suggested an affirmative answer from the sheer space taken on our bookshelves by the multi-volumes of the Planning Encyclopedia and by the everthickening issues of the Journal of Planning Law 58. Given the self-imposed task placed on me annually both by my publishers, Sweet & Maxwell, and then by my Chambers colleagues to provide a coherent and reasonably comprehensive review I, too, would answer that same question in the affirmative; for the Labour Government s reforms of the planning system are, in my view, leading to a much more regulated, performance driven and litigious process. As the restrictions on development opportunities increase so the number of legal battlefields, with those potentially affected by proposals looking for more innovative ways of seeking to prevent it and those promoting development schemes seeking to protect their interests with increasing vigour. Furthermore, there is the task now placed on the courts to ensure access to environmental justice by the Aarhus Convention. So, as the Planning Encyclopedia, through the latest release, literally bursts out of at least one of the binders forming its current seven volumes, as the JPL becomes even more of an essential monthly read, and as on-line legal updates require a daily scan I pose my rhetorical question with all this complexity: can you still be cool 59 as a planning lawyer? Undoubtedly, well, perhaps, in terms of image if not always in demeanour when, for example, you just learn of yet another new case that is relevant to this paper but the transcript of which is still not on-line! 58 Fragments from a Changing Legal Landscape Planning Law Update, JPL Occasional Papers No.33 (2005); p The Times, Legal Section, 24 January 2006 (Student Special) 23