07/03/2018. Cases. Case law update Kate Ashworth. Forest of Dean District Council and Resilient Energy Serverndale Limited v R(Peter Wright)

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1 womblebonddickinson.com Cases Case law update Kate Ashworth 1. Community benefit as a material consideration: Forest of Dean District Council and Resilient Energy Serverndale Limited v R (Peter Wright): 14 September March Air quality mitigation: Gladman Developments Ltd v Secretary of : 6 November Duty to give reasons: : 6 December 2017 Cases 4. Incorporating conditions into s73 permissions: London Borough of Lambeth v Secretary of State for Communities and Local Government and Others: 3 October Amendments to applications and the duty to consult: R (Holborn Studios Ltd) v Council of the London Borough of Hackney: 10 November 2017 p4 1

2 Application for a 500kW wind turbine granted by the LPA The LPA and applicant appealed this decision A donation to the community was secured by condition LPA expressly took into account the donation A local resident challenged the decision on the basis promised donation NOT a material planning consideration it serves no planning purpose They submitted that properly considered the community benefit fund donation DOES serve a planning purpose real connection between it and proposed development Question for court: Was the donation properly taken into account as a material consideration by LPA? Dove J quashed the planning permission in June 2016 p5 p6 Dove J entitled to conclude: "community donation is an untargeted contribution of off-site community benefits which is not designed to address a planning purpose" AND "No real connection between the development of a wind turbine and the gift of monies to be used for any purpose deriving community benefit" Lord Justice Davis: "The fact desirable objects and worthy causes are involved cannot of themselves mandate a departure from usual principles with regard to material considerations" Two residential applications for 330 houses and 140 houses were refused and appealed, but the inspector refused both applications Eleven issues were considered at the inquiry, the claimant succeeded on nine, but its arguments were not accepted on: Landscape character Air quality Appeal dismissed p7 2

3 Claimant made an application to quash inspector's appeal decisions - claim was only concerned with air quality Inspector found: Annual mean NO2 concentrations exceeded limit value at 5 receptors likely to be an adverse effect despite proposed mitigation measures Proposals would conflict with paragraph 124 of the NPPF (adverse effect on human health) Claimant submitted inspector failed to: Apply outcome of ClientEarth decision in understanding of effectiveness of air quality plans Give effect to principle in para 122 of NPPF Explain why contribution was not likely to be effective Consider imposing a Grampian condition Explain conflict with local air quality action plan Have regard to the allocation for 115 dwellings in the AQMA in the emerging development plan Claim dismissed Reasons Inspector was entitled to consider the evidence and not simply assume the UK will become compliant with the AQ Directive The planning system should not duplicate other regulatory controls, but should not assume they will operate effectively It was not shown how contributions would translate into actual measures likely to reduce use of private petrol and diesel vehicles Clear that development would have an adverse effect in AQMA and was therefore inconsistent with local air quality plan Emerging policy requires development to address air quality impacts Application was for a large residential development: 521 houses and 90 apartment retirement scheme at Western Heights 31 houses and a hotel at Farthingloe In the AONB and on a scheduled monument Strong support and strong opposition for scheme Committee report recommended approval IF housing numbers were reduced Committee resolved to grant without reducing numbers No separate reasons were given for this decision 3

4 In court both Council and developer submitted adequate reasons could be ascertained from meeting minutes Argument rejected by Court of Appeal and Supreme Court Decision to grant planning permission was quashed KEY POINTS Public authorities are under no general common law duty to give reasons, but in certain circumstances a duty will apply: "Typically where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the specific policies identified in the NPPF). Such decisions call for public explanation, not just because of their immediate impact; but also because,.they are likely to have lasting relevance for the application of policy in future cases. The court made decisions on the standard of reasons where a common law duty arises : the broad summary of the relevant authorities for the standard of reasons given by Lord Brown in South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953 (paragraph 36) is applicable to decisions made by a local planning authority. the duty to give reasons in an EIA context is no different from the duty to give reasons under another statutory scheme. There are no reasons why the duty to give reasons should be lesser for an authority than for an inspector. The case provided clear guidance and draws some preexisting case law together, but does create some ambiguity leaving decision makers unsure It confirms that the remedy for a failure to give reasons is to quash the original decision RECOMMENDATION Where an authority disagrees with the recommendation of its officers for significant or controversial development, ensure a statement of reasons is published OR defer the decision 4

5 London Borough of Lambeth v Secretary of State for Communities and Local Government and Others London Borough of Lambeth v Secretary of State for Communities and Local Government and Others Date Description 1985 Permission granted for a DIY store Condition restricting range of goods which can be sold (no food sales) Variation to condition - amended for sale of a wider range of goods 2014 Further variation the condition restricting goods was NOT included, but description tried to limit use. Following the grant of the second variation, the claimant applied for a lawful use certificate for unrestricted retail use The LPA refused, but an inspector subsequently granted the certificate on appeal The LPA challenged the inspector's decision London Borough of Lambeth v Secretary of State for Communities and Local Government and Others R (Holborn Studios Ltd) v Council of the London Borough of Hackney It was agreed by both parties that the intention was not to remove the condition restricting sale of goods Court took a strict approach, intention is NOT sufficient to impose or imply a condition and held that restricting use by way of description was not effective Date July 2015 May 2016 November 2016 Event Application made for partial demolition of existing buildings in a conservation area and redevelopment as mixed use scheme Application subject to number of amendments Application was granted Applicant was granted planning permission for a use wider than applied for due to an error Issues: When can amendments be made? Should they be consulted on? Challenge dismissed 5

6 R (Holborn Studios Ltd) v Council of the London Borough of Hackney Contact us In public interest to allow post-submission amendments However, test for re-consultation is one of fairness, not materiality of change Held: the failure to re-consult deprived claimant and others of a fair opportunity to make representations. There was material prejudice so the procedure was unlawful Claim successful Kate Ashworth Associate T: E: