Planning Case Law Update 1. John Pugh-Smith, Ned Helme, Zack Simons RSS... 4 SEA&EIA... 9

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1 Planning Case Law Update 1 John Pugh-Smith, Ned Helme, Zack Simons This paper offers summaries of a selection of recent cases in the field of Town and Country Planning in the last year up to February themes: Page PLAN-MAKING... 2 RSS... 4 SEA&EIA... 9 DECISION-MAKING: MATERIAL CONSIDERATIONS CHANGE OF USE APPEALS & LITIGATION ENFORCEMENT The cases are divided into the following 1 Thanks to our colleagues Richard Wald, Rose Grogan and Samar Abbas for their input into this paper which has been updated since its initial presentation on 13 th February The material in these notes is based on the law of England and Wales. This material is only intended to provoke and stimulate. It does not constitute advice. Detailed professional advice should be obtained before taking or refraining from taking action in relation to this material. 1

2 PLAN-MAKING Tesco Stores v Dundee City Council [2012] UKSC 13 Tesco challenged the decision of the local planning authority to grant planning permission to a competitor for the development of an out-of-centre superstore which was only 800m from the local Tesco. Tesco argued that the grant of planning permission was based on a misunderstanding of one of the policies in the development plan. 3 The main issue in the case was whether it is up to the court to interpret the meaning of policies in the development plan or whether a local authority may adopt its own interpretation which will be immune from challenge except on Wednesbury principles. The Supreme Court held that in principle, policy statements should be interpreted objectively in accordance with the language used read in its proper context. The meaning of a policy is a matter for the court to interpret. The application of a particular policy to a particular set of facts falls within the judgment of the local planning authority and can only be challenged on the basis of irrationality. Such an error in interpretation would only be material if there was a real possibility that determination of the application might otherwise have been different. Before this case, it was considered settled law that the interpretation of planning policy was primarily a matter for the decision maker. 4 Following the Tesco case, there is now scope for challenges to planning decisions on the grounds that the decision maker has erred by misinterpreting a relevant policy. 3 The particular issue of interpretation before the court was: did suitable mean suitable for the development proposed by the Applicant (as the Council contended), or suitable for meeting identified deficiencies in retail provision in the area (as Tesco contended). 4 See R v Derbyshire DC ex parte Woods[1997] JPL 958 2

3 Tesco has since been followed by the Court of Appeal in R (on the application of TW Logistics) v Tendring District Council and Anglia Maltings (Holdings) Ltd (CA) [2013] EWCA Civ 9. The Manydown Company Ltd v Basingstoke and Deane BC [2012] EWHC977 This case concerns antecedent documents to Development Plan Documents. The claimant applied for judicial review of the defendant local authority s decision to promote a site as available for development. In 2005, the local authority had unsuccessfully promoted the site for development and in 2006 it suspended its involvement in promoting the site. In 2010, a housing land availability assessment concluded that the site was likely to be available for development. The local authority refused to reconsider its decision to cease promoting the site for development. In 2012, during the process of preparing a core strategy, the council s pre-submission draft core strategy set out sites selected for the promotion of development and the claimant s site was not included. The pre-submission core strategy was approved for consultation and the claimant initiated judicial review proceedings. The Court granted the application despite the defendant s argument that it had no jurisdiction because the challenge was not in accordance with the provisions of s.113 Planning and Compulsory Purchase Act 2004 ( PCPA 2004 ). Lindblom J held that the ouster clause in s.113(2) 5 must be interpreted strictly. The pre-submission draft core strategy was not a relevant document and the challenge was against two decisions which were antecedent to the statutory process. 5 S.113(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section. (3) A person aggrieved by a relevant document may make an application to the High Court on the ground that (a) the document is not within the appropriate power; (b) a procedural requirement has not been complied with. (4) But the application must be made not later than the end of the period of six weeks starting with the relevant date. 3

4 Lindblom J s approach in this case requires local planning authorities to give careful consideration to protecting themselves from public law challenges in the earlier stages of preparing Development Plan documents. Such challenges will inevitably cause delay to the process. In the Manydown Ltd case itself, the Core Strategy is still in the pre-submission stages, with further consultation due in Spring RSS R (on the application of Stevenage BC) v SSCLG& North Herts DC [2011] EWHC 3136 This case concerns the impact of the revocation of RSS on the preparation of local plans. Stevenage BC applied to quash the decision of a planning inspector that its core strategy was unsound. A large proportion of housing planned under Stevenage s strategy was to be built in the neighbouring local authority, North Hertfordshire. When the Secretary of State announced his decision to revoke RSS, North Hertfordshire decided not to co-operate in achieving the RSS aim of growth for Stevenage. It planned to submit its core strategy after RSS had been revoked. The Inspector concluded that because the housing numbers could no longer be achieved, Stevenage s core strategy was unsound. Stevenage argued that the Inspector had erred by finding that North Hertfordshire was entitled to take into account the revocation of RSS given that the decision in Cala Homes held that it was unlawful for local authorities to prepare development plan documents to take the planned revocation of RSS into account. The court held that the lawfulness of North Herts decision could not be indirectly challenged by applying to quash the Inspector s decision. The Inspector did not have jurisdiction to determine the lawfulness of North Herts decision and therefore was required to examine Stevenage s core strategy on the basis that North Herts had acted lawfully. Development Plan documents must be in conformity with national policy but there is no requirement that earlier steps or decisions also have to be in conformity. The relevant date is when the plan is submitted for examination. The inspector was entitled to take North Herts decision into account and could not lawfully have ignored the impact of the uncertainty caused by such a decision because the concept of soundness includes practical implementation. 4

5 The treatment of co-operation in this case is of significant interest in seeking to understand how the duty to co-operate created by section 110 of the Localism Act 2011 will operate. The NPPF also encourages strategic planning across local boundaries. The exact requirements of the duty in the Localism Act and provision in the NPPF are yet to be defined, and may be a fruitful source of litigation in the future. University of Bristol v North Somerset Council [2013] EWHC 231 (Admin) This recent decision confirms that the duty to co-operate does not apply retrospectively; so where, as with the North Somerset Core Strategy, the plan was still in preparation at the time when sections 110 and 112 of the Localism Act came into force it was not legally unsound for want of this requirement. The University had argued that as the examination inspector s report had not been published until March 2012 the new tests applied to all plans adopted after January This ground was rejected upon the basis thatthe inspector s consideration was restricted to the preparation stage of the planwhich, in this case, pre-dated the implementation of section 110 on 15 November However, the challenge was allowed upon the basis that the inspector had provided inadequate or intelligible reasons that the plan s housing figure made sufficient allowance for latent demand and differing population characteristics between the West of England and North Somerset. Barton Farm (consent order) (( Cala No.3 ) The Secretary of State rejected the landowner s application for permission to build 2000 houses on greenfield land at Barton Farm, Winchester, despite the recommendation from the inspector to grant planning permission. The Secretary of State concluded that it was premature to grant the application on the grounds that it would undermine local plan making because the council s emerging core strategy and consultation needed time to develop. In mid-february 2012, the Secretary of State signed a consent order quashing his decision. The Secretary of State conceded that he had erred in law by failing to give adequate reasons when considering the effect that the SEA process should have on the weight to be attached to the proposed revocation of RSS. So, ultimate success goes to Cala Homes in this protracted 5

6 litigation 6 Autumn with the Secretary of State granting planning permission for Barton Farm in Arun District Council v SSCLG & Green Lodge Homes LLP (QBD, unreported, 25 January 2013) Here, a first appeal had rejected a housing proposal for being within a strategic gap and contrary to the South-East Plan. Following the first Cala case, that decision letter had been quashed by consent and the appeal remitted to a second inspector. She considered matters afresh, concluded that Localism Act should be given limited weight because environmental assessments were still taking place regarding the revocation of RSS and granted consent. Dismissing the appeal the High Court found no error in the inspector s reasoning. R (on the application of Hinds) v Blackpool BC (CA) & Kensington Developments Ltd [2012] EWCA Civ 466 The claimant applied for permission to apply for judicial review of the local authority s decision to grant outline planning permission for a residential development. The resolution to grant planning permission was made in March 2010 and the decision was published in July In May 2010, the SSCLG wrote to local planning authorities informing them of the government s intention to revoke RSS. The claimant sought permission to apply for judicial review on the basis that 1) the local authority ought to have referred the application back to the planning committee in light of the government s announced change in national planning policy; and 2) the council had failed to take into account the decision to revoke RSS, which was a material consideration. The judge held that while the decision to revoke RSS could be a material consideration even though it was subsequently held to be ineffective, on the facts of this case the decision had been made on the basis of local planning strategies and provision of affordable housing. The revocation of RSS would have had no effect on the planning committee s decision. The Court 6 That started with R. (on the application of Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin) and ended with a decision letter granting planning permission upon the basis of a lack of an adequate five year housing and supply in October

7 of Appeal dismissed the appeal on the basis that the emerging policy was not a material consideration for this particular planning application and there was no evidence to show that the judge had erred in concluding that the government s emerging policy was not a material consideration because a material consideration has to be something which is capable of tipping the balance. Fox Strategic Land and Property Limited v Secretary of State for Communities and Local Government & Cheshire East Council [2012] EWHC 444 and [2012] EWCA Civ 1198 (CA). The Secretary of State refused an appeal against the refusal of planning permission on the basis that while the proposed housing development would contribute towards meeting a shortfall in housing land (and therefore was compliant with the RSS post-cala Homes), that benefit was outweighed by the proposal s conflict with saved development plan policies in respect of settlement boundaries and restrictions on development in the countryside. His decision was inconsistent with a previous decision he had made in respect of a similar development in the same town. In particular, he raised new points such as prematurity 7 and localism 8. No explanation was given for the difference in approach. The Secretary of State did not address the apparent conflict between the two decisions and instead concluded that his earlier decision carried no weight. The High Court granted the claimant s challenge on a number of grounds. First, the Secretary of State had erred by failing to give weight to his previous decision. The two cases were concerned with very similar facts and the Secretary of State could not, without giving clear reasons, determine one appeal in a way that was contradictory to another. No reasons were given for the Secretary of State s conclusion in one case that the application conflicted with spatial policy objectives and in the other that a very similar application did not. Secondly, the Secretary of State had failed in his earlier decision to mention the prematurity argument 7 Note that Fox and Cala No.3were s.288 challenges that arose at a time when prematurity was being used a consistent ground for rejection. In Wainhomes (South West) Holdings Ltd v SSCLG[2012] EWHC 914 (Admin) this conclusion was upheld by the High Court concerning a housing development (1,300 dwellings) at St Austell upon the basis that the SSCLG s conclusion was not open to challenge, namely, housing on such a scale that releasing the site for development would be premature in advance of Cornwall Council establishing the appropriate level of future housing 8 Localism - a principle which at this stage has nothing about it against which one can measure a proposal (HH Judge Gilbart QC) 7

8 and the effect that granting permission would have on the local development framework process. Finally, the Secretary of State had failed to apply the correct test in PPS7 (loss of agricultural land). HHJGilbart QC also commented that when the Secretary of State is faced with two appeals relating to similar proposals in the same town, he would significantly reduce the risk of inconsistent decisions if he heard the appeals together. The Secretary of State appealed to the Court of Appeal. The Court of Appeal dismissed the appeal on similar grounds to the High Court. Again, the Court of Appeal stressed the need for consistency in the planning process and deciding like cases alike. A decision-maker is free to disagree with a previous decision but he must have regard to that decision and give reasons for departing from it. However, the Court of Appeal disagreed with the High Court that the Secretary of State had failed to apply the correct test in PPS7. On reading the decision letter as a whole it was clear that he had taken the correct approach to the policy and one instance of a hyperbolic expression was not a ground for quashing the decision. In any event, as the judge below held that the approach to PPS7 was not a sufficient reason to quash the decision, there was no reason to allow the appeal and restore the Secretary of State s decision 9. Tewksbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin) This decision rejects the misconception and even bolder belief that the Localism Act has brought about such a fundamental change in the planning system that, effectively, the role of the Secretary of State has been eliminated in determining planning applications. The case facts concerned proposals for 1,000 dwellings at Bishops Cleeve. The Secretary of State had allowed two non-determination appeals upon the basis of an inadequate five year housing land supply, and, that the potential harm to the landscape was capable of being outweighed by other material considerations. As to the fundamental change point, Males J points out that while the Act made provision for the abolition of Regional Strategies there was nothing in it to suggest that relevant national policies would no longer apply, or, that the Secretary of State 9 By way of a postscript, the Secretary of State has now issued (February 2013) a minded to allow decision upon the basis of a lack of an adequate five year housing land supply. 8

9 would no longer perform his function in determining planning application appeals applying the same principles and policies as before. The NPPF expressly reaffirmed such policies as the five-year housing land supply. There was no question of empowering local authorities to develop plans without regard to those national policies. The Secretary of State had stated in the decision letter that althoughthe approach that the Act had brought about changes that would give local communities more say over developments in their areas than was previously the case but also that this greater say would depend on the expeditious preparation of local plans which made provision, including in particular a five-year housing land supply, for the future needs of that area. Accordingly, he had acted in accordance with and not in contradiction to that approach. The judge also pointed to the prematurity principle as being available to regulate the position, which had been correctly taken into account by the inspector and the Secretary of State. SEA&EIA Inter-Environment Bruxelles et al v Region de Bruxelles-Capitale (Case C-567/10) (judgment ) The Belgian Constitutional Court referred two important questions about the scope of the SEA Directive to the European Court of Justice: (1) Whether Plans and Programmes included the total or partial repeal of a Land Use Plan? (2) Does the discretionary repeal of a plan require SEA? Both questions were answered by the ECJ in the affirmative, with the Court remarking that plans and programmes whose adoption is regulated by national legislative or regulatory provisions which determines the competent authority adopting them and the procedure for preparing them must be regarded as required within the meaning and for the application of Directive 2001/42 and accordingly subject to an assessment on their environmental effects in the circumstances which it lays down. As a result of the Bruxelles decision progress on RSS revocation has been even slower; and, currently, formal revocation notices have only been published and taken effect in respect of the East of England Plan (7 th January 2013) followed by the Yorkshire and Humber Plan 9

10 (22 nd February 2013). The South-East Plan is due for revocation after Easter 2013, following an announcement on 14 th February 10. R (Wakil) v Hammersmith and Fulham LBC [2012] EWHC 114 (QB). The Bruxelles decision has more far reaching effects; for this definition of required was applied by the High Court in the context of a judicial review of whether the adoption of an SPD for the regeneration of Shepherds Bush Market was unlawful. In that case there was an issue as to whether the document was an SPD or a DPD. Neither sort of document is compulsory but both are required under the ECJ s definition. On that basis both come within the definition of plans and programmes in Art 2 (and also Regulation 2(1) of the SEA Regulations). On the document at issue in Wakil the High Court found that, whether it was an SPD or a DPD, it fell under the description in Reg 5 of the SEA Regulations and so a determination under Reg 9(1) had been required on whether or not it was likely to have significant environmental effects. Heard v Broadland DC, South Norfolk DC & Norwich City Council [2012] EWHC 344 (Admin) In this case, the Joint Core Strategy was remitted in part for failure to comply with the requirements of the SEA Directive because the local authorities failed to give sufficient reasons for selecting reasonable alternatives and had also failed to examine them in the same depth as the preferred option. The claim was successful because the local authorities had failed to carry out a comparison between the reasonable alternatives and the preferred option. The court held that while there is no express requirement in the Directive that alternatives are appraised to the same level as the preferred option, the aims of the Directive were more obviously met if there is an equal examination of alternatives alongside the preferred option. 10 Written Ministerial Statement; The policies on the Thames Basin Heaths SPA (policy NRM6) and Upper Heyford RAF base (policy H2) are to be retained. The reasons will be set out in a Post Adoption Statement. 10

11 The court declined to exercise its discretion not to grant relief. However, Ouseley J invited submissions on the precise form of appropriate relief on the basis that s.113 grants a wide variety of powers which fell short of quashing the whole Joint Core Strategy and starting again. Cogent Land v RochfordDC[2012] EWHC 2542 (Admin) The particular significance of this case is that it confirms that defects in the SEA process may be cured after the event. Here, although there had been errors in the assessment of alternatives at the preferred options stage, Singh J found that an Addendum report which had later been produced was adequate and capable in law of curing any defects which had arisen.he rejected the Claimant s submission that the Addendum was an ex post facto justification and held that there had been no SEA/SA/natural justice breach since the Addendum supplied adequate reasons for site selections so there was no need to re-open the public examination of the draft Core Strategy. Walton v Scottish Ministers [2012] UKSC 44 This case concerned a belated challenge to the Aberdeen bypass. The project had already been subject to EIA. The attempt by this appeal to bring the project within the SEA Directive on the basis that a decision to enlarge the project was a modification of the regional transport strategy was rejected with the Court pointing out thatthe SEA and EIA Directives require environmental assessments in different but complementary circumstances: SEA is concerned with plans and programmes which set the framework for future development consent of projects; EIA is concerned with the environmental impact of specific projects. The decision is also helpful on the issue of standing. The appellant had made representations and participated in the inquiry. The court took a generous approach to the question of standing on the basis that the environment is a legitimate concern to everyone as an individual or organisation which has a genuine interest in and sufficient knowledge of an 11

12 environmental issue to qualify them to raise issues in the public interest should be regarded as a person aggrieved (Lord ). In Walton, Lord Carnwath also addressed the issue of remedies and discretion. Lord Carnwarth sought to distinguish Berkeleyv Secretary of State for the Environment, Transport and the Regions [2001] 2 A.C where Lord Bingham and Lord Hoffman said that in European law cases, the discretion not to quash an ultra vires planning permission is very narrow, if it exists at all. Lord Carnwath said that the factual circumstances in Walton were dramatically different from those in Berkeley, the potential prejudice to public and private interests flowing from a quashing order would be very great and it would be extraordinary if the court were prevented from weighing that prejudice in the balance. He saw: 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. R (on the application of Loader) v SSCLG & Others [2012] EWCA Civ 869 A challenge was made to a screening decision by the Secretary of State that a proposed development was not an EIA development.the planning application concerned the redevelopment of a bowls club into sheltered apartments for the elderly. The development was urban development under Sch.2 para 10(b) of the 1999 EIA Regulations andit was greater than 0.5 hectares and therefore required EIA screening. The site did not border an SSSI, AONB or approved Green Belt and fell well below the threshold for urbanising effect. The proposal was for a reasonably small number of apartments (41) on a site that had already been developed as a bowls club. The Secretary of State concluded that the redevelopment was not likely to have significant effects on the environment by virtue of its nature, size or location and directed that it was not EIA Development. The claimant argued that the Secretary of State had erred in law by misapplying the requirement for significant effects on the environment. It was argued that the requirement should have an autonomous meaning having regard to the purpose of the Directive and European-Level guidance only required the decision maker to consider whether the effect on the environment was one which ought to be considered and which may influence the planning 12

13 authority s decision. At first instance, the judge rejected the challenged and refused to quash the Secretary of State s decision. The Court of Appeal dismissed the appeal and held that the Secretary of State was entitled to conclude that there were no significant effects on the environment. The Court of Appeal held that the test was whether the project was likely to have significant effects on the environment. Whilst in some cases there may be uncertainty about the likely environmental effects (which would rule out a negative screening decision), this was a case where all of the relevant information was available. Whether the perceived environmental effect would have an influence on the outcome of the decision was a consideration but not determinative of the issue of significant environmental effects. To adopt the claimant s proposed formulation would devalue the concept of EIA because an EIA would be required in all cases where the environmental effect may have an impact on the final decision. R (on the application of Long) v Monmouthshire County Council[2012] EWHC 3130 (Admin) This case concerned a challenge to a planning permission for demolition of cattle market and construction of Morrisons supermarket on the basis, amongst others, that the Council had failed to carry out a lawful EIA screening exercise. Rejecting the challenge, Nicola Davies J, applying Loader, remarked: The grounds of challenge focus on particularly forensic criticisms. The Courts have sought to ensure that there is not too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which development is likely to have significant effects on the environment. R (on the application of Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC

14 This a case concerned with the meaning of development under s.55 Town and Country Planning Act 1990 ( TCPA 1990). 11 The owner of farmland had constructed a stock pond and placed mobile poultry units on his land. The local authority concluded that the poultry units were not development and therefore did not require an EIA and that it could not take enforcement action in respect of complaints about the use of the units. The local authority s reasoning was that because the poultry units were mobile and were moved regularly, they were chattels not buildings. The local authority also carried out a screening opinion on the stock pond, concluding that EIA was not required and retrospective planning permission was granted for the stock pond. The claimant applied for judicial review of both decisions. The Court held that there had been an error in the application of s.55. The council had taken too narrow an approach to s.55 and had failed to take into account whether the poultry units were an erection or structure within the meaning of s.336(1) of the TCPA , taking into account the size and weight of the units. Section 55(1A) 13 is inclusive and not intended to be an exhaustive definition of building operations and the units were capable of being other operations in, on, over or under land under s.55(1a)(d). It was further held that there was an obligation on the local authority to interpret s.55 TCPA 1990 so as to cover the projects which are covered by the EIA Directive and Regulations. The council also failed to consider whether the units fell within the scope of the EIA Directive or Regulations and the term intensive livestock installation in the Regulations was not limited to buildings. The court did not come to a final view on whether the poultry units were in fact an intensive livestock installation but held that the issue should have been considered by the local authority. 11 (1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, development, means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. 12 building includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building 13 (1A) For the purposes of this Act building operations includes (a) demolition of buildings; (b) rebuilding; (c) structural alterations of or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder. 14

15 Finally, the screening opinion in respect of the stock pond was inadequate as the council has not treated the poultry units as development and therefore failed to take them into account. The grant of retrospective planning permission was therefore unlawful. In this section of this Paper attention is drawn, briefly, to some further cases on discrete topics. The first two concern the splitting of projects. In Bowen-West v SSCLG[2012] EWCA Civ 321 Laws LJ held that the question whether an environmental statement for the deposit of low level radioactive waste should have considered a larger scheme (a future expansion of the landfill in question intended to be achieved by 2026) within the context of indirect, secondary or cumulative effects (para.4 of Pt I of Sch.4 to the 1999 Regulations) was an issue of fact and judgment. He rejected the Appellant s contention that the question is one of law and declined to refer the matter to the ECJ. Secondly, in R (on the application of Burridge) v Breckland District Council[2012] EWHC 1102 (Admin) HHJ Waksman QC considered the screening opinion requirements of the 1999 Regulations in the context of a renewable energy facility application which had been split into two sites. He considered that Regulation 7 required the authority to consider the application before it and that the development in question referred only to the development in the individual application. His judgment has recently been challenged in the Court of Appeal on the basis that, although his construction accorded with domestic principles of construction, a broader purposive construction of the Regulations focusing on the proper project was required under Marleasingprinciples. It is to be hoped that the Court of Appeal s (hopefully imminent) judgment will give some much needed clarity in this tricky area. Next, in Threadneedle Property Investments v Southwark LBC[2012] EWHC 855 (Admin) Lindblom J has given guidance on the Secretary of State s power of direction under Regulation 4(8) of the 1999 Regulations (now replaced by Regulation 4(9) of the 2011 Regulations) to deem a project to be EIA development even though it was not.the judge emphasised the exceptional nature of the power, exceptional not just in the sense that it was 15

16 reserved to the SSCLG but also in the sense that he would only use it in an exceptional case. The law in this area is likely to be addressed again in the upcoming Court of Appeal judgment in Burridge. In R (Halebank Parish Council) v Halton Borough Council[2012] EWHC 1889 (Admin) HHJ Gilbart QC found that a decision not to extend a consultation period on an environmental statement amounted to a breach of Article 6 of the EIA Directive and a legitimate expectation the Parish Council had as to the conduct of the consultation process. The judge remarked that at 974 pages, it was a substantial Environmental Statement and to require consultation during the summer holidays without extra time was not fair or effective. Finally, in Gregory v Welsh Ministers[2013] EWHC 63 (Admin) if on a section 78 appeal there is a question as to whether the application is an EIA application: (i) a negative screening opinion from the local planning authority is not conclusive of the issue; and (ii) the Inspector s role is to ask himself whether the application may be an EIA application; if he answers that in the affirmative he must refer the question to the Secretary of State and has no jurisdiction to determine the appeal (except by refusing planning permission) before he receives a screening direction. DECISION-MAKING: MATERIAL CONSIDERATIONS R (on the application of Vieira and Saph) v London Borough of Camden &Bozi[2012] EWHC 287 Messers Vieira and Saph lived next to Ms Vanessa Boz on the Regent s Park Road in London. Ms Boz erected a conservatory and trellis screen, and put in an application for retrospective planning permission. Camden the relevant LPA consulted the Claimants, who objected on the grounds of overlook and loss of privacy. Following negotiation,ms Boz submitted revised drawings of the trellis, amending the application. The Claimants were not re-consulted on the new drawings. Planning permission was granted. 16

17 Camden s Statement of Community Involvement provided that inter alia everyone who has commented on a planning application should be notified of any significant revisions made to the application. The Claimants claimed that this provision had created a procedural legitimate expectation that they would be re-consulted on the new drawings, and that the expectation had not been met. Lang J held that there had been a breach of legitimate expectation in respect of all grounds on the basis that it was unfair to deny the claimant the opportunity to know the precise details of the application and be given the opportunity to comment on it. It was also prejudicial to the claimant to be denied the benefit of a re-consideration of how the application should be determined. The local authority sought to argue that in any event, no relief should be granted because it was inevitable that planning permission would be granted. The Court rejected this argument, quashing the planning permission. The grant of permission was not inevitable because there remained a question of whether the amendments to the scheme made it acceptable. R (on the application of Godfrey) v Southwark LBC [2012] EWCA Civ 500 In another case about legitimate expectations, the Court of Appeal considered an appeal against a decision of Lindblom J refusing permission to bring judicial review proceedings in relation to a community centre on a site known as Downtown on the Rotherhithe Peninsular in East London. The site had been a district centre providing community facilities, including a freestanding community hall of around 400m 2. In 2002, the Council prepared a planning brief relating to the site which made it clear that any developer would be expected to improve the site s community facilities or create new infrastructure, which may include building a new community hall on the site. In 2007 the council adopted a UDP which identified the uses for the site as a community centre and health centre. Planning permission was granted by the 17

18 Council in 2010 for redevelopment of the site, which included a community centre of around 124 m 2 contained within the Health Centre. Local residents challenged the grant of permission on a number of grounds, and the Court of Appeal s judgment concentrates on the fourth ground that there was a substantive legitimate expectation that better and larger facilities would be provided. The appellant argued that previous consultation between the Council and local community, combined with the terms of the planning brief, had given rise to a substantive legitimate expectation that any grant of planning permission would include a freestanding community hall at least as large as the existing hall on site. The Court of Appeal held that a rigorous standard is to be applied when a substantive legitimate expectation is claimed on the basis of a representation or promise by a public authority. The duty of public authorities to exercise powers in the public interest must be kept in mind. Only when, in the court's view, to fail to give effect to the promise would be so unfair as to amount to an abuse of power, should it override other considerations. Further an earlier approach of the local planning authority to an issue, even if amounting to a planning policy, cannot have primacy over the statutory duty of the council (e.g. under s. 70(2) TCPA 1990 and s.38(6) PCPA 2004) to assess the current situation. The UDP policy did not require a particular size of provision for community facilities and the Council was required to assess current needs against that policy. The bar to acquiring a substantive legitimate expectation is very high, and the Claimant were a long way from meeting it on these facts. The heart of their case was based on documents and informal representations made by the LPA from up to 10 years previous. Those were not material considerations for the LPA in conducting its present statutory task. Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34 18

19 Under s.97 TCPA 1990, in deciding whether it is expedient to revoke or modify planning permissions, the LPA must have regard to any other material considerations does that include the threat of consequent compensation under section 107 TCPA? Victoria Hall Ltd applied to the Council to erect four blocks (blocks A D) of student accommodation at a site in Wolverhampton 95 metres away from a Liquid Petroleum Gas storage facility. The HSE was consulted by the Council, and advised refusal on health and safety grounds. Without going back to the HSE, or seeking its own advice on health and safety, the Council granted permission without informing the HSE it had so done. By the time the HSE became aware of the development, work on three of the blocks A, B and C was well advanced. Work on block D, which was the closest block to the LPG facility, had not commenced. The HSE complained that the Council's procedural failures had deprived it of the opportunity to ask the Secretary of State to call in the application for planning permission. They asked the council to remedy this by making a revocation order under section 97, at least to prevent the construction of block D. The LPA was reluctant to make that order, inter alia, because of the likely compensation costs. The Court of Appeal unanimously ordered the Council to reconsider the question of revocation. However, the Court was divided on whether compensation would be a material issue in that reconsideration. Pill LJ, dissenting, relying on Richards J in the Alnwick District Council case 79 P & CR 130 which decided that in so far as financial consequences do not relate to the use and development of land, they are not capable of amounting to material considerations. Lord Carnwath formulated what he called the simple view: 24 [ ] In simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing. 19

20 25 Posed in that way, the question answers itself. As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective. Of course, the weight attributable to cost considerations will vary with the context. Where, for example, the authority is faced with an imminent threat to public security within its sphere of responsibility, cost could rarely be a valid reason for doing nothing, but could well be relevant to the choice between effective alternatives. So much is not only sound administrative practice, but common sense. Section 97 did not require a different approach. Its mention of expediency and other material considerations is broad enough to encompass the cost consequences of revocation: The word expedient implies no more than that the action should be appropriate in all the circumstances. Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded. : 26. The central point against Lord Carnwath s view was an argument on consistency: i) There is a presumption that words are used with a consistent meaning throughout a statute. There is no good reason to depart from that presumption in this case. ii) The meaning of the phrase material considerations in the planning Acts is well established. It does not include financial considerations, except where they have planning consequences. Planning permission should not be bought or sold. Particularly cf. the usage at s.70, which requires LPAs to have regard to material considerations when deciding whether to grant or refuse planning permission. Lord Carnwath s answer at 49 was that 20

21 Sufficient consistency is given to the expression if the word material considerations is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted. This case clarifies the previously contradictory cases from lower courts on the question of whether compensation under s.107 is capable of being a material consideration. CHANGE OF USE Hertfordshire CC v SSCLG [2012] EWCA Civ 1473 This case concerned intensification of use constituting a material change of use.a scrap metal yard had been operated under an extant planning permission since The County Council considered that the substantial increase in throughput and the erection of buildings had constituted a material change of use and issued enforcement notices concerning the increased noise, dust, vehicles and new buildings. Upholding the Inspector s decision the Court considered that he had applied the right test, namely, whether the material change of use had changed the character of that use.in assessing whether there had been a change of character in the use, the impact of the use on other premises was a relevant factor. It was necessary to consider both what was happening on the land and its impact off the land when deciding whether the character of the use had changed; and although the inspector's reasoning about throughput and extraneous factors was questionable those matters should have been identified in the enforcement notices in order for the local authority to rely on them. R (on the application of Gibson) v Waverly Borough Council [2012] EWHC 1472 This case reached the national media as it concerned a challenge to the grant of planning and listed building consent of a property constructed in the late 1890s by Sir Arthur Conan Doyle. The Interested Party had used the property as a hotel, but since then it had stood vacant for several years. It applied for planning permission to divide up the property into separate dwellings. An individual, Mr Norris, subsequently applied for planning permission to change 21

22 the property into a single dwelling house. The Council's planning officer informed the planning committee of Mr Norris application, but nonetheless it decided to grant planning permission on the basis that its proposed development would not result in harm justifying refusal in the public interest. Mr Norris' application for planning permission was later granted. Allowing the application Cranston Jdrew attention to the statutory mandate to have regard to the preservation of heritage assets. He found that national planning policies seek the optimum viable use for a building, which includes a consideration of what the optimum viable use is in the interests of the asset s long term conservation, not simply its optimum use. He held that the optimum use and optimum viable use was as a single dwelling (albeit that it was not the most profitable use), and, crucially, that the planning officer should have referred the matter back to the committee following the grant of Mr Norris s planning application; for that was a new material consideration which should have been taken into account. An appeal by the developer to the Court of Appeal was dismissed. Sheila Tara Moore v SSCLG and Suffolk Coastal DC [2012] EWCA Civ 1202 This case concerned whether using a dwelling for commercial holiday lettings could amount to a material change of use. The property had been used for large parties of people instead of being let to single households. The Court of Appeal held, unsurprisingly, that this would be a question of fact and degree in each case and the answer would depend on the particular characteristics of the use as holiday accommodation. APPEALS & LITIGATION Ashley v SSCLG & LB Greenwich & Taylor Wimpey (CA) [2012] EWCA Civ 547 In Ashley, the claimant objected to a housing development on the grounds of noise and loss of amenity to the neighbouring houses. Planning permission was refused on the basis of the 22

23 noise considerations and the matter proceeded to an appeal by way of written representations. The claimant was invited to provide written comments by a certain date after which point he was informed that no further representations could be made. On the last day before the deadline for representations, the appellant developer submitted detailed expert evidence on the noise issue. No copy was provided to the claimant and no prior notice of the report was given. The Inspector concluded that there was no objection to the expert evidence and that it adequately addressed the issue of noise and granted the appeal. The claimant challenged the decision on the basis of procedural unfairness. The Developer resisted the challenge on the basis that all the claimant had to do was attend the council s offices the day after the deadline, see the report and then apply to make further representations. At first instance, the challenge failed but the Court of Appeal allowed the appeal. The Court of Appeal found that there was no duty incumbent on the claimant to attend the council s offices. He did not attend the offices on the basis that the deadline had passed and he did not think there was much point. Further, he was not aware that the expert evidence had been submitted. The claimant had not had a fair crack of the whip because he had been denied the opportunity to comment on the expert evidence. Lord Justice Pill expressed the view that the Planning Inspectorate s guidance on written representations should be revised to prevent this sort of unfairness occurring in the future by an overly strict approach to deadlines. Welsh Ministers v RWE Npower Renewables [2012] EWCA Civ 311 RWE sought permission for a wind farm. The Countryside Council for Wales said that the impact on peat bog habitat was significant whereas the Environmental Statement from RWE said there was no significant impact. The Countryside Council for Wales did not attend the Inquiry and its concern about the conclusions in the Environmental Statement was not put to RWE s experts. The Inspector recommended refusal of planning permission on the basis that there was an unacceptable risk of harm to the peat habitat that was sufficient to justify the refusal of the proposal, which was confirmed by the Welsh Ministers. 23

24 In the High Court, RWE s appeal was allowed on the basis that the Inspector failed to give reasons for his conclusion on the effects on the peat bog habitat. The judge was also inclined to the view that by the Inspector failing to raise his concern with RWE s experts, there had been procedural unfairness. The decision was overturned in the Court of Appeal. It was held that the Inspector was concerned with whether the harm or risk of harm was sufficient to justify refusal. He was not bound to accept the unchallenged expert evidence before him and was entitled to make his own planning judgment. The background of the decision had to be taken into account when assessing whether the reasons were adequate, RWE was aware of the issues and the importance of the peat bog habitat. The Court of Appeal also held that there was no procedural unfairness. 14 O Connor v SSCLG (7 Feb 2013) (unreported) The appellant traveller (O) owned land in the Green Belt. She sought planning permission to change the use of the land to a gypsy caravan site. Her application was refused and her appeal to an Inspector failed. Her application to the High Court was dismissed and she appealed to the Court of Appeal on two grounds. The first was a contention that the Inspector had failed to give substantial weight to the unmet need for the further provision of sites for gypsies and travellers as required by ODPM Circular 01/2006 paragraphs 45 and 46. The second was a contention that the Inspector had misconstrued Circular 11/95. On the first ground, the Court of Appeal noted that the Inspector had referred to Circular 01/2006 and stated that the unmet need was an important material factor. The Inspector had not expressly alluded to paragraph 45, but it was clear that he knew that unmet need was an important consideration for temporary planning permission. There was nothing to suggest that the Inspector had not given substantial weight to unmet need. He had considered it, attributed it substantial weight and considered the effect of it on O. The fact that he did not 14 This case was applied in the recent case of Macarthur and others v SSCLG, King s Lynn & West Norfolk Borough Council, E.ON Climate & Renewables UK Developments Ltd, Res UK & Ireland Ltd[2013] EWHC 3 where it was held that Inspectors are not generally under a duty to give reasons for accepting or rejecting expert evidence and that the inspector was not required to record or summarise what an expert had said in his written or oral evidence. The requirement to give reasons had been satisfied because there was no doubt as to what the Inspector had decided and why. 24