Planning and Environmental Law Update

Winchester Seminar

10 September 2014

• ENFORCEMENT• CHANGE OF USE• PLANNING POLICIES AND PLANNING JUDGMENTS

– HOUSING POLICY– HERITAGE– GREEN BELT– DEVELOPMENT PLAN– NEIGHBOURHOOD PLANS

• DECISION-MAKING• ENVIRONMENTAL IMPACT ASSESSMENT • STRATEGIC ENVIRONMENTAL ASSESSMENT• NUISANCE/WASTE

Paper Topics:

Development Plans and decision making

Richard Harwood QC

Development plans

• Challenges, e.g., on housing – Gallagher v Solihull error in relying on regional strategy

• Exceptional circumstances for GB alteration: Gallagher

• Issues depend on stage: sites plan relied on core strategy figures: Gladman v Wokingham

Policy making

2004 Regulations• 2 categories of Local

Development Documents• Development plan

documents• Include Core Strategy,

Area Action plan, proposals map

• Supplementary Planning Documents

2012 Regulations• 3 categories• Local Plan• Supplementary Planning

Document• Other local development

documents• See R(RWE Npower) v

Milton Keynes Council

Legal problems• Categorisation –

Wakil, Houghton• Conflict between SPD

and development plan: RWE Npower

Duty to Co-operate• Requirement ‘engage

constructively, actively and on an ongoing basis’ with public bodies on major planning

• Inspector cannot correct• But too strict approach taken• Real issue – is plan sound

given what other authorities doing?

Old development plans• Reasoned justification

is saved with the policies: Cherkley Campaign

• Reasoned justification not to have the status of policy: Cherkley Campaign

Neighbourhood Plans

• Defining areas: Daws Hill• Neighbourhood development plans: SEA

upheld – BDW Trading v Cheshire West• SEA screening error : R(Crownhall

Estates) v Chichester DC (Loxwood plan)

Decision-makingFrom the Court’s perspective, councillors have some knowledge of locality and planning: e.g. Bishops StortfordBut can’t assume everything: McCellan v Lambeth

Planning Appeals• Fairness – know the case

and have reasonable opportunity to deal with it

• Rules not a complete code for fairness

• Third party cases to be considered

• Warning of unanticipated points

• Hopkins Developments

Enforcement, Change of Use and Green Belt

Jon Darby

Enforcement

R (Ioannou) v SSCLG [2013] EWHC 3945 (Admin)• Scope of an Inspector’s power to grant permission on

appeal under s.289 for remedial works under ground (f)

R. (Maistry) v Hillingdon LBC [2013] EWHC 4122• Lawfulness of enforcement notice• Extension of time

Doncaster Metropolitan BC v AC and Others [2013] EWHC 45 (Admin)

Changes of Use

R (Peel Investments) v Hyndburn BC [2013] EWCA Civ 1680• Differentiation between planning permissions regarding

building works and change of use

R (Sienkiewicz) v South Somerset DC [2013] EWHC 4090 (Admin)• Conflict between development plan and NPPF• Useful reminder on law and policy on planning conditions

Changes of Use

Reed v SSCLG [2014] EWCA Civ 241• Test for material change of use

R (Sellars) v Basingstoke and Deane Borough Council [2013] EWHC 3673 (Admin)

• Raised three questions: – whether the identification of the relevant planning unit was a

material consideration for the purposes of s.191; – whether the local authority had failed to take it into account; and – whether any such failure had made a difference to the outcome

of the application.

Green Belt

“The answer’s no, but what’s the question?”

• Reaction to the recent RIBA report, “Building a Better Britain” – Called for the next UK Government to implement a number of

recommendations in a bid to help empower UK towns and cities – Suggested that there is urgent need to assess real value of the

greenbelt to allow communities to unlock housing and growth potential on wasted land.

Green Belt

• Policy relatively unchanged for over 60 years– Sensible debate needed as to how best to

reform that policy in order to meet current and future needs?

• Success of GB policy has been, at best, rather mixed– In particular, ‘leap-frog’ development

Green Belt and the NPPF• Section 9 of the NPPF - Overall, an even greater

constraint to development than ever before? • Paragraphs 87, 89 and 90:

– all development is inappropriate (and thus can be permitted only in very special circumstances) unless it is either • development falling within one or more of the categories set

out in paragraph 90 or • is the construction of a new building or buildings that comes,

or potentially comes, within one of the exceptions referred to in paragraph 89.

Green Belt and the NPPG

• Any hopes that may have been held for this year’s NPPG to herald a revolutionary approach to Green Belt policy were held in vain

• Merely re-affirms Green Belt protection – Noting that unmet housing need is unlikely to

outweigh harm to the GB and other harm to constitute very special circumstances justifying inappropriate development

R (Cherkley Campaign Limited) v Mole Valley DC [2013] EWHC 2582 (Admin)

“173. Local planning authorities must ask three separate sequential questions when applying Green Belt policy:(1) Is ‘inappropriate development’ proposed?(2) Do ‘very special circumstances’ exist?(3) Do such circumstances ‘clearly outweigh’ the potential harm caused by the inappropriateness of the development and any other harm?

 174. Local planning authorities are also required to give ‘substantial weight’ to

any harm which might be caused to the Green Belt by ‘inappropriate development’. 175. It is only if a local planning authority has conscientiously considered each

of these three questions and answered ‘Yes’, and given substantial weight to any harm caused, can it be said properly to have applied Green Belt policy as laid down in the NPPF.”

• Subsequently overturned on appeal on a separate point relating to “need” and the relevance of supporting text to local planning policy.

Timmins v Gedling Borough Council [2014] EWHC 654 (Admin)

• Reflects the difficulties that are faced by those proposing development in the GB.

• Reaffirmed that NPPF GB policy means that any development in the GB is, on the face of it, inappropriate.

• Save in the defined circumstances set out in paragraphs 89 and 90, “very special circumstances” were necessary before development in the GB could be justified.

• See further, Fordent Holdings Limited v Secretary of State for Communities and Local Government [2013] EWHC 2844 (Admin)

Copas v SSCLG[2014] EWHC 2634

"the single issue of unmet demand, whether for Traveller sites or for conventional housing, is unlikely to outweigh harm to the green belt

and other harm to constitute the "very special circumstances" justifying inappropriate

development in the green belt"

Redhill Aerodrome Limited v SSCLG [2014] EWHC 2476 (Admin)

“to permit a combination of cumulative adverse impacts at a lesser level than

prescribed for individual impacts to go into the evaluation of harm of a Green Belt

proposal seems to me to be the antithesis of the current policy. It would re-introduce a possibility of cumulative harm which the

NPPF does not provide for”

Green Belt – Appeal Decisions• Rigid adherence to GB policy is also reflected in the Secretary of

State’s apparent reluctance to grant approval for development in the GB.

• This has occurred on very few occasions, even in circumstances where it is alleged that there is a compelling need for such development. – Thundersley – notwithstanding (1) the Borough Council’s inability to

demonstrate sufficient housing land supply, and (2) the Council’s acknowledgement that some Green Belt release was necessary to meet its housing needs, the Secretary of State nevertheless indicated that:

“… national policy is very clear that amendments to the Green Belt should be undertaken as part of the Local Plan process.”

”…a decision to allow this appeal for housing in the Green Belt risks setting an undesirable precedent for similar developments which would seriously undermine national Green Belt policy.”

Housing and the NPPF: Some

Current Case Law Issues

John Pugh-SmithBarrister and Mediator

Planning judgments and the NPPF William Davis v SSCLG[2013] EWHC 3058 (Admin)

• SSCLG’s recovered appeal decision• Site in long-designated green wedge• Local Plan (2006) housing provision out of date• NPPF paras . 49 & 14• Preliminary issue whether appeal proposals “sustainable

development”• Presumption in favour under the NPPF only applies to “sustainable

development”• “The Lang test” based on her acceptance of the submissions made

by counsel for the SSCLG – “the author”

NPPF para.14 application

Dartford BC v SSCLG [2014] EWHC 2636 (Admin):

Patterson J: In my judgment the claimant's approach is excessively legalistic... As was recognised in the case of William Davis (supra) at paragraph 38 the ultimate decision on sustainability is one of planning judgment .There is nothing in the NPPF, whether at paragraph 7 or paragraph 14 which sets out a sequential approach of the sort that Mr Whale, on behalf of the claimant, seeks to read into the judgment of Lang J at paragraph 37. I agree with Lang J in her conclusion that it would be contrary to the fundamental principles of the NPPF if the presumption in favour of development, in paragraph 14,applied equally to sustainable and non-sustainable development. To do so would make a nonsense of Government policy on sustainable development (para. 54)

.

Planning judgments and the NPPF Cotswold DC v SSCLG [2013] EWHC 3719 (Admin)• Meaning of NPPF para. 47: “a record of persistent under delivery of housing … increase the buffer to 20%”• No requirement for Inspector to have regard to previous decisions not cited to him

Barrow PC v SSCLG [2014] EWHC 274 (Admin)• NPPF para. 49 – realistic prospect of some houses being delivered during life of permission• Tension with current policy on use of negative conditions Ongoing debate over application of “Sedgefield approach” for s.78 appeals against “Liverpool approach” where “local circumstances” permit e.g. Green Belt releases

Other Matters:

Hunston Properties v SSCLG [2013] EWCA Civ 1610• Proper construction of NPPF para. 47: “meeting full objectively

assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework”

• Inspector not entitled to use housing requirement figure from revoked RSS as a proxy for what LP process might eventually produce as it did not reflect the full objectively assessed housing needs

• In GB cases the correct approach was to look at the context of the HLS shortfall as well as its scale and extent. Was that shortfall inevitable? What weight should be attached to it?

• Constraints in NPPF policies had to be taken fully into account.

.

Other Matters:

Gallagher Homes v Solihull MBC[2014] EWHC 1283 (Admin)• Local Plan not supported by a figure of full objectively assessed

housing need (FOAHN)

Gladman Development v Wokingham BC [2014] EWHC 2320 (Admin)

• Inspector not required to consider whether there was a FOAHN before examining the Local Plan to determine whether site allocations were sound

IM Properties v Lichfield DC [2014] EWHC 2440 (Admin)• Court has no jurisdiction to quash LPA’s decision to endorse

modifications to a draft Local Plan strategy

.

EIA, SEA, nuisance and waste

Colin Thomann

The Headliners

R (Badger Trust) v SoSE & NE [2014] EWHC 2909

• 2012 challenge under s10(2)(a) of the Protection of Badgers Act

• “unequivocal assurance” • control of policy making with

executive• policy announcement summer

2014 – SEA?

High Speed 2

R (Buckinghamshire CC) v SoST

• Successor command paper – Decisions and Next Steps

• Safeguarding Direction• Plan or programme which

sets “framework for development consent”?

• Hybrid Bill Procedure and Directive 2011/92

HS2 Part 1

Directive 2001/ 42 on SEA• Art 2(a) ”required by

legislative, regul or admin provisions”

• command paper sufficed

• Art 3(a) “set framework for future development consents”

• parliamentary process still to come

• more than mere “influence” required

HS2 Part 2

Directive 2011/92 on EIA• Article 1(4) exemption- Hybrid Bill Procedure• second reading each House • select Committee restrictions on petitions• guidance of whips -objectives of directive

achieved?• influence of Parliamentary parties compatible

EIA• Champion v North Norfolk District Council [2014]

EWCA Civ 1657– EIA/ AA: Water quality monitoring condition may be

“necessary “ even where no “real risk” pollution

• Feeney v SoST [2013] EWHC 1238– possible effects of deposition of NOx not ascertainable prior to

operation– residual range of uncertainty: no harm and harm unlikely

SEA

An Taisce v SoSECC & NNB [2014] EWCA Civ 1111• Art 7 & transboundary

consultation • significant effect likely?• contrast Art 2(1) EIA v

6(3) HD • acte claire: 1 in 10m yrs

SEA Part 2• R (HS2 Action Alliance & LB Hillingdon) v SoS T

[2014] EWHC 2759 – Safeguarding directions – plan or project setting framework?

• West Kensington ET&R v HFLBC [2013] EWHC 2834– failure to comply with regulation 16(4) “single compendious

document”– discretion?

Nuisance

Coventry v Lawrence [2014] UKSC 13• prescriptive right• “came to the nuisance”• character of locality• relevance planning

permission• injunction or damages

Manchester Ship Canal Co v United Utilities [2014] UKSC 40

Water Industry Act 1991 - right to discharge surface water?

• no such right implied into section 159 of the Water Industry Act

• pre-existing right under 1936 Act must survive – obligation to operate public sewers

• cessation impractical• limited right

Waste

Walker & Son (Hauliers) v EA [2014] PTSR 929• Regulation 38(1)(a) of Environmental Permitting (England

Wales) Regulations 2007• Proof that not merely knew permitted waste op, but also

not within permit• CA ready look again – but noted structure of such offences• Regs specifically removed due diligence defence

Habitats and Birds - Part 2

R (RSPB) v SoSE & Defra [2014] EWHC 1645• Deliberate cull of interest

feature and adverse impact on integrity

• Objectives HD or WBD?• COs set by NE binding?• Scope for judgement

Historic Environment

Richard Harwood QC

Statutory duties• Special regard to the

desirability of preserving or enhancing listed building, setting or features – s.66 Listed Building Act (also s.16)

• Considerable importance to harm: East Northants v SoS (Barnwell Manor)

• Care in assessing whether substantial harm

• Quite possible with setting

East Northants: Lyveden New Bield

NPPF Substantial harm or loss• Substantial loss or harm:

Grade II ‘exceptional’, Grade I, II*, SAM and WHS ‘wholly exceptional’ NPPF para 132

• Substantial public benefits or

• No reasonable user possible, not viable, no other funding - NPPF para 133

NPPF other harm

• If less than substantial harm, weigh harm against benefits, including optimum viable use NPPF para 134

• North Norfolk DC v SoS• R(Gibson) v Waverley –

Undershaw

Gibson Sir Arthur Conan Doyle House

Enterprise and Regulatory Reform Act

New provisions• Scope of listing June 2013• Certificates of immunity from

listing June 2013• Abolition of conservation area

consent – within planning Oct 2013

• Lawful listed building works certificates April 2014

• Heritage partnership agreements April 2014

• Listed building consent orders April 2014

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Planning and Environmental Law

Update

10 September 2014