4. Enforcement
R (Ioannou) v SSCLG [2013] EWHC 3945 (Admin)
•Scope of an Inspector’s power to grant permission on
appeal under s.289 for remedial works under ground (f)
R (Evans) v Basingstoke & Dean BC [2013] EWCA Civ 1635
•Compatibility of time limits for taking enforcement action in
EIA cases
•No extension to the 10 year rule
5. Changes of Use
R (Peel Investments) v Hyndburn BC [2013] EWCA Civ 1680
•Differentiation between planning permissions regarding
building works and change of use
R (Sienkiewicz) v South Somerset DC [2013] EWHC 409 0 (Admin)
•Conflict between development plan and NPPF
•Useful reminder on law and policy on planning conditions
6. Planning policy interpretation:
re-stated principles
Tesco Stores Ltd v Dundee City Council [2012] UKSC
13: a local planning authority must proceed on a proper
understanding of the development plan
“ ... policy statements should be interpreted objectively in accordance
with the language used, read as always in its proper context …”
[para.18]
“ ... planning authorities do not live in the world of Humpty Dumpty: they
cannot make the development plan mean whatever they would like it to
mean …” [para. 19] “ … A provision in the development plan which required
an assessment of whether a site was "suitable" called for judgement in its
application. But the question whether such a provision is concerned with
suitability for one purpose or another was not a question of planning
judgement: it is a question of textual interpretation, which can only be
answered by construing the language used in its context ... ” [para.21]
7. Interpretation of planning
policy: another example
R (TW Logistics) v Tendring DC
[2013] EWCA Civ 9
• As a local plan was to be objectively construed the public was, in
principle, entitled to rely on it as it stood without having to investigate its
provenance and evolution
• A local plan might include policies which were not in complete
harmony; and where different parts of the local plan pointed in different
directions it was for the planning authority to decide which policy should
be given greater weight in relation to a particular decision.
• Conservation Management Plan promoting re-generation as part of re-
organisation of Mistley Port not in conflict with Local Plan policies; so
the fact that the local plan did not specifically promote the
reorganisation of the port or the redevelopment of a warehouse for
non-port-related purposes did not entail the converse proposition that
either of them was prohibited.
8. Interpretation of planning
policy: another example
R (Manchester Ship Canal
& Peel Holdings) v Environment
Agency [2013] EWCA 542
• Categorisation of Canal sluices as “formal defences”
• Downgrading of surrounding land to Flood Zone 3
• Internal policy as to categorisation either as formal flood defences or as de
facto flood defences
• Absence of categorisation of whole of Canal as a formal flood defence
• Agency had created a new (implied) third category and should have published
a policy to that effect
• Court leaves unanswered whether a policy must always have one uniquely
correct meaning
9. Other examples
R (RWE Npower Renewables) v Milton Keynes BC
[2013] EWHC 751 (Admin)
• Entitlement of LPA to produce “Wind SPD” but unlawful as
separation distances in conflict with adopted development plan
R (Houghton & Wyton PC) v Hunts DC [2013] EWHC 1476
(Admin)
• St Ives West Urban Design Framework held unlawful as scope went
further than SPD
.
10. Localism issues
(1) What it is not?
Tewksbury BC v SSCLG
[2013] EWHC 286 Admin)
• Proposals for 1,000 dwellings
• Absence of a five year housing supply
• Emerging Core Strategy to which only limited weight could be given
• NPPF considerations on housing land supply, expeditious preparation of
local plans
• Prematurity argument to regulate the position
• No fundamental shift resulting from the Localism Act as relevant national
planning policies would continue to apply to which the SSCLG had
correctly had regard
But see also Larkfleet Ltd v SSCLG & South Kesteven DC [2012] EWHC 3592
(Admin) and R (Save Our Parkland Appeal) v East Devon DC & Axminster
Carpets [2013] EWHC 22 (Admin) that prematurity argument not applicable
where plan not yet formally submitted for examination
11. Localism issues
(2) Neighbourhood empowerment?
R (Daws Hill Neighbourhood Forum) v Wycombe
DC & Taylor Wimpey [2013] EWHC 513 (Admin)
•Designation as neighbourhood forum under s.61G TCPA 1990
•Neighbourhood area smaller than requested excluding two large
housing sites (covered by other LPA policy documents)
•LPA has broad discretion over neighbourhood area designation
•No useful purpose in wider designation area as time delays in
neighbourhood plan process against progression of the two sites
through planning applications
•Court of Appeal outcome awaited
12. Planning judgments
and the NPPF
William Davis v SSCLG
[2013] EWHC 3058 (Admin)
• SSCLG’s recovered appeal decision
• Site in long-designated green wedge
• Local Plan (2006) housing provision out of date
• NPPF para. 49
• Preliminary issue whether appeal proposals “sustainable
development”
• Presumption in favour under the NPPF only applies to “sustainable
development”
• “Policies for the supply of housing” is a reference only to policies
which positively provide for housing – not Green Wedge policies
• Permission to appeal being sought from Court of Appeal against
Laing J’s judgment
• See also Hopkins Development v SSCLG in Court of Appeal
13. Planning judgments and
the NPPF
Cotswold DC v SSCLG
[2013] EWHC 3719 (Admin)
•Meaning of NPPF para. 47: “a record of persistent under delivery of
housing … increase the buffer to 20%”
•No requirement for Inspector to have regard to previous decisions not
cited to him
•Meaning and application of NPPF para. 49
•See forthcoming judgment of Collins J in Barrow PC v SSCLG on
para. 49 - and the meaning of “deliverability” – the realistic prospect
test and its proof?
•Ongoing debate over application of “Sedgefield approach” for s.78
appeals against “Liverpool approach” where “local circumstances”
permit e.g. Green Belt releases
14. Planning judgments and
the NPPF
Fordent Holdings v SSCLG
[2013] EWHC 3719 (Admin)
•Distinctions between former PPG2 and NPPF paras. 87, 89 and 90
•Effect of these paras. read together is that all development in the
Green Belt is inappropriate unless it is specifically identified in NPPF
i.e. either development falling within one or more of the categories in
para. 90 or building which falls within para. 89.
•So, if change of use “inappropriate” (agriculture to caravan site) then
do VSC outweigh harm to Green Belt?
Aston v SSCLG [2013] EWHC 1936 (Admin)
•NPPF paras. 115-116: major development in AONB
•Not same test in DMPO 2010 and Circular 02/09
•Judge not persuaded uniform meaning intended in NPPF!
15. Other Matters:
Hunston Properties v SSCLG
[2013] EWCA Civ 1610
• Proper construction of NPPF para. 47: “meeting full objectively
assessed needs for market and affordable housing in the housing
market area, as far as is consistent with the policies set out in this
Framework”
• Decision utilising revoked RSS as basis for housing requirement
quashed.
Fox Land & Property v SSCLG [2014] EWHC 15
(Admin)
• SSCLG overturning his Inspector's recommendation not to allow
housing development on Green Belt land at Casle Point upheld: not
irrational!
Now see latest Written statement to Parliament on Green Belt on 17th
January 2014
16. STANDING
JB Trustees Ltd, Phillip & Sandra Jeans v SSCLG
and Dennis Jeans Development Ltd [2013] EWHC 3555 (Admin)
• The meaning of “persons aggrieved”
•Claimants had withdrawn their objections during the appeal process
whilst also saying nothing to the inspector about:
o any planning concern; or
o any private interest of their own; or
o Suggested conditions if planning permission were to be
granted
oWalton v Scottish Ministers [2012] UKSC 44 considered.
17. AARHUS/COSTS
Venn v SSCLG [2013] EWHC 3546 (Admin)
•Entitlement to costs protection
•SSCLG submitting:
– claim not an Aarhus Convention claim;
– fell outside scope of costs protection provided by CPR 45.41 because it
was not an Aarhus Convention claim and not a claim for judicial review;
– court’s inherent jurisdiction to make PCOs could only be made on the
criteria set out in Corner House (which she could not fulfil);
– even if claim under Aarhus Convention it should not benefit from any
relaxation of the Corner House principles for environmental claims
because it did not come within the scope of the Directives implementing
the Aarhus Convention into EU or UK law;
• CPR rule 45.43 is limited to judicial review proceedings only
– Despite section 288 applications and judicial review claims “frequently
rais[ing] the same public law issues”
– BUT the wording of CPR 45.41 refers to “claims” not “issues”” (also
paragraph [27]).
18. Inherent jurisdiction
• Corner House v. Secretary of State for Trade and Industry
[2005] 1 WLR 2600 (“Corner House criteria”)
• Consequential relaxation in relation to environmental claims would
enable the court to give effect to the requirements of the Convention
• R (on the application of Garner) v Elmbridge Borough Council
[2010] EWCA Civ 1006)
• Venn
– “treated the public importance and public interest for making a
protective costs order as met” because the claim raised
“environmental matters within the scope of the Convention”
(para. [36]).
19. EIA: The wider perspective
• Sheer volume of case law – the challenge is to
understand the significance of a case!
• Three broad considerations:
– The development of domestic law materially influenced by
European Union law
– EIA is as much a part of planning as environmental law which,
itself, is now a distinctive body of public law
– Ongoing tensions between statutory regulation and the
development of land in the public interest
20. EIA: Some of the cases …
Burridge v Breckland DC [2013] EWCA Civ 228: project splitting;
tougher approach to discretion – despite legal error decsion not
quashed
R (Save Britain's Heritage) v SSCLG [ 2013] EWHC 2268 (Admin):
salami slicing – what constitutes the project is a question of
judgment subject to review on Wednesbury grounds
R (Shadwell Estates) v Breckland DC [ 2013] EWHC 12 (Admin):
intensity of Court’s review of EIA – distinction between matters of
judgment and legal error (an error so bad the ES cannot be called
an ES)
R (Treagus) v. Suffolk C.C [ 2013] EWHC 950 (Admin): mitigation
measures can be taken into account in deciding environmental
impacts. Views of statutory consultees highly relevant
21. EIA: Some more cases …
Champion v North Norfolk DC [2013] EWCA Civ 1657: Decision
that EIA and AA were not required followed a sequential process.
Engagement of statutory consultees (EA and NE) had ensured that
mitigation measures had been properly addressed
R (Baker) v Bath & North East Somerset Council & Hinton
Organics [ 2013] EWHC 946 (Admin): EU law permitted the grant of
retrospective planning permission in respect of EIA development,
albeit in exceptional circumstances
R (Catt) v Brighton & Hove CC [ 2013] EWHC 977 (Admin): If a
negative screening opinion is adopted before the planning
permission is granted and that screening opinion turns out to be
legally flawed the consequent flaw in the process as a whole cannot
be put right by a second process carried out later. However the
Judge then exercised his discretion not to quash the planning
permission.
22. EIA: And yet more …
R (Thakeham Village Action Ltd) v Horsham District Council
[2014] EWHC 67 (Admin): Wide scope of LPA’s screening opinion of
proposal for 146 houses on the site of a former mushroom farm
despite being contrary to the development plan.
R (Mouring) v West Berkshire Council [2014] EWHC 203 (Admin) :
WBC fails to consider whether an 800 square metres warehouse
development (with ancillary offices) in the AONB was EIA
development (i.e. falling with Sched. 2, para. 10(b) as an “urban
development project”).
R (Bucks CC and Others) v SST [2014] UKSC 3: Was a command
paper subject to SEA? “No” – It doesn’t set framework for future
development consent. Is the hybrid bill procedure (subject to
political party oversight) compatible with EIA regime? “Yes” (though
the question whether it is in public interest to proceed with projects
like HS2 may be matter of national political significance).
23. EIA cases: Exercise of judicial
discretion
Though many arguments as to breach of the EIA Directive and
Regulations are unsuccessful, the provisions provide many
opportunities for identifying procedural (and substantive) flaws in
decision-making. However, Walton v Scottish Ministers [2012] UKSC
44 demonstrates that the domestic courts are to balance the principle
of ‘effectiveness’ in exercising rights under European law with the
practical effect of any breach and the public interest, Lord Carnwath
finding (at [139]):
Where the court is satisfied that the applicant has been able in practice
to enjoy the rights conferred by the European legislation, and where a
procedural challenge would fail under domestic law because the
breach has caused no substantial prejudice, I see nothing in principle
or authority to require the courts to adopt a different approach merely
because the procedural requirement arises from a European rather
than a domestic source.”
24. EIA cases: Judicial reluctance to
refer cases to ECJ
• Clear judicial reluctance to refer environmental law
cases to the EU court, despite dominance of EU law in
environmental cases. However, the Supreme Court
referred in R(ClientEarth) v Secretary of State for
Environment Food and Rural Affairs [2013] UKSC 25.
• See also Lord Carnwath’s comments in the HS2 case
[2014] UKSC 3 : “ …. Experience has shown that that
case law now provides sufficient guidance to enable
national courts and tribunals - and in particular
specialised courts and tribunals - to decide many cases
for themselves without the need for a reference ...”
25. Q&A … (and then, if
you don’t have to fly, please join
us for drinks)!
Thirty-Nine Essex Street Chambers,
39 Essex Street,
London, WC2R 3AT
www.39essex.com
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