This document provides a summary of recent planning case law updates across various topics: - Enforcement cases clarified inspector's powers to grant alternative schemes and limitations period exceptions. - Heritage cases established a strong presumption against harm to listed buildings and importance of meaningful consultation for conservation area designations. - Green Belt cases confirmed policies are not an exhaustive list and aims to preserve openness. - Housing cases focused on objectively assessed need, five year land supply calculations, and weight of policies. - Neighbourhood planning saw expansion of case law specific to neighbourhood development plans and their examination.

1. Planning Case Law Update
5th March 2015
Jack Anderson & John Pugh-Smith

2. Topics
• ENFORCEMENT
• HERITAGE
• GREEN BELT
• PROCEDURAL FAIRNESS
• HOUSING
• DEVELOPMENT PLAN-MAKING
• NEIGHBOURHOOD PLANS
• DECISION-MAKING
• ENVIRONMENTAL IMPACT ASSESSMENT
• STRATEGIC ENVIRONMENTAL ASSESSMENT
• CONSERVATION, BIRDS AND HABITATS

3. Enforcement
Ahmed v SSCLG [2014] EWCA Civ 566
• Inspector failed to consider “obvious alternative” of
lesser scheme after wrongly concluding he had no power
to grant planning permission for the lesser scheme.
• Inspector does have the power if the lesser scheme is
“part of” the scheme enforced against.
Ioannou v SSCLG [2014] EWCA Civ 1432
• Ahmed distinguished. Inspector has no power under
ground (f) to bring about deemed permission for scheme
which was not in existence at the time of the EN.

4. Enforcement
Jackson v SSCLG [2015] EWHC 20 (Admin)
• New regime of planning enforcement orders under
ss.171BA –BC is not an exhaustive replacement of the
Welwyn principle:
(i) positive deception in matters integral to the planning process;
(ii) that deception was directly intended to undermine the planning process;
(iii) it did undermine that process and;
(iv) the wrong-doer would profit directly from the deception if the normal
limitation period were to enable him to resist enforcement.
• No additional requirement to demonstrate
“exceptionality” for case to fall outside s.171B immunity

5. Enforcement
R( Wingrove) v Stratforord-on-Avon DC [2015] EWHC 287
(Admin)
• Challenge to LPA’s refusal of two applications for
retrospective consent under s.70C.
• No appeal against enforcement notice
• Appropriate for LPA to look at applicant’s actual motives
- delay of enforcement action
• Limited factors against exercise of s.70C e.g.
- Failure to appeal EN but development plainly compliant
- Acceptability with correct planning conditions

6. Heritage
Interrelationship between statutory tests s.66/72 Listed
Buildings Act and NPPF:
• Barnwell [2014] EWCA Civ 137 the standout case. Wind farm
that would affect setting of listed buildings.
• S.66 (“special regard”)/72 (“special attention”) create a “strong
presumption” against grant where harm to setting of listed
building/CA – even where harm less than substantial.
• NPPF does not displace statutory presumption.
• See Forge Field [2014] EWHC 1895 (Admin) for application of
Barnwell.

7. Heritage
Conservation Area designations under s.69:
• GRA Acquisition [2015] EWHC 76 (Admin) – Oxford Stadium
CA.
• Single entity, absence of public access and visibility, mundane
quality and lack of long life-span not sufficient factors to make
decision irrational
• R (Silus Investments) v Hounslow LBC [2015] EWHC
358 (Admin) - Chiswick High Road CA
• Proposal to demolish locally listed pub
• No procedure specified and no statutory obligation to consult; but
• Lack of meaningful consultation undertaken by LPA
• Developer denied opportunity of being consulted

8. Heritage
R (Jones) v English Heritage [2014]
EWHC 2259 (Admin): The correct
interpretation of English Heritage Guidance
on the designation of sites on the battlefield
register was a matter for the Court, to be
considered having regard to the purpose for
which the guidance was produced and in a
common sense way

9. Green Belt: its extent
Fox Land & Property Ltd v SSCLG (Court of
Appeal judgment 03.03.15)
• Proposals Map not policy but identifies the geographical
area to which policies applied; so
• It is relevant to a proper understanding and interpretation
of policy in the same way as the supporting text

10. Green Belt: inappropriate
development by definition
Europa Oil [2014] EWCA Civ 825; Lloyd [2014] EWCA Civ 839;
Timmins [2015] EWCA Civ 10
• NPPF stand alone document and not PPG2 ‘carry over’
“Development” in NPPF means TCPA development (so s.55).
• “Building” means TCPA definition of permanent structure (s.336)
• PPG2 [3.12] approach not carried through i.e. development and
change of use can be “appropriate” if still preserves GB openness
• Hence material change of use inappropriate unless within an
exception.
• NPPF para. 89-90 “closed lists” (but see Mitting J in Timmins and
query regarding interaction between paras. 81 and 90).

11. Green Belt: NPPF 89-90 exceptions
• Para. 89. Concerned with built form only, not change of use.
Purpose is key (Timmins).
- So an identical building may preserve openness/not conflict
with GP purposes if it is a sports pavilion not a house.
- PDL turns on current or last use (Lee Valley [2015]).
• Para. 90. (unless Mitting J’s obiter in Timmins pursued) is also a
closed list.
- Mineral extraction” includes the exploration/appraisal stages.
- Mere fact of common paraphernalia for mineral extraction
cannot mean proposal inappropriate (Europa).
• Re. both paras. 89-90, any requirement for public benefit or public
need? Not on face of NPPF and Cherkley [2014] EWCA Civ 567
supports that view.

12. Green Belt: planning balance
• No change from PPG2. NPPF 88 “any other harm”
means what it says – Redhill [2014] EWCA Civ 1386.
• “Other considerations” (non-GB factors) must be
included in the weighing exercise
• “Sub-threshold” harms that alone would not justify
refusal under the NPPF remain material considerations
and count against a grant.
• But CoA noted that there have been changes from
PPG2, not all of them acknowledged in the impact
assessment.
• Is NPPF GB policy in fact more restrictive?

13. Green Belt: Ministerial Statements
2013/2014
• Statement that unmet need alone unlikely to outweigh
harm to Green Belt merely a “clarification” of national
policy and not new policy (Copas).
• However, SSCLG’s practice of recovering all
traveller/gypsy site GB appeals:
- a breach of Equality Act 2010; and
- a breach of Art.6 rights due to delay caused
(Moore & Coates).

14. Procedural Fairness
SSCLG v Hopkins Developments [2014] EWCA 470
• Inspector dismissing housing appeal on matters including
sustainability and character & appearance not formally raised by her
as main issues but in contention during inquiry
• A developer should test evidence about, or make submissions on,
emerging issues
SSCLG v Vincente [2014] EWCA 1555
• Procedural conduct at a second hearing where objectors had not
been notified of initial hearing.
• If objectors know the main points in support of the application that
they opposed and have had a reasonable opportunity to put their
own points forward then no procedural unfairness

15. Housing: General considerations
Bloor Homes v SSCLG [2014] EWHC 745 (Admin)
• S.38(6) duty remains following the NPPF
• NPPF para.14 second limb:
These are three distinct concepts. A development plan will be “absent”
if none has been adopted for the relevant area and the relevant period.
If there is such a plan, it may be “silent” because it lacks policy relevant
to the project under consideration. And if the plan does have relevant
policies these may have been overtaken by things that have happened
since it was adopted, either on the ground or in some change in
national policy, or for some other reason, so that they are now “out-of-
date”. Absence will be a matter of fact. Silence will be either a matter of
fact or a matter of construction, or both. And the question of whether
relevant policies are no longer up to date will be either a matter of fact
or perhaps a matter of both fact and judgment (Lindblom J)

16. Housing: Land supply calculations
Ongoing debate over application of “Sedgefield approach”
for s.78 appeals against “Liverpool approach” – NPPG
preference for “Sedgefield”
Bloor Homes v SSCLG (Lindblom J):
Neither approach is prescribed or said to be preferable to the other in
government policy in the NPPF
BUT, here, although the Inspector’s use of “Liverpool” was legitimate
he had failed to include a 10 per cent discount for delivery on larger
sites; and at 5.02 years supply that was critical

17. Housing: NPPF para. 47
Solihull MBC v Gallagher Estates [2014] EWCA Civ 1610
• Radical change brought about by NPPF, para.47
• Two-step approach: (i) Need for FOAN assessment to be made first;
(ii) To be given effect in Local Plan unless that would be inconsistent
with other NPPF policies
• FOAN applicable both to plan-making and decision-taking (following
Hunston)
• The reality was that neither the local authority, in proposing the plan,
nor the inspector, in recommending its adoption, had undertaken an
objective assessment of needs as a separate and prior exercise to
the consideration of the impact of other policies.

18. Housing: NPPF para.49
When is a policy a housing supply policy?
South Northamptonshire Council v SSCLG & Barwood
Land & Estates [2014] EWHC 573 (Admin): General policies to
restrict development and those designed to protect specific areas or
features?
Hopkins Homes v SSCLG & Suffolk Coastal DC [2015]
EWHC 132 (Admin): example of former - restricting new development
outside physical limits of settlements subject to exceptions
Cheshire East BC v SSCLG & Richborough Estates
[2015] EWHC 410 (Admin): example of the latter – green wedge

19. Housing: NPPF para.49
Weighting and NPPF paras. 49 & 14
Crane v SSCLG & Harborough DC [2015] EWHC 425
(Admin)
• Not a matter of law but of planning judgment.
• Critical question is whether, in the particular circumstances, the harm
associated with the development proposed “significantly and
demonstrably” outweighs its benefit, or that there are specific policies in
the NPPF which indicate that development should be restricted.
• Although less than 5-year HLS, conflict with NDP (as part of
development plan) a powerful and decisive factor against granting
planning permission – NPPF, para. 198.

20. Housing: Sustainable development
Dartford BC v SSCLG [2014] EWHC 2636 (Admin)
– No legalistic approach requiring whether development is
sustainable to be dealt with as a preliminary issue (as in William
Davis)
– If NPPF para. 14 applies because there is a shortfall, no need to
also consider whether proposed development is sustainable
development until you carry out the planning balance.
– Sustainable development should be permitted, unsustainable
development refused.
See also Cheshire East BC v SSCLG [2015] EWHC 410 (Admin) –
matter entirely of planning judgment for Inspector not on other case
examples e.g. William Davis or Bloor

21. Housing: Other issues
Barrow PC v SSCLG [2014] EWHC 274 (Admin)
• NPPF para. 47 (footnote 11) and 173 – delivery and viability: need to
show realistic prospect of some houses being delivered during life of
permission
• Tension with current policy on use of negative (Grampian) conditions
e.g. upgrading of pumping station to resolve sewage capacity problems
Horsham DC v SSCLG [2015] EWHC 109 (Admin)
• NPPF, para.64 – refusing obviously poor design
• Inspector under no obligation to consider whether a better one might
have been proposed
• Matter of planning judgment (following FSS v Sainsburys [2007])

22. Development Plan-Making: soundness
Grand Union Investments v Dacorum BC
[2014] EWHC 1894 (Admin)
• The concept of the soundness of a development plan document was
not defined in the 2004 Act. The NPPF included four criteria of
soundness, but that guidance was policy and should not be treated
as law
• The question was whether the core strategy, incorporating the
modification, could properly be regarded as having become sound
and a plan that was capable of being lawfully adopted. The
assessment of soundness was essentially a practical one. The
modification was, in the inspector's judgement, a sufficient and
proportionate solution to the problem; so
• LPA’s adoption of a core strategy in relation to housing allocation in
its borough, which committed it to an early review of housing needs,
following the modification to the strategy was not irrational

23. Development Plan-Making: other issues
Gallagher Homes v Solihull MBC
[2014] EWHC 1283 (Admin)/ [2014] EWCA Civ 1610
• Local Plan not supported by a figure of full objectively assessed
housing need (FOAN)
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
R (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

24. Development Plan-Making:
interpretation of saved policies
R (Cherkley Campaign Ltd) v Mole Valley District
Council [2014] EWCA Civ 567
• Reasoned justification of current LP is saved with the policies; but
• Whilst an aid to interpretation it does not have the force of policy and
cannot trump policy
Fox Land & Property Ltd v SSCLG (judgment 03.03.15).
• Proposals Map not policy but identifies the geographical area to
which policies applied; so
• It is relevant to a proper understanding and interpretation of policy in
the same way as the supporting text.

25. Neighbourhood Development Plans
 We now have a body of High Court case law dealing
specifically with NDPs:
- BDW Trading [2014] EWHC 1470 (Admin) (Supperstone J)
- Larkfleet [2014] EWHC 4095 (Admin) (Collins J)
- Gladman [2014] EWHC 4323 (Admin) (Lewis J)
 Key points:
• Marked difference NDP/Local Plan process.
• Basic Conditions against which NPD examined set bar markedly
lower than Local Plan tests (not least soundness) applied at EiP.
• SEA may be required but may not.
• NDP may include housing policies and may allocate specific sites,
even where no current Local Plan strategic policy

26. Decision-Making
Oxfordshire County Council v SSCLG [2015] EWHC 186
(Admin)
• Regn 122 of CIL Regulations 2010 tests for obligations
• S.106 with contributions towards education, libraries, household
waste management, museums, adult learning, day care, public
transport and an administration/monitoring fee of £3,750
• Inspector’s finding that fee did not meet “necessity” test upheld
• Nothing in the Planning Acts, CILR, NPF or NPPG which suggested
that LPAs could so charge.
• As fee based on standardised table rather than individualised
assessment of special costs.
• Allowed education and library service contributions also payable at
outset
•

27. EIA: screening opinions
R(Mouring) v W Berks Council [2014] EWHC 203 (Admin)
• JR of pp for 800 sq.m warehouse & offices in AONB
• LPA relied on an automated questionnaire for EIA checks.
• Failure to consider whether “urban development project”
• Quashing of consent even though building had been erected
R(CBRE Lionbrook) v Rugby BC [2014] EWHC 646 (Admin)
• JR of retail park development
• Proposal altered post screening and no further opinion given
• “Where it appears to the relevant planning authority” (Reg 7 of 2011
Regs) gave LPA discretion to judge whether changes called for a
fresh opinion and its decision not to require one here was “legally
impeccable”

28. EIA: screening opinions
R(Gilbert) v SSCLG & Harborough DC [2014] EWHC 1952 (Admin)
• JR of SSCLG’s negative screening direction and LPA’s grant of pp
for Bruntingthorpe Proving Ground removing noise limiting condition
• The precautionary principle must be considered in the light of the
stage of the decision-making process.
• LPA reasonably concluded there would be no significant impact on
the basis of the evidence at a 4-day enforcement inquiry and a 2-
year noise trial (with only 4 breaches of noise conditions).
• Screening opinion made clear that cumulative impacts were
considered and the reasons for it.
• Gilbert makes explicit what for a long time has been implicit in EIA,
namely, that consideration of likely significant effects requires a
precautionary approach. Appeal dismissed 03.03.15

29. SEA: business as usual?
No Adastral New Town v Suffolk Coastal DC [2015] EWCA Civ 88:
• Failure to conduct environmental assessment in first 4 years of plan
process found not vitiate entire SEA process
• Any prior deficiencies cured by subsequent examination and public
consultation
Performance Retail Partnership v Eastbourne BC [2014] EWHC 102
(Admin): SEA not vitiated by lack of assessment of a minor modification
recommended by Inspector in EiP.
Ashdown Forest Economic Development v SSCLG & Wealden DC
[2014] EWHC 406 (Admin); Zurich Assurance v Winchester CC
[2014] EWHC 758 (Admin) : wide discretion to LPAs in SEA judgments
BUT in Satnam Millenium v Warrington BC [2015] EWHC 370
(Admin) claimant succeeded (in part) where a substantive failure to
comply with Sched.2 of 2004 Regs. on SEA of proposed LP mods.

30. Jack Anderson & John Pugh-Smith
39 Essex Chambers
London & Manchester
www.39essex.com
jack.anderson@ 39essex.com
john.pugh-smith@39essex.com
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at 39 Essex Street, London WC2R 3AT. 39 Essex Chambers‘ members provide legal and advocacy services as independent, self-employed barristers and no entity connected with
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