Cardiff - 12th May 2015

1. Planning and Environment Law Update
12th May 2015
Matthew Horton QC, John Steel QC,
Richard Harwood QC and Jon Darby

2. Topics
• DECISION MAKING AND FAIRNESS
• HERITAGE
• GREEN BELT
• ENFORCEMENT
• WALES CASELAW
• PLANNING BILL WALES
• COMMUNITY INFRASTRUCTURE LEVY
• ENVIRONMENTAL IMPACT ASSESSMENT
• STRATEGIC ENVIRONMENTAL ASSESSMENT
• NUISANCE

3. Decision making and 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

4. Raising points
• No need to warn of issues raised by 3rd
parties which parties have been able to
comment on: Hopkins
• Ecotricity v SoS (aviation objection)
• Warn of uncontentious points which
trouble decisionmaker: R(Halite Energy) v
SoSECC

5. New points in written
representations
• New points arising too late for third party representations
have been a problem: Philips, Ashley
• Carroll v SSCLG
• Appeal for change of use B1 to C3
• At the 6 weeks point the appellant said the use was now
B8. Later, the appellant provided 2nd application
committee report which agreed B8 and no policy
objection. Did not mention that the committee had
refused that application because of a policy objection.

6. Carroll the fallout

7. Recovery of appeals
• 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).

8. 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.

9. 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

10. Historic Environment (Wales)
Bill
• Consultation and interim protection (with
compensation) before listing and scheduling
decisions
• Heritage partnership agreements
• Temporary stop notices
• Scheduled monument enforcement notices
• Statutory historic environment record
• Statutory parks and gardens
• No special regard duty to scheduled monuments

11. Green Belt: its extent
Fox Land & Property Ltd v SSCLG [2015] EWCA
Civ 298
• 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.
• First instance judge correct to conclude that the fact a
green belt policy has lapsed did not mean that the green
belt as defined by the proposals map in the local plan
had ceased to exist or that other green belt policies had
been rendered wholly ineffective.

12. Green Belt: inappropriate
development by definition
Narrow approach in England :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’
• 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).

13. 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.
• However PPW para 4.8.15:
• “Inappropriate development should not be granted planning
permission except in very exceptional circumstances where other
considerations clearly outweigh the harm which such development
would do to the Green Belt or green wedge”

14. 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.

15. 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

16. Wales Caselaw 2015
• Motorways
• Wind Farms
• Chimneys
and
• Princes

17. R. (on the application of Friends of the Earth) v Welsh Ministers
[2015] EWHC 776 (Admin) Hickinbottom J
• Motorway Plan re M4 Corridor Around Newport
• Across Gwent levels – many SSSIs + River Usk SAC
• SEA Directive 2001/42 art.5(1): test of "reasonable
alternatives" to the implementation of a plan or
programme likely to have significant effects on the
environment

18. Review of Cases by the Court
• “Although none of the cases [reviewed] concerned
Wales, the transposition of the SEA Directive in England
(by the Environmental Assessment of Plans and
Programmes Regulations 2004 (SI 2004 No 1633)) is in
materially the same terms as the 2004 Regulations for
Wales”.

19. Cases Reviewed
• R (Save Historic Newmarket Limited) v Forest Heath District Council
[2011] EWHC 606 (Admin) (Collins J)
• Heard v Broadland District Council [2012] EWHC 344 (Admin)
(Ouseley J)
• R (Buckingham County Council and Others) v Secretary of State for
Transport [2013] EWHC 481 (Admin)
• R (Buckingham County Council and Others) v Secretary of State for
Transport [2014] UKSC 3
• R (Chalfont St Peter Parish Council) v Chiltern District Council
[2013] EWHC 1877 (Admin) (His Honour Judge Foster)
• Ashdown Forest Economic Development LLP v Secretary of State
for Communities and Local Government [2014] EWHC 406 (Admin);
(§87)

20. Article 5(1)
• Article 5(1) provides:
• “Where an environmental assessment is required
under article 3(1), an environmental report shall be
prepared in which the likely significant effects on the
environment of implementing the plan or programme
and reasonable alternatives, taking into account the
objectives and the geographical scope of the plan or
programme are identified, described and evaluated.
The information to be given for this purpose is
referred to in Annex I.”

21. Margin of Discretion
• It is in any event clear that that Member States have
a significant margin of discretion with regard to how
“reasonable alternatives” are identified. (§85)

22. “Reasonable Alternatives”
• “Reasonable alternatives” does not include all possible
alternatives: the use of the word “reasonable” clearly and
necessarily imports an evaluative judgment as to which
alternatives should be included. That evaluation is a
matter primarily for the decision-making authority,
subject to challenge only on conventional public law
grounds. (§88(iv))

23. When option not a reasonable
alternative
• The question of whether an option will achieve the
objectives is also essentially a matter for the evaluative
judgment of the authority, subject of course to challenge
on conventional public law grounds. If the authority
rationally determines that a particular option will not meet
the objectives, that option is not a reasonable alternative
and it does not have to be included in the SEA Report or
process. (§88(vi))

24. R. (on the application of Davies) v Carmarthenshire CC
[2015] EWHC 230 (Admin) Gilbart J
• The proposed turbine would be on the shores of an
estuary, directly opposite a boathouse and writing shed
which had been occupied by the poet Dylan Thomas,
both of which were listed buildings.
• The planning officer determined that given the scale and
nature of the proposal, the development was considered
to be of no more than local importance and would not
give rise to any adverse environmental impacts upon the
surrounding area. He therefore concluded that the
requirements of an environmental impact assessment
were not applicable. Screening opinion to like effect.
• Planning permission granted by the committee.

25. “Local effect can be significant”
• Decision in screening opinion (‘no EIA required as local
effect only”) challenged by JR;
• Held: application granted
• “The fact that the effects of a wind turbine being
constructed within a Special Landscape Area would only
be felt locally did not mean that they were not capable of
being significant for the purposes of assessing whether
an environmental impact assessment was required
under the Town and Country Planning (Environmental
Impact Assessment) (England and Wales) Regulations
1999”.

26. The Queen (on the application of Jonathan Mark Isherwood
Carter) v City and County of Swansea v RWE Innogy UK Limited
[2015] EWHC 75 (Admin); Phillips J
• Development of a wind farm at Mynydd-y-Gwair
common, near Swansea
• Numerous errors in the officer report, but test correct in
summary section
• Including error over the “starting point” – policy not the
Development Plan
• Held: no error of law as long as correct statutory tests
were “had regard to” and overall report was fair and not
‘significantly misleading’

27. Applying
Oxton Farms v. Selby District Council [1997] EWCA Civ
4004; per Judge LJ
• “The report by a planning officer to his committee is not and is not
intended to provide a disquisition of relevant legal principles or to
repeat each and every detail of the relevant facts to members of the
committee who are responsible for the decision and who are entitled
to use their local knowledge to reach it. The report is therefore not
susceptible to textual analysis appropriate to the construction of a
statute or the directions provided by a judge when summing to case
up to the jury.
• …In my judgement an application for judicial review based on
criticisms of the planning officer's report will not normally begin to
merit consideration unless the overall effect of the report significantly
misleads the committee about material matters which thereafter are
left uncorrected at the meeting of the planning committee before the
relevant decision is taken.”

28. R. (on the application of Evans) v Attorney General
[2015] UKSC 21
• HRH The Prince of Wales private correspondence to
Ministers was subject to disclosure under FOIA 2000
• The Freedom of Information Act 2000 s.53 did not entitle
an accountable person to issue a certificate to override a
court's decision that information should be disclosed
simply because he disagreed with its conclusion.
Accordingly, the Attorney General had not been entitled
to issue a s.53 certificate to override an Upper Tribunal
decision that communications between the Prince of
Wales and government departments should be
disclosed.

29. Van Ostade v Carmarthenshire CC PAD
Chimneys
• Listed building Enforcement Notice re five chimney
stacks at Maesycrugiau Manor, Carmarthen
• uncompleted project - large Edwardian country house to
replace previous house destroyed by fire
• Serious errors in EN
• But as capable of correction on the evidence at the
public inquiry
• Therefore EN not a nullity, unlike previous EN
• Also costs application – stalemate over discussions and
prosecution caution – not unreasonable behaviour

30. Community Infrastructure Levy
• Regulation 123
– 6 April 2015 cut off in relation to pooling now
passed.
– Inventive solutions now required in those
authorities which do not have CIL schedules
in place

31. Community Infrastructure Levy
• R(oao Hourhope Ltd) v Shropshire Council
[2015] EWHC 518 (Admin)
– To qualify for reduction in CIL levy under
regulation 40(7)(i) a developer has to show that
the building is in actual lawful use for the relevant
period.
• Oxfordshire CC v SoSCLG [2015] EWHC 186
(Admin)
– Inspector had not acted irrationally in concluding
that some obligations were necessary but their
monitoring was not.

32. 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 following erection of building
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”

33. 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

34. 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.

35. Nuisance
Lawrence v Fen Tigers [2014] UKSC 13
(1) The fact that a planning authority or other regulator takes the
view that an activity is acceptable should not affect private
property rights and common law nuisance claims should be
available to vindicate those rights.
“The grant of planning permission for a particular development does
not mean that that development is lawful. All it means is that a bar to
the use imposed by planning law, in the public interest, has been
removed.” Lord Neuberger at [89]

36. Nuisance
Lawrence v Fen Tigers [2014] UKSC 13
(1) The fact that a planning authority or other regulator takes the
view that an activity is acceptable should not affect private
property rights and common law nuisance claims should be
available to vindicate those rights.
“There is no principle that the common law should “march with” a
statutory scheme covering similar subject matter. Short of express
or implied statutory authority to commit a nuisance ... there is no
basis, in principle or authority, for using such a statutory scheme to
cut down private law rights.”
Lord Neuberger at [92], citing with approval Carnwath LJ in Barr v Biffa

37. Nuisance
Lawrence v Fen Tigers [2014] UKSC 13
(2) an award of damages in lieu of an injunction might be the
appropriate remedy in cases where the defendant’s nuisance-
generating activity has significant public interest dimensions
Departure from Shelfer:
“a person by committing a wrongful act (whether it be a public company
for public purposes or a private individual) is not thereby entitled to ask
the court to sanction his doing so by purchasing his neighbour’s rights,
by assessing damages in that behalf, leaving his neighbour with the
nuisance, or his lights dimmed, as the case may be.”

38. Matthew Horton QC, John Steel QC,
Richard Harwood QC and Jon Darby
39 Essex Chambers
London & Manchester
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