This Annual Planning and Environmental Update provided an overview of case law developments during 2013 and 2014.

1. Planning and Environmental
Law Update
Leeds Seminar
9 October 2014

2. • 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:

3. Development Plans

4. 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

5. 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

6. Legal problems
• Categorisation –
Wakil, Houghton
• Conflict between SPD
and development
plan: RWE Npower

7. 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?

8. Old development plans
• Reasoned justification
is saved with the
policies: Cherkley
Campaign
• Reasoned justification
not to have the status
of policy: Cherkley
Campaign

9. 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)

10. Housing and the NPPF: Some
current case law issues

11. 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• Local Plan (2006) housing provision out of date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”

12. 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)

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
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 – NPPG preference

14. 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.

15. 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
.

16. Other Matters:
Grand Union Investments v Dacorum BC
[2014] EWHC 1894 (Admin)
• 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 a modification to the strategy as recommended by a
planning inspector, was not irrational in the light of relevant
governmental policy in NPPF
• 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

17. Green Belt

18. 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.

19. 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

20. 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.

21. 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 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
[Note also paras.44 and 45 re plan making)]

22. 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.

23. 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)

24. 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"

25. 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”
Before Court of Appeal in early October…

26. 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.”

27. Decision making,
Enforcement, Change of Use

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

29. 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

30. 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)

31. 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

32. 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.

33. Historic Environment

34. 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

35. 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

36. 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

37. 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

38. EIA, SEA, nuisance and waste

39. 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

40. HS2
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”
• more than mere
“influence” required
• parliamentary process
still to come

41. EIA/Habitats
• 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
– Permission to appeal granted on wider mitigation and time of
screening issues
• 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

42. 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

43. 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?

44. Nuisance
Coventry v Lawrence [2014] UKSC 13
• prescriptive right
• “came to the nuisance”
• character of locality
• relevance planning
permission
• injunction or damages

45. 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

46. 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

47. Habitats and Birds
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

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Planning and
Environmental Law
Update
9th October 2014