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Planning Law Speed Read – September 2017

Welcome to Ward Hadaway's planning law Speed Read. The aim of our bite-sized bulletins is to keep you abreast of the 'hot' topics and key legal issues relevant to you.

Our planning experts are on hand to discuss in further detail what effects they could have for you and your organisation.

The implications of changes in Council policy

The case of R (Stefanou) v Westminster CC [2017] All ER (D) 135 (May) was a judicial review against the grant of planning consent for a 3 storey basement extension.

Planning permission had previously been granted for an underground extension in 2008 and renewed in 2011. The new permission sought to include some significant changes to the original planning permission, but was generally the same.

Between the grant of the original permission in 2008 and the new permission, the Council had adopted a new Development Plan policy which prohibited basement extensions of more than one storey unless there were exceptional circumstances.

The claimant argued that the Council had not taken account of their own policy when they should have. The Council argued that, when determining the new permission, their focus should be on the revised elements of the scheme only as the rest, in their view, had consent.

In any event, the Council felt that the original permission had been implemented through remedial works to the façade of the property.

The Council therefore informed the Claimant that any objection to the application would be “unlikely to have much weight”.

However, the Court held that this was an error of law and that the whole scheme should have been considered as the new permission was a “materially different form of development, not capable of being built under the 2011 permission”.

The Council could legitimately use the original permission as a material consideration, however, that did not discharge them from their requirement to consider the entirety of the new development in the context of the new development plan and other material considerations.

The case shows the importance of ensuring that both Councils and developers are aware of changes in policy and that, where the proposal is significantly different from that already consented to, the new policies are given full weight, regardless of the fall-back position. This will help to guard against possible judicial reviews after a permission is granted.

Development in the Green Belt and “very special circumstances”

Goodman Logistics Developments (UK) Ltd v SSCLG [2017] EWHC 947 (Admin) concerned an appeal against the refusal of an application for a strategic rail freight interchange (SRFI) in the Green Belt.

The site was located in an area of land defined as the “strategic gap” in the Local Authority’s Core Strategy. This added an extra layer of protection to the land over and above the Green Belt policies. The appeal was refused by the Secretary of State (SoS) due to it being contrary to Green Belt policy and the Council’s policies relating to the strategic gap.

The decision was challenged on three grounds. These were that:

  • the SoS failed to give adequate reasons for giving no weight to the argument that the need for an expanded SRFI necessitated a Green Belt location, meaning that a degree of harm was inevitable and/or misunderstood the Claimants’ case leading to a failure to take account of it as a material consideration;
  • the SoS failed to interpret the Authority’s Core Strategy in relation to the strategic gap and/or failed to give adequate reasoning for treating the appeal as contrary to those policies; and
  • the SoS failed to correctly interpret and apply the NPPF’s Green Belt policies and/or failed to take into account visual matters as being a material consideration.

In relation to the first ground, Goodman noted that the National Policy Statement (NPS) for National Networks set out a “compelling need” for further SRFIs in the South East. However, the NPS accepts that very special circumstances are required to permit SRFI development in the Green Belt.

Goodman argued that, due to the lack of alternative sites, it was essential that the SRFI was located in the Green Belt and, as such, harm was inevitable.

The Inspector accepted that harm was likely to be inevitable but noted that this did not operate to reduce the actual amount of harm caused. Therefore, the NPPF tests should still be applied and the harm should be weighed against any benefit.

According to the Court, Goodman’s ‘inevitability’ argument only applies if the SoS finds that the need for an SRFI and other benefits outweigh such harm. The Court found that, as the SoS considered the need for the site, his judgment was not inadequate.

In relation to the second ground, the Court found that the relevant test to be applied in relation to the Core Strategy was whether the development and location were essential.

This is over and above the “very special circumstances” test normally attributed to Green Belt development due to the land being extremely vulnerable to urban sprawl as a consequence of its location. Therefore, as the Inspector and SoS had both considered alternative sites and the need for development, it cannot be said that their reasoning was inadequate.

On the final ground, the Court held that the SoS and Inspector had erred in not considering the visual impact to be a material consideration which may reduce the harm of development in the Green Belt.

This decision was reached as a result of following the decision in Turner v SSCLG which noted that the comparison between the current development and the proposal could not be made solely based on size. Therefore, the SoS and Inspector were bound to assess the potential reduction in harm based on all factors surrounding the visual impact of the development.

However, the Court found that even if the SoS had taken account of the visual impact of the development, the decision on the harm to the Green Belt would likely have been the same.

The Court therefore held that the SoS adequately weighed the harm of the development against the benefits and concluded that the development should not be permitted.

The application of the “very special circumstances” test in this case is particularly interesting and could be applied in other cases where development in the Green Belt is being proposed.

The Court criticises the SoS’s “unexplained inconsistencies”

The case of Baroness Cumberlege of Newick v SSCLG [2017] EWHC 2057 (Admin) was an appeal against Sajid Javid’s approval of a scheme that had previously been refused by the local authority. It led to criticism as the Inspector had deemed the authority’s planning policy to be out of date for the purposes of the NPPF’s tilted balance.

Shortly prior to this decision, Javid had decided another case in the same local authority area on the basis that the policies were up to date (see appeal reference APP/P1425/W/15/3133436 relating to Land at Broyle Gate Farm, Lewes Road, Ringmer, East Sussex, BN8 5NE).

DCLG agreed that the decision should be overturned and, despite the applicant’s protestation, the Court also agreed with this course of action noting that it is vital that the Secretary’s decisions are clear and that they avoid “apparent and unexplained inconsistencies”.

The judge noted that the previous decision was so similar that “no reasonable decision-maker could not have taken it into account”.

Inspector not obliged to seek out a solution to a breach of planning control

The case of Arnold v SSCLG [2017] EWCA Civ 231 concerned a couple that had been served with an enforcement notice for the demolition of their home because they exceeded their certificates of lawful development to such an extent that the property was deemed to be a new structure.

In 2011, Mr and Mrs Arnold were granted two certificates of lawful development in relation to a single storey rear extension and a two storey front extension respectively.

Mr and Mrs Arnold then extended their home outside the parameters of these certificates in the mistaken belief that they were covered by GPDR and thus had planning permission.

The Inspector upheld the Council’s enforcement notice on appeal after determining that the works were inappropriate development in the Green Belt and should therefore not be permitted.

In the Court of Appeal, the Claimants’ argument was that the Inspector erred in respect of his powers to grant an alternative permission. They argued that, under s174(2)(a) and s177(1)(a) of the TCPA, the Inspector ought to have considered alternative schemes that would be acceptable in planning terms and modify the enforcement notice to grant permission for an alternative.

This was not accepted by the Court who said that, when read in full, the Inspector’s judgement was sound and did not err in law.

The Court referred to the judgment of Lord Justice Carnwath in Tapecrown Ltd v First Secretary of State and another [2006] EWCA Civ 1744 who stated that “although [the Inspector] is free to suggest alternatives, it is not his duty to search around for solutions”.

Lord Justice Carnwath also noted that the enforcement process is remedial rather than punitive. Therefore, if the Inspector believes that there is an obvious alternative to the enforcement action sought that would be acceptable in planning terms, as well as causing less disruption and cost, then they should be able to consider it.

The Court of Appeal noted that, taking into account the earlier decision of the Court, the Inspector had reached “the only logical conclusion” based on the scale of the development and its location in the Green Belt.

Court underlines the importance of Neighbourhood Plans

The case of Keith Langmead Ltd v Secretary of State for Communities and Local Government [2017] EWHC 788 (Admin) concerned an appeal against the refusal of outline permission for up to 100 dwellings. The claimant argued that the Secretary of State misinterpreted the NPPF and failed to take account of a material change of circumstances, among other claims.

The appeal was dismissed as the court held that the Secretary of State had acted correctly in the weight that he attributed to each consideration and the examiner’s views.

The Secretary of State was entitled to disagree with those views provided he took them into account. The Court also upheld the weight that the Secretary of State attached to the neighbourhood plan noting that it was an effective means to shape and direct development.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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