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Planning law update – April 2021 part 1

Welcome to Ward Hadaway's planning law update. 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.

Will there be an end to virtual Committee meetings from 6 May 2021?

Section 78 of the Coronavirus Act 2020 and Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 allows local authorities to hold virtual meetings until 6 May 2021. In a letter from MHCLG minister Luke Hall to local authority leaders last month (click here) it was confirmed that the Government would not be extending that power. A local government group and Hertfordshire County Council are bringing an action for a declaration from the Court that councils already have the powers needed to hold online meetings, but pending the determination of that case it does appear (for the moment at least) that councils are being encouraged towards returning to business as usual. This is a slightly unusual position to take given the need to keep all options on the table to allow local authorities to carry out their vital business of supporting their communities in the face of a constantly changing threat.

JR Periods – 6 weeks or 6 years and should any account be taken of Covid?

For the second time in two years the Court in, R (On the Application Of Croyde Area Residents Association) v North Devon District Council and Parkdean [2021] EWHC 646 have allowed a Judicial Review (JR) to proceed substantially outside of the usual 6 week period in which to bring a claim. Readers may remember that in April of 2019 the Court of Appeal in the Thornton Hall decision (Thornton Hall Hotel Ltd, R (On the Application Of) & Anor v Thornton Holdings Ltd [2019] EWCA Civ 737 (30 April 2019)) upheld the decision to quash a permission for the erection of 3 marquees to be used for weddings and other live events when the challenge had been lodged more than 5 years after the permission had been granted. It was thought that the circumstances of that case were quite unique, the Council having ‘forgot’ to impose a time limiting condition ensuring the permission expired within 5 years. You can see how on the facts of that case the failure on the part of the Council might only have become apparent to an aggrieved party when the venue continued to operate beyond the expected 5 year life time of the permission.

Although those circumstances seem unique, in a judgment handed down only last month the Courts have once again allowed a JR to proceed beyond the usual 6 week time limit specified in the Court Procedure Rules and in fact allowed a claim to be brought more than 6 years after the permission being challenged was granted. The case (Parkdean Holidays Croyde Area Residents Association, R (On the Application Of) v North Devon District Council [2021] EWHC 646 (Admin) (19 March 2021)) related to a holiday park and a blatant error in the approved drawings that inadvertently authorised the pitching of caravan stations over a much wider area than had been intended in the application. In fact it was contended the error extended to an area so large as would have required the decision to be subject to a screening decision under the Environmental Impact Assessment Regulations which of course had not been attended to as the application had never been intended to relate to such an expansive area.

The Court were very clear that the particular facts of the case were even more exceptional than those in the Thornton Hall decision. There seemed to be agreement between the Developer and the local authority in the first 4 years after the permission was granted that the permission did not have the effect of relating to the extended area. When the Developer’s position on this point changed (in the context in which they made an application for a lawful development certificate “LDC”), although the objectors to the proposal could at that point have sought to mount a legal challenge against the original grant of the planning permission, the Court accepted that it would have appeared unnecessary to do so and would have involved a convoluted legal position by the objectors having to argue the opposite of what they would be saying to the LDC inspector.

The Court then examined the period of some 4-5 months after the grant of the lawful development certificate when a judicial review of either the LDC or the original permission could have been brought. Rather intriguingly, on the question of the delay in respect of this period, the Court appeared to take account of the fact that the LDC decision came shortly before the start of the Covid-19 lockdown and that it was difficult in those early months to arrange virtual meetings and for a collective decision to be made by a group of objectors. Therefore, the difficulties posed by Covid, particularly to local residents some of whom were elderly, was found to be a factor in the delay issue and the Court found on balance that permission should be granted to allow the challenge outside of the normal 6 week period – in fact some six and a half years had passed from the date that the planning permission was originally granted until the date on which claim challenging its validity was ultimately brought.

It will be clear that the facts of the Parkdean case, like the Thornton Hall case before it, involved a set of very unique circumstances. Nonetheless the case serves as a strong reminder that there is no blanket rule that entirely restricts a legal challenge being brought outside of the usual 6 week period and developers should be live to the particular circumstances of every case and any prejudice that may be caused by relying on the grant of a planning permission, particularly one that is granted in a form that is blatantly incorrect.

What is the relevance of Greenhouse Gas emissions and Climate Change to planning?

It’s sometimes difficult to know where to draw the line when it comes to considering the effects of a proposal. That difficulty is all the more challenging when the effects are environmental and the duty doesn’t relate to just considering those effects that are directly given rise to, but to the indirect effects as well. This is a point the Court wrestled with in the recent High Court decision in R (Finch) v Surrey County Council [2020] EWHC 356.

The signing of the Paris Agreement and the coming in to force of the Climate Change Act has shone a light on the importance of reducing emissions and no one can deny that there is now a great deal of public concern and debate on the measures necessary to meet the government’s self-imposed net zero target for 2050. However for a matter that is of such public interest, there is surprisingly little if anything by way of national planning policy or ministerial guidance when it comes to how those factors should be assessed as part of the determination of a planning application.

Some help was provided by the Court in December of last year when they refused an application for judicial review of Surrey County Council’s decision to grant planning permission to Horse Hill Developments for the expansion of two existing oil wells and the drilling of four new wells at its Surrey site. The High Court considered whether a developer’s obligations under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to provide an environmental statement describing the likely significant effects of a development requires an assessment of the greenhouse gas (“GHG”) emissions resulting from the use of an end product originating from the development (in this case, the use of oil by consumers at a location remote from the main proposal).

The Court held that while the environmental impact assessment must address the environmental effects (both direct and indirect) of the development for which planning permission is sought (and any larger project of which the development forms a part), this does not need to extend to matters that are not effects of the development or project in question. Consequently, the court did appear to draw a line of where that assessment should end and concluded that the scope did not include the environmental effects of consumers using an end product which will be made in a separate facility from the materials to be supplied from the development being assessed (noting that the end use of the product would take place in locations which are unknown and unrelated to the development site). Further, the Court confirmed that the assessment of GHG emissions from the future combustion of refined oil products emanating from the development site was, as a matter of law, incapable of falling within the scope of the required environmental impact assessment.

Therefore although it sometimes is difficult to know where the line should be drawn when assessing the effects of a proposal, the Court helpfully appeared to do precisely that in the Finch decision albeit last month permission was given to appeal the decision and the judgment from the Court of Appeal is awaited.

If you have any questions on the issues covered in this update and how they will affect you, please do not hesitate get in touch.

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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