Variation of planning permission

January 30th, 2023 by James Goudie KC in Planning and Environmental

Section 73 of TCPA 1990 applies to Applications to develop land without compliance with conditions subject to which a previous planning permission was granted. ARMSTRONG v SoS for LEVELLING-UP etc and CORNWALL COUNCIL (2022) EWHC 142 (KB) concerned a refusal by the Council of the Claimant’s application to vary the plans for construction of a new dwelling under an extant planning permission. The main issue that arose was whether the Planning Inspector lawfully concluded that the Application would give rise to a fundamental variation to that permission  such that the Application fell outside the scope of Section 73, in circumstances where the variation of the condition would not give rise to any conflict with the description in that permission of the development. The Court held that the Planning Inspector did not act lawfully, for any or all of 8 reasons, set out at paras 74-94 inclusive. The correct starting point is that there is nothing in Section 73 that restricts its application to non-fundamental variations. Provided that an application is limited to non-compliance with a condition, rather than any other part of the permission, it is within the scope of Section 73.


Principle of consistency

January 18th, 2023 by James Goudie KC in Decision making and Contracts

In R (Blacker) v Chelmsford City Council (2023) EWCA Civ 25 the Court of Appeal holds that a local authority’s Planning Committee had not breached the “ principle of consistency” in decision-making by refusing to grant planning permission for a development despite having previously indicated that it was “minded” to grant permission. The initial indication was just that. It was not a substantive decision. Having given it, the Committee’s decision was to defer the application for consideration at a subsequent Meeting. All options were left open.

The Committee had acted in accordance with the authority’s statutory Constitution. The Constitution required deferment because approval involved rejecting the Planning Officer’s Recommendation.

The importance of consistency in decision-making means that when there has been a previous decision to grant or refuse planning permission in respect of the same site that is capable of being a material consideration on a later application; and if the decision-maker is minded to depart from the previous decision it has to engage with the reasons for that decision and explain its departure from them.

However, the principle of consistency was not engaged. That was because there had been no earlier substantive decision.

The deferral requirement in the Constitution aimed to give the decision-making Committee the opportunity to stand back and think twice about the implications of rejecting an Officer Recommendation. That was the process that the Committee had duly followed.


Age assessment guidance

January 18th, 2023 by James Goudie KC in Social Care

In R (MA) v SSHD (2022) EWCA Civ 1663 the Court of Appeal holds that the SSHD’s Guidance relating to short-form age assessments conducted in a Kent intake unit for asylum seekers was lawful. The Guidance could be operated consistently with the Merton requirements for age assessments.

Guidance can be set aside only if it permits or encourages unlawful conduct. Permitting means something akin to sanctioning or positively approving, not merely that an action is not forbidden. The question is whether a policy authorised or approved unlawful conduct.

A public authority promulgating a policy is not required to include a detailed and comprehensive statement of the law in the area.


Climate Change

January 16th, 2023 by James Goudie KC in Planning and Environmental

Only Treaties which have been incorporated into domestic law give rise to legally enforceable rights. The 2015 Paris Climate Change Agreement has not been incorporated into domestic law. The Court of Appeal in R (Friends of the Earth) v Secretaries of State (2023) EWCA 14 holds that it was a tenable interpretation of the Treaty that approval of an investment in a liquefied natural gas project was aligned with the UK’s obligations under the Treaty. On the basis that questions of interpretation of an unincorporated Treaty are for the Executive to determine, the Court holds that a decision-maker cannot be challenged when they adopt a tenable view on a point of unincorporated international law.


Interpretation of contracts

January 13th, 2023 by James Goudie KC in Decision making and Contracts

In MALIK v HUSSAIN (2023) EWCA Civ 2, concerned with exchange of land contracts, at paras 40 &42 the Court of Appeal affirms that the question of interpretation of a contract is, and must be kept, distinct from the issue of whether terms are to be implied into the contract. The process of implication involves a rather different exercise than that of interpretation.  The express terms must be interpreted before one can consider the question of implication. The appropriate course is first to interpret the express provision , carrying out the unitary exercise and adopting the iterative approach identified and explained in the Supreme Court in WOOD v CAPITA, it being unimportant whether one starts with the factual background and the consequences of rival constructions or a close examination of the relevant language in the contract. constructions


Whether discrimination in charging

January 12th, 2023 by James Goudie KC in Social Care

In McCue’s Guardian v Glasgow City Council ((2023) UKSC 1 the Supreme Court held that the Council, in assessing the charge to be levied on a person in receipt of community services had not discriminated against the person by reason of his disability by refusing to allow deduction of certain items of expenditure, which he classed as disability related expenditure, when assessing his available means. The Supreme Court addressed unfavourable treatment, Section 15 of the Equality Act 2010, and Section 20 of  the Equality Act, reasonable adjustments. The appeal was concerned with the effect of the Equality Act in relation to the provision of community case services to disabled persons and the providing local authority’s entitlement to charge for those services. Lord Sales considered Section 15 at paras 54-63 inc and Section 20 at paras 64-76 inc.


Care Act or Housing Act?

January 10th, 2023 by James Goudie KC in Housing

R (Campbell)v EALING LBC (2023) EWHC 10 (Admin) concerns the withdrawal of funding of temporary accommodation and the  interaction and interplay between a unitary  local authority’s obligations under the Care Act 2014 and its obligations under Parts VI and VII of the Housing Act 1996. The lawfulness of the Council’s funding of the Claimant’s accommodation was at the centre of the case. Section 23 of the Care Act prohibited the meeting of a housing need that is required to be met under the Housing Act. Although the need for accommodation is not a need for care and support under the Care Act, local authorities have a power to provide accommodation under the Care Act in circumstances where accommodation is required to deliver care and support effectively. This power is not however unfettered. It does not extend to scenarios in which Section 23 bites. The Council had obligations under Part VI of the Housing Act under which the Claimant was a qualifying person and duly placed on the Council’s housing register. The Council owed duties to the Claimant under Part VII, but he wanted to pursue a Part VI process.


Caravan site licences

January 10th, 2023 by James Goudie KC in Planning and Environmental

In TALLINGTON LAKES LTD v SOUTH KESTEVEN DISTRICT COUNCIL (2022) UKUT 334 (LC) the Tribunal addresses the concepts of “occupier” and “relevant protected site” under the Caravan Sites and Control of Development Act 1960. The appellant, the freeholder of the site, was found to be the occupier and the correct licence holder. The appellant’s argument that it was the management company which operated the caravan park that was the occupier failed. An occupier had to occupy the land by virtue of an estate or interest therein. That meant an equitable estate or interest. That did not encompass a licensee or the manager under a management contract. Where the licence and planning permissions allowed mixed use that included residential the site was a relevant protected site.


Indirect discrimination in allocation

January 10th, 2023 by James Goudie KC in Housing

In R(TX) v Adur District Council (2022) EWHC 3340 (Admin) the Court held that the Council’s local connection criterion for priority, albeit expressed neutrally, was  discriminatory, disproportionate, and unlawful. It put women at a disadvantage. Women were significantly more likely to be victims of domestic abuse and as a result have to move to the area of another local housing authority.


Disclosure of information

January 10th, 2023 by James Goudie KC in Non Judicial Control

In SPOTLIGHT ON COMPETITION v INFORMATION COMMISSIONER, EA-2022-0014 & EA-2022-0061, the First Tier Tribunal is concerned with loans to support businesses during the Covid pandemic, holds that it is not in the public interest to release information that could expose the recipients to fraudsters by revealing the recipients’ names, and summarises the principles relating to the “commercial interests “ exemption from disclosure under the Freedom of Information Act 2000 as follows : –

  1. “ Commercial interests “ should be interpreted “ broadly “ : paras 188/189;
  2. The exemption is “ prejudice based “ : para 190;
  3. The prejudice must be more probable than not : there must be a real and significant risk of prejudice : ibid;
  4. The public authority must show that (i) there is some causative link between the potential disclosure and the prejudice, and (ii) the prejudice is real, actual or of substance : ibid;
  5. The harm must relate to the interests protected by the exemption : ibid;
  6. It is a qualified exemption : para 191;
  7. In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect : para 192;
  8. Where the specified activity or interest which would be likely to be prejudiced is a public interest, there is an overlap between whether or nor not the commercial interest exemption is engaged and any subsequent analysis of the public interest test : para313;

There is a public interest in preventing prejudice to commercial interests : para 314.