Residential development

March 18th, 2016 by James Goudie KC in Planning and Environmental

There were two important issues before the Court of Appeal in Suffolk Coastal District Council v Hopkins Homes Ltd [2016] EWCA Civ 168: (1) what is the meaning of “relevant policies for the supply of housing” in paragraph 49 of the National Planning Policy Framework (“the NPPF”)?  (2) How are those policies to be applied?

The Court of Appeal gave a wide interpretation to “relevant policies for the supply of housing”. The Court ruled that they are not confined to policies that provide positively for the delivery of new housing, in terms of numbers and distribution or the allocation of sites.  The concept extends to plan policies the effect of which is to influence the supply of housing land, by restricting the locations where new housing might be developed.

Lindblom LJ, delivering the Judgment of the Court, stated, at paragraph 25, that their interpretation of the policy in paragraph 49 of the NPPF must be “faithful to the words of the policy, read in their full context and not in isolation from it”. He continued:-

“26.    The broad context is provided by the policies of the NPPF read as a whole … The Government’s aim of providing “the supply of housing to meet the needs of present and future generations” in paragraph 7 of the NPPF is reflected generally in the policies for sustainable development, in the policies for plan-making, and in the policies for decision-taking. It is part of the “social role” of the planning system in achieving sustainable development referred to in paragraph 7 of the NPPF. And it sits in the part of the NPPF where the Government has gathered its policies for delivering “sustainable development” …

27. The more specific context is set by the policies for housing development in the paragraphs immediately preceding and following paragraph 49, in the section devoted to the Government’s objective of “[delivering] a wide choice of high quality homes”… These policies are partly directed to plan-making and partly to decision-taking. Underlying them all is the basic imperative of delivery. Where they concern plan-making, their aim, very clearly stated at the beginning of paragraph 47, is to “boost significantly the supply of housing”. The first requirement in that paragraph – that an authority must “ensure” that its local plan meets the “full, objectively assessed needs” for housing, “as far as is consistent with the policies set out in [the NPPF]” – involves the making of an objective assessment of need before considering the impact of other policies in the NPPF… The second requirement is for local planning authorities to “identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements …”.

28.… for many years successive governments have relied on the planning system to increase the supply of housing land. At least since the 1970’s national planning policy has contained either an objective or a requirement for local planning authorities to identify and maintain a five-year supply of housing land. Between 1988 and 1992 there was a policy presumption in favour of planning permission being granted for housing where no five-year supply existed in the authority’s area … The advent of the NPPF marked a significant policy shift. …

28. The policy in paragraph 49 is not a policy for plan-making; it is a policy directed to the consideration of “[housing] applications”. But it is linked to the policy for plan-making in paragraph 47 in a very obvious way, because it is predicated on the requirement for the local planning authority to “demonstrate a five-year supply of deliverable housing sites”.

29. Paragraph 49 is also connected to the policy for the application of the “presumption in favour of sustainable development” in paragraph 14 …”

30.  We turn then to the words of the policy themselves, viewed in the context we have described

31. The contentious words are “[relevant] policies for the supply of housing”. In our view the meaning of those words, construed objectively in their proper context, is “relevant policies affecting the supply of housing”. … Not only is this a literal interpretation of the policy in paragraph 49; it is, we believe, the only interpretation consistent with the obvious purpose of the policy when read in its context. A “relevant” policy here is simply a policy relevant to the application for planning permission before the decision-maker – relevant either because it is a policy relating specifically to the provision of new housing in the local planning authority’s area or because it bears upon the principle of the site in question being developed for housing. … The “supply” with which the policy is concerned, as the policy in paragraph 49 says, is a demonstrable “five-year supply of deliverable housing sites”. Interpreting the policy in this way does not strain the natural and ordinary meaning of the words its draftsman has used. It does no violence at all to the language. On the contrary, it is to construe the policy exactly as it is written

32. Our interpretation of the policy does not confine the concept of “policies for the supply of housing” merely to policies in the development plan that provide positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites. It recognizes that the concept extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development. It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is.”

Moving on to how the policy in paragraph 49 of the NPPF is to be applied, Lindblom LJ said:-

“43.    When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted.

44. The NPPF presents the decision-maker with a simple sequence of steps when dealing with a proposal for housing development. The first step, under the policy in paragraph 49, is to consider whether relevant “policies for the supply of housing” in the development plan are “out-of-date” because “the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”. Gauging the housing land supply will entail the use of the appropriate method of assessment, whatever that may be …

45. Whether a particular policy of the plan, properly understood, is a relevant policy “for the supply of housing” in the sense we have described is not a question for the court. It is, …, a question for the decision-maker. Provided the decision-maker acts on the correct understanding of the policy in paragraph 49 of the NPPF, and also on the correct understanding of the development plan policy in question, these being matters for the court, it is for him to judge whether the plan policy is or is not a relevant policy for the supply of housing. That is a matter for his planning judgment, and the court will only intervene on public law grounds. If the decision-maker finds that relevant policies of the plan are “out-of-date”, he applies the “presumption in favour of sustainable development” in the way that paragraph 14 of the NPPF requires. Again, he will be exercising his planning judgment, and again, therefore, the court will only review that exercise of judgment on public law grounds.

46. We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make “out-of-date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker …”

 

Environmental impact assessment

March 17th, 2016 by James Goudie KC in Planning and Environmental

When a local planning authority (“LPA”) issues a screening opinion stating that no environmental impact assessment is required, reasons have to be given, in accordance with the ECJ decision in Mellor.  Hickinbottom J in R (Jedwell) v Denbighshire County Council [2016] EWHC 458 (Admin) cautioned that every case is necessarily fact specific, but stated, at paragraph 94, that the following propositions in relation to the giving of reasons can be derived from principle and the authorities:-

  1. A LPA required to give reasons for a negative screening opinion within a reasonable time of a request;
  2. Those had to be the reasons in its mind at the time of the decision, and not an ex post facto justification;
  3. Given the possibility of a request coming in perhaps months or even years after the EIA screening decision was taken, LPAs would no doubt wish generally to maintain a note of the decision-maker’s reasons for any negative screening decision, so that those reasons could be sent out if and when any request was made;
  4. Once proceedings are issued, whilst it would be too late for a LPA to avoid a breach by providing reasons, if the LPA thereafter provided reasons, and the Court was persuaded that they were indeed the reasons in the LPA’s mind at the time of the decision, the Court was likely to be slow to quash the planning permission;
  5. If no contemporaneous reasons were forthcoming (including, a situation where the Court rejected the submission that reasons put forward were contemporaneous), then in accordance with usual public law principles, the planning permission should be quashed unless the LPA could show that the decision would inevitably have been the same if the breach had not occurred; or, if remitted, the decision would now be the same.

 

Ambiguous planning permission

March 17th, 2016 by James Goudie KC in Planning and Environmental

It is well established that in construing a public document such as an outline planning permission which is clear, unambiguous and valid on its face, the general rule is that may be had only to the planning permission itself, including the conditions to which the permission is subject and the expressed reasons for those conditions. This rule excludes reference to extrinsic evidence, including even the planning application, unless the planning permission itself incorporates the application by reference, in which case the application is treated as having become part of the permission. However, where there is an ambiguity in a planning permission, it is permissible to look at extrinsic evidence to resolve that ambiguity. This includes, but is not confined to, the application form, the site plan, and other documentary evidence, such as a Section 106 agreement. In University of Leicester v SoS for CLG and Oadby & Wigston Borough Council [2016] EWHC 476 (Admin) Supperstone J said that all relevant extrinsic evidence could be referred to depending on the circumstances of the case.  This might include evidence of the way in which the permission was actually implemented on the ground, albeit this could not be conclusive.   The first port of call in any examination of extrinsic evidence will usually be the application for permission. It may not, however, be the end of the matter.  When it does not resolve the ambiguity, other extrinsic material may be referred to, including non-documentary material.

 

Council tax liability order

March 17th, 2016 by James Goudie KC in Council Tax and Rates

In Williams v East Northamptonshire District Council [2016] EWHC 470 (Admin) the Court held that the authority’s application, under the Council Tax (Administration and Enforcement) Regulations 1992, S.I.1992/613, for a council tax liability order was not invalidated by its additional inclusion of a claim for an amount of costs. The application contained what it needed to. There was no prohibition against including additional information that was not required at that stage. The application clearly differentiated between the two.  The costs would be claimable in the event that a liability order was made.  There was nothing misleading, no abuse of process, and no usurping of the authority of the Magistrates’ Court with respect to costs.  Indeed the amount of costs that would be claimed, and could in due course be contested, was precisely the sort of information which ought to be made available.

 

Charges for water and sewage services

March 8th, 2016 by James Goudie KC in Local Authority Powers

Newey J described the point in Jones v Southwark LBC [2016] EWHC 457 (Ch) as being one of “considerable importance”.  This was both because Southwark itself had numerous tenants who could be affected, and because it could have implications for other landlords.

The point arose in this way. For decades, Southwark had collected from many of its tenants, including the claimant, charges for water and sewerage services.  These services were supplied to the properties by Thames Water.

The questions raised by the case were, first, whether the Water Resale Order 2006 (“the 2006 Order”) applied to these arrangements, and, second, if it did, whether Southwark had charged its tenants more than was permissible under the 2006 Order. The answers turned, in part, on whether Southwark had been acting as an agent or had been buying and re-selling the services.

The Judge concluded that the relationship between Thames Water and Southwark was not one of principal and agent, but involved Southwark buying water and sewerage services from Thames Water and re-selling them to its tenants; as a result ,the 2006 Order did apply and served to limit what tenants could be charged; and the amounts that Southwark charged Miss Jones exceeded the “maximum charge” allowed under the 2006 Order.

 

Implied contractual term as to planning consent

March 4th, 2016 by James Goudie KC in Decision making and Contracts

Walter Lilly & Co Ltd v Clin [2016] EWHC 357 (TCC) concerned a contract for the demolition, refurbishment and reconstruction of a property to form a single residence. Whilst the works were underway, the local planning authority, the Royal Borough of Kensington and Chelsea, wrote to the parties stating that the extent of the demolition was such that conservation area consent was required.  Edwards-Stuart J held that a term should be implied into the contract that the owner would provide the authority with the information its planning officers required in order to process the application for consent, but not a term that consent should be obtained. This was not within the owner’s control.

The Judge said:-

“54.    The reasonable man in the position of the parties would, in my view, have in mind that, in general, a person who wishes to develop his land will know either that he is likely to need planning permission or, in the case of a residential development, that he must satisfy himself that the development proposed is exempt from the requirement for planning permission. The same applies to conservation area consent where the property is in a conservation area.

  1. In principle, planning permission needs to be obtained in advance: it can be obtained retrospectively, but this is obviously risky. But even when applied for well in advance, everyone knows that planning permission cannot be taken for granted. For example, the prospects of planning permission being given may depend to a large extent on the attitude of owners of neighbouring properties. Similar considerations may apply to conservation area consent.
  2. In this case it seems to me to be obvious that the parties must have intended that someone should have the responsibility for applying for planning permission. This is not a case where, because nothing is said expressly in the contract, the parties could have intended that nothing should happen about planning permission: planning permission had to be obtained in order for the development to go ahead. In addition, it seems to me that it would be equally obvious to an informed bystander that the party best placed to obtain planning permission is the employer, not least because he is the party who knows well in advance what he wants to do. The contractor does not find that out until he is invited to tender, by which time it may be too late for planning permission or conservation area consent to be obtained in time. Any reasonable person would know that a failure to make a timely application for the necessary permission or consent might well result in delay (unless of course the contractor has indicated that is prepared to take the risk of carrying out the work without that permission or consent).
  3. It appears to be common ground that the primary responsibility for applying for planning permission rests with the employer. The essential point at issue between the parties is whether a term should be implied to the effect that the employer will ensure that planning permission is obtained, or whether there should be a more limited obligation – for example, to exercise reasonable diligence to obtain the necessary planning permission.”

The Judge said, at paragraph 67, that he could see no justification for imposing on either party sole responsibility for the consequences of capricious conduct by the local authority. For the contract to work it was not necessary that either party alone should bear that risk. The contract can work just as well if that risk is left to lie where it falls. It is a situation where, since the contract has not provided how the risk should be borne, no provision should be made.

The Judge concluded that the correct formulation of the implied term was not one for which either side contended.

 

Community infrastructure levy

March 4th, 2016 by James Goudie KC in Capital Finance and Companies

In R (Orbital Shopping Park Swindon Ltd) v Swindon BC [2016] EWHC 448 (Admin) Patterson J summarised, so far as relevant to the case before her, the statutory scheme with respect to the Community Infrastructure Levy (“the CIL”), charged by a local authority under Section 206(1) of the Planning Act 2008 (“PA 2008”) and the CIL Regulations 2010, as amended, in respect of development in the authority’s area, as follows:-

  1. A local authority’s power to charge CIL in respect of development within its area arises when development is commenced in reliance on a planning permission involving chargeable development: Section 208 of PA 2008;
  2. The ability to charge CIL is a discretionary one on the part of a charging authority: Section 206 of PA 2008;
  3. The CIL Regulations can provide for works of a specified kind not to be treated as development;
  4. That is what Regulation 6 of the CIL Regulations is concerned with;
  5. Regulation 6(1) sets out expressly which works are not to be treated as development for the purposes of Section 208 of PA 2008;
  6. That includes work in respect of an existing building for which planning permission is required only because of Section 55(2) of the Town and Country Planning Act 1990 (“TCPA 1990”);
  7. Section 55(2)(a) of TCPA 1990 sets out uses of land or operations which are not to be taken to involve development;
  8. Section 55(2)(a)(i) states that works which affect only the interior of the building do not involve development;
  9. Section 55(2A) empowers the SoS, by Development Order, to specify or describe circumstances in which Section 55(2) does not apply to operations set out in Section 55(2)(a);
  10. The SoS has made the Town and Country Planning (Development Management Procedure) (England) Order 2015;
  11. CIL can be imposed only when both the liability and the amount of the liability are clearly defined.

The Council had acted unlawfully by interpreting two separate planning permissions as one. The Claimants had taken advantage of a legislative scheme which permitted it to submit two separate planning applications for each act of operational development that it wished to pursue. There was no manipulation of the system for any ulterior and/illegal motive in splitting the operational works.

 

Extensions of time

March 4th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

There is no special rule for public authorities when it comes to applications for an extension of time. The principles applicable derive from the decisions of the Court of Appeal in Mitchell v NGN (2013) EWCA Civ 1537 and Denton v White (2014) EWCA Civ 906.  A Judge must approach an application for relief from sanction in three stages, as follows:-

  1. The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a Judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the Judge decides that the breach is serious or significant, then the second and third stages assume greater importance.
  2. The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. If there is a good reason for the default, the Court will be likely to decide that relief should be granted. However, even if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.
  3. The third stage is to evaluate all the circumstances of the case, so as to enable the Court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with Rules, Practice Directions and Court Orders. The Court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it.


In SSHD v Razia Begum (2016) EWCA Civ 122 the Court of Appeal has reaffirmed, at paragraphs 14/15 and 23, that there is no special rule for public law cases.  However, the “importance of the issues to the public at large” can properly be taken into account at the third stage.

 

Model Code of Conduct (Wales)

March 3rd, 2016 by James Goudie KC in Standards

Section 50(2) of the Local Government Act 2000 requires a Model Code to be issued by Order as regards the conduct which is expected of members, and co-opted members, of “relevant authorities” (as defined) in Wales. These are County Councils, County Borough Councils, Community Councils, Fire and Rescue Authorities and National Park Authorities.  There was duly made the Local Authorities (Model Code of Conduct) (Wales) Order 2008, S.I. 2008/788 (W.82), (“the 2008 Order”).  The Schedule to the 2008 Order sets out such a Model Code of Conduct.

This is now amended by the Local Authorities (Model Code of Conduct) (Wales) (Amendment) Order 2016, S.I. 2016/84 (W.38), (“the 2016 Order”), coming into force on 1 April 2016. The 2016 Order recites that the Welsh Ministers (i) have carried out the requisite consultation and (ii) are satisfied that the amendments are consistent with the principles specified in the Conduct of Members (Principles) (Wales) Order 2001, S.I. 2001/2276.

Article 2 of the 2016 Order amends the following paragraphs of the Model Code set out in the Schedule to the 2008 Order:

paragraph 1(1), by inserting a definition of “register of members’ interests”;

paragraph 1(2), by inserting a definition of “proper officer” and providing clarification with regard to references to Standards Committees in relation to a Community Council;

paragraph 3(a), by omitting the reference to police Authorities;

paragraph 6(1)(c), by removing the requirement for members to report potential breaches of their Code of Conduct to the Public Services Ombudsman for Wales;

paragraphs 11(4), 15(2), 16(2) and 17, by transferring some functions from Monitoring Officers to the proper officers of Community Councils:

paragraph 12(2)(b)(iv), to reflect the new provisions contained in Part 8 of the Local Government (Wales) Measure 2011 in relation to allowances and payments;

paragraph 14, by inserting new sub-paragraphs (2A) and (2B) which permit members to submit written submissions to a meeting which is dealing with a matter in respect of which a member has a prejudicial interest: written submissions are permitted only in those circumstances in which a member would otherwise be permitted to make oral representations to a meeting in relation to a matter, and if the member’s authority adopts a procedure for the submission of written submissions, members must comply with that procedure;

paragraph 15 is restated. The restatement clarifies that any interest disclosed, whether that interest is disclosed in accordance with paragraphs 11 or 15 of the Model Code, should be registered in the authority’s register of members’ interests, by giving notification to the Monitoring Officer, or, in relation to a Community Council, to the proper officer of that authority.

Article 2 of the Order omits paragraph 10(2)(b) of the Model Code set out in the Schedule to the 2008 Order. This clarifies that a member of a relevant authority is not to be regarded as having a personal interest in a matter when making, or participating in, decisions on behalf of the authority simply for the reason that the business being considered at the meeting affects that member’s ward.

 

Local Authority co-operation

March 3rd, 2016 by James Goudie KC in Decision making and Contracts

A Judge recently struck out a claim brought by two dogs. He did not see how a dog could give instructions for a claim to be brought on its behalf.  Nor did he see that it could be liable for any orders made against it.  Another limitation on litigating is that you cannot sue yourself.  If there is a dispute it must be resolved without recourse to litigation when the disputants do not have separate legal personalities.  A local authority has only one legal personality. So for example the client side of the authority cannot sue the contractor side or vice versa; and the department, say the social services department, cannot sue another department of the same authority, say the housing department.  This is a somewhat anomalous situation, because it means that in the case of a unitary authority the departments have to resolve any differences without going to Court, whereas in a two-tier area, with the functions split between the tiers, the potential is there for the authorities to litigate with each other.

Section 27 of the Children Act 1989 is headed “Co-operation between authorities”. It contains a power: where it appears to a local authority that any other authority could help in the exercise of their functions with respect to the provision of services for children in need, the first authority may request the help of that other authority.  The Section also contains a duty: an authority whose help is so requested shall comply with the request (if it is compatible with their duties and obligations and does not unduly prejudice the discharge of any of their functions).

The case of M&A v Islington LBC [2016] EWHC 332 (Admin) was an application on behalf of two severely autistic children for judicial review of a failure to rehouse them, in accordance with Section 17 of the Act, where the sole authority involved was a London Borough, a unitary authority, both social services and housing authority.  Therefore Section 27 could not apply directly in the way it would as between a county council as social services authority and a district council as housing authority.

However, Collins J ruled that the requirements of Section 27 did apply indirectly. This was because the Council was statutorily required to act under the general guidance of the Secretary of State, and such guidance required the same degree of co-operation between departments in a unitary authority.

 

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