In R (Asda Stores) v Leeds City Council (2019) EWHC 3578 (Admin), Lieven J held, considering Zurich Assurance v North Lincolnshire Council (2012) EWHC 3708, that paragraph 90 of the NPPF, which provides that planning permission for out-of-town retail developments “should” be refused where the proposed development was likely to have significant adverse impact on town centre vitality and viability, did not create a presumption in favour of refusing such developments. It was still for the decision-maker to weigh the competing material considerations. Paragraph 90 did not create a presumption in favour of refusal. The NPPF had to be read as a whole, and in a way that made sense of the document as a whole. It was notable that, in relation to sustainable development, the NPPF used the specific term “presumption”, set out a structure by which that presumption was to be applied, indicated the particular circumstances it could be outweighed, and explained how it worked in particular types of case. This created a “tilted balance”, which gave effect to the presumption. By contrast, the word “presumption” was not used in paragraph 90, there was no suggestion of a tilted balance, and there was no attempt to tell decision-makers that they should put more weight on one factor rather than another. Although there were paragraphs in the NPPF which indicated, as a matter of policy, that particular weight should be given to particular matters, paragraph 90 was not one of them. Thus, the retailer’s argument could not be correct on a textual analysis of the NPPF as a whole. Moreover, the approach for which it contended would create a legal minefield for decision-makers, with potentially different presumptions pulling in different directions. That was precisely the type of excessive legalism infecting the planning system which the decision in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 warned Courts to be vigilant against.
Probity in Planning
December 23rd, 2019 by James Goudie KC in StandardsThe LGA has published an updated Guide on Probity in Planning for Councillors and Officers making planning decisions. It addresses the planning system and the role of decision makers; Councillor and Officer conduct; registration and disclosure of interests; predisposition, predetermination, or bias; development proposals; lobbying of and by councillors; discussions before a decision is taken; Officer Reports to Committee; public speaking at Planning Committees; decisions which differ from a Recommendation; Committee Site Visits; reviewing past Planning Decisions and the outcomes; and complaints and record keeping.
Permitted Development Orders
December 23rd, 2019 by James Goudie KC in Planning and EnvironmentalNew World Payphones Ltd v Westminster City Council (2019) EWCA Civ 2250 raised important questions concerning the proper approach to the scope of development covered by a permitted development order.
Time Limits
December 23rd, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn the 2019 Rail Franchising Litigation, SoS for Transport v Arriva Rail East Midlands Ltd (2019) EWCA Civ 2259, the issue in the appeal was the applicable time limit for the bringing of claims arising out of a public procurement process which was not governed by the Public Contracts (and similar) Regulations. It raised the stark contrast between the 3-month time limit required for an application for Judicial Review, and the 6-year limit for a claim for breach of statutory duty provided by the Limitation Act 1980. It also raised an issue as to the correct approach to the 3-month limit where the public law issues arise not from a one-off decision, but an ongoing process.
Environmental Information
December 19th, 2019 by James Goudie KC in Environment, Highways and LeisureThe question that arose in DoT v ICO (2019) EWCA Civ 2241 was as to the application to the information in issue of the definition of “environmental information” in the Environmental Information Regulations 2004 (“the EIR”), implementing EU Directive 2003/4/EC. The case concerned information of potentially “mixed character”: some environmental material, and some not.
Landlord Liability
December 17th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationEssex County Council v Davies (2019) EWHC 3443 (QB) mainly concerned the long established Cavalier v Pope principle that a landlord is not liable for injuries arising from a property having been let in a dangerous state. The nine claimants were employees and visitors at a College leased from the County
Non-Domestic Rates
December 13th, 2019 by James Goudie KC in Council Tax and RatesIn Derby Teaching Hospitals NHS Trust and 16 Others v Derby City Council and 44 Others (2019) EWHC 3436 (Ch) the 17 Claimant NHS Foundation Trusts accepted that they occupied Hospitals and other properties on which they were liable to pay non-domestic rates to their local rating authorities, but claimed that they were entitled to a discount because they were a charity or occupied the relevant property wholly or mainly for charitable purposes: Section 43(6) of the Local Government Finance Act 1988. The claims failed. Morgan J held that Foundation Trusts, under the consolidating National Health Service Act 2006, albeit public benefit corporations, are not charities within Sections 1-4 of the Charities Act 2011.
Village Greens: “Statutory Incompatibility”
December 12th, 2019 by James Goudie KC in Land, Goods and ServicesIn linked appeals R (Lancashire County Council) v SoS for DEFRA and R (NHS Property Services Ltd) v Surrey County Council (2019) UKSC 58, the Supreme Court was primarily concerned with the issue whether the concept of “statutory incompatibility” applies to prevent land from being registered as a village green where it is held for general statutory purposes.
Judicial Review
December 10th, 2019 by James Goudie KC in Judicial Control, Liability and LitigationIn Attorney General of Trinidad and Tobago v Ayers-Caesar, (2019) UKPC 44, Lord Sales for the majority of the Privy Council, reiterated, at paragraph 2, that (1) the threshold for the grant of leave to apply for judicial review is “low”; and (2) all that is to be examined is whether there is “an arguable ground for judicial review which has a realistic prospect of success”; but (3) wider questions of the public interest may have “some bearing” on whether leave should be granted; and (4) if the Court is “confident” at the leave stage that the legal position is “entirely clear” and to the effect that “the claim could not succeed”, it would “usually be appropriate” for the Court to dispose of the matter at that stage.