Direct Action: Natural Justice

October 12th, 2017 by James Goudie QC in Planning and Environmental

A local planning authority has power to take direct action. This is pursuant to Section 178 of the Town and Country Planning Act 1990 (“the TCPA”).  That empowers the LPA to enter land and take the steps required by an enforcement notice once the period for compliance with the notice has expired. Read more »


Residential Parking Permit

May 15th, 2017 by James Goudie QC in Planning and Environmental

A requirement in a planning permission that a property developer enter into an obligation that future occupiers of a building would not apply for a residential parking permit is not capable of being a planning obligation under Section 106 of TCPA 1990. Use of the highway for parking was not use of land in which the person making the agreement was interested.  (However, it was legally valid under a Greater London Council (General Powers) Act.)  So held in R (Khodari) v Kensington & Chelsea RLBC (2017) EWCA Civ 333.


Planning and Environmental

May 10th, 2017 by James Goudie QC in Planning and Environmental

The unsuccessful appeals by the Councils concerned to the Supreme Court in Suffolk Coastal DC v Hopkins Homes Ltd and Richborough Estates Partnership LLP v Cheshire East BC (2017) UKSC 37 related to the proper interpretation of paragraph 49 of the National Planning Policy Framework (“NPPF”), as well as the NPPF’s relationship with the statutory development plan. Part 2 of the Planning and Compulsory Purchase Act 2004 requires local planning authorities to prepare a “development plan”. In preparing “local development documents” authorities must have regard to national policies and advice issued by the Secretary of State (“the SoS”), pursuant to section 19(2). Section 38(6) of the 2004 Act and Section 70(2) of the Town and Country Planning Act 1990 provide for the development plan to be taken into account in the handling of planning applications. Read more »


Neighbourhood Planning

May 2nd, 2017 by James Goudie QC in Planning and Environmental

On 27 April 2017 the Neighbourhood Planning Act 2017 received the Royal Assent. It makes provision about planning (Part 1) and compulsory purchase (Part 2) compensation. It amends the Town and Country Planning Act 1990, the Planning and Compulsory Purchase Act 2004, the Localism Act 2011, and legislation relating to compulsory purchase. Part 1, Neighbourhood Planning, Local Development Documents, Planning Conditions and Planning Register, apply to England.


Planning in Wales

April 12th, 2017 by James Goudie QC in Planning and Environmental

Numerous new Planning Regulations for Wales are (1) the Town and Country Planning (Enforcement Notices and Appeals) (Wales) Regulations 2017, S.I. 2017/530 (W.113), which amongst other things change the information to be included in an Explanatory Note to accompany every Enforcement Notice; the Town and Country Planning (Development Management Procedure) (Wales) (Amendment) Order 2017, S.I. 2017/542 (W.120); the Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017, S.I. 20117/544 (W.121); the Planning (Listed Buildings and Conservation Areas) (Wales) (Amendment) Regulations 2017, S.I. 2017/545 (W.122); the Planning (Hazardous Substances) (Wales) (Amendment) Regulations 2017, S.I. 2017/547 (W.124); the Town and Country Planning (Trees) (Amendment) (Wales) Regulations 2017, S.I. 2017/548 (W. 125); and the Town and Country Planning (Control of Advertisements) (Amendment) (Wales) Regulations 2017, S.I. 2017/553 (W.127).


Planning Conditions

April 4th, 2017 by James Goudie QC in Planning and Environmental

In Dunnett Investments Ltd v SoS for CLG and East Dorset Council (2017) EWCA Civ 192 a site had planning permission for new industrial and office premises, but subject to strict conditions, and was used as a business centre. The Claimant sought to develop the site for dwelling houses.

The planning permission was subject to a condition that the site could be used for “no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained”. The issue was as to the lawfulness of this condition. In particular the question arose whether it was sufficiently clear. The Judge and the Court of Appeal held that it was sufficiently clear and was lawful.

The Court of Appeal held that the condition clearly excluded the operation of the General Permitted Development Order, as amended (“the GPDO”). It stated (paragraph 37) that the starting point for consideration of the correct approach to the interpretation of planning conditions was that, as long as appropriate caution was exercised, there was no bar to implying words into conditions, in a planning context as much as any other.  In interpreting a planning condition which was said to exclude the operation of the GPDO, the following themes could be discerned from the authorities: (a) a planning condition could exclude the application of the GPDO; (b) exclusion might be express or implied, however, a grant for a particular use could not in itself amount to an exclusion; (c) to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion.



March 21st, 2017 by James Goudie QC in Planning and Environmental

Ashdown Forest is a Special Area of Conservation (“a SAC”). This designation, in 2005, was pursuant to the Habitats Directive (“the Directive”). The designation was given for a number of reasons, including the SAC’s extensive areas of lowland heath, which is vulnerable to nitrogen dioxide pollution from motor vehicles. The SAC covers 2,729 hectares and lies wholly within the area of Wealden District Council. This is the local planning authority for Wealden District, save for that part of it (to the south) which falls within the South Downs National Park.

In Wealden District Council v SoS for CLG and others [2017] EWHC 351 (Admin) there was a challenge to quash part of the Lewes District Plan known as the Joint Core Strategy 2010-2030 (“the JCS”). The JCS was jointly prepared under the Planning and Compulsory Purchase Act 2004 by Lewes District Council and the South Downs National Park Authority as local planning authorities.  The JSC forms part of the statutory development plan for the district of Lewes, including the extent of the National Park which falls within it. Read more »


Green Belt

March 14th, 2017 by James Goudie QC in Planning and Environmental

In Samuel Smith Old Brewery v North Yorkshire County Council [2017] EWHC 442 (Admin) Hickinbottom J held that, depending on the specific circumstances of a case, visual impact might be taken into account by a planning decision-maker when considering the impact of a proposed development on the openness of a green belt area. Factors such as visual impact, purpose, and degree of permanence and reversibility, were not matters to which, as a matter of law, a planning decision-maker had to have regard in every case in which a proposed development was in a green belt area, or even in every such case in which openness was an issue. They were factors to which the decision-maker might have regard if, on the facts of the particular case, in the exercise of his judgment and discretion he thought it right to do so. In other words, the decision-maker had a margin of appreciation within which he might decide just which consideration should play a part in his reasoning process.


Alternative School Site

March 7th, 2017 by James Goudie QC in Planning and Environmental

In Lucas (on behalf of Save Diggle Action Group) v Oldham Metropolitan Borough Council (2017) EWHC 349 (Admin) the Council had been granted funding to redevelop a School, the existing buildings of which were in a poor state of repair.  The funding was from the Education Funding Authority (“the EFA”).  The EFA undertook a Feasibility Study (“the Study”).  The Study looked at various options for the redevelopment.  These included relocation at a new site.  The Study designated the new site as the best option.  This was because the new site offered the best value for money.

The Study confirmed, however, that if the Council chose to redevelop the School on its existing site, that would be funded by the EFA, despite being more expensive. Nonetheless the Council adopted the new site option.

The Council as Local Planning Authority did not take into account as a material planning consideration with respect to the new site that there was the option of redeveloping the school at its existing site. Kerr J held that it should have done so.  It was relevant to the proposed development for a number of reasons, not irrelevant as the LPA had believed.


Neighbourhood Development Plans

February 17th, 2017 by James Goudie QC in Planning and Environmental

In R (DLA Delivery Ltd) v Lewes District Council (2017) EWCA Civ 58 the Court of Appeal held that the statutory requirement for a Neighbourhood Development Plan (“NDP”) to be “in general conformity with the strategic policies contained in the development plan for the area” did not require the making of a NDP to await the adoption of an up-to-date local plan.  Lindblom LJ addresses the statutory scheme for the preparation of NDPs at paras 4/5 and concludes at para 25 that the making of a NDP does not have to await the adoption of any other development plan document.