NPPF

July 25th, 2018 by James Goudie QC in Planning and Environmental

MHCLG has published the first revision of the NPPF since 2012. Alongside the revised NPPF itself, MHCLG has published its response to the consultation on the draft revised NPPF, an equality impact assessment, updated planning practice guidance, guidance on housing and economic development needs assessments, and a policy paper on measurement of housing delivery.

 

Valued landscape

July 24th, 2018 by James Goudie QC in Planning and Environmental

In determining whether a proposed development site is a “valued landscape” within para 109 of the NPPF it is necessary to consider the site as part of the wider landscape, rather than limit consideration to the site’s particular characteristics. Para 109 “is not confined to landscapes which have a particular designation”. In most cases, a development site is but part of a wider landscape. So held by Ouseley J in CEG Land Promotions Ltd v SoS for CLG and Aylesbury Vale District Council (2018) EWHC 1799 (Admin).

 

Heritage asset

July 24th, 2018 by James Goudie QC in Planning and Environmental

Catesby Estates Ltd v Steer (2018) EWCA Civ 1697 concerned the “setting” of a listed building, a concept recognized by statute, and factors, such as the historic relationship between places, in addition to visual and physical considerations and impact. The Court of Appeal held that in the context of an application for planning permission for a development that would potentially affect a listed building or heritage asset, the duty imposed by the Planning (Listed Buildings and Conservation Areas) Act 1990 s. 66(1) to have special regard to the desirability of preserving the asset or its “setting” required the decision-maker to determine the extent of the asset’s setting and the impact of the development upon it. In doing so, the decision-maker had to take account of social, historical and economic, as well as physical and visual, factors.  The setting of a heritage asset was not statutorily defined and did not lend itself to precise definition.  However, implicit in s. 66(1) was the idea that setting could be affected by development, whether within or outside it. Thus, the decision-maker was required to understand what the asset’s setting was, and whether the development site either lay within it or was in some way related to it. Identifying the extent of an asset’s setting and whether the development would affect it was a matter of applying planning judgment to the circumstances of the case, and unless there was clear error of law in the decision-maker’s approach, the court should not intervene. The decision-maker had to have regard to relevant policy and guidance, and to the principle that considerable importance and weight had to be given to the desirability of preserving that setting.  For a proposed development to affect the setting, there had to be a distinct visual relationship between the two.  That relationship had to be more than remote or ephemeral, and it had to bear on how the asset was experienced in its surrounding landscape. However, that did not mean that other factors were to be ignored.  Economic, social and historical considerations were also relevant.

 

Planning Obligations

June 6th, 2018 by James Goudie QC in Planning and Environmental

In Good Energy Generation Ltd v SoS for CLG and Cornwall Council (2018) EWHC 1270 (Admin) concerns the Council’s refusal to grant planning permission for a wind farm development. The refusal was upheld by the SoS and the Inspector.  Lang J declined to quash that decision.  The case is concerned with planning obligations and Regulation 122 of the Community Infrastructure Regulations 2010, which provides a statutory limitation on the use of planning obligations.  The developer submitted that in assessing the planning balance it was an error of law to disregard the benefits offered by the developer in a unilateral undertaking made under Section 106 of the Town and Country Planning Act 1990.  The benefits offered included a community investment scheme open to local residents and a reduced electricity tariff open to local residents.

Lang J said, at paragraph 71, that the tests in Regulation 122 are “more stringent” than the general test as to the materiality of a planning obligation, and “go wider” than the previous law. The question of what is “necessary” is now a test in law, which it was not beforehand. She held that the Regulation 122 Tests were not satisfied.

 

Interpretation and Implication

April 24th, 2018 by James Goudie QC in Planning and Environmental

In Lambeth LBC v SoS for CLG (2018) EWCA Civ 844 considered again the interpretation of planning permissions (paragraphs 23-37) and implication (paragraphs 63-75).  Lewison LJ (with whom Hamblen and Coulson LJJ agreed) said as to the interpretation of a condition that the ultimate question was what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the Court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. It is not right to regard the process of interpreting a planning permission as differing materially from that appropriate to other legal documents.

Read more »

 

Permission on Erroneous Basis

March 27th, 2018 by James Goudie QC in Planning and Environmental

In R (Thornton Hall Hotel Ltd) v Wirral MBC (2018) EWHC 560 (Admin) unconditional and permanent planning permission for the erection of three marquees on a green belt site was quashed where it had been granted on an erroneous basis, namely the omission of conditions including a five-year time limit which had clearly been envisaged by the local authority’s planning committee in approving permission. To allow the marquees to remain in place would subvert the public interest in the integrity of the planning process. Read more »

 

Waste

March 19th, 2018 by James Goudie QC in Planning and Environmental

The Waste Enforcement (England and Wales) Regulations 2018, SI 2018/369, enhances powers to tackle illegal activity at waste sites. It gives waste regulation authorities and waste collection authorities in England and Wales the power by notice to require waste from a site to be removed where it has been unlawfully kept or disposed of, including waste that was initially lawfully deposited. It also gives the Environment Agency and Natural Resource Body for Wales the power, by notice or by application to Court for an order, to restrict access and the importation of waste to premises.

The instrument inserts new Sections 59ZB and 59ZC into the Environmental Protection Act 1990, allowing waste regulation authorities and waste collections authorities (defined in Section 30 of that Act) to issue a notice on the occupier or owner of land to remove unlawfully kept or disposed of waste and to take specified step to eliminate or reduce the consequences of the unlawful keeping or disposal of waste. The new Sections supplement existing powers in Sections 59 and 59ZA of that Act. Read more »

 

Enforcement Notices

February 26th, 2018 by James Goudie QC in Planning and Environmental

Hargrave House Ltd v Highbury Corner Magistrates Court and Islington Council (2018) EWHC 279 (Admin) was an application for judicial review concerning the construction of the word “repair” in an enforcement order (EN) issued by a planning authority against a developer who was in breach of planning regulations. Section 173 of the Town and Country Planning Act 1990 relates to the contents and effect of an EN.  Section 179 deals with offences where an EN is not complied with.

Cheema-Grubb J said:-

“23.    … Words have meanings in their context.  The meaning of even a familiar word will vary according to when it is used. In the context of a notice requiring the claimant to remedy a breach of planning regulations what repairs are necessary will depend on the extent of the breach. …”

“27.    … I have no hesitation in concluding that the meaning of the word “repair” in the EN is sufficiently clear for the purposes of a criminal enactment …

  1. 28. There is no definition of repairs within the TCPA scheme. This must be because the draughtsman and Parliament considered it unnecessary for further definition to be provided. Repair is an ordinary English word. Its meaning is context specific. In the context of an EN issued because of a breach of planning procedure common sense indicates that the only repair that will satisfy the notice will be one that makes good the activity that has led to the breach….”

“30.    In context, the terms of the EN were crystal clear. … finding that ‘Repair’ encompassed rebuilding two walls, if necessary. There was no lack of specificity …”

 

Air Quality

February 22nd, 2018 by James Goudie QC in Planning and Environmental

 In R (Client Earth) No. 3 v SoS for the Environment (2018) EWHC 315 (Admin) Garnham J held (paragraphs 80 and 104) that the DEFRA 2017 Air Quality Plan, in its application to 45 local authority areas, does not contain measures sufficient to ensure substantive compliance with Directive 2008/50/EC and the implementing 2010 English Regulations.

 

Planning Impacts

February 19th, 2018 by James Goudie QC in Planning and Environmental

Limiting carbon emissions in an effort to arrest global warming and climate change is a major policy objective of the government. EU law and national law, in the form of the Climate Change Act 2008, impose challenging national targets to reduce carbon emissions and seek to encourage a shift to utilising renewable sources of energy. That policy objective is also carried into Section 10 of the NPPF, headed “Meeting the challenge of climate change, flooding and coastal change”.

On 18 June 2015 a written ministerial statement (“the Statement”) was made by the SoS for CLG. It set out new considerations touching applications for planning permission for wind turbines.  The Statement included that in specified circumstances LPAs can find for a proposal, if following consultation, they are satisfied it has “addressed” the planning impacts identified by affected local communities and therefore has their backing.  The Statement is a “material consideration” for the purposes of Section 38(6) of the Planning and Compulsory Purchase Act 2004.  It is capable of outweighing policy in the development plan for the area. Read more »