Finney v Welsh Ministers and Carmarthenshire County Council

November 6th, 2019 by James Goudie QC in Planning and Environmental

In Finney v Welsh Ministers and Carmarthenshire County Council (2019) EWCA Civ 1868, yet another wind turbine case, the Court of Appeal held that on an application under Section 73 of TCPA 1990 to vary a conditions of planning permission the LPA had no power to change the description of the development, including the height of the turbine to which the description attached. On such an application it is only the conditions that matter. First instance authority to the contrary was wrong.

 

Whether development can be completed

October 16th, 2019 by James Goudie QC in Planning and Environmental

A development must be carried out fully in accordance with the permission said to authorise it, and cannot lawfully be completed if it has become physically impossible to complete it fully in accordance with that permission, unless the permission is to be construed as authorising independent acts of development. So confirmed in Hillside Parks Ltd v Snowdonia National Park Authority (2019) EWHC 2587 (QB).

 

Air Quality

October 2nd, 2019 by James Goudie QC in Planning and Environmental

Gladman Developments Ltd v SoS for CLG and Swale Borough Council (2019) EWCA Civ 1543 is concerned with the likely effects of a proposed housing development on air quality, the Air Quality Directive, 2008/50/EC, the national air quality plan and the NPPF, and mitigation measures proposed by the developer. The Air Quality Directive is transposed into domestic law by the Air Quality Standards Regulations 2010.   The Council had published an Air Quality Management Area Action Plan.

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Environmental Impact Assessment

August 28th, 2019 by James Goudie QC in Planning and Environmental

Should two developments have been assessed as a single “ project” for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011? That was the issue in R (WINGFIELD) v CANTERBURY CITY COUNCIL (2019) EWHC 1975 (Admin). Lang J held that this is a matter of judgment for the competent authority, subject to challenge only on public grounds.

She listed the relevant factors. They include common ownership, simultaneous determination and functional interdependence on the one hand; and ability to stand alone on the other hand.

 

Neighbourhood Development Plans

July 10th, 2019 by James Goudie QC in Planning and Environmental

Section 61N of the Town and Country Planning Act 1990 is a bespoke and complete scheme for legal challenges to specified decisions and actions within the Neighbourhood Plan process.  The Section is self-contained and comprehensive. It leaves no gaps.  It provides for proceedings to be pursued before a Neighbourhood Plan is made. The six weeks’ time limit for challenging Neighbourhood Development Orders cannot be extended.  Claims must be brought at the particular stage at which a grievance arises.  So held in R (Oyston Estates Ltd) v Fylde Borough Council (2019) EWCA Civ 1152

 

Extension of Time

May 2nd, 2019 by James Goudie QC in Planning and Environmental

Whether Kerr J was wrong when he exercised his discretion to extend time for a challenge to be brought by a claim for judicial review against a planning permission granted more than five and a half years before the claim was issued was the question at the heart of the appeal in R (Thornton Hall Hotel Ltd) v Wirral MBC (2019) EWCA Civ 737.  The appeal raised two main issues: first, in view of the delay of more than five and a half years, whether the Judge erred in extending time for the claim to be brought, under CPR r.3.1(2)(a); and second, having regard to the substance of the claim, whether he was wrong not to exercise his discretion to refuse relief under Section 31(6) of the Senior Courts Act 1981.  The appeal was dismissed on both issues.

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Applications for Planning Permission

April 25th, 2019 by James Goudie QC in Planning and Environmental

In Gladman Developments Ltd v Canterbury City Council (2019) EWCA Civ 669, in dismissing an appeal from Dove J, Lindblom LJ, at paragraphs 21/23, restated the correct approach to determining an application for planning permission.  Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the determination to be made “in accordance with the [development] plan unless material considerations indicate otherwise”. The development plan thus has statutory primacy, and a statutory presumption in its favour – which government policy in the NPPF does not.

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Permitted development

February 14th, 2019 by James Goudie QC in Planning and Environmental

In Westminster City Council v SoS (2019) EWHC 176 (Admin) Ouseley J held that under the GPDO, the whole development for which prior approval as permitted development was sought had to fall within the Class of development relied on. If part fell outside the Class, it was not a permitted development.  Under Schedule 2 Part 16 Class A, a proposed telephone kiosk had to be “for the purpose” of the telephone network.  A kiosk with a large digital advertising panel was not entirely for that purpose and did not fall within the Class.  It was not permitted development.

 

Planning Enforcement

February 4th, 2019 by James Goudie QC in Planning and Environmental

 Johnson v Windsor and Maidenhead RBC (2019) EWHC 160 (Admin) is concerned with enforcement proceedings in relation to land, pursuant to the Town and Country Planning Act 1990 (“the TCPA”). Justine Thornton QC, sitting as a Deputy High Court Judge, described the legal framework as follows:-

(1)       Planning permission is required for the carrying out of development of land;

(2)       The making of a material change in the use of land is development;

(3)       Carrying out development without the required planning permission, or failing to comply with any condition or limitation pursuant to which the planning permission has been granted, constitutes a breach of planning control; Read more »

 

Community Infrastructure Levy

January 30th, 2019 by James Goudie QC in Planning and Environmental

On the requirement for substantial compliance by a notice for exemption from the levy, see R (Shropshire Council) v SoS (2019) EWHC 16 (Admin). The decision of the Court of Appeal in R v SoS, ex p Jeyeanthan (2000) 1 WLR 354 was distinguished.  The Judge said:-

“29. Jeyeanthan helps to answer the question what is to happen if a person undertaking a particular act has failed to comply with all the requirements prescribed for that act. But that can be a relevant question only if the actor has actually engaged in the regulated conduct. If the path of compliance has not, so to speak, been trodden at all, there is likely to be little scope or need for analysis of error or omissions in attempted or partial compliance. Read more »