APPEALS

November 7th, 2024 by James Goudie KC in Planning and Environmental

In KEEP CHISWELL GREEN v SoS () 2024 ) EWHC 2723 ( Admin ) the Claimant  on a planning appeal was not allowed. To adsvance submissions based on new material. It is incumbent on parties, including unrepresented parties, to place before the planning decision-maker the material upon which they rely.

 

NEW TOWNS

November 4th, 2024 by James Goudie KC in Planning and Environmental

The role of the New Towns Taskforce is to advise Ministers on appropriate locations for significant communities. These will include large scale urban extension and regeneration schemes. Locations are to be recommended to Ministers by July 2025. The Taskforce has made a call for evidence by 13 December 2024.

 

CHANGE OF USE

October 14th, 2024 by James Goudie KC in Planning and Environmental

In JONES v ISLE OF ANGLESEY COUNTY COUNCIL (2024) EWHC 2582 (Admin) Mould J at para 32 restated the principles upon which the Court acts when faced with an allegation that a Planning Committee has ben misled by Officer advice. The Court will not read a Planning Officer’s Report with undue rigour, but with reasonable benevolence, bearing in mind that such Reports are written for Councillors with local knowledge. The question for the Court will always be whether, on a fair reading of the Report as a whole, the Officer had misled the Committee in a material way on a matter bearing on their decision, and the error had not been corrected.

Mould J found that there was no such error on this case. At paras 52 and 53 he stated that in considering whether the use of a building has changed from its former use to a new use, the decision-maker can and should take into account both the physical state of the building and its actual use or intended use or attempted use. Each of those matters is capable of being relevant to the question whether the use of the building has changed from its former use to a new use. The relative importance of any or all of those matters will depend on the circumstances of the given case.

 

AARHUS

September 30th, 2024 by James Goudie KC in Planning and Environmental

A Ministry of Justice Consultation seeks views by 9 December 2024 on options to bring UK policies into compliance with its obligations under the ACCESS TO JUSTICE provisions of the Aarhus Convention to make provision for (i) public access to ENVIRONMENTAL INFORMATION, (ii) participation in ENVIRUNMENTAL DECISION-MAKING, and (iii) access to justice in CHALLENGING ENVIRONMENTAL DECISIONS.

 

BROWNFIELD SITES

September 24th, 2024 by James Goudie KC in Planning and Environmental

On 22 September 2024 the Ministry of Housing,  Communities & Local Government has. Published a Policy Paper, “ Brownfield Passport : Making the Most of Urban Land “, inviting views on action that could be taken through the planning system to support the development of brownfield land in urban areas. It proposes options for a form of BROWNFIELD PASSPORT, which would be more specific about the development that should be regarded as acceptable.  T he default answer to suitable proposals would be a straightforward : “ Yes “.

The proposals relate to the principle, the scale, and the form of development, and to the potential wider use of LOCAL DEVELOPMENT ORDERS. These would grant area-wide permissions.

A series of questions are posed.

 

PRE-COMMENCEMENT CONDITIONS

September 19th, 2024 by James Goudie KC in Planning and Environmental

In R ( FRIENDS OF WEST OXFORDSHIRE COTSWOLDS ) v WEST OXFORDSHIRE DC ( 2024 ) EWHC 2291 ( Admin ) there are applied the GENERAL PRINCIPLE ( BODDINGTON ) that, once pronounced unlawful by a Court, an administrative act is recognized as never having had legal effect, and the GENERAL PRINCIPLE ( WHITLEY ) that where operations do not comply with a planning permission , read together with its conditions, they would be unauthorised and unlawful. The Court states the conditions for the latter principle to apply.

 

COST ORDERS

September 3rd, 2024 by James Goudie KC in Planning and Environmental

R (HALTON BC) v SoS (2024) EWHC 2030 (Admin) involved a costs order made against the local planning authority pursuant to Section 250 in the Local Government Act 1972 after its expert witness failed to come up to proof during cross-examination at a called-in public inquiry resulting in the inquiry process being aborted.  Fordham J set out the following key points from the judicial review case law:-

  1. The judicial review Court could intervene in the exercise of its supervisory jurisdiction where the costs decision-maker had materially misdirected themselves, or the decision was unreasonable in a public law sense;
  2. Clear and intelligible reasons had to be given for the decision;
  3. The decision letter had to be read straightforwardly and as a whole;
  4. The decision as to costs involved a wide statutory power vested in the costs decision-maker: decision was not unreasonable because a different decision-maker might have taken a different view, or because there was room for significant disagreement;
  5. There was a clear distinction between interpretation of policy (appropriate for judicial analysis on an objective correctness standard) and application of policy (an exercise of judgment for the primary decision-maker subject to a reasonableness standard);
  6. Public law unreasonableness meant that the decision was outside the range of reasonable decisions open to the decision-maker, or there was a demonstrable flaw in their reasoning;
  7. The Courts should respect the expertise of specialist planning decision-makers;
  8. A decision-maker could depart from policy guidance if clear reasons were given;
  9. The reasons had to be intelligible and adequate: Decision Letters should be read in a straightforward manner recognising that they were addressed to parties well aware of the issues involved and arguments advanced: their conclusions should not be laboriously directed in an effort to find fault.

 

ENVIRONMENTAL IMPACT ASSESSMENT

August 29th, 2024 by James Goudie KC in Planning and Environmental

EIAs are not on obstacle course for decision-makers. The purpose of an EIA is to improve environmental decision-making. The significance of an impact for assessment purposes is not legally distinct from that for determination purposes. So held in R ( Boswell ) v SoS ( 2024 ) EWHC 2128 ( Admin ).

 

STANDARD OF JUDICIAL REVIEW

August 29th, 2024 by James Goudie KC in Planning and Environmental

Environmental judicial review cases can attract a closer intensity of reasonableness review. There is however no rigid test for a uniformly heightened scrutiny. So held in R ( Fighting Dirty ) v Environment Agency ( 2024 ) EWHC 2029 ( Admin ).

 

PLANNING UNIT

August 13th, 2024 by James Goudie KC in Planning and Environmental

RICHMOND UPON THAMES LBC v ARIYO ( (2024) EWCA Civ 960 is concerned with the general principle of planning law that changes of use are generally judged by reference to the “ planning unit “.

The planning unit , at least in general terms, is the whole of an area in single occupation used for a main purpose to which other purposes are ancillary. The concept of an ancillary use is also a well-established part of planning law; and where a change of use is permitted it will generally extend to land used as ancillary to the changed use, if part of the same planning unit.