TREE PRESERVATION

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

In R ( WELLINGBOROUGH WALKS ACTION GROUP ) v NORTH NORTHAMPTONSHIRE COUNCIL ( 2024 ) EWHC 1225 ( Admin ) the Claimant challenged the Council’s failure to prevent a developer from felling protected trees. The Claimant sought to quash the Council’s decision that the felling was “ necessary to implement a planning permission “, and therefore within the exception in the Town and Country Planning ( Tree Preservation ) ( England ) Regulations at Regulation 14 ( a ) ( vii ) to the general rule, in Regulation 12, that consent would be required to cut down a protected tree. The Court held that the developer who had held the protected trees in preparation for the construction of an access road to a major development could not rely on the exception. Regulation 14 ( a ) ( vii ) provided an exception only where the felling was necessary for the development. The developer had not complied with a planning condition requiring it, before the access road was begun, to submit a plan identifying all existing trees and what measures would be employed to protect those that would be retained. The wording of the exception connoted nothing more nor less than the concept of it being necessary , as an immediate requirement, to undertake work to protected trees to make it possible to carry out development for which planning permission had been granted or was deemed to be granted.

The overall statutory scheme was one where Tree Preservation Orders are complementary to planning control. A key task when considering how the exception applies is to understand what was permitted by the planning permission. To the extent that what was permitted necessarily involved the loss of trees the exception will apply. To the extent that the planning permission could be carried out in a way that did not necessitate the loss of trees the exception is not available it is a key step in the analysis properly to construe the permission.

 

ENFORCEMENT NOTICE

June 5th, 2024 by James Goudie KC in Planning and Environmental

Section 285 of the Town and Country Planning Act 1990 relates to the validity of enforcement and other notices. In BARKING & DAGENHAM LBC v Aziz ( 2024 ) EWHC 1212 ( Admin ) Fordham J holds that even though an enforcement notice has been registered it is still open for a finding to be made that a defendant could not reasonably have been expected to know that the enforcement  notice had not been issued.

 

PLANNING CONTROL POWERS

May 28th, 2024 by James Goudie KC in Planning and Environmental

Where the land meets the sea, the planning control powers conferred on LPAs by TCPA 1990 extend to the foreshore, but do not extend below the mean low water mark. So held by Holgate J in R ( PARKES ) v DORSET COUNTY COUNCIL ( 2024 ) EWHC 1253 ( Admin ).

 

CREMATORIUM

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

In WATHEN-FAYED v SoS and TANDRIDGE DC ( 2024 ) EWCA Civ 507 the Court of Appeal held that a proposed development would not inevitably contravene the provisions of the CEMATORIUM ACT 1902 ( the 1902 Act ). Section 2 of the 1902 Act defines “ crematorium “. It means  “ any building fitted with appliances for the purposes of burning human remains “. That is expressed to include “ everything ancillary or incidental thereto “. Section 5 of the 1902 Act prohibits construction of a crematorium nearer to any dwelling-house than 200 yards ( except with the consent of the occupier ), or within 50 yards of any public highway, or in the consecrated part of a burial ground. The proposed development comprises a crematorium with a ceremony hall, memorial areas, a garden of remembrance, and associated parking and infrastructure. The site consists of 4.5 acres of open fields.

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MATERIAL CONSIDERATIONS

May 8th, 2024 by James Goudie KC in Planning and Environmental

Section 38 ( 6 ) of the Planning and Compulsory Purchase Act 2004 requires that if regard is to be had to the Development Plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the Plan, unless MATERIAL CONSIDERATIONS , including national policy as expressed in the NPPF, indicate otherwise. In MID-SUFFOLK DC v SoS ( 2024 ) EWHC 930 ( Admin ) the Judge observes, at paras 122-138 inc, that there is however no prescribed format as to the way in which the reasoning on the considerations should be set out. The question is whether Section 38 ( 6 ) has been applied as a matter of substance. Mere failure to mention factors does not mean that there was a failure to take them into account in making the decision, provided that it is apparent that the decision-maker was well aware of each of these factors and was taking them into account.

 

APPEAL AGAINST ENFORCEMENT NOTICE

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

The basic question in SECRETARY OF STATE v CALDWELL ( 2024 ) EWCA Civ 467 was whether an Inspector who determined an Appeal  against an Enforcement Notice issued under SECTION 172 of TCPA 1990 misapplied the important principle in the MURFITT case and the established limitations upon that principle.. The Notice required the cessation of residential use on land and the demolition of a bungalow built upon it. The principle is that LPAs when enforcing against against a material change of use can require the removal of operational development connected to the change of use for the purpose of restoring the land to its condition before the development took place.

The Court of Appeal identified a number of points from para 39. First, the MURFITT principle must not be overstated. It must be operated within the bounds of the statutory scheme. Second, the principle does not extend to works that are more than ancillary or secondary to the change of use. Third, the principle is “ narrow “. Fourth, the principle does not support the removal of a building or other operational development that is a separate development in its own right.  Fifth, whether the principle is engaged in a particular case will always be a matter of fact and degree.

 

NON-OBJECTION CLAUSES

March 28th, 2024 by James Goudie KC in Planning and Environmental

The question in R (SUFFOLK ENERGY SOLUTIONS) v SoS FOR ENERGY (2024) EWCA Civ 277 was whether the SoS acted unlawfully in dealing with a complaint by Suffolk Energy Solutions that the interested parties had “stifled” or “neutralised” the ability of landowners failing possible compulsory purchase to prevent objections to and information about a scheme of which development consent was being sought.  The issue was whether the use of “non-objections clauses” in a planning contract was legitimate.  The judicial review failed.

The Court of Appeal said, at paragraph 59:-

“…that no one can be required to give false evidence to a planning inspector or examiner.  But the question in issue is whether a party who has sold or is proposing to sell an interest in land may agree contractual obligations not to object to the grant of planning permission.”

The Court of Appeal continued:-

“61.     In our judgment, the use of non-objection clauses when a party has obtained an interest in land, or an interest in land conditional on the grant of planning permission, is permissible for two main reasons.  First, an applicant who owns land and seeks planning permission for a relevant use of that land is unlikely to object to that application.  That fact has not of itself been considered to undermine the integrity of the process for the granting of planning permission.

62. Secondly (and part of the reason why the integrity of the process for planning permission is not undermined by the fact that applicants owning land are unlikely to object to their own scheme), the planning process is inquisitorial in nature. The inquisitorial nature of the process means that it is for the decision-maker to ensure that there is sufficient information to enable an informed and lawful decision to be made on the application for planning permission … whether the effect of a non-objection clause has in fact meant that there is insufficient information to enable a planning decision to be made, or “impermissibly distorted the picture” … must always be a fact-specific inquiry.

63. …the environmental impact of a scheme which is an EIA development is addressed by the EIA Regulations.  The inquisitorial nature of the process, and the relevant statutory provisions, mean that in general, the non-objection and confidentiality clauses should not prevent the decision-maker from becoming aware of all the relevant planning and environmental considerations.  Of course, whether this is so in any individual case will always depend on the particular facts.

64. We do not consider that the answer is altered in circumstances where a developer is acquiring an interest in land, and that land, together with other land, forms part of the scheme and the non-objection clause applies to the scheme as a whole. There is only one scheme, and the developer is entitled to require a person whose land is being acquired not to object to the scheme, even if the scheme involves other land. This is for the two main reasons set out in paragraphs 61 and 62 above, though – as we have said – the fact-specific nature of the decision must always be kept in mind …”

 

PLANNING CONDITION

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

R ( Lisle-Mainwaring ) v Kensington & Chelsea RLBC ( 2024 ) EWHC 440 ( Admin ) holds ( para 44 ) that the general principle, that applies to applications for planning permission and for approval of reserved matters, that once a valid application has been made, a LPA has a continuing duty to determine it, applies also to an application for approval required under a planning condition. Further, the fact that such an application is made before the time limit on a planning permission has expired, and is determined after it has expired, is not a good reason to disapply that principle.

 

CUMULATIVE ASSESSMENT OF CARBON EMISSIONS

February 26th, 2024 by James Goudie KC in Planning and Environmental

Local authorities are relevant authorities for the purpose of the consolidating EU based Infrastructure Planning (Environmental Impact Assessment) Regulations 2017, S.I. 2017/572. Regulation 4 prohibits granting consent for an “EIA development”, without consideration of “environmental information”, as defined. Regulation 5 relates to the EIA process; and Regulation 6 relates to when development is EIA development. In R (Boswell) v SoS for Transport (2024) Read more »

 

PERMITTED CHANGE OF USE

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

The Town and Country Planning ( General Permitted Development ) ( England ) ( Amendment ) Order 2024 S.I. 2024/141, made on 13 February 2024, and coming into force on 5 March 2024, amends the GDPO, by, amongst other respects, permitting the use of commercial, business and service us to use as dwelling houses. It will no longer be necessary that the building has been vacant for a continuous period of at least 3 months.