Certificate of Lawful Use or Development

July 1st, 2021 by James Goudie QC in Planning and Environmental

In McGaw v Welsh Ministers (2021) EWCA Civ 976 the Court of Appeal states that the General Permitted Development Order exists in order to relieve developers of the regulatory burden of applying for planning permission in categories of case defined in such a way that it can be seen that such permission ought to be granted, and to relieve planning authorities of the burden of dealing with such applications. The classes of cases to which the GPD Order applies are defined so as to set out the parameters for the grant of general permissions while protecting various concerns relevant to planning concerns, including height restrictions and visual amenity and restrictions to limit what can be seen from the highway. The Court of Appeal says, at para 17, that the GDP Order should be approached in the light of its statutory purpose.

Both the words that set out what is permitted and those that limit the scope of the permission should be read in a “broad and common sense way” according to the “ordinary meaning” of the language used.

 

Revocation

June 7th, 2021 by James Goudie QC in Planning and Environmental

R (Ocado) v Islington LBC (2021) EWHC i509 concerned the revocation under Section 193(7) of TCPA 1990 of a CLEUD, a Certificate of Lawfulness of an Existing Use or Development, granted under Section 191 of the Act. The grounds for the revocation were that the application for the CLEUD had contained statements which had been false in a material particular and had withheld material information. The judicial review challenge to the revocation was dismissed. Holgate J ruled that Section 193(7) does not require the withholding of material information to have been deliberate.

 

Unfair Procedure

June 4th, 2021 by James Goudie QC in Planning and Environmental

In R (Save Warsash and the Western Wards) v Fareham BC (2021) EWHC 1435 (Admin Jay J quashed a planning permission. The Council had prejudiced objectors by making important documents available to them late which could have made a material difference to the outcome. There was a breach of sections 100B and 100D of LGA 1972. It was unreasonable not to defer the meeting by which the permission was granted. However, in R (Wyatt) v Fareham BC (2021) EWHC 1434 (Admin) Jay J held that there had been no violation of the obligation to assess the environmental impact of development upon wetlands important to bird life.

 

Habitats

May 28th, 2021 by James Goudie QC in Planning and Environmental

In R (Wyatt) v Fareham BC (2021) EWHC 1434 (Admin) Jay J dismissed 8 grounds for judicial review of the Council’s decision to grant outline planning permission for a housing development, notwithstanding advice to the contrary from Natural England on habitats grounds and in accordance with the precautionary principle. Applying an appropriate margin of appreciation, in an area which is technical and complex, the Judge was not persuaded, on a Wednesbury basis, that the assessment carried out for the purposes of the planning application was otherwise than sufficiently precautionary.

 

 

AONB

May 24th, 2021 by James Goudie QC in Planning and Environmental

R (Cross) v Cornwall Council (2021);EWHC 1423 (/Admin) was a successful judicial review of a grant of planning permission for a proposed development in an Area of Outstanding National  Beauty. The Council had failed to provide adequate reasons. Fairness required a formulated statement of reasons at common law, even though the proposed development was only of one dwelling, because (para 76) :-

  1. The site was in a highly sensitive cliff-top setting on the Heritage Coast and in the AONB;
  2. The Committee departed from the Officers’ Report and the Development Plan;
  3. The Officer Recommendation was that the development would give rise to unacceptable harm to the AONB; and
  4. There was extensive public opposition to the development.

 

Green Belt

May 20th, 2021 by James Goudie QC in Planning and Environmental

In Sefton MBC v SoS (2021) EWHC 1082 (;Admin) the Court interpreted paras 143 and 144 of the NPPF. Read together, they emphasised the seriousness of harm to the green belt. That is to ensure that the decision-maker has in mind the nature of the “very special circumstances” requirement before development is approved. They do not however mandate a mathematical exercise in relation to each element of harm. There is a single exercise of planning judgment to assess whether there are very special circumstances which justify the grant of planning permission notwithstanding the particular importance of the green belt.

 

Neighbourhood Development Plans and Orders

May 14th, 2021 by James Goudie QC in Planning and Environmental

In Fylde Coast Farms v Fylde BC (2021) UKSC 18 the Supreme Court considers administrative processes comprising a series of successive steps, seven in the case of the above. The challenge under Section 61N of TCPA 1990 was out of time.

 

Protected Species

April 27th, 2021 by James Goudie QC in Planning and Environmental

There are protected species under Regulation 42 of and Schedule 2 to the Conservation of Habits and Species Regulations 2017. Under Regulation 43 it is an offence deliberately to disturb, damage or destroy a breeding site or resting place of any wild animal of such a species, unless there is a derogation licence. By Regulation 55(9) such a licence cannot be granted unless the licensing body is satisfied that there is no satisfactory alternative and that the action authorised will not be detrimental to the maintenance of the species concerned at a favourable conservation status at their natural range. In Kier v Natural England (2021) EWHC 1059 ( Admin ) Holgate J said : (1) the word “ detrimental” is all of a piece with the precautionary principle : para 42; (2) the judgment required involves consideration not just of the impact of the activities to be authorised, but also the mitigation and compensation measures to be secured by the licence : ibid; (3) the Court affords an enhanced margin of appreciation to a judgment of a scientific expert deciding issues of the kind raised: para 43. Holgate J also summarised, at para 44, the principles determining when fresh and expert evidence may be received in proceedings for judicial review, at para 45, the approach which should be taken to the grant of an injunction, and, at para 46,:how Decision Letters of Planning Inspectors are to be read.

 

Out of Date Policies

September 4th, 2020 by James Goudie QC in Planning and Environmental

A Policy is not out of date simply because it is in a time expired development plan. Whether a Policy is out of date, and, if so, with what consequences, is a matter of planning judgment. So held in Peel Investments v SoS and Salford City Council (2020) EWCA Civ 1175.

 

Dwellings

August 3rd, 2020 by James Goudie QC in Planning and Environmental

In Rectory Homes v SoS for MHCLG and South Oxfordshire DC Holgate J sets out general principles of interpretation of planning policy at paras 43-45 and 79 and addresses the meaning of “ dwelling” at paras 46-78 and 80/81.