Listed Buildings

May 21st, 2020 by James Goudie QC in Planning and Environmental

An item being on a listed building list is not conclusive of it being a “ building”. When considering what free standing items, such as garden objects or structures, qualify as a “ building” protected in the listed building context the relevant criteria are (1) size, (2) permanence, and (3) degree of physical attachment. So held by the Supreme Court in Dill v SoS for MHCLG (2020’ UKSC 20.

 

Habitats

May 1st, 2020 by James Goudie QC in Planning and Environmental

In Case C-254/19, Friends of the Irish Environment v Irish Planning Board, Advocate-General Kokott has on 30 April 2020 delivered her Opinion in relation to the extension of a development consent for the construction of a liquefied natural gas regasification terminal next to two Special Areas of Conservation. The consent was for 10 years. The works had not started. The extension would be for a further 5 years. The primary question was whether the extension was a plan or project within Article 6 of the Habitats Directive. Yes, says the A-G. Therefore it is subject to an appropriate assessment of the implications for wild flora and fauna.

 

Historic and Natural Environment

April 21st, 2020 by James Goudie QC in Planning and Environmental

R (Advearse) v Dorset Council (2020) EWHC 807 (Admin) concerned a major mixed development in an Area of Outstanding Natural Beauty and close to a conservation area of historical interest with a listed building. Issues considered by Swift J included what an Officer’s Report addressing the NPPF Part 16 provisions should contain.

 

Development Plan

April 15th, 2020 by James Goudie QC in Planning and Environmental

The basic question in R (Corbett) v Cornwall Council (2020) EWCA 508 was whether the Council as LPA erred in law in granting planning permission for a development found to be in conflict with Development Plan (DP) policies for the protection of Areas of Great Landscape Value, but compliant with other relevant DP policies, including a DP policy encouraging development for tourism, and in accordance with the DP as a whole. The Court of Appeal held that the Council had not erred. It had correctly understood the relevant policies of the DP and applied those policies lawfully in considering whether the proposal accorded with the DP as a whole. The DP policies had to be read together.

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Overlapping and Alternative Powers

April 8th, 2020 by James Goudie QC in Planning and Environmental

In Sawkill v HighWays England (2020) EWHC 801 (Admin) the Claimant sought judicial review of a decision by the defendant highway authority to seek to use its power under Section 172 of the Highways and Planning Act 2016to enter onto his land to carry out a survey in connection with a Development Consent Order (DCO). The claim failed. The authority could choose that general power and was not confined to the specific provisions of Section 53 of the Planning Act 2008 in connection with DCOs.

 

Caravan Site

April 2nd, 2020 by James Goudie QC in Planning and Environmental

Amber Valley BC v Haytop Country Park Ltd (2020) UKUT 68 (LC) is concerned with a caravan site licence under the Caravan Sites and Control of Development Act 1960, as amended, and 2014 Regulations there under. There was a dispute, which is in the course of determination, as to whether the proposed use by Haytop would be a breach of planning consent. The UT rules that the FTT should not have required the grant of a licence by the Council to Haytop where what Haytop wanted to do might be outside the terms of the current planning permission.

 

Neighbourhood Development Plan (“NDP”)

February 12th, 2020 by James Goudie QC in Planning and Environmental

In R (Wilbur Developments Ltd) v Hart District Council (2020) EWHC 227 (Admin) Lang J helpfully summarises (1) the legislation on NDPs: paras 5-18; (2) the NPPF: paras 19-21; (3) the Planning Practice Guidance: paras 22-24; (4) the limitations upon a challenge to a decision of a local planning authority approving recommendations for a NDP or to an Examiner’s Report: paras 63-72; (5) the materiality of a planning decision in relation to the same land: paras 77-79; and (6) “reasonable alternatives” for the purposes of the SEA Directive and a Strategic Environmental Assessment: paras 106-109.

 

Green Belt

February 5th, 2020 by James Goudie QC in Planning and Environmental

The issue in R ( Samuel smith Brewery ) v North Yorkshire County Council (2020) UKSC 3 was whether the Council as LPA properly understood the meaning of the word “ openness “ in para 90 of the NPPF as it applies to mineral working in the Green belt.

The Supreme Court, allowing the LPA’s appeal, holds that visual quality of landscape is not an essential part of “ openness “ for which the Green Belt is protected. “ Openness “ is the counterpart of urban sprawl. It does not imply freedom from all forms of development. Consideration of relatively limited visual impact does not have to be part of the analysis.

 

Planning and Environment

January 6th, 2020 by James Goudie QC in Planning and Environmental

In R (Asda Stores) v Leeds City Council (2019) EWHC 3578 (Admin), Lieven J held, considering Zurich Assurance v North Lincolnshire Council (2012) EWHC 3708, that paragraph 90 of the NPPF, which provides that planning permission for out-of-town retail developments “should” be refused where the proposed development was likely to have significant adverse impact on town centre vitality and viability, did not create a presumption in favour of refusing such developments. It was still for the decision-maker to weigh the competing material considerations. Paragraph 90 did not create a presumption in favour of refusal. The NPPF had to be read as a whole, and in a way that made sense of the document as a whole. It was notable that, in relation to sustainable development, the NPPF used the specific term “presumption”, set out a structure by which that presumption was to be applied, indicated the particular circumstances it could be outweighed, and explained how it worked in particular types of case. This created a “tilted balance”, which gave effect to the presumption. By contrast, the word “presumption” was not used in paragraph 90, there was no suggestion of a tilted balance, and there was no attempt to tell decision-makers that they should put more weight on one factor rather than another. Although there were paragraphs in the NPPF which indicated, as a matter of policy, that particular weight should be given to particular matters, paragraph 90 was not one of them. Thus, the retailer’s argument could not be correct on a textual analysis of the NPPF as a whole. Moreover, the approach for which it contended would create a legal minefield for decision-makers, with potentially different presumptions pulling in different directions. That was precisely the type of excessive legalism infecting the planning system which the decision in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 warned Courts to be vigilant against.

 

Permitted Development Orders

December 23rd, 2019 by James Goudie QC in Planning and Environmental

New World Payphones Ltd v Westminster City Council (2019) EWCA Civ 2250 raised important questions concerning the proper approach to the scope of development covered by a permitted development order.

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