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.

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.

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.

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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R (Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council (2019) UKSC 53, in which the Supreme Court gave Judgment on 20 November 2019, on appeal from (2017) EWCA Civ 2102, concerns a challenge by way of judicial review by the respondent, Mr Wright, to the grant of planning permission by the second appellant (the “Council”) to the first appellant (“Resilient”) for the change of use of land at a farm in Gloucestershire from agriculture to the erection of a wind turbine. In its application for planning permission, Resilient proposed that the turbine would be built and run by a community benefit society and that an annual donation would be made to a local community fund. The Council took this donation into account in granting planning permission and made the permission conditional on the development being undertaken by the community benefit society and the provision of the donation. Read more »

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.

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).

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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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.

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