In R (DLA Delivery Ltd) v Lewes District Council (2017) EWCA Civ 58 the Court of Appeal held that the statutory requirement for a Neighbourhood Development Plan (“NDP”) to be “in general conformity with the strategic policies contained in the development plan for the area” did not require the making of a NDP to await the adoption of an up-to-date local plan.  Lindblom LJ addresses the statutory scheme for the preparation of NDPs at paras 4/5 and concludes at para 25 that the making of a NDP does not have to await the adoption of any other development plan document.

In R (Boot) v Elmbridge BC [2017] EWHC 12 (Admin) Amanda Boot sought to quash the Council’s decision to grant planning permission for a new football and athletics facility in Walton-on-Thames in Surrey (“the Site”).  The Site is a 14 hectare former landfill site requiring remediation. It is located within the metropolitan Green Belt, adjacent to the river Thames. The purpose of the planning application was to construct the “Waterside Drive Sports Hub”. This is intended to provide a shared ground for Walton Casuals FC, Walton and Hersham FC and Walton Athletics Club. The proposed development would utilise land that is currently occupied by one football pitch for Walton Casuals FC, an area of informal open space and scrub land. All existing structures on the Site would be demolished.

Two grounds of challenge were advanced: that the Council’s Planning Committee had erred in its interpretation of paragraph 89 of the NPPF; and that the Council had failed to have regard to a material consideration. Supperstone J rejected the latter challenge. However, he upheld the former.  Paragraph 89 provides that a LPA should regard the construction of new buildings as inappropriate in the Green Belt save for the provision of appropriate facilities for outdoor sport and outdoor recreation, “as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it”.

The Claimant contended that the question of law raised by her first ground of challenge was whether a new sports facility could be appropriate development even if it caused harm to the openness and purposes of the Green Belt. This was suggested because the Council found that the new stadium would cause harm to the openness and purposes of the Green Belt, but (despite this) found it was appropriate development and complied with paragraph 89 of the NPPF. The Claimant submitted that the Council’s interpretation of the policy was wrong. Her Counsel contended that if a new sports facility caused harm to the openness of the Green Belt (even limited harm) it was not appropriate development.  He submitted that if a proposal has an adverse impact on openness, the inevitable conclusion is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Council concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paragraphs 87 and 88 of the NPPF there were very special circumstances that would justify it. Supperstone J accepted these submissions.  In his judgment the Council erred in its interpretation of paragraph 89 of the NPPF.

When a local planning policy obliges a developer to provide an element of affordable housing on sites in excess of stated thresholds, an issue may arise as to whether to aggregate two (or more) sites or whether two (or more) sites should be treated as forming part of a larger whole. Absent a definition of sites, the determination of such an issue relates to the application rather than the interpretation of policy, is a matter of planning judgment, and is challengeable only if irrelevant factors are taken into account or if an obviously relevant consideration is not taken into account or if the judgment is otherwise irrational: New Dawn Homes Ltd v SoS for CLG and Tewkesbury Borough Council [2016] EWHC 3314 (Admin), considering the Brandlord case.

 In R (Friends of the Earth) v North Yorkshire County Council (2016) EWHC 3303 (Admin) Lang J dismissed a judicial review challenge to the Council’s decision as Minerals Planning Authority to grant planning permission for fracking. There were two grounds of challenge, the principal one of which related to environmental impact.  Lang J reiterated (para 21) that it is for the authority to assess (i) what information should be in the Environmental Statement (“the ES”) and (ii) whether the information contained therein is adequate, and that the authority’s assessment can be challenged only on public law grounds. The Council had consulted (para 47) and had considered objections and taken them into account when making its decision (para 51). The Officers’ Report fairly set out the legislative and policy framework within which the decision had to be made (para 53), namely (i) European legislation on environmental protection; (ii) National legislation and policy on meeting climate change objectives by cutting greenhouse gases and moving away from fossil fuels (including gas) towards clean renewable energy supplies; (iii) National policy in favour of shale gas; (iv) National planning policy on meeting the challenges of climate change and support for a transition to a low carbon future. The Committee’s Resolution clearly evidenced the Committee’s consideration of the ES and its conclusion that the ES was adequate.

Applying the tests set out in the authorities, Lang J concluded at para 57 that she found it impossible to conclude that the Officers failed to guide the Members sufficiently, or misled them, on a matter essential to their decision. The Committee Members had specialist knowledge, as members of a Mineral Planning Authority which has multiple gas wells in its region. The ES and the Officers’ Report provided them with a detailed account of the proposed scheme. They received detailed objections to the proposal from objectors, which included the increase in greenhouse gas emissions arising from the production of gas at the Site. The real thrust of the objections was that energy requirements ought to be met by other, less environmentally damaging means than gas production and a gas-fuelled electricity generating station. This was essentially a judgment for the Committee to make. They were extensively briefed by Officers on the climate change issues, as well as the Government’s policy in favour of shale gas.

“The legislative regime for tree preservation orders does not stand apart from the comprehensive statutory scheme for land use planning. It is an integral part of that statutory scheme, and an important one”: per Lindblom LJ at paragraph 38 in Barney-Smith v Tonbridge and Malling Borough Council (2016) EWCA Civ 1264.

There are two means by which a LPA can achieve formal protection for trees and control over work to trees which have been given such protection: (1) the imposition of conditions on the grant of planning permission; and (2) the making of TPOs. “They can be used in combination with each other, or separately.” That is left to the LPA’s discretion.  An authority’s power to make a TPO, and the consequent statutory protections for the tree(s) included in the TPO, “complement” its functions in making decisions on proposals for development, including its power to impose conditions on grants of planning permission.  See also per Elias LJ at paragraph 60.

R (Skelmersdale Limited Partnership) v West Lancashire Borough Council (2016) EWCA Civ 1260 concerned a claim for Judicial Review of a planning permission granted by the Council for a new retail-led development on a strategic development site of about 5 hectares in the Skelmersdale Town Centre. The challenge was with respect to a condition of the permission, which related to occupation of the retail floorspace, and the meaning of the word “commits” in that condition. Sales LJ (with whom Briggs LJ agreed) said:-

“15.    Guidance as to the interpretation of the terms of a grant of planning permission is given in the judgment of Lord Hodge JSC in Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2016] 1 WLR 85, at paras. [33]-[34]. As Lord Hodge explains, there is only limited scope for the use of extrinsic material in the interpretation of a public document such as a planning permission ([33]), but reference to some extrinsic materials, such as the application for permission, may be legitimate ([34]).

16. In fact, however, I consider that the judge was plainly correct in his interpretation of the word “commits” in condition 5(ii), without the need for reference to these extrinsic materials. Lord Hodge explains at [34] that the interpretation of a condition in a planning consent involves asking “what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole”; “This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense.”

In Holder v Gedling Borough Council (2016) EWHC 3095 (Admin), concerned with whether there were “very special circumstances” justifying a wind turbine in the Green Belt, Green J said, at paragraph 69, that the Written Ministerial Statement of 18 June 2015 on proposed wind energy developments does not endorse a principle that a vocal minority has the ability to exert decisive or dominant influence in a manner which would not otherwise occur.  Ultimately it is the Committee that takes into account objectors’ views and then balances and reconciles the competing arguments. Its decision reflects “real democratic decision making”.

In Trustees of the Barker Mill Estates v Test Valley Borough Council (2016) EWHC 3028 (Admin) Holgate J has said that the Judgment in Wychavon District Council v SoS for CLG (2016) EWHC 592 (Admin) had been wrongly decided.  That had stated that the NPPF contained a general presumption in favour of sustainable development.  However, said Holgate J, the only presumption in favour of sustainable development was, as stated in Cheshire East Borough Council v SoS for CLG (2016) EWHC 571 (Admin), that within the scope of paragraph 14 of the NPPF, which requires that Local Plans should meet “objectively assessed needs” unless either “… any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole; or specific policies in this Framework indicate development should be restricted”.

SoS for CLG v Engbers [2016] EWCA Civ 1183 was a procedural unfairness challenge to a Planning Inspector’s decision following a Public Inquiry to dismiss an application for outline planning permission which had been refused by South Oxfordshire District Council.  Lewison LJ (with whom Hamblen and Henderson LJJ agreed) observed (para 3):-

“Leaving aside a determination by written representations, there are two procedures by which a planning inspector may determine an appeal: by hearing or by inquiry. A hearing is the less formal and more inquisitorial of the two. An inquiry is more formal and adversarial. Procedure at a public inquiry is regulated by the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 (“the Rules”).”

Lewison J set out the relevant rules for the purposes of the case, and continued (emphasis added):-

“5.       However, this is not a complete procedural code because the inspector is also required by the common law to conduct the inquiry in accordance with the principles of procedural fairness. One of the principal purposes of the Rules is to make the inquiry more focussed, so that the main protagonists (i.e. the appellant and the local planning authority) know what is in issue between them. At the same time, however, the ability of the public to participate in environmental decision making is of considerable importance, as recognised for instance by the Aarhus convention.”

Lewison LJ stated (para 6) that the leading case on procedural fairness in the context of planning inquiries is the decision of the Court of Appeal in Hopkins v SoS (2014) EWCA Civ 470, (2014) PTSR 1145, where Jackson LJ set out six relevant principles at para 62.  Principle (5) is in part that the Inspector will consider any significant issues raised by third parties, even if those issues are not in dispute between the main parties.  Principle (6) is that if a main party resiles from what had been common ground, the Inspector must give the other party a reasonable opportunity to deal with the new issue.

Lewison LJ in Engbers continued (emphasis added):-

“7.       The main debate in this appeal centres on principles (5) and (6). The mere fact that some aspect of the proposed development is not in issue between the developer and the local planning authority does not preclude the inspector from considering that aspect and to give it decisive weight, if it is raised by a third party. …”

“9.       The clear message … is that a developer cannot ignore the views of local residents, even if they are not supported (or are even contradicted) by the council. To hold otherwise would undermine the value of public participation in environmental decision making.”

At para 45, Lewison LJ said:-

“If a third party raises an issue which is at variance with the agreed stance of the appellant and the local planning authority, the inspector is in my judgment duty bound to consider it. Fairness to third parties demands no less. …”

He added (para 51):-

As I have said I do not consider that the fact that a particular matter is common ground between the developer and the local planning or highway authority debars the public from disagreeing. It may not be incumbent on an appellant to deal with every representation, but in the face of a clear consensus of opinion from local residents a developer takes a risk by failing to do so, …”

Lewison J also observed (para 12):-

“We were hampered to some extent in reconstructing the progress of events by the fact that some of the key documents were undated. I echo Jackson LJ’s observations in Hopkins at [15] that even in the specialist field of planning inquiries “people really should put dates on the documents which they send out”. It would be desirable for the Secretary of State or the Planning Inspectorate to incorporate that in clear written guidance.”

Should planning policies be given reduced weight on account of their age? No, says the Court of Appeal in Gladman Developments Ltd v Daventry District Council (2016) EWCA Civ 1146.  In accordance with paragraph 215 of the NPPF due weight should be given to relevant policies in existing plans according to their degree of consistency with the NPPF: the closer the policies in the plan to the NPPF, the greater the weight they may be given.

Sales LJ formulated the general approach to be adopted to consideration of development plan policies which are old in the following way:-

(1)       Since old policies are part of the development plan, the starting point, for the purposes of decision-making, remains Section 38(6) of the 2004 Act. This requires that decisions must be made in accordance with the development plan – and, therefore, in accordance with those policies and any others contained in the plan – unless material considerations indicate otherwise. The mere age of a policy does not cause it to cease to be part of the development plan. The policy continues to be entitled to have priority given to it in the manner explained by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, HL, at 1458C-1459G.

(2)       The weight to be given to particular policies in a development plan, and hence the ease with which it may be possible to find that they are outweighed by other material considerations, may vary as circumstances change over time, in particular if there is a significant change in other relevant planning policies or guidance dealing with the same topic. As Lord Clyde explained:

“If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance” (p. 1458E).

(3)       The NPPF and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations. Paragraph 215 sets out the approach to be adopted in relation to old policies, and as explained above requires an assessment to be made regarding their consistency with the policies in the NPPF. The fact that a particular development plan policy may be chronologically old is, in itself, irrelevant for the purposes of assessing its consistency with policies in the NPPF.

(4)       Since an important set of policies in the NPPF is to encourage plan-led decision-making in the interests of coherent and properly targeted sustainable development in a local planning authority’s area significant weight should be given to the general public interest in having plan-led planning decisions even if particular policies in a development plan might be old. There may still be a considerable benefit in directing decision-making according to a coherent set of plan policies, even though they are old, rather than having no coherent plan-led approach at all.

(5)       Paragraph 49 of the NPPF creates a special category of deemed out-of-date policies, i.e. relevant policies for the supply of housing where a local planning authority cannot demonstrate a five-year supply of deliverable housing sites. The mere fact that housing policies are not deemed to be out of date under paragraph 49 does not mean that they cannot be out of date according to the general approach referred to above.