For the purposes of Aarhus Convention protection, “environment” is to be given a “broad meaning” : per Patterson J in R (Dowley) v SoS (2016) EWHC 2618 (Admin).

What is the standard of reasons to be applied to a local planning authority’s decision to grant planning permission? That was one of the questions in R (Hawksworth Securities) v Peterborough City Council (2016) EWHC 1870 (Admin). The Judge’s answer was that the position is not the same as it is with respect to a decision on a planning appeal. That is an adversarial procedure. A LPA however is not adjudicating in a dispute between planning applicant and objector. 

A LPA is not required to give reasons for rejecting objectors’ representations. It need only summarise the main reasons for its decision. It can do so briefly. 

It is not required to set out each step in its reasoning. It does not have to indicate what factual matters were accepted or rejected.

Ministers making planning decisions (such as an application for planning permission for a wind farm) should not allow themselves to be lobbied, by parties to the planning process, or by local MPs: Broadview Energy Developments Ltd v SoS for CLG and South Northamptonshire District Council [2016] EWCA Civ 562, considering the duty to act and to be seen to act fairly and even-handedly owed by political decision-makers (such as a decision by the SoS on a “recovered”, i.e. called in, planning application).  The Court of Appeal drew attention (para 16) to the February 2012 Guidance on Planning Propriety Issues from the SoS’s own Department.  Longmore LJ relied (para 25) on the “fundamental principle of the common law” which requires a decision-maker to listen to and take into account both sides of an argument, and continued:

“26.      To a 21^st century public lawyer this is a stark and obvious application of the principle that a decision-maker must not entertain representations from one party without finding out what other parties have to say on the matter. Nevertheless the principle has to be applied sensibly. If a party to an inquiry or an objector seeks to bombard a minister with post-inquiry representations which are merely repetitive of the representations made at the inquiry itself and every time that happened the Minister was obliged to circulate the representations for comment, the decision-making process could easily be subverted. That is effectively what has happened in this case so far as the written correspondence and representations are concerned. In these circumstances the Minister has not “entertained” privately made representations; he has merely made his decision in the light of all the evidence given and representations made to the inspector which were known to all parties. Although it could be said that there was a technical breach of para 4 of the Guidance, there was no breach of the rules of natural justice, see Fox Land v SSCLG [2014] EWHC 15 (Admin) paras 22-5 per Blake J. No doubt that is the reason why Mr Pike concentrated on the fact that Mrs Leadsom had the advantage of face to face meetings with Mr Hopkins in the House of Commons tea room and the lobby. It is those occasions which are said to be unfair since Broadview had no comparable advantage.

27. Para 4 of the Guidance draws no distinction between private representations made in writing and those made face to face and the same principle should therefore apply; if oral representations are merely repetitive of matters already ventilated at the inquiry, there should be no obligation to inform other parties of the contents of such representations and invite comments. But one has to pause, because any judge is acutely aware of the difference oral advocacy can make particularly if it occurs in the absence of the other side. Moreover in the case of written representations it is easy enough to assess whether they are merely repetitive of earlier representations whereas with oral representations one cannot be so sure. That is particularly so in cases like the present in which there is no evidence from the Minister himself but merely hearsay statements from two of his civil servants that Mr Hopkins told them he had no recollection of any meetings with Mrs Leadsom. In these circumstances it was not open to the Secretary of State to rely on rule 17(4) of the Rules and say that he disregarded Mrs Leadsom’s representations and Mr Kolinsky QC on behalf of the Secretary of State did not seek to do so.

28. In these circumstances it is, in my judgment, incumbent on a Minister taking a planning decision to make clear to any person who tries to make oral representations to him that he cannot listen to them. He can add (if the inquiry has concluded) that anything such persons want to say can be put in writing and sent to the Planning Casework Division. Although such refusal to listen is not in terms mandated in the Guidance it is effectively the thinking behind paras 11 and 12 of that Guidance when those paragraphs say that those seeking to make representations should be advised to write to the relevant official in the Planning Casework Division if the inquiry has concluded and that it must be made clear that any representations “made by whatever means” can only be taken into account if they are also made available to interested parties for comment.

29. Mrs Leadsom’s letter following the tea room conversation asserts that she made several points to Mr Hopkins and finishes by saying that she appreciates he cannot comment on individual applications. There is no evidence, however, that Mr Hopkins said he could not listen to what she was saying. For the reasons I have given he ought to have so said and, for my part, I would not endorse that part of the judge’s judgment in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties. Whether the failure of the Minister to say (politely) that he could not listen to what Mrs Leadsom had to say constitutes, on the facts of this case, a material breach of the rule of natural justice or gives rise to the appearance of bias is, of course, a somewhat different matter.”

Applying the principles to the facts, Longmore LJ said:

“30.      Once it is clear that the written representations added nothing to what had already been ventilated at the inquiry and there was nothing new that Broadview could say in response, Broadview is left with relying on the tea room and the lobby conversations. The question is whether the fact that Mr Hopkins did not state at the beginning of the conversation that it should not continue amounts to a material breach of the “audi alteram partem” principle. Here the chronology is important. The second (and relevant) inquiry took place between 8^th and 24^th October 2013; on 11^th October 2013 during the inquiry the Secretary of State called in the application for determination by himself. The tea room conversation with Mr Hopkins took place shortly before 2^nd December 2013 at a time when it was unlikely to have been decided whether it would be Mr Pickles or Mr Hopkins was to take the necessary decision and, in any event, well before the inspector made his report on 14^th April 2014. There were then the additional consultations referred to above and it was not until 7^th November 2014 that the Planning Casework Division in the Department (which, of course, had had no tea room, or other, conversation with Mrs Leadsom) sent its memorandum to Mr Hopkins recommending refusal of permission. It was thus at this stage (November 2014) that Mr Hopkins had to make up his mind on the application (as he did on 11^th November 2014) nearly a year after the tea room conversation had taken place. In these circumstances I find it impossible to conclude that the tea room conversation played any part in his decision making process. The breach of natural justice in failing to cut off the conversation and letting the conversation continue in circumstances in which both parties knew that the Minister could not comment on individual applications is, at the most, a technical breach which cannot have made any difference to the ultimate decision.

…

36. Nor do I think it arguable that a well informed observer would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.

37. Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”

Lewison LJ agreed, as did McCombe LJ, who added:

“41.      It seems to me that there was undoubtedly a breach of paragraph 4 of the Guidance by what appears to have occurred in the “tea room conversation” between Mr Hopkins and Ms Leadsom. On the facts of this case (in particular in the light of the chronology and the factors set out in paragraph 30 of my Lord’s judgment), however, this breach was not of sufficient moment to call for the quashing of the Secretary of State’s decision on the grounds of a breach of the principles of natural justice. Had the chronology been otherwise, and if the conversation had been more closely proximate in time to the decision taken, then it seems to me that the lawfulness of the decision might well have been in peril.

42. I agree with what my Lord says in paragraph 28 as to the need for Ministers to eschew conversations such as the one in issue in this case when they are seised of quasi-judicial decisions of the present nature. For my part, I would hold that such conversations are clearly a contravention of the clear purpose of paragraph 4 of the Guidance, which needs to be construed broadly as opposed to rigidly, and a breach of ordinary principles of fairness in our law. If a Minister gives an opportunity to a developer to put to him a case in way that is not afforded to objectors and this can lead to a successful challenge to a subsequent decision (as envisaged in paragraph 4), such an opportunity given to an objector (including an MP) can equally lead to such a challenge.
    
43. I would not wish to leave this case without stating my emphatic disagreement with the approach adopted by the judge in paragraphs 33 to 35 of his judgment. Constituency matters are one thing, but quasi-judicial decisions to be made by Ministers are another. Once a planning issue falls to be decided by a Minister, as part of the statutory planning appeal process, then representations by anyone (including an MP for the relevant constituency) can only take place lawfully in compliance with proper standards of fairness. One party should not be permitted to have access to the decision-maker in order to make representations in a manner not afforded to his opponent.

44. I disagree, in the present context, with the judge’s statement in the final sentences of paragraph 35 when he says that lobbying of Ministers is part and parcel of the representative role of a constituency MP and that it would be wrong for a court to conclude that there was anything improper with it as a matter of law. The statements would be clearly correct in respect of “ordinary” constituency matters but, for my part, I consider that they are incorrect if applied to “lobbying” of a Minister when he is charged with making an appeal decision of the present character. Indeed, the Guidance issued by the Minister’s own Department, envisages correctly the risk of successful legal challenges to decisions if Ministers do not adhere to the ordinary principles of fairness and natural justice in the context of decision-making functions in planning cases.”

It is wrong for a LPA to treat as a material consideration in determining an application for planning permission an offer by the applicant to make an annual community donation which could be used for anything which benefitted the local community. The donation does not serve a planning purpose.  It is off-site and is not related to land use.  The application considered in Wright v Forest of Dean District Council [2016] EWHC 1349 (Admin) was for permission for a wind turbine.  The donation would derive from the profits made out of the operation of the turbine.  Nonetheless the offer had no real connection with the development and was not fairly and reasonably related to it.  It did not regulate how the development might operate.  It did not address any impact on infrastructure.  It did not make the development more attractive.  The potential applications of the donation were too wide-ranging and too open-ended.  The donation being for community benefit did not necessarily mean that it was a material planning consideration.

Two important points are confirmed by Ouseley J in St Modwen Developments v SoS for CLG and East Riding of Yorkshire Council [2016] EWHC 968 (Admin).  First, there is no requirement for a site to have existing planning permission in order for the site to be available for housing supply for the purposes of NPPF para 47.  Second, the LPA had been entitled not to assess housing need only by reference to their own area.

Ejusdem generis has no place in the interpretation of planning conditions, the Court of Appeal has held in R (XPL Ltd) v Harlow Council [2016] EWCA Civ 378, a Judgment on 15 April 2016 on appeal from a first instance decision on 28 November 2014 with respect to a breach of condition notice served by the Council on 3 June 2014.

Lindblom LJ reiterated the principles at paragraphs 16 and 17. The general rule relating to the interpretation of a planning permission that is clear, unambiguous and valid on its face, is that regard may only be had to the planning permission itself, including the conditions, if any, imposed upon it and the reasons given for those conditions in the decision notice itself.  The planning permission and its conditions must be construed as a whole, as a “reasonable reader” would. If there is ambiguity in the wording of the permission, one can look at extrinsic material, including the application, to resolve it. There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission.  It is also relevant to the process of interpretation that a failure to comply with a condition in a public law consent may give rise to criminal liability.

The Court of Appeal found that the planning condition in the Harlow case satisfied the three conditions for validity: relevance to planning, a reasonable relationship to the development permitted, and reasonableness in the sense of its not being perverse. Lindblom LJ said, at paragraph 27, that in interpreting it he did not accept that the “ejusdem generis” principle “has any place” in the interpretation of planning conditions.  He described the suggestion that it did as “novel”.  In any event he saw no need to resort to it.

At paragraph 30 he added:-

“… there is no ambiguity either in the condition itself or in the condition and its reason read together. It follows that there is no need to go in search of extraneous material … as an aid to interpretation.  Conditions and their reasons should be interpreted, if they can be, in a benevolent way, and not in a search for inconsistency or lack of precision …”

There were two important issues before the Court of Appeal in Suffolk Coastal District Council v Hopkins Homes Ltd [2016] EWCA Civ 168: (1) what is the meaning of “relevant policies for the supply of housing” in paragraph 49 of the National Planning Policy Framework (“the NPPF”)?  (2) How are those policies to be applied?

The Court of Appeal gave a wide interpretation to “relevant policies for the supply of housing”. The Court ruled that they are not confined to policies that provide positively for the delivery of new housing, in terms of numbers and distribution or the allocation of sites.  The concept extends to plan policies the effect of which is to influence the supply of housing land, by restricting the locations where new housing might be developed.

Lindblom LJ, delivering the Judgment of the Court, stated, at paragraph 25, that their interpretation of the policy in paragraph 49 of the NPPF must be “faithful to the words of the policy, read in their full context and not in isolation from it”. He continued:-

“26.    The broad context is provided by the policies of the NPPF read as a whole … The Government’s aim of providing “the supply of housing to meet the needs of present and future generations” in paragraph 7 of the NPPF is reflected generally in the policies for sustainable development, in the policies for plan-making, and in the policies for decision-taking. It is part of the “social role” of the planning system in achieving sustainable development referred to in paragraph 7 of the NPPF. And it sits in the part of the NPPF where the Government has gathered its policies for delivering “sustainable development” …

27. The more specific context is set by the policies for housing development in the paragraphs immediately preceding and following paragraph 49, in the section devoted to the Government’s objective of “[delivering] a wide choice of high quality homes”… These policies are partly directed to plan-making and partly to decision-taking. Underlying them all is the basic imperative of delivery. Where they concern plan-making, their aim, very clearly stated at the beginning of paragraph 47, is to “boost significantly the supply of housing”. The first requirement in that paragraph – that an authority must “ensure” that its local plan meets the “full, objectively assessed needs” for housing, “as far as is consistent with the policies set out in [the NPPF]” – involves the making of an objective assessment of need before considering the impact of other policies in the NPPF… The second requirement is for local planning authorities to “identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements …”.

28.… for many years successive governments have relied on the planning system to increase the supply of housing land. At least since the 1970’s national planning policy has contained either an objective or a requirement for local planning authorities to identify and maintain a five-year supply of housing land. Between 1988 and 1992 there was a policy presumption in favour of planning permission being granted for housing where no five-year supply existed in the authority’s area … The advent of the NPPF marked a significant policy shift. …

28. The policy in paragraph 49 is not a policy for plan-making; it is a policy directed to the consideration of “[housing] applications”. But it is linked to the policy for plan-making in paragraph 47 in a very obvious way, because it is predicated on the requirement for the local planning authority to “demonstrate a five-year supply of deliverable housing sites”.

29. Paragraph 49 is also connected to the policy for the application of the “presumption in favour of sustainable development” in paragraph 14 …”

30.  We turn then to the words of the policy themselves, viewed in the context we have described

31. The contentious words are “[relevant] policies for the supply of housing”. In our view the meaning of those words, construed objectively in their proper context, is “relevant policies affecting the supply of housing”. … Not only is this a literal interpretation of the policy in paragraph 49; it is, we believe, the only interpretation consistent with the obvious purpose of the policy when read in its context. A “relevant” policy here is simply a policy relevant to the application for planning permission before the decision-maker – relevant either because it is a policy relating specifically to the provision of new housing in the local planning authority’s area or because it bears upon the principle of the site in question being developed for housing. … The “supply” with which the policy is concerned, as the policy in paragraph 49 says, is a demonstrable “five-year supply of deliverable housing sites”. Interpreting the policy in this way does not strain the natural and ordinary meaning of the words its draftsman has used. It does no violence at all to the language. On the contrary, it is to construe the policy exactly as it is written

32. Our interpretation of the policy does not confine the concept of “policies for the supply of housing” merely to policies in the development plan that provide positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites. It recognizes that the concept extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development. It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is.”

Moving on to how the policy in paragraph 49 of the NPPF is to be applied, Lindblom LJ said:-

“43.    When determining an application for planning permission for housing development the decision-maker will have to consider, in the usual way, whether or not the proposal accords with the relevant provisions of the development plan. If it does, the question will be whether other material considerations, including relevant policies in the NPPF, indicate that planning permission should not be granted. If the proposal does not accord with the relevant provisions of the plan, it will be necessary to consider whether other material considerations, including relevant policies in the NPPF, nevertheless indicate that planning permission should be granted.

44. The NPPF presents the decision-maker with a simple sequence of steps when dealing with a proposal for housing development. The first step, under the policy in paragraph 49, is to consider whether relevant “policies for the supply of housing” in the development plan are “out-of-date” because “the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”. Gauging the housing land supply will entail the use of the appropriate method of assessment, whatever that may be …

45. Whether a particular policy of the plan, properly understood, is a relevant policy “for the supply of housing” in the sense we have described is not a question for the court. It is, …, a question for the decision-maker. Provided the decision-maker acts on the correct understanding of the policy in paragraph 49 of the NPPF, and also on the correct understanding of the development plan policy in question, these being matters for the court, it is for him to judge whether the plan policy is or is not a relevant policy for the supply of housing. That is a matter for his planning judgment, and the court will only intervene on public law grounds. If the decision-maker finds that relevant policies of the plan are “out-of-date”, he applies the “presumption in favour of sustainable development” in the way that paragraph 14 of the NPPF requires. Again, he will be exercising his planning judgment, and again, therefore, the court will only review that exercise of judgment on public law grounds.

46. We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make “out-of-date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker …”

When a local planning authority (“LPA”) issues a screening opinion stating that no environmental impact assessment is required, reasons have to be given, in accordance with the ECJ decision in Mellor.  Hickinbottom J in R (Jedwell) v Denbighshire County Council [2016] EWHC 458 (Admin) cautioned that every case is necessarily fact specific, but stated, at paragraph 94, that the following propositions in relation to the giving of reasons can be derived from principle and the authorities:-

1. A LPA required to give reasons for a negative screening opinion within a reasonable time of a request;
2. Those had to be the reasons in its mind at the time of the decision, and not an ex post facto justification;
3. Given the possibility of a request coming in perhaps months or even years after the EIA screening decision was taken, LPAs would no doubt wish generally to maintain a note of the decision-maker’s reasons for any negative screening decision, so that those reasons could be sent out if and when any request was made;
4. Once proceedings are issued, whilst it would be too late for a LPA to avoid a breach by providing reasons, if the LPA thereafter provided reasons, and the Court was persuaded that they were indeed the reasons in the LPA’s mind at the time of the decision, the Court was likely to be slow to quash the planning permission;
5. If no contemporaneous reasons were forthcoming (including, a situation where the Court rejected the submission that reasons put forward were contemporaneous), then in accordance with usual public law principles, the planning permission should be quashed unless the LPA could show that the decision would inevitably have been the same if the breach had not occurred; or, if remitted, the decision would now be the same.

It is well established that in construing a public document such as an outline planning permission which is clear, unambiguous and valid on its face, the general rule is that may be had only to the planning permission itself, including the conditions to which the permission is subject and the expressed reasons for those conditions. This rule excludes reference to extrinsic evidence, including even the planning application, unless the planning permission itself incorporates the application by reference, in which case the application is treated as having become part of the permission. However, where there is an ambiguity in a planning permission, it is permissible to look at extrinsic evidence to resolve that ambiguity. This includes, but is not confined to, the application form, the site plan, and other documentary evidence, such as a Section 106 agreement. In University of Leicester v SoS for CLG and Oadby & Wigston Borough Council [2016] EWHC 476 (Admin) Supperstone J said that all relevant extrinsic evidence could be referred to depending on the circumstances of the case.  This might include evidence of the way in which the permission was actually implemented on the ground, albeit this could not be conclusive.   The first port of call in any examination of extrinsic evidence will usually be the application for permission. It may not, however, be the end of the matter.  When it does not resolve the ambiguity, other extrinsic material may be referred to, including non-documentary material.

In Dunnett Investments Ltd v SoS for CLG and East Dorset District Council [2016] EWHC 534 (Admin) Patterson J, at para 37, distilled the law on construing planning conditions in the following way:-

1. Planning conditions need to be construed in the context of the planning permission as a whole;
2. Planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible;
3. Consistent with that approach a condition should not be construed narrowly or strictly;
4. There is no reason to exclude an implied condition but, in considering the principle of implication, it has to be remembered that a planning permission (and its conditions) is “a public document which may be relied upon by parties unrelated to those originally involved”;
5. The fact that breach of a planning condition may be used to support criminal proceedings means that “a relatively cautious approach” should be taken;
6. A planning condition is to be construed objectively and not by what parties may or may not have intended at the time but by what a reasonable reader construing the condition in the context of the planning permission as a whole would understand;
7. A condition should be clearly and expressly imposed;
8. A planning condition is to be construed in conjunction with the reason for its imposition so that its purpose and meaning can be properly understood;
9. The process of interpreting a planning condition, as for a planning permission, does not differ materially from that appropriate to other legal documents.