General Permitted Development Order (“GDPO”)

January 22nd, 2019 by James Goudie QC in Planning and Environmental

Is a nursery, attended by young children, a “school”, within the meaning of Class M of the GPDO? That was the question of construction posed in Bright Horizons v SoS for CLG and Watford Borough Council (2019) EWHC 14 (Admin). The Court held that there was no good reason for giving to the word “school” in the GPDO anything other than its ordinary meaning, which does not include a nursery.

 

Community infrastructure levy

December 20th, 2018 by James Goudie QC in Planning and Environmental

R (Giordano Ltd) v Camden LBC (2018) EWHC 3417 (Admin) was an application for judicial review of a notice of liability to pay a Community Infrastructure Levy (“CIL”) in respect of a proposed development. The issue was whether the Claimant was liable to the Council for CIL, following a grant of planning permission for the development by the Council as local planning authority. The Council had decided that the Claimant was not eligible for a deduction from the “chargeable amount” under the Community Infrastructure Levy Regulations 2010, as amended (“the CIL Regulations”). This was because the Claimant did not meet the conditions in Regulation 40(7) of the CIL Regulations. Read more »

 

Planning Conditions

December 17th, 2018 by James Goudie QC in Planning and Environmental

In Howell v Waveney District Council (2018) EWHC 3388 (Admin) Sir Ross Cranston said that a planning condition should be interpreted in the light of what a reasonable reader would understand it to mean in the light of the words “natural and ordinary” meaning and in the context of any other conditions and of the planning consent as a whole. Unlawful operations could not constitute the commencement of a development. The Court had to determine, first, whether a planning condition had been breached. The second stage was to consider whether it was a “condition precedent” in the sense that it required something to be done before development commenced. Development in contravention of a condition which was not a “condition precedent” did not render the development as a whole unlawful.

 

Listed Buildings

November 27th, 2018 by James Goudie QC in Planning and Environmental

The appeal in Dill v SoS for CLG and Stratford-on-Avon District Council (2018) EWCA Civ 2619 gave rise to issues relating to the scope of what is meant by “listed building” under the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”); and, in the event of dispute, who determines whether something is a “listed building”. The issues arose in relation to two early 18th century limestone piers, each surmounted by a lead urn of the same era. In 1973, the items were moved to a Grade II listed building. In 1986, each of the items was separately Grade II listed. They were subsequently disposed of.   The fact that they
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Housing supply

November 8th, 2018 by James Goudie QC in Planning and Environmental

In Cheshire East Council v SoS for HCLG (2018) EWHC 2906 (Admin) the claimant Council sought an Order quashing the decision of the SoS’s Inspector to grant outline planning permission for 29 dwellings.  The central issue in the claim was whether the Inspector misunderstood and/or misapplied paragraph 47 of the first NPPF, in particular with the requirement for LPAs to demonstrate a five-year “deliverable” housing supply. Read more »

 

Law Changed By Statute

October 23rd, 2018 by James Goudie QC in Planning and Environmental

City of York Council v SoS for CLG (2018) EWHC 2699 (Admin) is the latest in a long line of cases going back to, at least, Victorian times, where the law is changed by statute and a disagreement then arises about the impact of the change on the legal position of the parties. Section 16 of the Interpretation Act 1978 (the 1978 Act) may bear on the issue.

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Discontinuance Notices

October 22nd, 2018 by James Goudie QC in Planning and Environmental

The unsuccessful appellant in Putney Bridge Approach Ltd v SoS for CLG and Hammersmith & Fulham Council [2018] EWCA 2268 owns an office building called Riverbank House (“the site”) on the north side of the River Thames, just over Putney Bridge. On 6 October 2016, the Council as the local planning authority (“the LPA”) served a Discontinuance Notice (“DN”) on the appellant requiring it to discontinue the use of the site for the display of illuminated advertisements. Both the appellant, and the company operating the advertisements (JC Decaux Limited) sought to appeal the DN. The SoS appointed an inspector who, by way of Appeal Decisions dated 29 August 2017, refused the appeals. The appellant sought to challenge the Appeal Decisions in the Planning Court, but the challenge was rejected by Ouseley J, and by the Court of Appeal.

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NPPF

July 25th, 2018 by James Goudie QC in Planning and Environmental

MHCLG has published the first revision of the NPPF since 2012. Alongside the revised NPPF itself, MHCLG has published its response to the consultation on the draft revised NPPF, an equality impact assessment, updated planning practice guidance, guidance on housing and economic development needs assessments, and a policy paper on measurement of housing delivery.

 

Valued landscape

July 24th, 2018 by James Goudie QC in Planning and Environmental

In determining whether a proposed development site is a “valued landscape” within para 109 of the NPPF it is necessary to consider the site as part of the wider landscape, rather than limit consideration to the site’s particular characteristics. Para 109 “is not confined to landscapes which have a particular designation”. In most cases, a development site is but part of a wider landscape. So held by Ouseley J in CEG Land Promotions Ltd v SoS for CLG and Aylesbury Vale District Council (2018) EWHC 1799 (Admin).

 

Heritage asset

July 24th, 2018 by James Goudie QC in Planning and Environmental

Catesby Estates Ltd v Steer (2018) EWCA Civ 1697 concerned the “setting” of a listed building, a concept recognized by statute, and factors, such as the historic relationship between places, in addition to visual and physical considerations and impact. The Court of Appeal held that in the context of an application for planning permission for a development that would potentially affect a listed building or heritage asset, the duty imposed by the Planning (Listed Buildings and Conservation Areas) Act 1990 s. 66(1) to have special regard to the desirability of preserving the asset or its “setting” required the decision-maker to determine the extent of the asset’s setting and the impact of the development upon it. In doing so, the decision-maker had to take account of social, historical and economic, as well as physical and visual, factors.  The setting of a heritage asset was not statutorily defined and did not lend itself to precise definition.  However, implicit in s. 66(1) was the idea that setting could be affected by development, whether within or outside it. Thus, the decision-maker was required to understand what the asset’s setting was, and whether the development site either lay within it or was in some way related to it. Identifying the extent of an asset’s setting and whether the development would affect it was a matter of applying planning judgment to the circumstances of the case, and unless there was clear error of law in the decision-maker’s approach, the court should not intervene. The decision-maker had to have regard to relevant policy and guidance, and to the principle that considerable importance and weight had to be given to the desirability of preserving that setting.  For a proposed development to affect the setting, there had to be a distinct visual relationship between the two.  That relationship had to be more than remote or ephemeral, and it had to bear on how the asset was experienced in its surrounding landscape. However, that did not mean that other factors were to be ignored.  Economic, social and historical considerations were also relevant.