The Habitats Directive (notwithstanding Brexit) and domestic Regulations mandate that an appropriate assessment be undertaken before planning consent is given for a development. That is irrespective of what stage in the planning process has been reached according to domestic law. In C G Fry and Son Ltd v SoS for Levelling Up, etc (2023) EWHL 1622 (Admin) Sir Ross Cranston holds that application of Article 6(3) of the Directive and a broad and purposive approach to the interpretation of Regulations 63 and 70 of the Regulations requires the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required for the whole development would be undermined if those provisions were limited to the initial, permission, stage of a multi-stage process.

Section 78 of the Building Act 1984 gives a local authority power to take steps to deal with a building or structure which is in a dangerous state, such that immediate action is needed to remove the danger. Does this power abrogate the ned to obtain planning permission, where this would otherwise be required in order to take the necessary steps? Yes, says Lane J in R ( Samuel Smith Old Brewery ) v Redcar & Cleveland BC ( 2023 ) EWHC 878 ( Admin).The exercise of the power is not contingent upon any need to have obtained planning permission. The fact that planning permission was required, but not obtained, by the Council before commencing demolition of the property, an unlisted building in a conservation area, did not mean that that the Council acted outside the Section 78 power.

The legal principles relating to the Reports of Planning Officers are well settled. Nonetheless challenges based on such Reports continue to proliferate and Judges find it necessary to restate those principles. In R ( Armstrong ) v Ashford Borough Council ( 2023 ) EWHC 317 ( Admin ) at para 22 Bourne J summarised the principles as follows : (1) the weight to be given  to material considerations is for decision-makers to decide; (2) Reports to Planning Committees should be concise and focussed; (3) the assessment of how much and what information to include is for the expert judgment nf Planning Officers; (4) Judicial Review will not make headway on the basis of a defective Report unless the overall effect of the Report significantly misleads the committee about material matters which thereafter are left uncorrected at the Meeting of the Planning Committee; (5) Courts should make a fair reading of each Report as a whole; (6) Reports should be read bearing in mind that they are addressed to a knowledgeable readership, and in challenges to the decisions of democratically elected and experienced  members of Planning Committees Courts should proceed with prudence and caution.

In R (Ashchurch Rural Parish Council) v Tewksbury  Borough Council (2023). EWCA Civ 101 a challenge to an EIA assessment succeeded: paras 70-104 inc; as did other grounds. At paras 32 & 33 the Court of Appeal restated the respective roles of the planning officer and the decision-maker.

In R  (Whitley Parish Council) v North Yorkshire County Council (2023) EWCA Civ 92 the Court of Appeal restates some basic propositions bearing on the determination of an application for planning permission under the statutory scheme.

1. Albeit priority must be given to the Development Plan, that priority may be outweighed  by national planning policy, which may make some provisions of the Plan outdated.
2. The function of the Planning Officer is not to decide the fate of the proposal, but to provide advice.
3. The Court’s supervisory jurisdiction is to establish whether the authority’s decision-making has been vitiated by any error of law.

The Court also restated basic principles that govern the taking of a decision by a Pling Committee.

Section 73 of TCPA 1990 applies to Applications to develop land without compliance with conditions subject to which a previous planning permission was granted. ARMSTRONG v SoS for LEVELLING-UP etc and CORNWALL COUNCIL (2022) EWHC 142 (KB) concerned a refusal by the Council of the Claimant’s application to vary the plans for construction of a new dwelling under an extant planning permission. The main issue that arose was whether the Planning Inspector lawfully concluded that the Application would give rise to a fundamental variation to that permission  such that the Application fell outside the scope of Section 73, in circumstances where the variation of the condition would not give rise to any conflict with the description in that permission of the development. The Court held that the Planning Inspector did not act lawfully, for any or all of 8 reasons, set out at paras 74-94 inclusive. The correct starting point is that there is nothing in Section 73 that restricts its application to non-fundamental variations. Provided that an application is limited to non-compliance with a condition, rather than any other part of the permission, it is within the scope of Section 73.

Only Treaties which have been incorporated into domestic law give rise to legally enforceable rights. The 2015 Paris Climate Change Agreement has not been incorporated into domestic law. The Court of Appeal in R (Friends of the Earth) v Secretaries of State (2023) EWCA 14 holds that it was a tenable interpretation of the Treaty that approval of an investment in a liquefied natural gas project was aligned with the UK’s obligations under the Treaty. On the basis that questions of interpretation of an unincorporated Treaty are for the Executive to determine, the Court holds that a decision-maker cannot be challenged when they adopt a tenable view on a point of unincorporated international law.

In TALLINGTON LAKES LTD v SOUTH KESTEVEN DISTRICT COUNCIL (2022) UKUT 334 (LC) the Tribunal addresses the concepts of “occupier” and “relevant protected site” under the Caravan Sites and Control of Development Act 1960. The appellant, the freeholder of the site, was found to be the occupier and the correct licence holder. The appellant’s argument that it was the management company which operated the caravan park that was the occupier failed. An occupier had to occupy the land by virtue of an estate or interest therein. That meant an equitable estate or interest. That did not encompass a licensee or the manager under a management contract. Where the licence and planning permissions allowed mixed use that included residential the site was a relevant protected site.

Regulation 65(1) of the Community Infrastructure Levy Regulations 2010 sets a time limit within which levy liability notices have to be issued. Revised liability notices then can by Regulation 65(5) be granted at any time. Regulation 65(8) provides that on the issuing of subsequent liability notices any earlier notice “ ceases to have effect “. The Court of Appeal holds in R ( Braithwaite etc Properties ) v East Suffolk Council (2022) EWCA Civ 1716 that the issuing of a revised liability notice does NOT operate retrospectively to nullify the legal effect of an earlier liability notice. It cannot be treated automatically as having been a nullity and of no effect from the outset. Legal consequences follow. The point at which the earlier liability notice ceases to have effect is when the authority issues another liability notice in respect of the same chargeable development.

This is an illustration and application of the principle that a decision issued by a public authority is legally valid unless and until quashed. Those affected by decisions made by statutory authorities exercising their statutory functions are not generally entitled to disregard the legal consequences of such decisions on account of the decision-making procedure having allegedly been unlawful They must challenge them by appropriate means. This includes, where appropriate, by a timely claim for judicial review.

A liability notice is extant unless and until superseded by a revised liability notice or quashed by a Court.

Is it lawful for a planning authority, in granting a planning permission for a development, to impose a planning condition that the developer will dedicate land within the development site to be a public highway? Answer: it would be unlawful. So reaffirmed by the Supreme Court in DB Symmetry Ltd v Swindon Borough Council (2022) UKSC 33.