Green Belt

May 20th, 2021 by James Goudie QC in Planning and Environmental

In Sefton MBC v SoS (2021) EWHC 1082 (;Admin) the Court interpreted paras 143 and 144 of the NPPF. Read together, they emphasised the seriousness of harm to the green belt. That is to ensure that the decision-maker has in mind the nature of the “very special circumstances” requirement before development is approved. They do not however mandate a mathematical exercise in relation to each element of harm. There is a single exercise of planning judgment to assess whether there are very special circumstances which justify the grant of planning permission notwithstanding the particular importance of the green belt.

 

Neighbourhood Development Plans and Orders

May 14th, 2021 by James Goudie QC in Planning and Environmental

In Fylde Coast Farms v Fylde BC (2021) UKSC 18 the Supreme Court considers administrative processes comprising a series of successive steps, seven in the case of the above. The challenge under Section 61N of TCPA 1990 was out of time.

 

Protected Species

April 27th, 2021 by James Goudie QC in Planning and Environmental

There are protected species under Regulation 42 of and Schedule 2 to the Conservation of Habits and Species Regulations 2017. Under Regulation 43 it is an offence deliberately to disturb, damage or destroy a breeding site or resting place of any wild animal of such a species, unless there is a derogation licence. By Regulation 55(9) such a licence cannot be granted unless the licensing body is satisfied that there is no satisfactory alternative and that the action authorised will not be detrimental to the maintenance of the species concerned at a favourable conservation status at their natural range. In Kier v Natural England (2021) EWHC 1059 ( Admin ) Holgate J said : (1) the word “ detrimental” is all of a piece with the precautionary principle : para 42; (2) the judgment required involves consideration not just of the impact of the activities to be authorised, but also the mitigation and compensation measures to be secured by the licence : ibid; (3) the Court affords an enhanced margin of appreciation to a judgment of a scientific expert deciding issues of the kind raised: para 43. Holgate J also summarised, at para 44, the principles determining when fresh and expert evidence may be received in proceedings for judicial review, at para 45, the approach which should be taken to the grant of an injunction, and, at para 46,:how Decision Letters of Planning Inspectors are to be read.

 

Out of Date Policies

September 4th, 2020 by James Goudie QC in Planning and Environmental

A Policy is not out of date simply because it is in a time expired development plan. Whether a Policy is out of date, and, if so, with what consequences, is a matter of planning judgment. So held in Peel Investments v SoS and Salford City Council (2020) EWCA Civ 1175.

 

Dwellings

August 3rd, 2020 by James Goudie QC in Planning and Environmental

In Rectory Homes v SoS for MHCLG and South Oxfordshire DC Holgate J sets out general principles of interpretation of planning policy at paras 43-45 and 79 and addresses the meaning of “ dwelling” at paras 46-78 and 80/81.

 

Listed Buildings

May 21st, 2020 by James Goudie QC in Planning and Environmental

An item being on a listed building list is not conclusive of it being a “ building”. When considering what free standing items, such as garden objects or structures, qualify as a “ building” protected in the listed building context the relevant criteria are (1) size, (2) permanence, and (3) degree of physical attachment. So held by the Supreme Court in Dill v SoS for MHCLG (2020’ UKSC 20.

 

Habitats

May 1st, 2020 by James Goudie QC in Planning and Environmental

In Case C-254/19, Friends of the Irish Environment v Irish Planning Board, Advocate-General Kokott has on 30 April 2020 delivered her Opinion in relation to the extension of a development consent for the construction of a liquefied natural gas regasification terminal next to two Special Areas of Conservation. The consent was for 10 years. The works had not started. The extension would be for a further 5 years. The primary question was whether the extension was a plan or project within Article 6 of the Habitats Directive. Yes, says the A-G. Therefore it is subject to an appropriate assessment of the implications for wild flora and fauna.

 

Historic and Natural Environment

April 21st, 2020 by James Goudie QC in Planning and Environmental

R (Advearse) v Dorset Council (2020) EWHC 807 (Admin) concerned a major mixed development in an Area of Outstanding Natural Beauty and close to a conservation area of historical interest with a listed building. Issues considered by Swift J included what an Officer’s Report addressing the NPPF Part 16 provisions should contain.

 

Development Plan

April 15th, 2020 by James Goudie QC in Planning and Environmental

The basic question in R (Corbett) v Cornwall Council (2020) EWCA 508 was whether the Council as LPA erred in law in granting planning permission for a development found to be in conflict with Development Plan (DP) policies for the protection of Areas of Great Landscape Value, but compliant with other relevant DP policies, including a DP policy encouraging development for tourism, and in accordance with the DP as a whole. The Court of Appeal held that the Council had not erred. It had correctly understood the relevant policies of the DP and applied those policies lawfully in considering whether the proposal accorded with the DP as a whole. The DP policies had to be read together.

Read more »

 

Overlapping and Alternative Powers

April 8th, 2020 by James Goudie QC in Planning and Environmental

In Sawkill v HighWays England (2020) EWHC 801 (Admin) the Claimant sought judicial review of a decision by the defendant highway authority to seek to use its power under Section 172 of the Highways and Planning Act 2016to enter onto his land to carry out a survey in connection with a Development Consent Order (DCO). The claim failed. The authority could choose that general power and was not confined to the specific provisions of Section 53 of the Planning Act 2008 in connection with DCOs.