Community Infrastructure Levy

January 30th, 2019 by James Goudie QC in Planning and Environmental

On the requirement for substantial compliance by a notice for exemption from the levy, see R (Shropshire Council) v SoS (2019) EWHC 16 (Admin). The decision of the Court of Appeal in R v SoS, ex p Jeyeanthan (2000) 1 WLR 354 was distinguished.  The Judge said:-

“29. Jeyeanthan helps to answer the question what is to happen if a person undertaking a particular act has failed to comply with all the requirements prescribed for that act. But that can be a relevant question only if the actor has actually engaged in the regulated conduct. If the path of compliance has not, so to speak, been trodden at all, there is likely to be little scope or need for analysis of error or omissions in attempted or partial compliance. Read more »


Air Quality

January 29th, 2019 by James Goudie QC in Planning and Environmental

The duty of the Secretary of State under Directive 2008/50 and the Air Quality Standards Regulations 2010 is to ensure the preparation and implementation of an Air Quality plan. The duty as “competent authority” does not extend to exercising his power in any particular way, such as by calling in a planning application for his own determination. So held in R (Shirley) v SoS, Canterbury City Council Interested Party (2019) EWCA Civ 22.


Conservation Areas

January 29th, 2019 by James Goudie QC in Planning and Environmental

On the relationship between the Strategic Environmental Assessment Directive and the Habitats Directive, see the Opinion of Advocate-General Kokott, delivered on 24 January 2019, in Cases C-43/18 and C-321/18.


Stop Notices

January 29th, 2019 by James Goudie QC in Planning and Environmental

There is an entitlement to compensation in respect of any loss or damage directly attributable to any prohibition contained in a stop notice. However, such compensation has to be for an ascertainable loss. The loss has to be attributable to the prohibition in the stop notice, not some other cause. The entitlement to compensation is there predicated on there being, in the relevant period, some actual loss, not a hypothetical one. What matters is the circumstances as they actually were while the notice was in force, not some other, imaginary, scenario.

Moreover, compensation is excluded for the prohibition of “any activity” that “when the notice is in force, constitutes or contributes” to a breach of panning control. It is immaterial that the activity might not be in breach of planning control by the time it was carried out.

So held in Huddleston v Bassetlaw District Council (2019) EWCA Civ 21.


Heritage Assets/Development Plan Policies

January 24th, 2019 by James Goudie QC in Planning and Environmental

R (Liverpool Open and Green Spaces Community Interest Company) v Liverpool City Council (2019) EWHC 55 (Admin) was two claims by the applicant community interest company (LOGS) against the grant of planning permissions by the defendant local planning authority (the LPA). The first permits relocation and laying out of a miniature railway with associated buildings and parking. The second permission is for the building of 39 new dwellings and conversion of a historic house and grounds into

12 apartments. The site for these proposed developments is an area of open land at Calderstones Park, Liverpool (the park). LOGS is concerned to prevent the developments which, it says, would unlawfully change the character of the park. Read more »


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
Read more »


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 »