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.

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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.

Amber Valley BC v Haytop Country Park Ltd (2020) UKUT 68 (LC) is concerned with a caravan site licence under the Caravan Sites and Control of Development Act 1960, as amended, and 2014 Regulations there under. There was a dispute, which is in the course of determination, as to whether the proposed use by Haytop would be a breach of planning consent. The UT rules that the FTT should not have required the grant of a licence by the Council to Haytop where what Haytop wanted to do might be outside the terms of the current planning permission.

In R (Wilbur Developments Ltd) v Hart District Council (2020) EWHC 227 (Admin) Lang J helpfully summarises (1) the legislation on NDPs: paras 5-18; (2) the NPPF: paras 19-21; (3) the Planning Practice Guidance: paras 22-24; (4) the limitations upon a challenge to a decision of a local planning authority approving recommendations for a NDP or to an Examiner’s Report: paras 63-72; (5) the materiality of a planning decision in relation to the same land: paras 77-79; and (6) “reasonable alternatives” for the purposes of the SEA Directive and a Strategic Environmental Assessment: paras 106-109.

The issue in R ( Samuel smith Brewery ) v North Yorkshire County Council (2020) UKSC 3 was whether the Council as LPA properly understood the meaning of the word “ openness “ in para 90 of the NPPF as it applies to mineral working in the Green belt.

The Supreme Court, allowing the LPA’s appeal, holds that visual quality of landscape is not an essential part of “ openness “ for which the Green Belt is protected. “ Openness “ is the counterpart of urban sprawl. It does not imply freedom from all forms of development. Consideration of relatively limited visual impact does not have to be part of the analysis.

In R (Asda Stores) v Leeds City Council (2019) EWHC 3578 (Admin), Lieven J held, considering Zurich Assurance v North Lincolnshire Council (2012) EWHC 3708, that paragraph 90 of the NPPF, which provides that planning permission for out-of-town retail developments “should” be refused where the proposed development was likely to have significant adverse impact on town centre vitality and viability, did not create a presumption in favour of refusing such developments. It was still for the decision-maker to weigh the competing material considerations. Paragraph 90 did not create a presumption in favour of refusal. The NPPF had to be read as a whole, and in a way that made sense of the document as a whole. It was notable that, in relation to sustainable development, the NPPF used the specific term “presumption”, set out a structure by which that presumption was to be applied, indicated the particular circumstances it could be outweighed, and explained how it worked in particular types of case. This created a “tilted balance”, which gave effect to the presumption. By contrast, the word “presumption” was not used in paragraph 90, there was no suggestion of a tilted balance, and there was no attempt to tell decision-makers that they should put more weight on one factor rather than another. Although there were paragraphs in the NPPF which indicated, as a matter of policy, that particular weight should be given to particular matters, paragraph 90 was not one of them. Thus, the retailer’s argument could not be correct on a textual analysis of the NPPF as a whole. Moreover, the approach for which it contended would create a legal minefield for decision-makers, with potentially different presumptions pulling in different directions. That was precisely the type of excessive legalism infecting the planning system which the decision in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 warned Courts to be vigilant against.

New World Payphones Ltd v Westminster City Council (2019) EWCA Civ 2250 raised important questions concerning the proper approach to the scope of development covered by a permitted development order.

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R (Wright) v Resilient Energy Severndale Ltd and Forest of Dean District Council (2019) UKSC 53, in which the Supreme Court gave Judgment on 20 November 2019, on appeal from (2017) EWCA Civ 2102, concerns a challenge by way of judicial review by the respondent, Mr Wright, to the grant of planning permission by the second appellant (the “Council”) to the first appellant (“Resilient”) for the change of use of land at a farm in Gloucestershire from agriculture to the erection of a wind turbine. In its application for planning permission, Resilient proposed that the turbine would be built and run by a community benefit society and that an annual donation would be made to a local community fund. The Council took this donation into account in granting planning permission and made the permission conditional on the development being undertaken by the community benefit society and the provision of the donation. Read more »

In Finney v Welsh Ministers and Carmarthenshire County Council (2019) EWCA Civ 1868, yet another wind turbine case, the Court of Appeal held that on an application under Section 73 of TCPA 1990 to vary a conditions of planning permission the LPA had no power to change the description of the development, including the height of the turbine to which the description attached. On such an application it is only the conditions that matter. First instance authority to the contrary was wrong.

A development must be carried out fully in accordance with the permission said to authorise it, and cannot lawfully be completed if it has become physically impossible to complete it fully in accordance with that permission, unless the permission is to be construed as authorising independent acts of development. So confirmed in Hillside Parks Ltd v Snowdonia National Park Authority (2019) EWHC 2587 (QB).