Tribunal Halves Fine for Disclosure of Sensitive Information in Planning Case

The First-tier Tribunal has upheld the Information Commissioner’s decision to impose a monetary penalty on Basildon Borough Council for publishing sensitive personal information about a family in planning application documents that were made publicly available online. 

However, the FTT halved the penalty from £150,000 to £75,000, saying the ICO had not given sufficient weight to certain points in mitigation and not taken into account others.

The Tribunal noted that, unlike fines imposed in the criminal justice system, there was no independent body such as the Sentencing Council providing a definitive list of relevant aggravating and mitigating factors and a matrix of appropriate fines. It also noted that the Information Commissioner was seeking to establish her own ‘database’ of penalties and pertinent factors to be taken into account and this was referred to in the Decision Record, “though it might be argued that that it is not entirely appropriate for the investigator and enforcer of MPNs to be the body that also effectively sets the level of the penalties”.

Town Council Dissolves “Clearly Impotent” Planning Committee

Buckfastleigh Town Council (BTC) has decided to dissolve its planning, environment and transport committee, saying it was “clearly impotent” and risked misleading the public and misdirecting any concerns they had.

In a statement on its website, BTC said that that the committee had till now examined and responded on every local planning application made to the Dartmoor National Park Authority (DNPA), Teignbridge District Council (TDC) or Devon County Council (DCC).

It continues: 

At the meeting we observed that as a town council we have in fact had no powers in terms of planning since 1974, when TDC took over most of the powers of the then Buckfastleigh Urban District Council, but that many local people still felt that we had some control over planning decisions. This has led to both misplaced hope that bringing a case to the Planning Committee will make a difference to their case and consequent blame when planning decisions go ahead regardless of their concerns.

It has been made quite clear in recent years that the carefully considered and well-informed responses to planning applications to DNPA, TDC and DCC have been ignored by their planning authorities in reaching decisions. In fact BTC has recently lodged a formal complaint lodged with DCC about its inability to enforce planning legislation and its misconduct in issuing planning notices in the case of Whitecleave Quarry.

Since the start of this council in May 2015, none of the responses submitted by the Council in response to any major panning proposal in the parish has had an appreciable effect on the outcome …

We feel that by maintaining a ‘Planning’ committee, which is clearly impotent, we are misleading the public and misdirecting any concerns they have. We believe it would likely have more impact if all the individual councillors and members of the public made their own representations to planning authorities (although evidence is limited that this has any effect either!) and we don’t want to be duped into inadvertently acting as fodder for those authorities going through the motions of carrying out statutory consultative procedures, unless our opinion is actually given some weight.

We will continue to flag up any planning proposals that are likely to have a significant impact on the parish and fight for the interests of our constituents, but we will no longer formally meet as a planning committee to formulate our responses – these will come from full council. The current Planning, Environment & Transport committee will be dissolved and its members will meet to discuss any future remit.

Council Loses Appeal Over “Unlawful” Community Donation

The Court of Appeal has rejected appeals by a council and a wind turbine developer following the quashing of a planning permission as a result of the committee taking into account a proposed donation to the community.

The single issue for the Court of Appeal was whether, on an application for development proposed to be undertaken by a community benefit society, the proposed donation to the community of a proportion (4%) of the turnover over the turbine’s projected life of 25 years was a material consideration worth approximately £1m. The proposed donation was secured by way of condition and in reaching their decision the LPA expressly took into account the donation. 

A judicial review of the decision followed on the basis that the promised donation was not a material planning consideration, and the council had acted unlawfully in taking it into account.

In the High Court, Dove J held that the donations did not meet the criteria for materiality in case law as they were not designed to ameliorate any kind of adverse impact of the development, but could be used for any purpose considered locally beneficial.

Simply being a contribution for community benefit related to a local strategy for health, social or cultural wellbeing does not make that contribution in and of itself material to a planning determination,” he noted, adding that he was “unable to accept that the fact that the proposal is community-led precludes or renders unnecessary an examination of the contributions associated with it to see whether or not they satisfy the legal requirements of being a material consideration in the planning decision … 

 I am satisfied…that the [LPA] was not entitled to take into account as a material consideration in their planning decision the offer of the local community donation made by the interested party as part of their proposal. As a consequence the decision which they reached was unlawful.

The Court of Appeal rejected both the LPA and Applicant’s contention that the Judge had been wrong to quash the planning permission.

Hickinbottom LJ (with whom Davis LJ and McFarlane LJ agreed) said: 

Dove J, who referred to and applied the relevant authorities, was right to proceed on the basis that the nature of the community benefit fund donation, and the vehicle it was proposed would provide it, were not such as to preclude examination of the contributions associated with it to see whether they satisfied the legal requirements of being a material consideration in the planning decision.

He was entitled to conclude that “the community donation is an untargeted contribution of off-site community benefits which is not designed to address a planning purpose”  … He was also entitled to conclude that there is “no real connection between the development of a wind turbine and the gift of monies to be used for any purpose which appointed members of the community consider their community would derive benefit”.

Indeed, he was in my view, undoubtedly right to draw such conclusions: and to conclude that, consequently, the Council was not entitled to take into account as a material consideration the offer of the community benefit fund donation.

Supreme Court Requires Reasons To Be Given for Controversial Planning Decisions

In an important judgment that reviews the obligation to give reasons in planning cases, the Supreme Court has dismissed the appeal in Dover DC v CPRE Kent [2017] UKSC 79 and affirmed the decision of the Court of Appeal quashing permission for major development in the Kent Downs AONB.

Lord Carnwath (with whom Lady Hale, Lord Wilson, Lady Black and Lord Lloyd Jones agreed) held that:

  • The standard of reasons summarised by Lord Brown in South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953 applies generally, and is relevant for environmental impact assessment (EIA) development
  • If a party can establish a material defect in reasoning, the appropriate remedy will generally be to quash the planning permission
  • For EIA development in particular “the provision of reasons is an intrinsic part of the procedure, essential to ensure effective public participation”, so it is insufficient to provide a statement of reasons after the grant of planning permission; in that regard the Supreme Court declined to follow the reasoning in R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920
  • At common law, fairness may require the provision of reasons for the grant of planning permission, despite the lack of an express statutory duty
  • A separate statement of reasons will therefore likely be required for the grant of planning permission against officers’ recommendation for controversial development in conflict with local and national policies; Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 was correctly decided

Lord Carnwath noted that members of Dover District Council’s planning committee had “an unenviable task” (para.61) and that “[i]t is difficult to see how the members could have expected to reach a properly considered decision on the material then before them” (para.63). This was particularly true of “the contentious issue of viability”. He considered that with hindsight, nothing would have been lost if members had deferred their decision in order properly to address the issues in hand.

The case is of considerable significance for LPAs, Developers and Objectors alike on the nature, scope and standard of reasons required for planning decisions. For EIA development and especially controversial projects the position is clearer. However, exactly when a separate statement of reasons will be required in other cases and the content of such a statement is not answered.

Direct Action and Natural Justice

The recent case of R (Usher) v Forest Heath DC explored the relationship between decisions to take direct action and requirements of natural justice.

In the case, the Claimants argued that the LPA was under obligations to invite representations from them in respect of proposed direct action and to notify them of its decision to take direct action basing their argument on the principles of natural justice (and the DC’s Constitution) relying upon the serious consequences that would arise, in particular the entry onto the Claimants’ land; the power of recovery of costs; the power to place a charge on the land and finally the potential criminal liability. 

Nathalie Lieven QC, sitting as a Deputy High Court Judge, held that the Claimants’ arguments failed both on the law and on the facts.

The Claimants had a statutory right to make representations on whether the property had to be demolished, through the mechanism of the enforcement notice appeal under Section 174 of the TCPA. They had had every opportunity to make representations and indeed had done so. They knew that the LPA intended to take direct action if the building was not removed voluntarily. A decision to take direct action is not a quasi-judicial decision; it is an administrative step to achieve compliance with an enforcement notice. That does not mean that it carries no procedural protection within the rules of procedural fairness, but it is not the type of decision that falls within the Constitution as being ‘quasi-judicial’. That phrase is intended to cover matters such as a licensing decision, or doubtless a development control decision. Nor, as a preliminary view, was the decision to take direct action the determination of a civil right which falls within ECHR Article 6. The Claimants’ Article 6 rights were fully protected through the enforcement notice appeal process, including the power to appeal to the court under Section 289 of the TCPA. There was no breach of procedural fairness.

The Claimants also argued that alternatives to direct action were not properly considered by the LPA, contrary to Government Guidance, the Planning Practice Guidance (“the PPG”).

The Judge observed that the first resort for compliance with an enforcement notice is for the landowner him or herself to comply with the notice. The Claimants had chosen not to do that, despite being given very clear extended deadlines by the LPA to carry out the requisite work themselves. 

She did not read the PPG as suggesting that a LPA must take some other action, e.g. an injunction or a prosecution, before they decide to take direct action. If the PPG had said this, it would not accord with the Act itsel,f which requires no hierarchy or priority of further enforcement steps. There was no legal obligation to seek an injunction before direct action was taken. Equally, there was no requirement to take criminal proceedings first. Criminal proceedings in the enforcement context could only be a way of persuading the landowner to comply with the notice, not an alternative to doing so. Therefore, it may well be more effective for the local planning authority to proceed to direct action rather than take criminal proceedings.