Does the Consistency Principle Apply to Previously Quashed Decisions?

The High Court has recently considered the application of the principle of consistency in decision-making to a fresh decision following the quashing of a previous decision – Davison v Elmbridge Borough Council [2019] EWHC 1409 (Admin) and held that a previously quashed decision is capable of being a material consideration to which the principle of consistency set out in North Wilts applies.

By way of background, the case concerned a decision by Elmbridge Borough Council to grant planning permission for a new sports stadium in the Green Belt in circumstances where a previous grant of permission had been quashed by the High Court – R (Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin).

In the earlier decision, the Council found that the development would harm the openness of the Green Belt whereas in the latest decision the Council concluded that a development that was identical in all material respects would not. The Council’s planning judgment on the issue of openness was unaffected by the earlier decision to quash the permission.

The Claimant challenged the decision on the grounds that no reasons had been given from departing from the previous decision; and that the principle of consistency in North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P&CR 137 applied notwithstanding that the previous decision had been quashed.

The Defendant Council argued that the principle of consistency did not apply to previously quashed decisions and that, in any event, it was not unlawful on the facts of this case not to have given reasons for departing from the previous decision.

Thornton J said that:

It was incumbent on the Officer and the Planning Committee to address the change in position on openness between the two reports. The applications were identical in all material respects and related to the same site. Public confidence in the Council’s decision making was important given the earlier judicial criticism and given the Council was awarding permission to itself. It was both unsurprising and clear from the judgment in Boot that Court’s criticism of Permission 1 did not extend to the issue of Green Belt openness. The EIA Statement of Reasons and OR1 which contain the apparently inconsistent decision on openness remains in existence. In the absence of any explanation it is simply not possible to know whether the Planning Officer and especially the Planning Committee were even aware they had changed their position, let alone whether they had grasped the intellectual nettle of the difference in view. Nor was the explanation for the apparent inconsistency so obvious that a formal statement about it was unnecessary. The Court has been left to attempt to infer the reasons for the difference in view by a close scrutiny of both reports

Resident successfully challenges removal of Local Green Spaces status for playing fields

A local resident has won a High Court challenge over the removal of Local Green Spaces (LGS) status for playing fields from the London Borough of Richmond’s Local Plan.

The Teddington Society and Friends of Udney Park had applied for the status for Udney Park Playing Fields, a 12.5 acre site and following consultation, the Council adopted LGS status for the fields as part of the Richmond Local Plan.

During the public examination of the Local Plan the Council defended the LGS status while Quantum, a developer looking to obtain planning permission for 107 apartments, sought to have it removed.

In his report on the examination the planning inspector recommended a main modification removing LGS status from Udney Park. Richmond considered itself bound by the report and so gave effect to the main modification when it subsequently adopted the Local Plan.

The claimant argued that the main modifications did not make it clear that they included de-designation of the site, and therefore those in favour of retaining the designation were not given a proper or real opportunity to make representations on the point at this stage of the examination.

As a result, the claimant said, they were substantially prejudiced. Had they been made aware that this was a matter to be addressed in the consultation, they could and would have submitted further evidence and arguments on the point. They said it was conceivable in this event that the outcome would have been different, ie designation would have been retained.

Neither the Council nor the Secretary of State sought to defend the claim, but Quantum sought to resist the ground of challenge arguing that the de-designation of the site as LGS was not and could not have been the subject-matter of main modifications; accordingly, the Council, in undertaking the related consultation, was not obliged to refer to it. There was therefore no procedural error in the main modifications consultation process which was the only challenge made against the council, it added.

Mr Justice Waksman upheld the claim, saying that the claimant and Friends of Udney Park had suffered sufficient substantial prejudice as a result of the procedural defects. He quashed the relevant part of the Local Plan.

Richmond Council will now hold a six-week consultation on the inspector’s decision that had removed Udney Park’s LGS status from the Local Plan.

Stevenage Borough Council in judicial review challenge over delays to Local Plan

Stevenage Borough Council has launched a judicial review challenge over the temporary holding direction of its Local Plan.

The Stevenage Borough Local Plan was submitted to the Secretary of State for Communities and Local Government on 21 July 2016 and received a positive inspector’s report in October 2017 recommending its adoption.

The council said that following the imposition of the holding direction, it had provided detailed information to the Ministry of Housing, Communities and Local Government (MHCLG) with all questions responded to by the start of last year.

Peyto Law Secures £21k Fine and £17k Confiscation Order Following Successful Prosecution

Louise Humphreys has continued to act for Chiltern District Council (CDC) in the criminal proceedings relating to the failure by Lombard Hotels Ltd and Asrar Ahmed to comply with an enforcement notice. Details of the prosecution and the facts can be found here

Asrar Ahmed was sentenced today (18 January 2019) at Aylesbury Crown Court by the Honourable Recorder for Aylesbury and ordered to pay a fine of £21,170 (including victim surcharge). In addition a confiscation order under the Proceeds of Crime Act (POCA) was made in the sum of £17,000. Mr Ahmed was also ordered to pay CDC’s costs in bringing the proceedings in the sum of £23,293.04.

No separate penalty was given against Lombard Hotels Limited of whom Mr Ahmed was the sole Director and Company Secretary.

It is understood that the breach of planning control has now been resolved and that the site operatives are operating in accordance with their planning permission.

Parish fails in High Court challenge to permissions for 229 homes

East Bergholt Parish Council has failed in a High Court challenge to decisions by Babergh District Council to grant planning permissions for 229 new homes in the Suffolk village.

Sir Ross Cranston, sitting as a High Court judge, said the three applications involved were not in accordance with the local development plan but were granted because Babergh could not demonstrate a five year housing land supply. They were therefore allowed under the provision of the National Planning Policy Framework that permits applications for developments deemed sustainable in this situation.

The case turned on the Parish Council’s claims that Babergh had not lawfully exercised its discretion when assessing deliverability in the context of a five year land supply. The Parish Council contended that the officer’s report did not direct councillors as to whether the scheme’s opponents had a point to make, and that an error in the calculation of the land supply was not corrected.

In East Bergholt Parish Council v Babergh District Council [2018] EWHC 3400 (Admin) Sir Ross decided: “I cannot accept that the officer’s reports for the three sites were misleading, certainly not significantly misleading, in not directing councillors as to what is said was the error in the council’s 2017 [five year supply]. On their face there was nothing in my view untoward in the officer’s reports.”

He also ruled that Lindblom LJ’s judgment in St Modwen Developments Ltd v Secretary of State for Communities and Local Government did not mean Babergh was wrong to take into account developer pressure and that the developers might mount legal challenges against the council.

It is not unlawful for a local planning authority to want to have confidence that it will be able to robustly defend the judgments it forms on the deliverability of housing sites,” Sir Ross said. “For that reason the concern about challenges from developers was lawfully taken into account as a factor in decision-making.”

He also dismissed a claim that Babergh had acted unfairly in giving four days’ notice rather than five of papers for the meeting concerned.

Yet another habitats judgment from the CJEU

The CJEU has this week delivered judgment in Case C-461/17 Holohan v. An Bord Pleanála, the third CJEU judgment this year concerning the Habitats Directive (as well as, this time, the 2011 EIA Directive). Once again the case involved reference from the Irish High Court.

The applicants challenged a decision of the An Bord Pleanála in July 2014 to grant consent for the proposed Kilkenny Northern Ring Road Extension which would, if constructed, cross the River Nore Special Protection Area and River Barrow and River Nore Site of Community Importance.

The CJEU held:

  1. An appropriate assessment (AA) must catalogue the entirety of habitat types and species for which a site is protected.
  2. The AA must also identify and examine the implications of the proposed project for the species present on that site and for which that site has not been listed – as well as the implications for habitat types and species outside the boundaries of that site, insofar as those implications are liable to affect the conservation objectives of the site.
  3. Where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the ‘appropriate assessment’ must include an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned.
  4. Under Article 5(1)&(3) of the 2011 EIA Directive, the developer was obliged to supply information that expressly addressed the significant effects of the proposed project on all species identified in the environmental statement.
  5. Under Article 5 of the 2011 EIA Directive, the developer was required to supply information in relation to the environmental impact both of the proposed project and of all the main alternatives studied by the developer (including any such alternative that had been rejected at an early stage), together with the reasons for his choice taking into account of the environmental effects.

Court of Appeal sets out the general principles to be applied when considering the setting of listed buildings and the effect of developments

The Court of Appeal has handed down judgment in the conjoined appeals of Catesby Estates Ltd v Steer and Secretary of State for Communities and Local Government v Steer [2018] EWCA Civ 1697 providing general principles to be applied when local planning authorities consider the setting of listed buildings and the effect of development.

The case concerned a 2016 Inspector’s decision which granted planning permission for a housing development on land approximately 1.5km to the south of the Grade 1 listed Kedleston Hall.

In the High Court Lang J quashed the decision, concluding the Inspector had adopted an unlawfully narrow approach to the question of the “setting” of the listed building, had focussed on finding a “visual” connection, and had “set to one side” the historic social and economic connections between the Appeal site and the Hall.  

The Court of Appeal allowed the appeals. Giving the leading judgment, Lindblom L.J. set out three general principles to be applied when considering the setting of a listed building and the potential effect of a development on that setting:  

“[28] Three general points emerge. First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision-maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it. Otherwise, the decision-maker may find it hard to assess whether and how the proposed development “affects” the setting of the listed building, and to perform the statutory obligation to “have special regard to the desirability of preserving … its setting …”. 

[29] Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision-maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next. It may be that the site of the proposed development, though physically close to a listed building, has no real relationship with it and falls outside its setting, while another site, much further away, nevertheless has an important relationship with the listed building and is within its setting (see the discussion in sections 14.3, 15.2 and 15.8 of Mynors and Hewitson’s “Listed Buildings and Other Heritage Assets”, fifth edition). Under current national planning policy and guidance in England, in the NPPF and the PPG, the decision-maker has to concentrate on the “surroundings in which [the heritage] asset is experienced”, keeping in mind that those “surroundings” may change over time, and also that the way in which a heritage asset can be “experienced” is not limited only to the sense of sight. The “surroundings” of the heritage asset are its physical surroundings, and the relevant “experience”, whatever it is, will be of the heritage asset itself in that physical place. 

[30] Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government[2017] 1 W.L.R. 1865 (at paragraph 25) – that “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly”. 


Peyto Law Acts for Chiltern District Council in Prosecution for Failure to Comply with an Enforcement Notice

Louise Humphreys acted for Chiltern District Council (CDC) in the prosecution of Mr Asrar Ahmed and Lombard Hotels Limited for failing to comply with an enforcement notice with both defendants being convicted at High Wycombe Magistrates’ Court today (17 May 2018).

The case concerned premises known as Bubbles car wash, trading as Deep Mill Vans, on the A413 London Road in Little Kingshill.

In November 2014, CDC found that the number of vehicles being displayed, stored and sold on the site (which was located in the Green Belt and in an Area of Outstanding Natural Beauty) was far greater than permitted under the terms of the original planning permission. An enforcement notice was issued required the owners to comply with the condition limiting the number of vehicles on site and requiring them to be displayed in the permitted areas.

At the same time the owners submitted an application seeking to remove the relevant planning condition. This application was refused by CDC and that refusal upheld on appeal to the Secretary of State because of the impact on the Green Belt, AONB and on highway safety grounds.

Following the coming into force of the enforcement notice, CDC carried out numerous site visits and discovered that the number of vehicles on site still exceeded the permitted maximum and vehicles were being displayed outside of the permitted areas.

Prosecution proceedings were therefore brought against Lombard Hotels Ltd as the owner of the site and Asrar Ahmed as the sole Director of the company.

Following a trial at the Magistrates’ Court, both Defendants were found guilty of six offences each of failing to comply with the enforcement notice.

The case has now been sent to Aylesbury Crown Court for sentence and for the making of a confiscation order under POCA.

Land at Deep Mill Service Station – Bubbles Car Wash

Screening and Mitigation Measures – Environmental Impact Assessment

A recent decision of the Court of Justice of the European Union (CJEU) will have implications for all nationally significant infrastructure and other projects that could affect protected environmental sites with the special EU level of protection known collectively as Natura 2000 sites, or sometimes by some of their sub-types, Special Protection Areas and Special Areas of Conservation. 

The case, known as ‘People Over Wind v Coillte Teoranta’, concerned an electricity cable to connect a wind farm, and its potential to affect two SACs, one of which contains a species of mussel (the Nore pearl mussel) that is at risk of becoming extinct. 

By way of a quick precis, the mussels need clear water and so the deposit of any sediment would be an issue. The developers obtained a screening opinion that this would not be a problem if specified ‘protective measures’ were implemented, set out in a Construction Environmental Management Plan (CEMP). The screening meant that the project did not need to go further along the process of analysing effects on the SPAs known as ‘appropriate assessment’.

The High Court of Ireland referred the following question to the CJEU: “Whether, or in what circumstances, mitigation measures can be considered when carrying out screening for appropriate assessment under Article 6(3) of the Habitats Directive?”

The CJEU answered bluntly that “in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.”

The main reason given was that a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment. 

This decision is at odds with a 2008 English case Hart v Secretary of State for Communities and Local Government, where Mr Justice Sullivan said that “I am satisfied that there is no legal requirement that a screening assessment under Regulation 48(1) must be carried out in the absence of any mitigation measures that form part of a plan or project.”

So where does that leave us? Although it doesn’t necessarily mean projects being more likely to be refused, it does mean they may have to go further along the appropriate assessment flowchart before they can get consent

A copy of the judgment can be found here

Court of Appeal to Hear Case on Lack of Reasons for Refusal to Call-In Scheme in July 2018

The Court of Appeal will hear Save Britain’s Heritage’s challenge over the refusal of then Secretary of State for Communities and Local Government, Sajid Javid, to give reasons for not calling in the Paddington Cube scheme, on 19 July 2018.

The campaign group said: “Our legal action is focused on the government’s failure to follow published policy announced in Parliament that reasons would be given for decisions not to call in major planning decisions for public inquiry. We believe this case goes to the heart of open and accountable decision making and needs robust scrutiny.”

In granting Save Britain’s Heritage leave to bring proceedings to the Court of Appeal in March, Lord Justice Lewison is reported to have said: “The question whether the Secretary of State may adopt a policy which does not conform with his published policy is an important one, and this ground of appeal has a real prospect of success.”

However, the Court of Appeal refused to grant the group permission to continue with its challenge to Westminster City Council’s decision to grant planning permission for the Paddington Cube, which is now marketed as Paddington Square.