Supreme Court Judgment on Material Planning Considerations

The Supreme Court yesterday gave judgment in the case of R (Wright) v Resilient Energy Sevendale Ltd and Forest of Dean District Council. A copy of the judgment can be found here.

The case concerned a judicial review of a grant of planning permission for the change of use of land at a farm in Gloucestershire from agriculture to the erection of a wind turbine. The applicant for permission 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. In doing so, the Council had regard to government policy to encourage community-led wind turbine developments.

Mr Wright challenged the grant of permission on the grounds that the donation was not a material planning consideration and the Council had acted unlawfully by taking it into account. He succeeded at first instance and in the Court of Appeal.

The issue for the Supreme Court, on an appeal brought by the Council and Applicant, was whether the promise to provide a community fund donation qualified as a “material consideration” for the purposes of section 70(2) of the Town and Country Planning Act 1990 as amended (the “1990 Act”) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (the “2004 Act”).

The Supreme Court has ruled that it did not. The money offered by the Applicant was not a means of pursuing a proper planning purpose, but for the ulterior purpose of providing general, and unrelated, community benefits. The fund did not fairly relate to the development for which permission was sought

The main headlines are:

  1. A ‘material consideration’ for the purposes of section 70(2) and 38(6) means material to the proposed development;
  2. Whether something is material is to be judged against the Newbury criteria. In other words (a) it must be for a planning purpose, (b) does it must fairly and reasonable relate to the development, and (c) it must not be Wednesbury unreasonable;
  3. A ‘planning purpose’ consideration must relate to the use of land;
  4. The Newbury criteria protect against the buying and selling of planning permissions, which is important to protect both landowners and the public interest;
  5. Changes in Government policy or guidance cannot change whether a consideration is a material consideration.

High Court Clarifies Levels Of Harm To Designated Heritage Assets Within The NPPF

The High Court has recently clarified the position as regards the ‘levels’ of harm to designated heritage assets within the NPPF in R.(oao James Hall and Company Limited) v City of Bradford Metropolitan District Council and Co-Operative Group Limited [2019] EWHC 2899 (Admin).

The Claimant challenged the decision of Bradford MDC to grant planning permission for the demolition and development of the old Haworth fire station and its replacement with an A1 food retail unit with parking and other associated works.

The application site was within the setting of the Haworth Conservation Area, albeit not within the Conservation Area itself. Thus, it was agreed that the duty within s.72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 did not apply, but national and local policy concerning the setting of heritage assets did. In this context the Court made the following points.

The Court held that there are only three ‘levels’ of harm:

34. In my judgment the three categories of harm recognised in the NPPF are clear. There is substantial harm, less than substantial harm and no harm. There are no other grades or categories of harm, and it is inevitable that each of the categories of substantial harm, and less than substantial harm will cover a broad range of harm …

The Court went on to say that even limited or negligible harm was enough to fall within the bracket of ‘less than substantial harm’:

34.… It will be a matter of planning judgement as to the point at which a particular degree of harm moves from substantial to less than substantial, but it is equally the case that there will be a number of types of harm that will fall into less than substantial, including harm which might otherwise be described as very much less than substantial. There is no intermediate bracket at the bottom end of the less than substantial category of harm for something which is limited, or even negligible, but nevertheless has a harmful impact. The fact that the harm may be limited or negligible will plainly go to the weight to be given to it as recognised in Paragraph 193 NPPF. However, in my judgment, minimal harm must fall to be considered within the category of less than substantial harm. 

Heritage experts will therefore need to be clear as to within which ‘level’ of harm a proposal sits. As the Court has made clear, it is simply not possible to acknowledge a heritage impact but then to seek to discount it as being irrelevant on the basis that it is a ‘negligible harm’. Even this will engage the heritage paragraphs withins the NPPF

A secondary point arising from the case is the Court’s finding that it was inappropriate for the Bradford’s officers to pre-determine the impacts on heritage assets and not include these judgements in the committee report.

First-Tier Tribunal Orders Council To Disclose Instructions to QC

In the case Brooksbank v The Information Commissioner [2019] UKFTT 2018_0226 (GRC), the First-tier Tribunal has ordered Ryedale District Council to disclose the briefing question it sent to Queen’s Counsel seeking advice on a motion in which councillors sought for competing retail planning applications to be ‘called in’

The background to the case involves a long-running dispute over which site in Malton, Yorkshire should be developed as a supermarket. A majority of councillors on the planning committee, supported by key officials, thought that the appropriate site was the Wentworth Street Car Park in Malton (WSCP) owned by the council, whereas other councillors and many residents felt that the livestock market was more appropriate.

The dispute culminated in a judicial review challenge in April 2014 that saw Mr Justice Dove quash a decision by the council to grant planning permission to a developer for WSCP.

Ms Brooksbank, who was a resident but not a councillor, submitted a request under the Freedom of Information Act 2000 to Ryedale District Council (RDC) in February 2018. This was in various parts but included a request for “the specific wording of the briefing question which RDC asked Nathalie Lieven QC to address in January 2012” about the motion.

The council initially dealt with Ms Brooksbank’s request on the basis that FOIA applied. However, the Information Commissioner later decided that the relevant legislation was the Environment Information Regulations 2004 because the information constituted ‘environmental information’.

After the Information Commissioner signalled that the EIR applied, RDC said it relied on regulation 12(5)(b) (adverse effect on the course of justice) in refusing the request.

The Commissioner decided that regulation 12(5)(b) applied to the part of the request dealing with the briefing question and that the public interest favoured withholding the information.

The appeal before the FTT was limited to this element of the request. Ms Brooksbank did not dispute that regulation 12(5)(b) was engaged, but instead she focused on the public interest argument.

The FTT said the instructions to Ms Lieven canvassed two broad issues: (i) whether the council could invite the Secretary of State to call in the planning applications before it made provisional decisions to grant or refuse; and (ii) whether the council was conflicted in making the planning decisions because it was the owner of WSCP.

In its assessment of the competing public interest arguments, the Tribunal said some of Ms Brooksbank’s arguments in favour of disclosure were wide of the mark. The FTT also said there was nothing in the point that one would have expected the QC’s fee to be more than £1,500 plus VAT had she been properly briefed.

The Tribunal said it had placed the considerable weight required by case law on the importance of maintaining legal advice privilege and LPP [legal professional privilege] more generally. However, it concluded, “albeit by a fine margin”, that the public interest favoured disclosure.

This was because:

(i) Considerable time has elapsed since the Instructions were sent (and the Advice given). Legal advice privilege is particularly strong where the advice is recent and the issue to which it relates remains current. By contrast, it may be weaker (though still significant) where the advice is old and/or is no longer current. Here, the request was made some six years after the Instructions were sent and some two and a half years after Mr Justice Dove’s decision quashing the re-grant of permission to GMI [purchaser of the car park]. The Council argues that the subject-matter of the Instructions will remain relevant for any future proposal to develop WSCP and for its procedures more generally. This is not persuasive. The particular factual context of the Instructions is unlikely to be repeated.

(ii) In this connection, although public bodies are as entitled to claim LPP as anyone else, the need to protect privilege is less compelling where, as here, the public body is really seeking advice about general points of law and the advice does not depend on a particular set of facts.

(iii) In any event, to the extent that the matters canvassed are relevant to how the Council conducts itself in similar situations in the future, there is every reason for both members and residents to understand the broad issues. How calling-in works, and whether and in what circumstances local authorities are constrained from determining planning applications where they own and wish to dispose of the land in question, should not be kept from members or residents.

(iv) The Tribunal does not accept that disclosure means that the Council is likely to be deterred from seeking legal advice on related (or other) matters in the future: it will know that LPP will be accorded strong weight and is likely to be decisive, at least while the advice remains live. In any event, the fact is that Parliament has decided that section 42 FOIA should be a qualified exemption, and the European Union and subsequently Parliament has decided that regulation 12(5)(b) (including LPP) should be a qualified exception, and it follows that public authorities are aware that there are circumstances in which legal advice and any Instructions to Counsel which precede it may have to be disclosed. A chilling effect on the willingness to obtain legal advice, even if realistically present, cannot therefore be decisive.

(v) As Ms Brooksbank argues, the context here was not only the Council’s dual role as selling landowner and planning application decision-maker but the fact that a third party wished to develop separate sites and would be unlikely to be permitted to do so if permission were granted for the Council-owned site. That argues for maximum transparency.

(vi) There appears to be no prospect of disclosure of the Instructions making the Council vulnerable to legal action, as the Council claimed (in relation to all the requested information) in its initial response and in correspondence with the Commissioner.

(vii) It would appear on general principle that members, had they asked for them, would have been entitled to see the Instructions (and the Advice) for the 12 January 2012 meeting so that they could make informed decisions. It does not follow, as Ms Brooksbank argues, that residents such as herself should also have had access to the documents – local authorities are entitled to seek legal advice on a confidential basis – but the fact that the elected representatives, including members opposed to what officers were proposing, could have had access to the Instructions diminishes the weight to be attached to the confidentiality which LPP is designed to protect.

(viii) The disputes around the planning applications have cost the Council a great deal of money. The inspector overturned the refusal of FME’s revised application and Mr Justice Dove was highly critical of the process leading to the re-grant of permission for WSCP. As noted above, the Council, faced with legal challenges, cannot be criticised for defending its position, but the heavy drain on taxpayers’ resources nevertheless points to maximum transparency of the processes which led to the challenges.

(ix) In this connection, whilst it is not for the Tribunal to reach a conclusion as to whether the Council was unlawfully predisposed to grant planning permission for WSCP and refuse it for the livestock market, it cannot be said reading the correspondence that residents’ suspicions were fanciful. The inspector on FME’s appeal noted that officers had adopted what they described as a ‘novel’ application of the sequential test, leading them to advise the planning committee that the WSCP site was preferable to the livestock market (at the inquiry, the Council planning witness acknowledged significant flaws in the Council’s approach). The inspector awarded costs against the Council on some of the issues –costs are only awarded in planning inquiries where a party has behaved unreasonably. The costs were later agreed at £148,000. The fact that, if the Council was so predisposed, the predisposition may have been motivated by an understandable desire to maximise revenue at a time of a major squeeze on its finances does not diminish the need for light to be shone on how it conducted itself.

(x) Although the issues canvassed in the Instructions to Ms Lieven may not have played a central role in the saga, the question-marks about how the Council handled the applications again argues for maximum transparency.

(xi) The Tribunal observes that, if Ms Brooksbank’s expectation is that the Instructions contain a smoking gun, she is likely to be disappointed. Mr Winship [the council’s head of legal] explained the background clearly and asked his questions in a methodical manner. However, there can be a public interest in showing that a public authority acted properly in a particular respect, so that unwarranted suspicions can be allayed; there is not only public interest in revealing wrongdoing.

(xii) Ms Brooksbank’s desire to use the dispute as a case-study for more general political philosophy discourse in a book, and to have as complete a bank of information as possible to validate the case-study, carries some public interest, albeit in the Tribunal’s judgment only slight.

(xiii) Despite this, the overall arguments in favour of disclosure are strong and at least as strong as those in favour of withholding the information, indeed probably marginally stronger.

(xiv) Under the EIR, there is a presumption in favour of disclosure, which is determinative in a finely-balanced case such as the present one.”

The FTT therefore unanimously allowed the appeal.

First Injunction to Prevent Neighbourhood Plan Referendum

The High Court has issued the first ever injunction to block a referendum on a Neighbourhood Plan from taking place as scheduled. Residents of Norton St Philip in Somerset were due to cast their votes on the Norton St Philip Neighbourhood Plan on October 17.

Residents of Norton St Philip in Somerset were due to cast their votes on the Norton St Philip Neighbourhood Plan on October 17 following Mendip District Council’s decision to accept the recommendations of an examiner and allow the plan to proceed to referendum.

But property developers, Lochailort Investments Limited sought an injunction to preclude the referendum from taking place until such time as they can judicially review that decision. Lochailort says the plan as currently drafted does not meet the conditions set out in the National Planning Policy Framework (NPPF), particularly in relation to the designation of local green spaces (LGS) to be protected from future development.

Lochailort says neither the examiner nor the council considered whether the LGS designations were consistent with sustainable development in the area.

Granting an interim injunction, the Judge ruled that the developer has “seriously arguable” grounds for complaint about the plan in its current form.

Allowing the referendum to go ahead when Lochailort had an extant legal challenge would cause “cost, disruption and uncertainty”.

If Lochailort’s arguments that the plan is unlawful succeed, any referendum result would in any event be overturned and the Judge determined that it would cause greater confusion amongst voters if a referendum result were to be quashed than if it were to be postponed pending a legal challenge.

Permitted Development Rights Amended Again

The Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) Regulations 2019 took effect on 25 May 2019.

As suggested by the title, the Regulations, amongst other things, amend the Town and Country Planning (General Permitted Development) (England) Order 2015. The changes can be summarised as follows:

  • make permanent the time limited right to build a larger rear extension to a dwellinghouse;
  • allow for the erection of taller upstands for off street electric vehicle charging points;
  • amend the existing right to additionally allow the change of use from takeaways to residential use;
  • allow the change of use from retail, takeaways, betting offices, payday loan shops, and launderettes to office use;
  • amend the existing right to additionally allow the temporary change of use to specified community uses: exhibition hall, public library, museum, clinic or health centre, or art gallery (other than for sale or hire), and to extend the period of temporary use from two years to three;
  • remove the existing right which allows the installation, alteration or replacement of a public call box by or on behalf of an electronic communications code operator subject to certain conditions; and
  • amend Class C of Part 4 of Schedule 2 to ensure that where there is a temporary use of a building as a state-funded school, that the building retains its original use or use class and any associated rights to change to a permanent state-funded school.

As with all permitted development rights it is crucial to pay close attention to the limitation and conditions which apply to each right. It is all too easy when considering the lawfulness of a particular development to assume that something is permitted development because it falls within the wording of the “permitted development” part of each of the classes in the GPDO schedule.  Yet the limitations on that development are many and wide ranging and some are quite difficult to apply in practice. Failing to comply with a limitation or condition can render the development unlawful and run the risk of enforcement action by the local planning authority.

Court of Appeal Rules on Village Greens and ‘Trigger Events’

The Court of Appeal has rejected an appeal by a local authority in a key ruling on the trigger events that suspend the registration of village greens – Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840

By way of background, in April 2016 the interested party in the proceedings, applied to Wiltshire County Council to register an area of land adjacent to Vowley View and Highfold, Royal Wootton Bassett as a Town / Village Green. The owner of the land objected on the ground that its registration was precluded by section 15C of the Commons Act 2006 on the basis that the land had been identified for potential development in an adopted development plan document. Accordingly, a trigger event as defined in paragraph 4 of the table in Schedule 1A had occurred, and there had been no terminating event in relation to that trigger event.

Officers at the Council considered that objection and recommended to Members that it be rejected because the provisions of the development plan document were not enough to satisfy the definition of a trigger event. The land was duly resisted as a Town / Village Green.

The Owner applied to the Administrative Court to challenge the registration. The challenge succeeded in the High Court before Mr David Elvin QC, who accepted Cooper’s submission that: “… the Core Strategy through CP1 and CP2 identifies an area of land which includes the Land (i.e. the boundary of Royal Wootton Bassett) and identifies it for potential development by creating a presumption in favour of development within the settlement boundary.”

The Council appealed and the landowner sought to uphold the Administrative Court’s decision on additional grounds. The Court of Appeal has now dismissed the Council’s appeal.

Lord Justice Lewison said:

In my judgment the question is not whether the land has been identified ‘for development’ but whether it has been identified ‘for potential development’. [Counsel for Wiltshire] argued that the meaning of the word ‘potential’ did no more than reflect the fact that a development plan could not compel the development of a particular parcel of land.

However, in my judgment that gives no force to the ordinary meaning of the word. Moreover, even if a site is allocated, in the sense in which that term is used in town and country planning, the mere fact of allocation cannot compel development.

The judge added:

[In] the present case the development plan document does show that the land is identified for potential development. CP1 identifies ‘the settlements where sustainable development will take place.’ CP2 provides that within the settlement boundary ‘there is a presumption in favour of sustainable development.’ I agree with [counsel for Cooper Estates] that these policies clearly identify the land as having potential for development. This reading is supported by the explanatory text.

The judge also agreed with Cooper Estates’ QC that the wording necessarily implied that land within the settlement boundary was already developable land.

Mr Justice Lewison rejected the council’s argument that within the settlement boundaries there were parcels of land which may be governed by policies protecting open space, playing fields and areas of conservation values which would preclude development. Such land, Wiltshire’s QC submitted, was plainly not “identified for development” despite being within the settlement boundary.

This submission too, in my judgment, rests upon the false premise that the trigger event is identification of land ‘for development’ rather than ‘for potential development’

The registration authority would not be required to consider whether planning permission would be granted. I do not rule out the possibility that prima facie identification of land for potential development by one policy could be contradicted by countervailing policies elsewhere in the plan. But that is not this case. The Council does not rely on any countervailing policy which contradicts policies CP1 and CP2.

Lord Justice Lewison continued:

The phrase we are called upon to interpret is imprecise. Each side was able to point to potential difficulties if the other side was right. One of the few things on which both [counsel for the appellant and the respondent] were agreed albeit from completely different perspectives was that if we chose the other side’s interpretation we would be on a slippery slope. That makes it imperative, in my judgment, to interpret it in accordance with the policy underlying the change in the law. That policy, as I understand it, was that whether or not to protect a piece of recreational land with identified development potential should be achieved through the planning system and not by means of registration of a TVG.

It is clear from the development plan that the planning authority envisaged that during the currency of the development plan over 1,000 new homes would be needed in Royal Wootton Bassett. Paragraph 5.101 stated that it was not necessary to make specific allocations at the early stages of the plan. To allow a registration of a TVG within the settlement boundary would, in my judgment, frustrate the broad objectives of the plan. That is precisely the reason why Parliament decided that, in circumstances like the present, a TVG should not be registered; but, instead, the question of development should be left to the planning system.

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

Peyto Law Instructed to Advise Liverpool City Region Combined Authority on the Spatial Development Strategy

Peyto Law has been instructed by the Liverpool City Region Combined Authority to provide legal advice and assistance during the preparation and publication of its Spatial Development Strategy (SDS).

The Combined Authority’s lead officer for spatial planning recently told the Planning Advisory Service heads of planning conference that the SDS for the city region would be prepared within two years, beginning with a scoping and visioning consultation this summer.

As part of the agreed arrangements, the SDS could make strategic allocations, but will not de-designate land such as Green Belt. 

A social impact evaluation will also be carried out as part of preparing the strategy.

Reasons …. Who Needs Reasons?

Notwithstanding the considerable amount of the Parliamentary time currently being spent on Brexit, the Secretary of State for Housing, Communities and Local Government has still found space to issue a Written Ministerial Statement (WMS) on 26 March 2019 in which he announced that he will no longer give reasons for calling-in or declining to call-in planning applications. A copy of the statement can be found here.

Regardless of upon which side of the planning fence you sit, this is unlikely to be welcome news. But, perhaps the Minister had something else in mind …

Theirs not to reason why,

Theirs but to do and die

Alfred, Lord Tennyson – The Charge of the Light Brigade

The power to call-in planning applications under s77 Town and Country Planning Act 1990 gives the Secretary of State a wide discretion in his decision-making. In 2001, the then Government announced that it would give reasons for decisions to call-in or not to call-in planning applications “in the interests of transparency, good administration and best practice”. This practice was confirmed in March 2010 and no change was made when the policy criteria for calling-in was amended by WMS in October 2012.

The latest WMS is the, perhaps not entirely unexpected, fall-out from the case of Save Britain’s Heritage v Secretary of Statement for Communities and Local Government and others [2018] EWCA Civ 2137 in which Save successfully argued that under existing policy ministers were obliged to give reasons when they decline to call in planning applications. The Secretary of State’s position was that, at some unknown date early in 2014, a decision had been taken not to give reasons for decisions declining to call in an application and that, since then, such decision letters have been issued without giving reasons. Even leaving aside that this change in policy was not communicated to the wider public, it transpired that no-nobody in the Department recalled or had in mind the unequivocal promise made in 2001 (and repeated in 2010) – it had been forgotten.

Transparency, good administration and best practice be damned.

Planning Inspectorate Updates Appeal Statistics

The Planning Inspectorate published updated average appeal timescales on 14 March 2019.

According to the figures, the average for s78 appeals (excluding householder appeals) from valid appeal to decision is 23 weeks (written representations), 43 weeks (informal hearings) and 50 weeks (inquiries).

Whilst this is bad enough, enforcement and lawful development certificate (LDC) appeals fair even worse where the average times are 40 weeks (written representations), 58 weeks (informal hearings) and 48 weeks (inquiries).

However, as bad as these figures are they do not provide the full picture; for that you have to go to the average timescales breakdown by stage.

s78 Appeals (excluding householder)

Valid – StartStart – EventEvent – Decision
Written reps
9 weeks12 weeks5 weeks
22 weeks15 weeks4 weeks
Inquiries2 weeks37 weeks17 weeks

Enforcement / LDC Appeals

Valid – StartStart – EventEvent – Decision
Written reps25 weeks16 weeks4 weeks
Hearings31 weeks22 weeks4 weeks
Inquiries37 weeks28 weeks12 weeks

Unacceptable, no matter what side of the coin you are on.

We can only hope that the implementation of the recommendations in the Rosewell Report, and the recent appointment of two new Directors, will go some way to alleviate the problems, but absent additional resources at the Planning Inspectorate we fear it will be scratching at the surface.