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.

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.