Case Law Update

15 Pages·2017·0.66 MB·English

07/03/2017
Case Law Update
• Reasons for granting planning permission
• Enforcability of planning conditions
• Natural Justice
Case Law Update
• Judicial Review
RTPI North East Conference
• Environmental Impact Assessment (EIA)
13 March 2017
• CPO case
Frank Orr
Legal Director
Oakley v South Cambridgeshire District
Reasons for granting planning permission Council and another (Court of Appeal)
Oakley v South Cambridgeshire District Council and another (Court of Appeal)
Background
• Planning application for the development of a 3,000 seat football stadium
• Land is part of the Green Belt
• LPA Planning Officer's report recommended refusal
• Planning committee did not follow the recommendation of the officer, approved the
development in principle
• Gave no reasons for granting permission
• Oakley claims for JR of the committee's decision
• Claim dismissed rejecting assertion that the committee ought in the circumstances, as
part of the common law duty, to have given reasons of its decision
• Oakley appealed
1
07/03/2017
Oakley v South Cambridgeshire District Oakley v South Cambridgeshire District
Council and another (Court of Appeal) Council and another (Court of Appeal)
General duty to give reasons? Sales LJ
• R v Secretary of State for the Home Department ex parte Doody[1994] AC 531-no "Where the public interest in ensuring that the relevant decision-maker has
‘general duty’ to give reasons considered matters properly is especially pressing, as in cases of grant of
planning permission as a departure from the development plan or in cases of
• R v Higher Education Funding Council, ex parte Institute of Dental Surgery[1994] 1 grant of planning permission as a departure from the usual protective policy in
WLR 242 (‘IDS’): respect of the Green Belt, that is a factor capable of generating an obligation to
"…the default ‘no reasons’ position will be displaced —and reasons therefore provide reasons. This is because requiring the giving of reasons is a way of
required —if a decision appears to be ‘aberrant’, such that it calls for ensuring that the decision-maker has given careful consideration to such a
explanation via the giving reasons, or if it affects interests ‘so highly regarded by sensitive matter. Similarly, where a person’s private interest is particularly directly
the law … that fairness requires reasons’. affected by a decision, that may also provide a normative basis for imposition of
a duty to give reasons".
Oakley v South Cambridgeshire District Oakley v South Cambridgeshire District
Council and another (Court of Appeal) Council and another (Court of Appeal)
Elias LJ Where does this leave us?
"There are powerful reasons why it is desirable for administrative bodies to give • South Cambridgeshire DC in breach of common law duty to provide reasons
reasons for their decisions. They include improving the quality of decisions by • Willingness of the court to conclude that the default is dispaced on account of
focusing the mind of the decision-making body and thereby increasing the some trigger condition or other being satisfied
likelihood that the decision will be lawfully made; promoting public confidence in
the decision-making process; providing, or at least facilitating, the opportunity for • Is it time to reverse the starting-point, such that a duty to give reasons will
those affected to consider whether the decision was lawfully reached, thereby apply unless good cause can be shown for relieving the decision-maker of
facilitating the process of judicial review or the exercise of any right of appeal; that duty in the particular circumstances of the case?
and respecting the individual’s interest in understanding –and perhaps thereby • "In view of this, it may be more accurate to say that the common law is moving
more readily accepting –why a decision affecting him has been made. This last to the position whilst there is no universal obligation to give reasons in all
consideration is reinforced where an interested third party has taken an active circumstances, in general they should be given unless there is a proper
part in the decision making-process, for example by making representations in justification for not doing so." Elias LJ
the course of consultations. Indeed, the process of consultation is arguably
undermined if potential consultees are left in the dark as to what influence, if any,
their representations had."
2
07/03/2017
Reasons for granting planning permission Reasons for granting planning permission
R (CPRE Kent) v Dover District Council [2016] EWCA Civ 936 R (CPRE Kent) v Dover District Council [2016] EWCA Civ 936
• China Gateway International proposed to develop 155 hectares of land to the
west of Dover, with a mix of 521 residential units, a retirement village and a
hotel.
• In AONB
• Officer's report recommended refusal
• Planning committee approved the application
• Planning permission should be refused for major developments in AONBs
except in exceptional circumstances and where the public interest is made
out.
Reasons for granting planning permission Reasons for granting planning permission
R (CPRE Kent) v Dover District Council [2016] EWCA Civ 936 R (CPRE Kent) v Dover District Council [2016] EWCA Civ 936
• Summarised in brief terms in the Committee Minutes -referred to the benefits • When the duty to give reasons applies, how detailed must they be?
of the scheme, a view that an alternative lower density scheme could • The Court considered that “interested parties (and the public) are just as
jeopardise its viability, and the belief that effective screening could minimize entitled to know why the decision is as it is when it is made by the authority as
the harm caused to the AONB. when it is made by the Secretary of State”.
• The Committee concluded that the advantages did outweigh the harm that • The fact that the Committee was departing from the Officer’s
would be caused to the AONB. recommendation, meant that the Officer’s reasoning ought (if but briefly) to be
• Appeal on the ground that the Planning Committee had failed to give legally engaged with; and
adequeate reasons for granting permission. • Statutory duty to give reasons by virtue of Regulation 24(1)(c)(ii) and (iii) of
the Town and Country Planning (Environmental Impact Assessment)
Regulations 2011, had not been fulfilled by any document.
3
07/03/2017
Reasons for granting planning permission Reasons for granting planning permission
R (CPRE Kent) v Dover District Council [2016] EWCA Civ 936 R (CPRE Kent) v Dover District Council [2016] EWCA Civ 936
Where does this leave us?
• The Court found that the reasons given were inadequate, particularly in
relation to the treatment of the Officer’s assessment of the harm that would be • Care will be needed with reasons especially where a planning committee
inflicted on the AONB. prefers to depart from its officers’ recommendations
• The reasons given for the grant of permission must be carefully drafted and
• Laws LJ found that “a statutory statement of reasons made under the EIA must engage with the recommendations of the officer and explain the reasons
Regulations would have been required to grapple with the issue of harm much for departure from those recommendations.
more closely than what the minutes disclose; and the strictures of NPPF • The Council has sought leave to appeal to the Supreme Court.
paragraph 116 demand no less.”
Reasons for granting planning permission Reasons for granting planning permission
R on the Application of Shasha & Ors v Westminster City Council R on the Application of Shasha & Ors v Westminster City Council
Background High Court ruled that:
• Installation of a subterranean gym and office development
• Planning permission granted by the Council's planning officer under  There was no indication that the trustees' amenity objections had been
delegated authority considered on their merits before planning permission was granted
• Property owner objected mainly on the ground of right to light -
overshadowing concerns  There was no evidence that the officer had appreciated that the new wall
would be only 800mm from the flat's bay windows.
• Case to the High Court
 No proper consideration had been given to a development plan policy
intended to discourage developments that would lead to unacceptable
overshadowing or loss of natural light.
 Policy ENV13(F) –"developments should not result in a significant increase
in the sense of enclosure or overlooking, or cause unacceptable
overshadowing…"
4
07/03/2017
Reasons for granting planning permission Enforceability of Planning Conditions
R on the Application of Shasha & Ors v Westminster City Council R (Skelmersdale Limited Partnership) v West Lancashire Borough
High Court Council and another [2016] EWHC 109 (Admin)
Is a planning condition imposed by the local planning authority lawful and
• Planning permission was quashed capable of being enforced?
• The reasons given for the officer's decision were inadequate • The High Court considered an application for judicial review in respect of a
planning condition that required certain retailers taking space in a new retail
• Again, the reasons given for the grant of permission must be carefully drafted development to "commit" to retaining their presence in an existing shopping
and must engage with any objections, policies in place etc. centre.
• Aim of the planning condition was to protect the viability of an existing
shopping centre.
Enforceability of Planning Conditions Enforceability of Planning Conditions
R (Skelmersdale Limited Partnership) v West Lancashire Borough
R (Skelmersdale Limited Partnership) v West Lancashire Borough Council and another [2016] EWHC 109 (Admin)
Council and another [2016] EWHC 109 (Admin)
The Planning Condition:
“(i) Otherwise than in the circumstances set out at (ii) below, for a period of five years
from the date on which the development is first occupied, no retail floorspace
hereby approved shall be occupied by any retailer who at the date of the grant of this
permission, or within a period of 12 months immediately prior to the occupation of the
development hereby approved, occupies retail floorspacewhich exceeds 250 sqm
[Gross External Area] within The Concourse Shopping Centre Skelmersdale.
(ii) Such Occupation shall only be permitted where such retaileras identified in (i)
above submits a scheme which commits to retaining their presence as a retailer within
The Concourse Shopping Centre Skelmersdale for a minimum period of 5 years
following the date of their proposed occupation of any retail floorspace hereby approved,
and such scheme has been approved in writing by the Local Planning Authority.”
5
07/03/2017
Enforceability of Planning Conditions Enforceability of Planning Conditions
R (Skelmersdale Limited Partnership) v West Lancashire Borough R (Skelmersdale Limited Partnership) v West Lancashire Borough
Council and another [2016] EWHC 109 (Admin) Council and another [2016] EWHC 109 (Admin)
Enforceability of Planning Conditions Enforceability of Planning Conditions
R (Skelmersdale Limited Partnership) v West Lancashire Borough R (Skelmersdale Limited Partnership) v West Lancashire Borough
Council and another [2016] EWHC 109 (Admin) Council and another [2016] EWHC 109 (Admin)
Skelmersdale claimed condition unenforceable and unlawful for the following The Application for JR was dismissed because:
reasons:
• The implementation clause was not necessary
• No implementation clause • The condition was not too vague
• Condition too vague • The language of the condition was wide
• Failure to take material considerations into account • Discrimination was legitimate
• Discrimination against existing retailers • ECHR claim failed because discrimination was legitimate
• Contrary to Protocol 1, Art.1, ECHR
6
07/03/2017
Enforceability of Planning Conditions Enforceability of Planning Conditions
R (Skelmersdale Limited Partnership) v West Lancashire Borough R (Skelmersdale Limited Partnership) v West Lancashire Borough
Council and another [2016] EWCA Civ 1260 Council and another [2016] EWCA Civ 1260
• The C appealed on the following grounds: • Applying the principles set down by the Supreme Court in Trump International,
• Absence of an implementation clause making the condition unenforceable the Court held thatthe word “commits” in this context, read in light of the
planning authority’s reasons for imposing the condition, meant that the retailer
• The condition was unenforceable since its terms are too vague to be was required to enter into a “legally binding commitment” with the council
enforced against which compliance could be enforced.
• The condition failed to achieve its stated purpose, namely the vitality of the • The condition was capable of being enforced, for example, by way of a s.106
Concourse as outlined in Local Plan policy SP2. Further, planning officers obligation entered between the retailers and the council. What was meant by
had failed to advise the committee of the problems with enforcing the “their retail presence” was clear from the ordinary meaning of the words and
condition. having regard to the reasons for the condition. It meant retaining the
substance of their presence as retailers at the level and at the time specified
• The Court rejected all of these grounds. in the condition at (i) within the Concourse.
• The condition could therefore achieve its purpose and it was unarguable that
the committee had been misled.
Natural Justice Natural Justice
Broadview Energy Ltd v Secretary of State for Communities and
Broadview Energy Ltd v Secretary of State for Communities and
Local Government [2016] EWCA Civ 562
Local Government [2016] EWCA Civ 562
• Background
• Broadview sought to construct a five turbine wind farm on a site within the
boundary of the second defendant local planning authority.
• The authority (South Northamptonshire District Council) refused
permission and the claimant lodged an appeal with the planning
inspectorate
• The appeal was considered at a public inquiry and was allowed.
• The third defendant, a local action group, brought a challenge in the High
Court against the inspector's decision to allow the appeal.
• The judge upheld the challenge, quashed the decision, and resubmitted
the appeal to the planning inspectorate for redetermination.
• A second public inquiry was held.
7
07/03/2017
Natural Justice Natural Justice
Broadview Energy Ltd v Secretary of State for Communities and
Broadview Energy Ltd v Secretary of State for Communities and
Local Government [2016] EWCA Civ 562
Local Government [2016] EWCA Civ 562
• Background
• The claimant, the action group and others made representations. • Broadview applied to judicially review the Secretary of State’s decision on
• During the course of the inquiry, the first defendant Secretary of State grounds that it breached natural justice and common law fairness, principally
himself elected to recover the matter for determination by himself on the due to alleged lobbying activities by Andrea Leadsom MP.
grounds that the appeal involved a renewable energy development. • Broadview relied on, among other things, Mrs Leadsom’s various letters and
• The second planning inspector recommended the grant of planning emails to the Secretary of State and the Minister to whom the Secretary of
permission. State had delegated the decision, as well as two instances of conversations
in the House of Commons tea room and in a lobby.
• The Department for Communities and Local Government sent a minute to
the Parliamentary Under Secretary of State, Kris Hopkins MP, to whom
the Secretary of State had delegated the decision, recommending that he
refuse planning permission.
• Mr Hopkins' private office responded by saying that he had accepted the
recommendation to refuse planning permission.
Natural Justice Natural Justice
Broadview Energy Ltd v Secretary of State for Communities and
Broadview Energy Ltd v Secretary of State for Communities and
Local Government [2016] EWCA Civ 562
Local Government [2016] EWCA Civ 562
• Court of Appeal:
• "A decision maker must not entertain representations from one party ● Where does this leave us?
without finding out what other parties have to say on the matter“ ● Clarity on the constitutional relationship between Ministers and MPs
• However, the Court found that the oral representations would not make a ● MPs should not be in a different position from other interested parties
differnece to the decision ● Ministers should not allow one party to put its case forward without offering the
• There was merely a technical breach and this was not enough to justify same opportunity to the "other side", not least to avoid bias.
quashign the Secretary of State's decision
• On the allegation of bias the Court explained that the decision in favour of
a vocal body of local objectors did not evidence partiality
• The mere allegation of bias showed "how important the principle is that
Ministers making planning decisions should not allow themselves to be
lobbied by parties in the planning process or by local MPs."
8
07/03/2017
Judicial Review Judicial Review
R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and
Norrington Solar Farm Ltd[2016] EWCA Civ 84 Norrington Solar Farm Ltd[2016] EWCA Civ 84
• Delay in Planning Challenges
• Background
• 22-hectare solar farm planning permission granted
• Solar farm already built
• Daniel Gerber claims the solar farm is a blight on the landscape that harms views
from his Grade II listed home
• Challenged planning permission
• High Court extended time to allow this challenge to proceed
• Gerber had claimed he only became aware of the development when the
photovoltaic arrays were being installed.
• At the High Court Mr Justice Dove ruled that he had a "legitimate expectation" that
he would be notified of such development proposal near Gifford Hall.
Judicial Review Judicial Review
R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and
Norrington Solar Farm Ltd[2016] EWCA Civ 84 Norrington Solar Farm Ltd[2016] EWCA Civ 84
Sales LJ
• The Council and the solar farm operators took the matter to the Court of "In my judgment, where proper notice of an application for planning permission has been given pursuant
Appeal to the 2010 Order it is not appropriate to extend time for bringing a legal challenge to the grant of such
permission simply because an objector did not notice what was happening. Extending time in such a
• Was it too late to bring a legal challenge to the grant of planning permission? case so that a legal objection could be mounted by someone who happened to remain unaware of what
• Lord Justice Sales ruled that Gerber was in the same position as anyone wrealys ugpooinng a o pnl aunnntiiln mg apneyr mmisosnitohns wlahteicrh w aopuplde aurnsf atoir lhya pvree jbuedeicne l athwef uinllyte grerasntst eodf afo dr ethvee ldoepveer lwophmo ewnist hoef sh itso
else, and that the council had posted notices of the planning application in land and who has prudently waited for a period before commencing work to implement the permission to
"prominent places" near the site, in the local newspaper and put details on its ensure that no legal challenge is likely to be forthcoming, as happened here. Prompt legal action after
website. As a result, it had met its obligations for publicising the proposal. grant of a planning permission to challenge its lawfulness will be required in all cases, unless very
special reasons can be shown of a kind which are wholly absent in this case. Especial speed will be
• Gerber argued that he did not see any of them, expected in the case of objectors who have been involved in the planning process throughout, as
emphasised by Keene LJ in Finn-Kelcey at [24], but it does not follow that the strong requirement of
• Lord Justice Sales said it was "not appropriate to extend time for bringing a prompt action will be substantially relaxed in the case of someone who, despite a planning authority’s
legal challenge to the grant of such permission simply because an objector compliance with the notification rules laid down in law, remained in ignorance."
did not notice what was happening"
9
07/03/2017
Judicial Review Judicial Review
R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and
Norrington Solar Farm Ltd[2016] EWCA Civ 84 R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and
Norrington Solar Farm Ltd[2016] EWCA Civ 84
• Held, the High Court was wrong to extend the challenge to the grant of planning • Where does this leave us?
permission. • Sales LJ: "Other than in exceptional circumstances where other factors are also in play,
• Gerber had a fair opportunity to challenge the decision in good time therefore, I consider it is wrong in principle for the court to exercise its discretion to
• There was "no good excuse" for the delay in bringing proceedings extend time to bring judicial review proceedings in the planning context by reference to
legal advice which an objector might have received."
• The solar farm owners would suffer "major financial detriment" if the planning
permission stayed quashed • Mr Gerber has sought permission to appeal to the Supreme Court.
• Gerber would suffer "less substantial and less significant damage" to his own interests -
"principally the harm to amenity he will have to bear as a result of being able to see the
solar farm from certain parts of his property, despite a certain amount of screening of
the solar farm by trees".
EIA –reasoning in negative screening opinion EIA –reasoning in negative screening opinion
R v (Andrew Jedwell) v Denbighshire County [2015] EWCA Civ 1232 R v (Andrew Jedwell) v Denbighshire County [2015] EWCA Civ 1232
• Court of Appeal
• Local resident, Andrew Jedwell, fighting against plans to build two 46-metre high wind • High Court judge was wrong in rejecting Jedwell's case
turbines on the outskirts of the North Wales village Llandrillo
• The judge could not reach this conclusion because the officer was not cross
• Planning permission was granted by the County Council examined about her evidence during the High Court case
• The planning officer decided that an Environmental Impact Assessment (EIA) was not
necessary for the project • Lord Justice Lewison:
• Jedwell challenged the decision arguing that the officer did not properly explain the • "This was one of those admittedly rare cases in which cross examination
reasons was necessary in order for justice to be done and to be seen to be done."
• High Court approved the two wind turbines rejecting Andrew's argument • Case was sent back to the High Court for reconsideration in the light of a
• while the planning officer’s original note explaining herself was not adequate, she procedural irregularity during the hearing
explained herself properly in a subsequent witness statement.
• Jedwell appealed
10