Planning Law Update Simon Bird QC

TOPICS Recovery vs Disposal Interpreting planning permissions Applying policy Heritage Issues SEA and reasonable alternative options Development Management cases

Recovery vs Disposal R(Tarmac Aggregates) v SSEFRA [2016] PTSR 491 Restoration of a sand and gravel quarry in accordance with an approved scheme the subject of a planning condition amounted to recovery not disposal for the purposes of the WFD

Principal Objective Court of Appeal held that the principal objective was ecological improvement of the site and the requirement to restore under the planning condition meant that if waste were not used, other materials would have to be. The operation was therefore one of waste recovery

Interpreting planning permissions (aka “What have I done?”)

Trump International Golf Club Scotland v Scottish Ministers [2015] UKSC 74 Failed challenge to grant of consent under s.36 Electricity Act 1989 for a wind farm near golf resort Supreme Court rejected principal contention that a condition was void for uncertainty as it contained no mechanism enabling the Scottish Ministers to secure that the development was constructed in accordance with the design statement i.e. No implementation clause

Trump Court held that condition was enforceable without needing to imply terms but declined to accept that there was no scope in an appropriate case to imply conditions distinguishing a number of cases dealing with planning conditions which have held that no such power existed. However, the Courts would exercise great restraint in implying terms into public documents The Planning Court has subsequently held that Trump applies to planning permissions and not just consents under the Electricity Act

Dunnett Investments Ltd v SSCLG [2016] EWHC 534 (Admin) Issue what did the following condition mean? “This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained” Patterson J held that Trump was of assistance in interpreting planning permissions and had moved the law on in terms of implied conditions.

Dunnett Principles: Planning conditions need to be construed in the context of the pp as a whole They should be construed in a commonsense way and given a sensible meaning if at all possible There is no reason to exclude an implied condition but a pp is a public document which may be relied upon by parties unrelated to those originally involved A cautious approach is required given the means of enforcement which include criminal proceedings The issue is what a reasonable reader would understand the condition to mean and the reason for imposition will inform that conclusion

Applying the development plan – when does a development accord or conflict?

Tiviot Way Investments Ltd v SSCLG [2015] EWHC 2489 (Admin) SoS disagreed with his Inspector and dismissed an appeal for up to 500 houses on the ground that the scheme conflicted with a longstanding policy objective of maintaining a green wedge between Ingleby Barwick and Thornaby No mention was made of the many other policies of the Core Strategy with which the appeal proposal complied

The decision was successfully challenged on the ground that section 38(6) of the 2004 Act requires the decision maker to assess whether a proposed development complies with the development plan as a whole and not just one policy That requires an evaluation of the main policy areas that are relevant to the proposal

SSCLG v BDW Trading Ltd [2016] EWCA Civ 493 C/A reversed High Court finding that in simple case where a single policy was principally engaged there was no requirement for elaborate reasoning provided it was clear the policy was faced up to and what conclusion was reached as to compliance or otherwise

Heritage Assets and Statutory Presumptions

Listed buildings, any special architectural or historic interest or feature they possess and their setting Conservation Areas – character or appearance

East Northamptonshire District Council v Secretary of State [2014] EWCA Civ 137 Jones v Mordue [2016] 1 P&CR 12 Blackpool BC v SSCLG [2016] EWHC 1059 Presumption in favour of preservation of listed buildings, their settings and the character and appearance of Conservation Areas Considerable importance and weight should be attached to any harm

Alternatives – Development Management When is an alternative site or scheme a material consideration which must be had regard to?

R (Westerleigh Group Ltd) v Aylesbury Vale District Council [2015] EWHC 885 Crematorium proposal on 3.7 ha of Grade 3A land, in open countryside and with presence of Great Crested Newts Rival operator promoting a pdl site with no European Protected Species Report to committee recommended approval but without treating the alternative scheme as a material consideration

Patterson J held: Whether or not an alternative scheme was a material consideration was a matter of judgment Absent some statutory requirement or special circumstance, the decision maker was not required to eliminate possible alternatives On the pure broad planning issues, the loss of a small piece of high quality agricultural land and a little bit of open countryside was not “special” and there was no clear conflict with the development plan

BUT Reg 53(9) of the Habitats Regulations 2010 prevents EN granting a licence for works which have the potential to disturb a European Protected species unless it is satisfied that “there is no satisfactory alternative” The Council as local planning authority were obliged to consider whether it was likely that NE would grant a licence and the failure to consider whether the competing scheme as an alternative meant that they had erred in this respect.

Alternatives – Plan Making Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 What is a reasonable alternative option? How must it be dealt with in the SEA process?

R(Friends of the Earth Ltd) v The Welsh Ministers [2016] Env LR 1 Issue – whether Welsh Government had failed to identify describe and evaluate reasonable alternatives to the proposed M4 improvement around Newport FOE contended that all of the options assessed adopted the same alignment over the Gwent Levels SSSI at its most sensitive area and that this routeing was selected before any EAPP Regs compliant assessment had been undertaken

Friends of the Earth Hickinbottom J rejected the claim On the facts he held that the only other options suggested were not reasonable options i.e. they were not capable of meeting the objectives which the decision maker was working to Importantly the judge approved the words of Ouseley J in R(Bucks County Council v SSETR [2013] EWHC 481 (Admin) that there is no requirement to explain alternative objectives or why they are thought to be worth achieving. It is alternative means of meeting the objectives which is the focus of SEA

Friends of the Earth Principles distilled Reasonable alternatives does not include all “possible” alternatives. The word reasonable imports an evaluative judgement for the lpa An alternative which does not attain the stated objectives is not reasonable Options may change in status from reasonable to not reasonable and back again in the iterative process However, once the conclusion is reached that an option is not a reasonable one, it requires no further assessment provided there is no change in circumstances Outline reasons must be given for the choice and rejection of options i.e. Dealing with the main reasons

Friends of the Earth Importantly Hickinbottom J stressed that SEA: “imposes purely procedural requirements. Of course, to ensure effectiveness, that environmental assessment must be performed during the preparation of the plan or programme, and before its adoption...; but it imposes no substantive obligations with regard to the decision itself, e.g. to choose the option that will cause the least environmental harm”

R (oao Williams) v Powys County Council [2016] EWHC 480 (Admin) Issue: Was the grant of pp for a single turbine unlawful given the absence of any consideration of the effect of the development on a Grade II* listed church? Facts: No one had raised the effect on the setting of the church during the consideration of the application or a preceding application Post grant, a planning officer visited the locality and wrote a report concluding that the turbine would not be visible from the church and that in the only medium range views the setting would not be harmed

Williams The judge held: The s.66(1) Listed Buildings Act duty arises from the existence of the listed building and not what anyone does or does not say about it In some circumstances it will not be sufficient to rely on silence Here however, the fact that no one had ever raised the issue in lengthy planning proceedings helped to show that the post-decision confirmation was a genuine explanation of a decision lawfully taken and not an attempt to conceal a material deficiency