RTPI South West Conference Planning Law Update Key Appeal Decisions & Case Law Cathryn Tracey

Key Appeal Decisions and Case Law Housing Policies & NPPF The 10-unit threshold for affordable housing Green Belt issues Duty to give reasons Errors of fact Interpretation of a planning permission Precedent as a material consideration Interpretation of the GPDO Enforcement cases

Housing Policies NPPF 49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.

“For the supply of housing” is either: Housing policies South Northamptonshire Council v Secretary of State for Communities and Local Government and Barwood Land [2014] EWHC 573 (Admin) Ouseley J “For the supply of housing” is either: “very narrow and specific, confining itself simply to policies which deal with the numbers and distribution of housing” or “requires a broader approach which examines the degree to which a particular policy generally affects housing numbers, distribution and location”

Richborough Estates Partnership LLP v Cheshire East Borough Council Housing policies 2 Conjoined Appeals Secretary of State for Communities and Local Government v Hopkins Homes Ltd AND   Richborough Estates Partnership LLP v Cheshire East Borough Council [2016] EWCA Civ 168  

Hopkins Homes Ltd v Suffolk Coastal DC Facts 26 Houses Housing policies Hopkins Homes Ltd v Suffolk Coastal DC Facts 26 Houses LPA refused permission Inspector dismissed the appeal, finding that policies on settlement hierarchy and local service centres were not “policies for supply of housing” Supperstone J. quashed Inspector’s decision

Richborough Estates v Cheshire East BC Facts 170 houses Housing policies Richborough Estates v Cheshire East BC Facts 170 houses Appeal against LPA’s non- determination Inspector allowed the appeal, finding that policies on open countryside and green gaps were “policies for the supply of housing” Lang J. quashed Inspector’s decision

Richborough Estates Partnership LLP v Cheshire East Borough Council Housing policies Secretary of State for Communities and Local Government v Hopkins Homes Ltd AND Richborough Estates Partnership LLP v Cheshire East Borough Council [2016] EWCA Civ 168   Lindblom LJ in Court of Appeal: Para 49 NPPF to be interpreted in context “For the supply of housing” = “affecting the supply of housing” NPPF does not displace the statutory development plan – it is a material consideration Weight to be given to NPPF and “out-of-date policies” is a matter of planning judgement for decision- makers

Appeal to Supreme Court (hearing in February 2017) Housing policies Appeal to Supreme Court (hearing in February 2017) First time SC has considered NPPF and its interplay with statutory development plans Key questions: 1. Should CoA have elevated NPPF over statutory development plan and housing delivery over other NPPF objectives? 2. Which issues are for Court vs decision makers? The central issue – “for the supply of housing” – is critical for 70-80% of UK LPAs without full up-to-date local plans.

The 10-unit threshold for planning obligations for affordable housing Secretary of State for Communities and Government v West Berkshire District Council and Reading Borough Council [2016] EWCA Civ 441 (May 2016) Facts The LPAs challenged a ministerial statement which altered national policy in creating a 10-unit threshold to trigger planning obligations for affordable housing Challenge was upheld at first instance on the grounds that the statement was inconsistent with the statutory planning regime and the consultation was legally inadequate

The 10-unit threshold for planning obligations for affordable housing Secretary of State for Communities and Government v West Berkshire District Council and Reading Borough Council: [2016] EWCA Civ 441 (May 2016) Held: appeal allowed Articulation of planning policy in unqualified terms was NOT contrary to the operation of s38(6) of CPA 2004 “… the policy stated in the WMS is not to be faulted on the ground that it does not use language which indicates that it is not be applied in a blanket fashion, or that its place in the statutory scheme of things is as a material consideration… and no more.” (para 30)

Land South of Kettles Close, Oakington, Cambridgeshire The 10-unit threshold for planning obligations for affordable housing: recent developments Appeal decision (September 2016) Land South of Kettles Close, Oakington, Cambridgeshire South Cambridgeshire District Council Permission refused for 8 residential units due to Green Belt issues and lack of affordable housing Appeal dismissed on Green Belt grounds but Inspector proposed to demand affordable housing contribution if proposal had been acceptable because the need was substantial in that case

Elmbridge Borough Council (Surrey) The 10-unit threshold for planning obligations for affordable housing: recent developments Local planning policy for small sites (June 2016) Elmbridge Borough Council (Surrey) Policy CS21: affordable housing required on all developments where viable (20% on sites under 5 units) Statement dated June 2016 on the LPA’s website identifying WMS as a material consideration and stating that the weight to be given to it is a matter of discretion for the decision- maker

Green Belt Issues NPPF 87. As with previous Green Belt policies, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. Development in the Green Belt which is “appropriate” (para 89): Buildings for agriculture or forestry Facilities for outdoor sport The extension or alteration of a building The replacement of a building Limited infilling in villages Limited infilling and redevelopment of brownfield land

Permission granted for a substantial glasshouse development Is “appropriate development” deemed not harmful to the Green Belt? R. (on the application of Lee Valley Regional Park Authority) v Epping Forest DC [2016] EWCA Civ 404 Facts Permission granted for a substantial glasshouse development Proposal was “appropriate” development (para 89 NPPF) but involved negative impact on a wildlife habitat Ecological mitigation proposed was satisfactory to Natural England Appellant applied for JR on basis of proposal’s impact on landscape and Green Belt

Held: appeal dismissed Is “appropriate development” deemed not harmful to the Green Belt? R. (on the application of Lee Valley Regional Park Authority) v Epping Forest DC [2016] EWCA Civ 404 Held: appeal dismissed National policy was applied correctly by the LPA “Appropriate” development is deemed not harmful to the Green Belt (para 25) and does not need to be justified by “very special circumstances” First step is to establish if a development is appropriate according to para 89 but development “may be still be unacceptable for other planning reasons” (para 26)

LPA applied for JR of the decision Does the “appropriate development” listed in para. 89 permit a material change of use? Bromley LBC v Secretary of State for Communities and Local Government [2016] EWHC 595 (Admin) Facts Permission refused by LPA for redevelopment of land already used for a livery business which involved new dwellings. Proposal was “inappropriate” because the sixth exception of para 89 (limited infill of brownfield land) did not apply where there was a material change of use Appeal allowed: Inspector found that the proposal was within the sixth exception of para 89 LPA applied for JR of the decision

Held: application refused Does the “appropriate development” listed in para. 89 permit a material change of use? Bromley LBC v Secretary of State for Communities and Local Government [2016] EWHC 595 (Admin) Held: application refused “ …providing the new buildings fall within the use and other restrictions of the applicable indent of paragraph 89 the mere fact that permission for a new building may also involve a material change of use does not mean that it ceases to be appropriate development.” (para 47)

Decision upheld by the High Court What is the relationship between “openness” of the Green Belt and “visual impact”? Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466 Facts LPA refused permission for a 3-bed bungalow in the Green Belt to replace caravan and storage shed Appeal dismissed because although its impact in volume on the Green Belt was similar to the caravan, the bungalow had a greater visual impact Decision upheld by the High Court Appellant appealed to CoA arguing for the “volumetric approach” as the sole criterion of openness for the purpose of the sixth exception in para 89 NPPF

Held: appeal dismissed Sales LJ: What is the relationship between “openness” of the Green Belt and “visual impact”? Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466 Held: appeal dismissed Sales LJ: “The openness of the Green Belt has a spatial aspect as well as a visual aspect, and the absence of visual intrusion does not in itself mean that there is no impact on the openness of the Green Belt… it does not follow that openness of the Green Belt has no visual dimension.” (para 25)

Permission for JR refused and appellant organisation appealed Duty to give reasons for granting planning permission R. (on the application of CPRE Kent) v Dover DC [2016] EWCA Civ 936 (September 2016) Facts Outline planning permission granted for 500 houses and hotel and conference centre on basis that detrimental impact on AONB was outweighed by economic benefits Appellant organisation applied for JR on basis that LPA failed to apply NPPF correctly and give legally adequate reasons for approval Permission for JR refused and appellant organisation appealed

Duty to give reasons for granting planning permission R. (on the application of CPRE Kent) v Dover DC [2016] EWCA Civ 936 (September 2016) Held: appeal allowed The planning committee had failed to give adequate reasons in this case “A local authority which is going to authorise a development which will inflict substantial harm on an AONB must surely give substantial reasons for doing so.” (para 21) Laws LJ stated that the judgment should not be read as imposing an onerous duty on LPAs to give reasons for granting planning permission

Planning permission granted for shopping centre redevelopment Duty to give reasons for granting planning permission R. (on the application of Hawksworth Securities Plc) v Peterborough City Council [2016] EWHC 1870 (Admin) (July 2016) Facts Planning permission granted for shopping centre redevelopment JR applied for on the basis that it would render the claimant’s rival redevelopment scheme (for which permission was subsequently granted) unviable Claimant argued that abandonment of rival scheme would be contrary to local planning policy to redevelop and regenerate the area in question

Held: application refused Duty to give reasons for granting planning permission R. (on the application of Hawksworth Securities Plc) v Peterborough City Council [2016] EWHC 1870 (Admin) (July 2016) Held: application refused LPA under no legal duty to consider the merits of the schemes together The standard of reasons to be applied to an LPA’s decision to grant planning permission was different to the formulation of reasons owed by a minister or inspector on appeal LPA needed only to summarise the main reasons for the decision and could do so briefly

Oakley v South Cambridgeshire DC [2016] EWHC 570 (Admin) (July 2016) Duty to give reasons for granting planning permission Oakley v South Cambridgeshire DC [2016] EWHC 570 (Admin) (July 2016) Facts Planning permission granted for a football ground within the Green Belt Planning officers had recommended refusal but the planning committee gave officers delegated powers to approve the application subject to reconsideration of ecology, access and environmental issues The minutes of the meeting did not record reasons for the decision but the planning officer’s report was published on the website Claimant applied for JR on the basis that no adequate reasons for the decision were given

Oakley v South Cambridgeshire DC [2016] EWHC 570 (Admin) (July 2016) Duty to give reasons for granting planning permission Oakley v South Cambridgeshire DC [2016] EWHC 570 (Admin) (July 2016) Held: application refused There was a duty to give a summary of reasons for granting planning permission until 2013. However, DMPO 2015 (art 35) required reasons for refusal of planning permission only There were cases where the nature of the process or the subject matter called for reasons to be given (ie. where some form of apparent aberration triggered a reasons duty) Disagreement with a recommendation was not evidence of aberration

R. (on the application of Watt) v Hackney LBC [2016] EWHC 1978 (Admin) Errors of fact R. (on the application of Watt) v Hackney LBC [2016] EWHC 1978 (Admin) Facts LPA granted planning permission for the erection of a three-storey building Sunlight and shadow assessment based the proposed daylight impact of the building on the adjacent school on the understanding that the school boundaries admitted light - they were in fact solid LPA relied on the assessment to find compliance with BRE requirements Claimant applied to quash the decision on the basis of the error

R. (on the application of Watt) v Hackney LBC [2016] EWHC 1978 (Admin) Errors of fact R. (on the application of Watt) v Hackney LBC [2016] EWHC 1978 (Admin) Held: application granted “Objectively” there was unfairness arising from a combination of factors, namely: There had clearly been a mistake of fact; It was uncontentious what that mistake was; The claimant was not responsible for the error; The mistake had played a material part in the LPA’s reasoning in making their decision.

Two separate planning permissions granted for student accommodation Interpretation of a planning permission University of Leicester v Secretary of State for Communities and Local Government [2016] EWHC 476 (Admin) Facts Two separate planning permissions granted for student accommodation LPA refused permission for certificate of lawful use for conference facilities as it was ambiguous as to whether mixed use had been permitted in either permission Appeal was dismissed - the Inspector looked to extrinsic evidence but did not consider it helpful to finding an objective interpretation University applied to quash the decision

Held: application granted Interpretation of a planning permission University of Leicester v Secretary of State for Communities and Local Government [2016] EWHC 476 (Admin) Held: application granted All relevant extrinsic evidence could be referred to, including the way in which the permission was actually implemented The Inspector should have referred to all the extrinsic evidence on which the university relied, including evidence of the project manager, the officer’s report, committee meeting minutes, correspondence and the S106 agreement

LPA refused prior approval for a single-storey rear extension GPDO: interpretation of “enlarged part of a dwellinghouse” Hilton v Secretary of State for Communities and Local Government (CO/309/2016) Facts LPA refused prior approval for a single-storey rear extension Applicant had previously constructed a two storey rear extension pursuant to express planning permission On appeal, the Inspector held that the “enlarged part of a dwellinghouse” included the earlier extension

Held: application allowed GPDO: interpretation of “enlarged part of a dwellinghouse” Hilton v Secretary of State for Communities and Local Government (CO/309/2016) Held: application allowed The Inspector was wrong: “the enlarged part of the dwellinghouse” included only that which was being proposed under Class A This is contrary to the Secretary of State’s guidance on householder permitted development rights (April 2014)

Planning permission granted for four gypsy and traveller pitches Precedent as a material consideration R. (on the application of Cooper) v Ashford BC, [2016] EWHC 1525 (Admin) Facts Planning permission granted for four gypsy and traveller pitches Proposal was within designated ancient woodland and would have resulted in harm to wildlife Development control manager gave no proper reasoning for his decision to grant permission Claimant applied for JR on grounds that the LPA failed to consider key plan policies and distinguish the proposal from an earlier refusal on the site

John Howell QC on precedent: Precedent as a material consideration R. (on the application of Cooper) v Ashford BC, [2016] EWHC 1525 (Admin) Held: application granted on basis that the LPA failed to have regard to key plan policies John Howell QC on precedent: No obligation on the LPA to provide reasons for distinguishing the proposal from the earlier refusal “Adverse consequences on other sites of the grant of planning permission is capable in law of being a material consideration” (para 60) but it must be a matter that no reasonable authority would fail to treat as a material consideration (para 91)

House in a conservation area painted in red and white stripes Enforcement cases Zipporah Lisle-Mainwaring v Kensington and Chelsea RLBC (unreported) Crown Court (Isleworth) 12 July 2016 House in a conservation area painted in red and white stripes Held: a s215 notice could be used to regulate a property’s appearance and effect alterations going beyond mere maintenance “Amenity” is a broad concept not defined in legislation. Visual integrity was a key feature of the conservation area and the garish stripes adversely affected this amenity

Reigate and Banstead Borough Council v Fidler [2015] EWHC 3863 (QB) Enforcement cases Reigate and Banstead Borough Council v Fidler [2015] EWHC 3863 (QB) In 2002, a mock-Tudor ‘castle’ was built and concealed behind straw-bales for 4 years Mr Fidler failed to comply with 3 enforcement notices and an injunction requiring the house to be demolished LPA started contempt of court proceedings and on 9 November 2015, the High Court held that the appropriate sanction was 3 months’ imprisonment (suspended to enable compliance) On 1 July 2016, Reigate and Banstead BC confirmed that the court order had been complied with