Month: July 2018

Maximus: Dove J Ruling On PINS Validation Approach

My 14 April 2018 blog post Telephone Kiosks v Homes commented on the rash of prior approval applications for “telephone kiosks” under Part 16 Class A of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015. I queried in passing as to whether some of these applications met the test in the General Permitted Development Order that the development should be for the purpose of the electronic communications code operator’s electronic communications network. I didn’t know at the time that a more basic (and surely from the operator’s perspective entirely avoidable) dispute was under way between one operator and the Planning Inspectorate.

The background to Maximus Networks Limited v Secretary of State (Dove J, 25 July 2018) was that Maximus had lodged around 390 appeals in situations where either the relevant local planning authority had not determined a prior approval application within the statutory period or had decided not treat the application as valid. The London Borough of Hammersmith and Fulham had declined to validate the applications on the basis that Maximus had, in submitting their applications, not met the statutory requirement to provide evidence that notice had been served on the relevant land owner (which in every case was either the London Borough of Hammersmith and Fulham or Transport for London). Maximus “contended that since the land the subject of the application was in the ownership of the highway authority who were also the local planning authority there was no need for compliance with this condition.” The Planning Inspectorate refused to validate the appeals.

Maximus took the position that whilst it is unlawful for a local planning authority to accept an application which does not meet the statutory validation requirements (section 327A of the Town and Country Planning Act 1990) the position is different on appeal, in that the Secretary of State is not constrained by section 327A and, pursuant to section 79 of the 1990 Act, “may deal with the application as if it had been made to him in the first instance” and therefore has a discretion to waive any procedural irregularity. By the time of the court hearing before Dove J, issues had been resolved in all save 53 appeals.

Maximus relied on three grounds of challenge:

1. PINS had wrongly approached the appeals on the basis that they did not have a discretion to treat them as validly made.

2. “even if PINS did, in reality, recognise that there was a discretion which had to be exercised as a consequence of the legislative framework and authorities which are set out below, the discretion was in fact exercised irrationally.”

3. In the event that the court were to find that the appeals were not validly made, Maximus was entitled to refund of the application fees that it had paid to the local planning authorities.

Dove J accepted that PINs did have a discretion to treat the appeals as valid:

“...section 79 of the 1990 Act provides the defendant with a discretion to exercise as to whether or not to accept an appeal even if it is found to be wanting in relation to any procedural aspect. This discretion arises both under section 79(1) which contains a wide discretion for the Secretary of State to allow or dismiss an appeal, reverse or vary the local planning authority’s decision or any part of it, and deal with the application as if made to the defendant in the first instance. A discretion also arises under section 79(6) which provides that the defendant has a discretion to decline to determine an appeal or proceed with its determination if it emerges during the course of the appeal’s determination that the local planning authority could not have granted planning permission…”

However, he considered that PINS had indeed exercised its discretion:

“It needs to be borne in mind that this was an administrative decision and thus an overly forensic scrutiny of its terms would be inappropriate. It is particularly pertinent in my judgment that, without being a detailed legal treatise, the decision sets out the nature of the statutory discretion set out in section 79 and summarises the decision of the Court of Appeal in Bath v North East Somerset. I am unable to accept that what follows in terms of PINS’ decision involves a complete negation of the exercise of discretion under section 79. The decision goes on to note the view that had been formed that there had been a failure to comply with the formal requirements in relation to notice under part 16 of schedule 2 of the GPDO and in my judgment that is not evidence of PINS assuming that they only have power to conclude that there was no jurisdiction to entertain appeals, but rather explaining their justification for concluding in applying section 79 of the 1990 Act that the applications have not been valid and therefore the appeals should not be entertained.

In my judgment a fair reading of the decision leads to the conclusion that it is a concise analysis of the basis upon which PINS were declining to accept jurisdiction in respect of the appeals, rather than an assertion that PINS had no power at all to do anything other than refuse to accept the appeals. ”

Dove J accepted that PINS had exercised its discretion rationally in determining that a local authority could be prejudiced in circumstances where it was not served with notice of the making of an application in its capacity as landowning highways authority:

“A local authority as a land owner may have very different interests and concerns to take account of in exercising its powers to own and control land. It cannot be assumed that when an application of this kind is made to a local planning authority that the element of the local authority exercising its planning functions will automatically or of necessity consult that part of the council concerned with protecting its interests as a land owner or automatically be aware of all matters which the department responsible for safeguarding the council’s interests as land owner would wish to draw to their attention. Certainly that assumption is not contained within the statutory framework which, uncontroversially, by implication provides for the separate notification of the land owner when it is a local authority as part and parcel of the formalities for the application itself. […] It is a wholly unproved hypothesis that simply because the local planning authority is part of the same organisation as the affected landowner no prejudice from failing to notify the land owner could conceivably arise. It may be that the local authority as land owner would have different concerns and observations to draw to the attention of the local planning authority exercising its development control functions. I am unable to accept therefore that this observation in the pre-action protocol letter betrays circular reasoning or an irrational approach. ”

So, PINS was perfectly entitled to turn the appeals away. However, there was a sting in the tale for the authorities; Dove J accepted that the application fees paid were as a result refundable:

“In my view where, as here, the defendant concludes that an appeal is to be rejected on the basis that application is invalid (and he declines to exercise his discretion under section 79 to nonetheless continue to consider the appeal) then that is in effect a conclusion that the application was and should have been rejected as invalid and therefore falls within the scope of regulation 14(3) of the 2012 Regulations. It follows the claimant’s case in relation to Ground 3 should succeed, leading to a declaration that in respect of those applications made to the first interested party they are entitled to have their fees refunded.”

As mentioned, an avoidable dispute, but an interesting reminder of the slightly different approach to validation requirements that applies on appeal. And something other to write about than the NPPF.

Simon Ricketts, 29 July 2018

Personal views, et cetera

The NPPF & Eleven Other Documents Published By MHCLG On 24 July 2018

“I declare after all there is no enjoyment like reading!” (Jane Austen)

Happily the House of Commons did not after all rise a few days early, because on the last day before the summer recess the revised NPPF was duly published as the Secretary of State James Brokenshire had promised.

We have since all been busy getting to grips with what it all means – an urgent task given that its policies have immediate effect in relation to the determination of planning applications and appeals (whilst for plan-making the document is only relevant in relation to plans submitted for examination after 24 January 2019). I have already seen many good online summaries and blog posts as to the substance of the document and there are plenty of issues to delve into in coming months. The purpose of this post is simply to provide links to the various documents that were published by MHCLG alongside the NPPF.

Alongside the publication of the NPPF itself, there was a press release, “Government’s new planning rulebook to deliver more quality, well-designed homes“, as well as James Brokenshire’s short written ministerial statement, entitled “housing policy” (although the NPPF is of course about far more than housing and is hardly a “rulebook”).

There is no official marked up version showing the changes that have been made to the 2012 version or to the March 2018 draft, although various of us have our own internal versions – after all the detailed wording matters. Whilst the Government has published its response to the draft revised National Planning Policy Framework consultation, setting out its summary of consultation responses received to the March draft and “the Government’s view on the way forward“, the document only identifies the main substantive changes (not for instance the expunging of references to European Union directives – of no substantive relevance but an interesting reminder that the new NPPF may outlive our membership of the European Union).

The response document is interesting for some of the pointers it provides as to further guidance that may be on the way. For instance, in relation to:

⁃ ensuring the vitality of town centres: “The support for the policy changes is welcomed and the Government intends to implement the changes as set out in the consultation. On the specific request for clarity in relation to ‘reasonable period’, further advice will be set out in updated national planning guidance to assist with the application of the policy. ”

⁃ making effective use of land: “We will publish national planning guidance to enable local authorities to maximise opportunities that arise from delivering increased densities.”

⁃ the implications of the European Court of Justice’s People Over Wind judgment, bearing in mind that the draft NPPF (substantively unchanged in the final version) disapplies the presumption in favour of sustainable development where appropriate assessment is required, which will more frequently be the case as a result of the judgment): “The Government notes representations it has received on the impact of the People Over Wind judgement. The Government notes that this judgement concerns both the Habitats Regulations and the Framework. The Government is examining the implications of this judgement closely and is not proposing any changes to the Framework at this stage. ”

⁃ conserving and enhancing the historic environment: “We have also revised the reference to ‘optimum viable use’ and will set out in guidance where its use could be appropriate. We note the concerns about clarifying the policy approach to the assessment of the impact of proposed development on the significance of heritage assets and we will consider this issue further in revising national planning guidance.”

⁃ the definition of “deliverable” in the light of recent case law: “The Government has considered whether the definition of ‘deliverable’ should be amended further, but having assessed the responses it has not made additional changes. This is because the wording proposed in the consultation is considered to set appropriate and realistic expectations for when sites of different types are likely to come forward.”

So, plainly, work is still very much in hand in updating the Planning Practice Guidance and other advice. So far, two main sections have been updated, namely those relating to:

⁃ housing and economic development needs assessments (albeit with further guidance to come); and

⁃ viability

MHCLG has also published its “Housing Delivery Test Measurement Rule Book“, setting out its method “for calculating the Housing Delivery Test result“.

Aside from the above summer reading we have also been given some homework. MHCLG has now published a call for evidence in relation to the Independent Review of Planning Appeal Inquiries chaired by Bridget Rosewell. The deadline for responses is 18 September 2018.

The call for evidence is accompanied by some fascinating additional material which will no doubt be the subject of a future blog post, namely:

⁃ Key appeal statistics

⁃ Planning appeal statistics

⁃ Planning appeals inquiries process timeline (illustrative)

⁃ Annex – Case Studies which provide illustrations of when delays in the process can occur

“What is right to be done cannot be done too soon.” (Jane Austen)

Simon Ricketts, 25 July 2018

Personal views, et cetera

The Loneliness Of The Long Distance Planning Inspector: Courts Support Approach To Setting & Valued Landscape

Two cases last week reminded me as to how difficult the role of the planning inspector is. The two inspectors in question, architect John Gray and solicitor Karen Ridge, both faced conflicting evidence and submissions on issues which were largely matters of evaluation and judgment, albeit within narrow policy tramlines, at inquiries lasting six and eight days respectively. Congratulations are due to them both given that their decisions survived legal challenges – or, following Lord Carnwath’s approach in Suffolk Coastal (“the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly“) and the regular judicial criticism as to “excessive legalism” on the part of claimants, is it simply that the hurdle for a successful challenge is nowadays higher?

In Catesby Estates Limited and Secretary of State v Steer (Court of Appeal, 18 July 2018) at first instance Lang J had quashed John Gray’s decision letter in which he had allowed two appeals by Catesby, one relating to a proposal for up to 400 dwellings and a convenience store and the other for up to 195 dwellings, both on land about a mile away from the grade 1 listed Kedleston Hall.

The arguments at inquiry and subsequently revolved around the extent to which the site should be treated as within the setting of the hall and other designated heritage assets. Since the 1960s, views of the site from the hall and vice versa had been blocked by a belt of trees known as the “Derby Screen”, planted at the time to obstruct views of the expanding suburbs of Derby. Given the protection given to the setting of listed buildings by way of section 66 (1) of the Listed Buildings Act 1990 and the NPPF, supported by Historic England guidance, much turned on that question.

Lang J had agreed with submissions of the claimant and Historic England that “the Inspector adopted an artificially narrow approach to the issue of setting which treated visual connections as essential and determinative. In adopting this approach, the Inspector made an error of law.”

However, the Court of Appeal undertook a close examination of the inspector’s reasoning and overturned Lang J’s ruling. They found that the inspector had correctly considered two potential ways of looking at the setting of the hall, one considering visual and physical connections and the other looking at wider historical, social and economic connections. The court determined that he had then gone on to consider all the relevant issues before, in the particular circumstances, arriving at a narrower interpretation. His conclusions did not “betray an unlawful approach, in which considerations other than the visual and physical were disregarded“.

In reaching that conclusion, McFarlane LJ’s judgment in the Court of Appeal does usefully set out the approach to setting that should be taken by decision makers:

“Although the “setting” of a listed building is a concept recognized by statute, it is not statutorily defined. Nor does it lend itself to precise definition (see R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427, at paragraphs 53 to 58). Implicit in section 66 of the Listed Buildings Act, however, is that the setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside it. Identifying the extent of the setting for the purposes of a planning decision is not a matter for the court, but will always be a matter of fact and planning judgment for the decision-maker. And as Sullivan L.J. said in R. (on the application of The Friends of Hethel Ltd.) v South Norfolk District Council [2011] 1 W.L.R. 1216, “the question whether a proposed development affects, or would affect the setting of a listed building is very much a matter of planning judgment for the local planning authority” (paragraph 32 of the judgment).”

As McFarlane LJ had set out previously in the Williams case, “the circumstances in which the section 66(1) duty has to be performed for the setting of a listed building will vary with a number of factors – typically, “the nature, scale and siting of the development proposed, its proximity and likely visual relationship to the listed building, the architectural and historic characteristics of the listed building itself, local topography, and the presence of other features – both natural and man- made – in the surrounding landscape or townscape”, and possibly “other considerations too”, depending on “the particular facts and circumstances of the case in hand” (paragraph 53). To “lay down some universal principle for ascertaining the extent of the setting of a listed building” would be, I thought, “impossible”. But – again in the particular context of visual effects – I said that if “a proposed development is to affect the setting of a listed building there must be a distinct visual relationship of some kind between the two – a visual relationship which is more than remote or ephemeral, and which in some way bears on one’s experience of the listed building in its surrounding landscape or townscape” (paragraph 56).

This does not mean, however, that factors other than the visual and physical must be ignored when a decision-maker is considering the extent of a listed building’s setting. Generally, of course, the decision-maker will be concentrating on visual and physical considerations, as in Williams (see also, for example, the first instance judgment in R. (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin), at paragraph 89). But it is clear from the relevant national policy and guidance to which I have referred, in particular the guidance in paragraph 18a-013-20140306 of the PPG, that the Government recognizes the potential relevance of other considerations – economic, social and historical. These other considerations may include, for example, “the historic relationship between places“.”

The judge drew out three points:

“First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision- maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it.”

“Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision- maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next.”

“Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 W.L.R. 1865 (at paragraph 25) – that “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly“.”

In CEG Land Promotions II Ltd v Secretary of State (Ouseley J, 18 July 2018), inspector Karen Ridge had dismissed an appeal in relation to a scheme for up to 175 dwellings and associated development on land adjoining Wendover in Buckinghamshire.

The challenge revolved around two issues:

⁃ Whether the inspector was correct to conclude that there would be “the irrevocable loss of part of a valued landscape” for the purposes of paragraph 109 of the NPPF (which sets out the principle that the planning system should protect and enhance valued landscapes) given that the appeal site itself was not “valued landscape” but rather formed part of a wider “valued landscape”

⁃ whether the inspector had double counted the effects on landscape in weighing up the considerations against grant of planning permission, by taking into taking into account breach of paragraph 109 separate from breach of relevant local plan policies in relation to landscape, together with related points as to whether paragraph 109 amounts to “specific policies” that “indicate that development should be restricted“, to be taken into account in the paragraph 14 “tilted balance”.

Ouseley J introduces consideration of the NPPF with a note of caution as to its status:

“In relation to development control, despite some of its language, it is no more than a material consideration, to be taken into account in deciding planning applications under s70 of the Town and Country Planning Act 1990. It is a material consideration which may indicate that a decision should be made which does not accord with the development plan; s38(6) Planning and Compulsory Purchase Act 2004.”

After a detailed analysis, Ouseley J found no evidence of “double-counting” harm:

“There is a danger of over-analysing decision letters, with the risk that in doing so, error is found where none exists.”

He similarly found nothing wrong with the inspector’s “valued landscape” conclusion:

“It would be […] bizarre to adopt a wholly artificial approach to landscape evaluation where, in most cases, a development site is but part of a wider landscape. In my judgment, the Inspector, in the case before me now, has analysed the issue very well and come to the entirely correct conclusion.”

Both judgments, together with the inspectors’ decision letters under challenge, would make good case studies for the current independent review chaired by Bridget Rosewell into the planning appeal inquiry process. Neither development proposal was particularly large but both led to relatively long inquiries. Against the context of unclear, multiple layers of policy and guidance and the predictable dissection by each of the main parties as to policy meaning and application, is there really any room for shortening the process without affecting its quality? Controversial question: Are the layers of abstraction, and the lonely task of sitting down to write a lengthy decision that is bullet-proof in its reasoning, necessary for a high quality process, or simply impeding it?

And regardless of the answer to that question, let us recall that only 2% of planning appeals proceed by way of inquiry and it should surely be at least as important that the Planning Inspectorate urgently reduces its timescales for processing appeals that are conducted by way of written representations or hearings, as well as by way of simpler (ie “non-bespoke”) inquiries, given the statistics set out its latest annual report (12 July 2018).

Simon Ricketts, 20 July 2018

Personal views, et cetera

2 ACV Disputes

The listing of land or buildings as an asset of community value has legal consequences but ones that will seldom be determinative as to an owner’s longterm plans. Whilst disposal of a freehold or long leasehold interest can’t take place without community groups being given an opportunity to bid, there is no obligation to accept any community bid that is made. The listing can be material in relation to the determination of an application for planning permission, but the weight to be attached to the ACV listing is a matter for the decision maker.

So it is interesting to see the extent of litigation that is arising.

There have been many First-tier Tribunal rulings. A 23 June 2016 Public Law Today article by Christopher Cant summarises many of them as at that date and indeed Mr Cant has produced a 300 page guide to the regime, which is up to date as at 8 June 2018.

By way of a recent example of the desperate struggle by pub chains to resist ACV listing of their pubs, Punch Partnership (PML) Limited v Arun District Council (Judge Anthony Snelson, First-tier Tribunal, 7 June 2018) is interesting. The Arun and Adur branch of CAMRA had nominated the Henty Arms, in Ferring, West Sussex. The council had accepted the nomination. Punch sought to rely on a series of technical points in relation to the nature of the nominating body to seek to appeal against the listing:

⁃ First, the “surprising assertion that the Arun and Adur branch of CAMRA…doesn’t exist“, based on the close relationship of branch with the parent organisation. The judge held that there was “nothing in the argument…No authority is cited for the proposition that a branch cannot have legal personality unless it is independent of the ‘parent’ body. A moment’s reflection shows the notion to be unfounded“.

⁃ Secondly, that “the nomination was made without the authority of members of the ‘branch’, and was not a community nomination“. The judge rejects this out of hand: “The idea that the fact that the nomination exercise was handled by a small number of individuals justifies the conclusion that they were acting without authority strikes me as more than a little peculiar. It is in the nature of things that organisations allocate tasks to individuals and do not attempt to perform them collectively. As the evidence overwhelmingly shows, that is what happened here.  The fact that the model constitution requires the branch to operate through a committee does not mean that every decision must be taken by the committee. There is, to my mind, not the first beginnings of an argument that the nomination was unconstitutional, let alone that it was a nullity.”

⁃ Thirdly, that there is no prohibition against the distribution of any surplus to members. The judge found that the legislation only requires that the body “does not” distribute any surplus to its members and there was no challenge to the evidence that surpluses are not distributed to members.

⁃ Fourthly, that any surplus is not applied for the benefit of the local authority area or that of the neighbouring local authority. Again, the judge found that there was nothing in the assertion. In fact any surplus was applied towards the next year’s Worthing Beer Festival and to a publication entitled Sussex Drinker.

⁃ Fifthly, that the branch did not have at least 21 local members. The judge found that “the membership exceeds and [at] all relevant times exceeded 700…of who, 281 had addresses entirely within the area of Arun and neighbouring districts“.

The judge concludes with a withering final paragraph:

“Although pressed with immense energy and determination, I am satisfied that this appeal is entirely free of merit. It is founded on an unduly narrow and unrealistic interpretation of legislation which, it should be remembered, was designed to be accessible to citizens from all walks of life, with or without legal representation, as a means of enabling landowners and communities to grapple with the substance of local issues that matter to them.  It would be unfortunate and contrary to Parliament’s intention if this jurisdiction became mired in technicalities and procedural points – and all the more unfortunate if appeals routinely resurrected arguments which have been fully debated and rejected in earlier cases.”

The second example is a ruling of the Court of Appeal, no less, in Banner Homes Limited v St Albans City and District Council (Court of Appeal, 23 May 2018).

A 12 acre field had been owned by Banner Homes since 1996. According to Lady Justice Sharpe in the lead judgment, it “has been used by the local community for more than 40 years for various peaceful and beneficial recreational activities, such as children’s play, walking, kite flying, exercising dogs, and the photography of flora and fauna. Banner Homes did not give express permission or grant a licence for the local community to use the Field (beyond the public footpaths); but it was well-aware the Field was used in this way by the local community, it made no objection, and until recently, it took no steps to stop it.”

Following nomination by a local residents’ association the council listed it as an ACV in March 2014. In September 2014, shortly before a review hearing in to the listing was to be conducted by the council, “Banner Homes fenced off the Field so that only the public footpaths could be accessed by members of the public. This remains the position today.”

Use of the field beyond the public footpaths was agreed to constitute a trespass. “The single issue that arises in this appeal is whether such unlawful use can constitute a qualifying use (or “actual use” to use the statutory language) for the purpose of listing an asset as an “asset of community value” pursuant to section 88 of the 2011 Act.”

The relevant test under section 88 (1) and (2) of the Localism Act 2011 is whether there is:

“…(a) an actual current use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and
(b) it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.


(2) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority’s area that is not land of community value as a result of subsection (1), is land of community value if in the opinion of the local authority—
(a) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community, and
(b) it is realistic to think that there is a time in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.”

The First-tier Tribunal had rejected in these terms Banner’s argument that it was not realistic to think that there could continue to be use of the field for recreational purposes:

“Given the long history of peaceable, socially beneficial (if formally unauthorised) use of the Field, and of the previous views of the owners, I do not consider that it is at all fanciful to think that, in the next five years, there could be non-ancillary use of the land, along the lines that pertained up to September 2014. The timing of the decision to fence the footpaths – coming hard upon the listing under the 2011 Act – strikes me as material. Also of significance is the uncertain present planning position of the land, where a recent application for the grazing of horses has been refused. Whilst I note Banner Homes’ current stated stance, it is not fanciful, given the history of the Field, to think that Banner Homes may well conclude that their relations with the local community will be best served by restoring the status quo or by entering into some form of licence arrangement with the Residents’ Association or similar grouping.”

The Upper Tribunal did not interfere with that finding and permission was not granted to appeal to the Court of Appeal on that point.

So did it matter that the recreational use was unlawful? Douglas Edwards QC for Banner sought to rely on the “in bonam partem” principle, “a principle of construction that presumes against the construction of a statutory provision so as to reward an unlawful action with a benefit, unless a contrary Parliamentary intention is revealed. Absent, he submits, a clear indication to the contrary, Parliament is not to be taken to have intended unlawful conduct to be rewarded by the grant of a right or benefit, as would occur in this case if the listing decision were to be maintained.”

The Court of Appeal rejected application of the principle, and any reliance on the “notorious” facts of Welwyn Hatfield Borough Council v Secretary of State (Supreme Court, 6 April 2011) (Mr Beesley and his hidden house). The “legislative intention is plainly that “actual use”, in this statutory context, should mean what it says“. Whilst she accepted that there may be other cases where the conduct is closer on the facts to those in Welwyn Hatfield, in cases such as this one, “it is hard to couple the word “unlawful” with the activities (or “use”) under consideration, let alone with any suggestion they are engaged in illicitly to obtain a benefit under the Scheme”. In this case Banner knew about the trespasses and indeed the local residents’ group had done much to preserve and enhance the open rural nature of the site.

Lord Justice Davis added:

“It has been an unfortunate consequence in this case that, by reason of the nomination, Banner Homes felt constrained, in order to protect its commercial interests as the land owner, to fence off the Field from the public footpaths. It would be a further unfortunate consequence if other land owners, perhaps holding land with a view to potential development in the future, likewise were to feel constrained to restrict public access to their land. That particular unfortunate result which has arisen in this particular case may prove to be an unintended consequence of the 2011 Act. But be that as it may, that can provide, of itself, no reason for departing from the clear statutory purpose behind, and the clear statutory language of, the 2011 Act.”

On the facts, one wonders why the local residents did not apply for registration of the land as a village green, a rather more high powered vehicle for opponents of development, or defenders of the status quo, than the humble ACV. No doubt one of you will tell me but I wonder whether it may be something to do with the “trigger events” introduced by the Growth and Infrastructure Act 2013 that close out the possibility of registration. I have a copy of the judgment of Deputy Judge David Elvin QC in Cooper Estates Strategic Land Limited v Wiltshire Council (5 July 2018), which is potentially important in the breadth of scope that is given to trigger event 4 (a development plan policy that “identifies the land for potential development“), but will hold off blogging on it until it appears somewhere online.

In the meantime, the procession of ACV listings will continue, much activity and some litigation, but to what end?

Simon Ricketts, 14 July 2018

Personal views, et cetera

The Planning Court

Time flies. The Planning Court started life on 6 April 2014, as a specialist list within the Queen’s Bench Division of the High Court.

The Queen’s Bench Division includes the Administrative Court, which is responsible for public law claims, which are usually pursued by way of judicial review or by way of a quasi- judicial review statutory challenge or appeal, allowed for in a specific piece of legislation. As described in detail in a February 2014 piece by Richard Harwood QC, the Planning Court evolved from the Administrative Court’s fast track procedure which had been established to allocated important planning cases to be heard quickly before specialist judges.

As defined in Part 54 of the Civil Procedure Rules, a ‘Planning Court claim’ means:

“a judicial review or statutory challenge which —

(a) involves any of the following matters —

(i) planning permission, other development consents, the enforcement of planning control and the enforcement of other statutory schemes;

(ii) applications under the Transport and Works Act 1992;

(iii) wayleaves;

(iv) highways and other rights of way;

(v) compulsory purchase orders;

(vi) village greens;

(vii) European Union environmental legislation and domestic transpositions, including assessments for development consents, habitats, waste and pollution control;

(viii) national, regional or other planning policy documents, statutory or otherwise; or

(ix) any other matter the judge appointed under rule 54.22(2) considers appropriate; and

(b) has been issued or transferred to the Planning Court.”

Since February 2017, Holgate J has been the Planning Liaison Judge, overseeing the operation of the Planning Court and allocating cases to judges with appropriate expertise.

His “no nonsense” approach might be discerned from this blistering passage in R (Network Rail Infrastructure Limited v Secretary of State (Holgate J, 8 September 2017):

“I regret the need to have to make some observations on the inappropriate manner in which the claim was put before the court. I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable. Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions[2001] EWHC (Admin) 74 at paragraphs 6-10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant’s skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.

Shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle. Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission. But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant’s argument to which it does not belong. Nevertheless, Mr Tim Buley, who appeared on behalf of the Defendant, acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.

Certainly, for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as “significant” under CPR PD 54E, a core bundle of up to about 250 pages is generally sufficient to enable the parties’ legal arguments to be made. In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.

Prolix or diffuse “grounds” and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner. Whichever party is at fault, such practices are likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended. Consequently, a disproportionate amount of the Court’s finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with. Such practices do not comply with the overriding objective and the duties of the parties (CPR 1.1 to 1.3). They are unacceptable.

The Court has wide case management powers to deal with such problems (see for example CPR 3.1). For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without “forensic chaff”. It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. The principles in the CPR for dealing with the costs of litigation provide further tools by which the Court may deal with the inappropriate conduct of litigation, so that a party who incurs costs in that manner has to bear them.”

However, the lack of recent statistics as to the performance of the Planning Court is frustrating.

Anecdotally, I would suspect that there is a small reduction in the overall number of claims, no doubt partly due to the toughened approach to costs protection for claimants since 28 February 2017 . For those claims that are brought, the permission stage appears to be an increasingly difficult hurdle and (particularly with that stage having been introduced since 26 October 2015 into statutory challenges) fewer claims are getting to a full hearing. On the other hand, increasingly, controversial or complex cases are being actively case managed so that they proceed directly to a “rolled up” hearing. Despite the increasingly small pool of specialist judges, we are not seeing particular delays in case listings. However, this is an individual reaction not rooted in data and your experience may be different?

Last month the Ministry of Justice published its quarterly justice statistics (to March 2018) but they do not separate out the performance of the Planning Court.

There is a table showing the success rate of “planning and related” statutory challenges (ie not judicial reviews but applications under specific statutory provisions such as to quash inspectors’ and the Secretary of State’s decision letters, local plans and so on) that went to a full hearing. Most, but not necessarily all, of these will be been heard by the Planning Court. The statistics do indeed show a decreasing number of statutory challenges that go to a full hearing.

What is more problematic is that the data on judicial review does not separately identify Planning Court cases, simply breaking down judicial review cases into “civil – immigration and asylum”, “civil – other” (which includes planning), criminal and “unknown”.

It would be good to have for example reliable statistics as to overall numbers of judicial review claims in the Planning Court, the proportion that fall at the permission hurdle, overall success rates and timescales.

After all, one of the objectives behind the establishment of the court in 2014 was to provide for a speedier process. For “significant” claims there are specific target timescales.

Significant cases are defined as those which:

“(a) relate to commercial, residential, or other developments which have significant economic impact either at a local level or beyond their immediate locality;

(b) raise important points of law;

(c) generate significant public interest; or

(d) by virtue of the volume or nature of technical material, are best dealt with by judges with significant experience of handling such matters.”

Practice Direction 54E, which governs claims in the Planning Court states:

“3.4 The target timescales for the hearing of significant (as defined by paragraph 3.2) Planning Court claims, which the parties should prepare to meet, are as follows, subject to the overriding objective of the interests of justice—

(a) applications for permission to apply for judicial review or planning statutory review are to be determined within three weeks of the expiry of the time limit for filing of the acknowledgment of service;

(b) oral renewals of applications for permission to apply for judicial review or planning statutory review are to be heard within one month of receipt of request for renewal;

(c) applications for permission under section 289 of the Town and Country Planning Act 1990 are to be determined within one month of issue;

(d) planning statutory reviews are to be heard within six months of issue; and

(e) judicial reviews are to be heard within ten weeks of the expiry of the period for the submission of detailed grounds by the defendant or any other party as provided in rule 54.14.”

Anecdotally, yes claims are indeed largely dealt with pretty quickly compared with elsewhere in the High Court but are these specific targets being met? And is the proportion increasing of claims that are failing at the permission stage (and, if so, what does that tell us)?

So, what do the general JR statistics show?

This is an extract from a table showing success rates:

In 2017 there were 4,196 claims lodged. 15% (615) were granted permission on the papers and 59% (2,484) were refused. Of those 2,484 claims, 146 obtained permission at oral renewal stage. Of those 761 claims, only 181 went to a full hearing and of those only 88 were found in favour of the claimant. Of course at each stage, proceedings are often settled, perhaps some were still waiting to be heard and a few may subsequently succeed on appeal, but that is quite some sieving, with only 2% of the total number of claims lodged resulting in a finding for the claimant.

Another table starts to break down those 4,196 claims, showing that well over half of JR claims still relate to immigration and asylum claims. Only 1,722 of them related to other civil claims (ie including Planning Court JR claims).

Who are the defendants? The commentary says this:

“Local Authorities had 713 applications lodged against them (third largest recipient), down 6% on the previous year. Of these cases, 216 were granted permission to proceed to final hearing (30% of applications), and of these, 33 were found in favour of the claimant. ”

Finally, what about timescales? There is just this table:

The cases that went to a full hearing in 2017 took on average 194 days (working days I assume) from being lodged to a final hearing decision, although the figures may end up slightly worse than that if some cases have not yet concluded.

Am I missing a whole level of detail or is this really the best that we have in terms of the High Court’s performance in relation to planning law matters? And are up to date statistics for the Planning Court really not publicly available?

Simon Ricketts, 6 July 2018

Personal views, et cetera