Dead Cert?

This week I wasn’t sure whether to write about the Government’s 21 February 2023 response to its consultation on the proposed biodiversity gain regulations or about the Government’s 23 February 2023 action plan for reforms to the nationally significant infrastructure projects process.

But both of these documents, important as they are, are largely self-explanatory – and have been covered in various summaries which are out there. So I ditched those ideas.

Instead I will focus on another interesting recent case, involving one of my favourite buildings (a “megastructure” according to the judge): the Brunswick Centre, Camden.

Lazari Properties 2 Limited v Secretary of State (Lane J, 21 February 2023) is nothing to do with the architecture of the building, but rather the architecture of the planning system itself. Whilst only a preliminary ruling by Lane J as to whether there were arguable grounds of challenge, some interesting practical issues arise as to:

⁃ the need for precision in framing lawful development certificate applications

⁃ the proper interpretation of conditions restricting uses by reference to superseded Use Classes Order descriptions.

The centre “contains 2 linked blocks of 560 flats above a shopping centre with rows of shops at raised ground level. The shops (which include a supermarket) are situated over a basement, which contains car parking, a service area and a cinema. Ramps and steps provide access to the central boulevard from several surrounding streets.

Uses in the building are controlled in part by condition 3 of a planning permission in 2003 for the centre’s refurbishment:

“”Up to a maximum of 40 percent of the retail floorspace, equating to 3386m2 (excluding the supermarket and eye-catcher), is permitted to be used within Use Classes A2 and A3 of the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.”

Old use classes A2 and A3 are now of course subsumed within the new use class E. So, given that retail uses also fall within class E, does that mean that this condition no longer has any effect such that the whole of the retail floorspace can now be used for any purposes falling within class E?

The owner submitted an application to the local planning application for a certificate of lawfulness of existing use or development (“CLEUD”), with a red line around the whole of the centre and with the proposal described as follows:

“Application to certify that the existing use of the Brunswick Shopping Centre within Class E and without compliance with Condition 3 of Planning Permission: PSX0104561 is lawful”.

Uh oh. I wrote about the perils and constraints of CLEUDs and CLOPUDs (certificates of lawfulness of proposed use or development) in my 12 June 2021 blog post I’m Sorry I Haven’t A CLEUD.

Quite aside from the legal question arising as to whether the references to classes A2 and A3 in the condition should now be read as references to class E, was the description of the existing use sufficiently precise?

The London Borough of Camden didn’t determine the application within the statutory period and the owner appealed. The inspector dismissed the appeal in a decision letter dated 27 July 2022:

⁃ the reference to use class E was not a sufficiently precise description of the existing uses of the units within the centre. Whilst the owner’s objective was clearly to establish that class E use of any of the units would not be in breach of the condition, that was not the role of lawful development certificates: “It is a long established principle that LDCs enable owners and others to ascertain whether specific uses, operations or other activities are or would be lawful. They do not enable anyone to ask the general question, “what is or would be lawful?

⁃ the reference simply to the whole of the centre, which encompassed various uses plainly not falling within class E, was not sufficiently precise, and was not remedied by a plan excluding defined areas.

⁃ In accordance with case law, condition 3 was to be interpreted having regard to the natural and ordinary meaning of the words used, viewed in their particular context (statutory or otherwise) and in the light of common sense. The inspector considered that the purpose of Condition 3 is “clear from its stated reason. It is to safeguard the retail function and character of the Brunswick Centre. It does this by stating a maximum amount of floorspace that is permitted to be used for A2 and A3 purposes.

Condition 3 only makes sense if there is an implied exclusion of the Use Classes Order or else it has no purpose. The purpose of Condition 3 is clear and it remains enforceable since the uses that are restricted are known, those being the uses set out as falling within Class A2 and A3 when planning permission was granted.”

Both parties made costs applications against the other. The inspector rejected the owner’s costs application and made a partial award of costs in favour of the council.

So what did Lane J make of all this? Without giving any reasoning, he considered that it was arguable that condition 3 was not to be interpreted in the way arrived at by the inspector. However, he found that the inspector’s conclusions as to the inadequacy of simply describing the existing use by reference to class E, as to the inadequacy of the submitted plans and as to costs were all unarguably correct.

An interesting procedural question as to why it was still appropriate for the interpretation question (referred to as grounds 1 and 2) to go to a full hearing, given the fundamental flaws in the formulation of the CLEUD application and appeal:

I must accordingly explain why I have concluded that, on the facts of the present case, permission should be granted for grounds 1 and 2 to be determined at a substantive hearing. I accept Mr Taylor’s submission that grounds 1 and 2 are, in effect, severable and that there is a real purpose in permitting the claimant to argue them substantively, so that the High Court can reach a decision on the correct interpretation of condition 3. Given that a fresh application by the claimant under section 191 is highly likely, if not inevitable, and that condition 3 is likely to be relevant to the determination of any such application, it plainly makes sense that the issue of interpretation is settled before such a fresh application is made.

I accept that, as matters stand, the claimant has not sought a declaration, which will be needed on the above basis, given that the inspector’s decision should not be quashed. The claimant will need to do so. I do not, however, consider that the claimant’s failure, so far, to seek a declaration should be destructive of its case in respect of grounds 1 and 2.”

Like the judge, I’m not sure that the inspector’s conclusions in respect of condition 3 were necessarily correct and it will be useful to have a final ruling in due course on the issue, which may potentially assist with other interpretation questions arising from the introduction of class E in situations where conditions contain restrictions based on previous use classes. But I’m surprised that the case has gone so far on the basis of such a loose approach to the CLEUD process. Might a simpler approach have been to show all the retail units on a plan and to make a CLOPUD application proposing retail use in respect of each of them? That would have indirectly led to a ruling as to whether condition 3 was legally effective. But as it turns out, maybe the eventual outcome of these proceedings will end up getting to the same position for the owner, albeit at additional expense for all concerned.

Incidentally, if you would like much better summaries than this of planning law cases on a weekly basis, do subscribe to our free Town Library service if you haven’t done so already. Each week my Town Legal colleagues prepare summarise of any rulings handed down the previous week by the Planning Court, together with subsequent appeal rulings. Subscribe here.

Simon Ricketts, 25 February 2023

Personal views, et cetera

Photo of Brunswick Centre courtesy of Wikipedia

Can You Use Section 106 To Buy Drugs (And To Fund Other Public Services)?

It is frustrating to see public bodies, stymied by the lack of other funding sources, challenge the grant of planning permissions by way of judicial review in a bid for financial contributions from the developer. Frustrating because at root these are services which should properly be funded by the taxpayer; frustrating because the public body invariably loses, having spent public money in the litigation and exposed itself to the award of costs; frustrating because the challenge invariably slows down delivery of the development for which planning permission has been granted.

We’ve seen it with the police (e.g. R (The Police and Crime Commissioner for Leicestershire) v Blaby District Council (Foskett J, 27 April 2014) (a case which largely concerned the timing of contributions towards for instance additional police cars and radio transmitters)); with adjoining local authorities concerned to have their share of affordable housing (e.g. R (Luton Borough Council v Central Bedfordshire Council (Court of Appeal, 20 May 2015), and, above all, we have course seen it with NHS Trusts.

The issue as to the extent to which it is appropriate for financial contributions to be secured by way of section 106 agreement towards the delivery of health services has been rumbling on for years – see for instance the 20 August 2020 piece What the health? The planning system and healthcare service funding by Lichfields’ Myles Wild-Smith. Myles refers to recovered appeal decisions where the agreed section 106 provisions included a financial contribution towards the provision by the local Foundation Trust of acute and community health facilities and the encouragement that this has given NHS bodies over time to take this approach. The root of the issue for NHS Trusts is what can only be described as a flaw in the Government’s current funding mechanism which does not necessarily take into account the costs of provision of additional services to cater for an increase in population in the first year that population numbers are increased, leading to a “funding gap”.

The issue has now come before the Planning Court in the landmark case of R (University Hospitals of Leicester NHS Trust) v Harborough District Council (Holgate J, 13 February 2023) – “landmark” partly because four of the six barristers involved are from Landmark Chambers but more perhaps because Holgate J does not just dismiss the claim by the claimant NHS Trust on the facts but goes on to consider the wider principles engaged.

From here on in, I am largely going to be shadowing Nicola Gooch’s blog post Mind the Funding Gap: The curious case of s.106 contributions funding NHS services. If you’ve already read that, feel free to skip ahead. If you haven’t…

In basic summary, Harborough District Council granted planning permission for an urban extension to Lutterworth, comprising up to 2,750 dwellings and associated development. The University Hospitals of Leicester NHS Trust did not object to the development in principle but  had been seeking that the council secure a contribution, via the section 106 agreement which was being negotiated, “of about £914,000 towards the delivery of health care by the Trust to mitigate what are said to be the harmful effects of additional demands upon its services from that proportion of the people moving to the site who would be new to the Trust’s area (referred to as “new residents”). The Trust estimates that the 2,750 houses on the site would accommodate 7,520 people, of whom 38.5%, or 2,896 people, would be new residents in the Trust’s area.”. The council considered the request and did not accept that it was justified (I don’t know but, aside from concerns as to whether such a contribution was legally appropriate and justified in planning terms, there may have been an underlying issue, frequently present: against the constraints of project viability,  requiring such a contribution may have entailed less potential funding for affordable housing or other priority requirements of the council or county council).

Paragraphs 8 to 12 of the judgment describe the so-called “funding gap” (and this is the aspect of the judgment I am focusing on – the judgment also addresses, and rejects, some related grounds of challenge). The purpose of the contribution sought was to provide “funding for additional staff, drugs, materials and equipment” during the relevant part of the first financial year in which a “new resident” begins to occupy a dwelling.

Paragraphs 22 to 29 of the judgment set out the legal principles in relation to material considerations and section 106 agreement.

The council didn’t accept that the case for the “funding gap” had been made out. Holgate J agreed with the council that this was indeed a relevant consideration and that the council had reached a rational conclusion that the Trust had failed to provide any sufficient information to show that there was any “funding gap” and accordingly the contribution sought would have failed the “necessity” test in regulation 122 of the CIL Regulations.

After Holgate J gives what he describes as the “short answer”, he then goes on to consider “wider issues”.

141 The question therefore arises how could an applicant for planning permission for a new development be required lawfully by a system of land use planning control to contribute to the funding of treatment within the NHS? It is well established that planning permission cannot be bought and sold, for example, by making a payment for community purposes unrelated to the development authorised. Furthermore, planning legislation does not confer any general power to raise revenue for public purposes (see e.g. Attorney General v Wilts United Dairies Limited (1921) 37 TLR 884; (1922) 38 TLR 781; McCarthy & Stone (Developments) Limited v Richmond London Borough Council [1992] 2 AC 48).

142. Ordinarily a resident of the development at East Lutterworth who had moved to the Trust’s area would previously have been the responsibility of a CCG elsewhere in the country. So it has not been suggested that the development would increase the burden on the NHS in England as a whole. The attempt by the Trust to obtain a financial contribution under s.106 therefore depends upon their demonstrating a localised harm. The only harm they seek to rely upon concerns the provision by the Trust of services commissioned by the CCGs. On the Trust’s own case, that has to depend upon them showing a funding gap in relation to treatments for residents new to the area during their first year. The Trust accepts that there is no justification for any payment relating to other “first year” residents who are simply moving home within the Trust’s area, or to any resident after their first year at East Lutterworth. The extent to which funding is available to the Trust for the services it provides to the CCGs is the only possible justification for drawing these distinctions. Whether a funding gap genuinely exists was critical to the Trust’s request for a financial contribution under s.106.

143. Accordingly, HDC was fully entitled to ask questions and to seek information in order to see whether there is a real funding gap for treatment by the Trust of “new” residents in their first year of occupation. Indeed, if the local planning authority had agreed to require the developer to pay the contribution sought by the Trust before granting planning permission without being adequately satisfied that there was a relevant funding gap, it would have been open to criticism. In the event of the issue having to be determined in a planning appeal, HDC would have been at risk of being ordered to pay costs for unreasonable conduct.”

“147. But what if in a future case a NHS trust could demonstrate that it would suffer a funding gap in relation to its treatment of new residents of a development during the first year of occupation? On one level it would be a matter for the judgment of the local planning authority as to whether the three tests in reg.122(2) of the CIL Regulations 2010 are satisfied and whether it would be appropriate to require a financial contribution to be made, after taking into account other requirements and any impact on the viability of the scheme. But all that assumes that there is no legal (or other) objection to a contribution of the kind sought in the present case. The argument in this case does not enable the court to decide that issue as a legal question. This judgment should not be read as deciding that there would be no legal objection.

148. Where a housing development is carried out, some of the new residents may be entitled to social welfare benefits, which, like the need for secondary healthcare, arises irrespective of where that person lives. Of course, no one would suggest that the developer should make a contribution to funding those benefits.

149. The funding of treatment in NHS hospitals would appear to be different in two respects. First, in an area of net in-migration any increase in the need for treatment and staff will be experienced in the relevant local area, not nationally. Second, because the patients would receive treatment even if they had not moved home, a local funding gap would only arise if funding for the relevant NHS trust did not adequately reflect a projected increase in population and/or the national funding system did not adequately provide for a timely redistribution of resources. Population projections will involve some areas of out-migration as well as areas of net in-migration. It is therefore significant that CCG funding across the country takes into account ONS population projections. Accordingly, in the distribution of national funds there may be increases or decreases in funding for individual CCGs by reference to size of population.

150. It seems to me that two points follow. First, even if it could be shown in a particular area that there is a funding gap to deal with “new” residents, HDC was entitled to raise the possibility that this is a systemic problem in the way national funding is distributed. Although the Trust criticised HDC for taking it upon themselves to raise this point, it strikes me as being a perceptive contribution to a proper understanding of the issue. If there really is a systemic problem, this may raise the question in other cases whether it is appropriate to require individual development sites across the country to make s.106 contributions to address that problem.  However, for the purposes of dealing with the present challenge, HDC’s decision rested on the Trust’s failure to show that there was a funding gap in this case, not any systemic issue.

151. Second, whether there is a lack of funding for a Trust to cope with the effects of a substantial new development is likely to depend not on those effects in isolation, but on wider issues raised by the population projections used as one of the inputs to determine funding for CCGs. The interesting arguments from counsel in this case suggest that these issues merit further consideration as a matter of policy outside the courts and even outside the planning appeal system.”

Some significant points to reflect on arising from the passages above:

  • Even if a “funding gap” by a provider of public services is demonstrated, not only does the decision maker still need to determine whether a contribution is justified “whether the three tests in reg.122(2) of the CIL Regulations 2010 are satisfied and whether it would be appropriate to require a financial contribution to be made, after taking into account other requirements and any impact on the viability of the scheme” but it should not be taken for granted that there will not be a legal objection to the making of the contribution.
  • If the underlying issue which led to the case is a “systemic problem in the way national funding is distributed… this may raise the question in other cases whether it is appropriate to require individual development sites across the country to make s.106 contributions to address that problem”.
  • There may well be problems with population projections used as one of the inputs to determine funding for clinical commissioning groups.

I would suggest that all three points require serious reflection both by the Department of Health and Social Care and by DLUHC

In the meantime, for the rest of us, the judgment is a reminder of the careful scrutiny that needs to be given to proposed planning obligations, so as to ensure that they meet the necessary legal tests. In a climate where there is often insufficient Government funding to pay for public services (and/or inadequate methodologies for determining the funding that is needed – as seems to be the case with health funding) , these issues are continually going to arise. Local residents have a right to expect that new development does not lead to unacceptable burdens on local services, but there are legitimate limits on the costs which can be borne by development. After all, the needs of new residents in a development were previously being met, and funded, elsewhere. Our planning system is increasingly an indirect tax collection system – and I fear that the impending Infrastructure Levy regime will only make matters even worse.


Simon Ricketts, 18 February 2023

Personal views, et cetera

Photo courtesy of Christina Victoria Craft via Unsplash

The Bridge To Nowhere Case

Sliced salami anyone?

Defining what is the “project” for the purposes of ascertaining whether environmental impact assessment is required and, if it is, carrying it out appropriately, can be more difficult than one might think.

The Government’s planning practice guidance summarises the position as follows:

How should multiple applications be treated?

An application should not be considered in isolation if, in reality, it is an integral part of a more substantial development (Judgment in the case of R v Swale BC ex parte RSPB [1991] 1PLR 6). In such cases, the need for Environmental Impact Assessment must be considered in the context of the whole development. In other cases, it is appropriate to establish whether each of the proposed developments could proceed independently (R (Candlish) v Hastings Borough Council [2005] All ER (D) 178 (Jul); Baker v Bath & North East Somerset Council [2009] All ER (D) 169 (Jul)).

Paragraph: 025 Reference ID: 4-025-20170728

I’m going to consider in this blog post the Court of Appeal’s ruling last week in R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council (Court of Appeal, 7 February 2023), but the caselaw references in the guidance have been out of date for some time, in not referring to a number of recent cases, for instance the Court of Appeal’s ruling in R (Larkfleet Limited) v South Kesteven District Council (Court of Appeal, 6 August 2015), which concerned a proposal for a bypass on which significant residential development was dependent.

The court in Larkfleet referred to the relevant EU legislation and case law, in accordance with which the EIA Regulations were to be interpreted:

“What is in substance and reality a single project cannot be “salami-sliced” into a series of smaller projects, each of which falls below the relevant threshold criteria according to which EIA scrutiny is required”.

In that case, the court found that the construction of the bypass and the carrying out of the residential development were indeed to be treated as separate “projects”:

“Mr Kingston QC, for the Appellant, sought to rely on these passages in support of his submission that SKDC was obliged to assess the proposal for the link road and the proposal for the residential site as a single project. However, in my view the argument is unsustainable. It is clear from the terms of the EIA Directive that just because two sets of proposed works may have a cumulative effect on the environment, this does not make them a single “project” for the purposes of the Directive: the Directive contemplates that they might constitute two potential “projects” but with cumulative effects which need to be assessed. The passages from Ecologistas to which I have referred also contemplate that two sets of proposed works may constitute different projects for the purposes of the Directive. What these passages are directed towards is avoiding a situation in which no EIA scrutiny is undertaken at all. However, if the two proposed sets of words are properly to be assessed as two distinct “projects” which meet the threshold criteria in the Directive, there will be EIA scrutiny of the cumulative effects of the two projects.

It is true that the scrutiny of cumulative effects between two projects may involve less information than if the two sets of works are treated together as one project, and a planning authority should be astute to ensure that a developer has not sliced up what is in reality one project in order to try to make it easier to obtain planning permission for the first part of the project and thereby gain a foot in the door in relation to the remainder. But the EIA Directive and the jurisprudence of the Court of Justice recognise that it is legitimate for different development proposals to be brought forward at different times, even though they may have a degree of interaction, if they are different “projects”, and in my view that is what has happened here as regards the application for permission to build the link road and the later application to develop the residential site.

The EIA Directive is intended to operate in a way which ensures that there is appropriate EIA scrutiny to protect the environment whilst avoiding undue delay in the operation of the planning control system which would be likely to follow if one were to say that all the environmental effects of every related set of works should be definitively examined before any of those sets of works could be allowed to proceed (and the disproportionate interference with the rights of landowners and developers and the public interest in allowing development to take place in appropriate cases which that would involve). Where two or more proposed linked sets of works are in contemplation, which are properly to be regarded as distinct “projects”, the objective of environmental protection is sufficiently secured under the scheme of the Directive by consideration of their cumulative effects, so far as that is reasonably possible, in the EIA scrutiny applicable when permission for the first project (here, the link road) is sought, combined with the requirement for subsequent EIA scrutiny under the Directive for the second and each subsequent project. The adequacy and appropriateness of environmental protection by these means under the EIA Directive are further underwritten by the fact that alternatives will have been assessed at the strategic level through scrutiny of relevant development plans (here, the Core Strategy and Masterplan) from an environmental perspective under the SEA Directive.”

“The most important feature of this case is that there is a strong planning imperative for the construction of the link road as part of the Grantham by-pass which has nothing to do with the development of the residential site. It is clear from the evidence that the residential site could not be granted planning permission unless the link road is constructed, but the converse is not true: there is a strong independent planning need for the construction of the link road (to complete the Grantham by-pass) whether or not the residential site is developed. In the context of this planning rationale, it makes obvious sense to regard the main function of the link road as being to form part of the Grantham by-pass and hence to regard the relevant project as the “construction of a road” (in the terminology in section 10 of Annex II to the EIA Directive). Since the main functional purpose of the link road, as part of the Grantham by-pass, is to provide a new passage for traffic to avoid Grantham this approach to identification of the project is supported by the references to roads and other transportation projects such as railways, tramways and so on in Annex I and Annex II to the EIA Directive as set out above.”

“As to the design connections, given that it is part of SKDC’s local plan that the residential site should be developed for housing (with some community and employment uses as well), it is simple planning good sense that an application should have been made for the link road (as part of the Grantham by-pass) to skirt the site, to avoid jeopardising those discrete planning objectives, and for the link road to include the roundabout and the stub, to avoid extra costs which are foreseeable if the residential site is developed in accordance with the local plan documents.”

“The fact that funding for the construction of the link road will depend to a significant degree on contributions in due course from the developer of the residential site does not lead to the conclusion that they must be regarded as part of a single “project”. The funding arrangements are contingent matters which do not bear on the planning merits of the proposal to construct the link road to complete the Grantham by-pass.”

“As regards the references in the local plan documents and other documentation to the connections between the link road and the residential site proposals, in my view they are just reflections of the points of linkage between the link road and the residential site referred to above. For example, it is unsurprising that in seeking planning permission for the link road LCC should have emphasised not just the desirability of constructing the Grantham by-pass but also how well that project fitted with other aspects of SKDC’s local plan and the other benefits for SKDC’s area which it would bring; and it is unsurprising that in seeking central government funding for the Grantham by-pass LCC should have emphasised both the need for the by-pass to ease traffic congestion in Grantham and also the other wider benefits which would be likely to be associated with its construction.”

“As further support for the identification of the link road as a distinct “project”, I think it is relevant that the applicant for planning permission is LCC, which is the highway authority with responsibility to promote the public interest in relation to the road network. LCC is not a private developer and has no commercial interest in the residential site. This tends to indicate that the two projects are distinct. I also think it is relevant that at the time of the link road application the detail of the proposals for the development of the residential site had not been worked up to the point at which an application for planning permission could be made by Buckminster, and it cannot be said that this was any part of some deliberate plan to “salami-slice” the applications so as to subvert the proper operation of planning controls.”

I set out all of the above from Larkfleet in some detail as context for, and in part a counter to, those who try to read to much into the implications of, the Court of Appeal’s ruling this week in R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council (Court of Appeal, 7 February 2023).

The case is possibly an unwelcome and no doubt not unusual example of the perverse incentives on local authorities arising from time-limited government funding.

The case concerned a challenge to the grant of planning permission by the council for a road bridge over the Bristol to Birmingham mainline railway north of Ashchurch, Tewkesbury.In March 2019, Tewkesbury has been “awarded Garden Town status for a potential development of up to 10,195 new homes, around 100 ha of employment land, and related infrastructure. This was based on the Tewkesbury Area Draft Concept Masterplan Report (“the Masterplan”), which sets out potential largescale development over an area described as the “North Ashchurch Development Area””.

“The Masterplan expressly recognises that delivery of the northern development plots for Phase 1 development relies on “the provision of a northern link over the main rail line, overcoming severance and completing the link between existing local roads”. It identifies the bridge as one of the “short-term enabling interventions”. The bridge is therefore an essential prerequisite to the delivery of any housing development in the Phase 1 area. It is common ground that the sole purpose of its construction is to facilitate such development.”

In the normal course of events, one might have expected any application for planning permission to be made only after [progress with the joint core strategy] and the adoption of a local plan, and for TBC to seek permission for the Phase 1 development of which the bridge would form an integral part, including the link road and any other vital transport infrastructure. Instead, the application was made, and granted, for the bridge alone.

[Paul Brown KC, acting for the claimant] told the Court that the bridge is known locally as “the bridge to nowhere,” because after it has been constructed, the temporary haul roads will be removed and there will be no connecting roads on either side, just a bridge in the middle of a field, which will be fenced off. Without a functioning highway unlocking the land within the Phase 1 area on the eastern side of the railway, the bridge will serve no useful purpose.

This unusual state of affairs has arisen because TBC wished to avail itself of funding from the Government which was only available for a limited period. In July 2017, the Government launched a £2.3 billion Housing Infrastructure Fund (“HIF”) in order to support housing delivery through the funding of vital physical infrastructure, such as roads and bridges, with the opportunity to facilitate the development of some 100,000 homes in England. The fund was split into two key areas, namely, forward funding (for larger schemes up to £250 million) and marginal funding (for schemes up to £10 million). The deadline for applications was September 2017.

“It follows, therefore, that at the time when the application for planning permission for the bridge was considered, there was a clear expectation that the bridge would serve at least 826 houses, to be built within the Phase 1 area on the eastern side of the railway track, and the road infrastructure, including the link road over the bridge, would need to cater for at least that number.

Prior to making the application for planning permission, TBC commissioned an Environmental Impact Assessment Screening Report, for the purpose of determining whether an Environmental Impact Assessment (“EIA”) was required. The Screening Report was produced in May 2020. The Judge quotes relevant extracts at paras 17 to 26 and para 33 of his judgment. The Screening Report noted that the bridge would not be used until future development came forward to make it operational. It recorded that the current proposals identified that the development area was anticipated to provide 826 new houses. Nevertheless it treated the bridge as a stand-alone “project”, to be considered independently from any environmental assessment of the highway and residential elements of the development that it was envisaged the bridge would facilitate. It noted that an assessment of those elements would be carried out in future, as and when it was envisaged that any development under Phase 1 of the Masterplan would be implemented.

The Screening Report recognised that the bridge was Schedule 2 development under the EIA Regulations, but concluded that, looked at in isolation, it was not likely to have significant effects on the environment. It was therefore unnecessary to carry out an EIA.”

There were basically two grounds of challenge to the grant of planning permission, both successful.

I’m not going to consider in detail the first ground (grounds 1 and 2 in the judgment), which was that the officer’s report had advised members to take into account the benefits of the bridge in terms of facilitating the housing development, but not any adverse effects arising from the housing development. Andrews LJ:

In this particular case, I am satisfied on an appropriately benevolent reading of the [officer’s report] as a whole that the Planning Officer in substance directed the members of the Planning Committee that they could not or must not take account of the harms of the proposed development that the bridge would facilitate. That went beyond mere advice or the expression of a personal view about relevance. Those harms were at least potentially relevant: materiality was a matter for the Committee to determine, and they were being told that they must not consider something to be material which they might otherwise have regarded as material.

The second ground (ground 3 in the judgment) was that the local planning authority had incorrectly characterised the “project” for EIA purposes as being simply the bridge. You will see the approach that the court took in relation to that matter from the following passages, which I suspect will be widely cited:

The identity of the “project” for these purposes is not necessarily circumscribed by the ambit of the specific application for planning permission which is under consideration. The objectives of the Directive and the Regulations cannot be circumvented (deliberately or otherwise) by dividing what is in reality a single project into separate parts and treating each of them as a “project” – a process referred to in shorthand as “salami-slicing””.

In Larkfleet, it was held that a proposed urban extension development and a link road were not a single project because despite the connections between them, there was a “strong planning imperative” for the construction of the link road as part of a town by-pass, which had nothing to do with the proposed development of the residential site. By contrast, in Burridge v Breckland District Council  [2013] EWCA Civ 228, (“Burridge”) the Court of Appeal held that a planning application for a biomass renewable energy plant and a planning application for a combined heat and power plant linked to it by an underground gas pipe were a “single project,” on the basis that they were “functionally interdependent and [could] only be regarded as an “integral part” of the same development.

It follows that the identification of the “project” is based on a fact-specific inquiry. That means other cases, decided on different facts, are only relevant to the limited extent that they indicate the type of factors which might assist in determining whether or not the proposed development is an integral part of a wider project.

Lang J, in her judgment in R(Wingfield) v Canterbury City Council and another [2019] EWHC 1975 (Admin), [2020] JPL 154, (“Wingfield”) stated at [63] that the question as to what constitutes the “project” is a matter of judgment for the competent planning authority, subject to challenge on grounds of Wednesbury rationality or other public law error. At [64] she set out a non-exhaustive list of potentially relevant criteria, which serves as a useful aide-memoire. These include whether the sites are owned or promoted by the same person, functional interdependence, and stand-alone projects. In relation to the last of these factors she said:

“where a development is justified on its own merits and would be pursued independently of another development, this may indicate that it constitutes a single individual project that is not an integral part of a more substantial scheme”.

The reverse may also be true, and that reflects the position in this case.”

“There is no reference in the Screening Report to Larkfleet or Burridge, nor to the factors identified in Wingfield. The author did not address the question whether the bridge and the highway that was envisaged to run across it were “functionally interdependent”; nor the question whether building a non-functioning bridge in the middle of a field was justified on its own merits, as a stand-alone project, without regard to the development it facilitated; nor the question whether the application for permission would have been pursued in the absence of the proposed development of Phase 1 of the Masterplan.

“I reject the proposition that in a case in which the specific development for which permission has been sought clearly forms an integral part of an envisaged wider future development, without which the original development would never take place, there can only be a single “project” for the purposes of the Directive and the Regulations if the contemplated wider development has reached the stage where an application has been made or could be made for planning permission. That proposition appears to me to be antithetic to the approach taken in Rochdale and inherently illogical. The question “is this application part of a larger project?” can still be answered even if planning permission has not yet been sought for the larger project or the details of the larger project have not been finalised.”

“Insofar as the author of the Screening Opinion, and the Development Manager, decided that the “project” must be confined to the bridge because “any future contemplated development could not be [robustly] assessed at the time of the screening decision”, they fell into error by conflating two separate inquiries, namely, “what is the project?” and “what are the environmental impacts of that project?” The difficulty of carrying out any assessment of the impacts of a larger project which is lacking in detail, is a matter which is separate from and irrelevant to the question whether the application under consideration forms an integral part of that larger project.”

“The Phase 1 project may not be easy to define in detail because it is at a relatively early stage, which explains why the Screening Report refers to a “lack of definition”. That may affect the way in which the overall assessment of whether there is a significant impact on the environment is carried out – it would necessarily be based on less concrete information than an assessment at a later stage of the planning process would be. However, in my judgment it cannot affect the answer to the initial question at the screening stage, “is this application part of a larger project”? If and to the extent that TBC treated it as if it did, they fell into error.

The fact that the Planning Practice Guidance addresses the potential relevance of “other existing or approved developments” and tells local planning authorities that they should always have regard to the possible cumulative effects arising from any existing or approved development, should not be taken as restricting consideration of the impact of larger projects to “existing or approved” developments.

I accept that there was no evidence of any deliberate attempt by TBC to “salami-slice” in the present case. There were cogent justifications provided for hiving off and accelerating the application for the bridge, which had nothing to do with a wish to avoid the impacts of a full EIA assessment. But it does not follow from the fact that the application for the bridge was hived off in that way that its relationship to Phase 1 of the Masterplan, which provided the sole underlying justification for its existence, could be lawfully ignored when deciding on the identity of the “project””

“In conclusion on Ground 3, I am satisfied that TBC did not take a legally correct approach to the decision whether an EIA assessment was required. They never asked themselves the right questions. If and insofar as they justified treating the bridge as a stand-alone “project” by reference to (a) the difficulty of assessing the environmental impacts of the wider project (b) the fact that the Masterplan has no formal planning status or (c) the fact that EIA assessments will be carried out in future as and when Phase 1, or other aspects of it, become the subject of planning applications, they fell into error.”

What are the main implications of the Ashchurch case?

  • Care is needed in relation to the EIA scoping and screening process for a start, analysing the particular factual situation against this case law.
  • Clarity is needed as to whether there is any functional interdependence on other proposals – whether the proposals the subject of the planning application would be likely to proceed absent wider proposals – whether it forms an integral part of a larger project (to my mind that remains, as per Larkfleet, a high test, but it needs to be properly considered by the decision maker)
  • Caution should be exercised – in particular that those matters set out in the final passage I quote above are not relied upon as justification for arriving at a narrow project definition.

As always, this is not an “opening of the floodgates” moment. This was about a piece of infrastructure which only had one potential purpose. It was not, for instance, one parcel of development within a wider development allocation as in Wingfield.  What matters is that decision makers should arrive at a reasoned, rational, conclusion as to the extent of the project for the purposes of the EIA Regulations, rather than simply take what is given to them on a plate by way of the planning application.

I do not like sliced-salami, Sam-I-Am.

Simon Ricketts, 11 February 2023

Personal views, et cetera

Courtesy Dr Seuss

Tate Modern Viewing Platform Supreme Court Ruling: What Is There For Planners To See?

By contrast with the timeline of this case to date, the planning system zips along.

This week the Supreme Court delivered its judgment in Fearn & Others v Board of Trustees of the Tate Gallery  (Supreme Court, 1 February 2023), the most important private nuisance case in many years. I’m not hoping to analyse the reasoning of the court in relation to the law of private nuisance, but if you are interested I suggest that you start with the Supreme Court’s own press summary and then enter the blizzard of property litigation lawyers’ updates and thought pieces on LinkedIn etc. I’m only interested in what it means for the town and country planning process – if anything.

I wrote about the first instance ruling of the High Court in my 2 March 2019 blog post, Trial By Instagram: Privacy & Planning. I used to be quite lyrical:

Photo-sharing social media apps, weaponised by the smartphone camera, are changing our experience and expectations of place. Is the planning system, and the law of private nuisance, keeping up?

The London Evening Standard had a story for our times last night: Please stop ‘influencing’ on our doorsteps, Notting Hill residents tell ‘unapologetic’ Instagrammers.

At a personal level we have all become artists, influencers, curators, with our instant pics, filtered, composed, annotated. Fomo for you = dopamine for me. But zoom out and through endlessly snapping, sharing, liking and commenting, we are of course the product, the hive mind, the crowd source, working for the data mine, adding to the geo-cache, mapping ceaselessly where the sugar is in the city.

In this context, what sells a place? From outside in: a glimpse of the life style, the life, that could be yours. From inside out: unique views out onto a city. The two ugly i words: iconic, instagrammable.

Which all makes the parable of Fearn & others v The Board of Trustees of the Tate Gallery (Mann J, 11 February 2019) so perfect.

On one side, the residents of Neo Bankside, housed from floor to ceiling in glass so as to achieve spectacular views out and having paid no doubt precisely to be able to enjoy that experience.

On the other side, at its closest point 34 metres to the north of Block C of Neo Bankside, the viewing gallery on the tenth floor of the Blavatnik Building extension to Tate Modern, from which visitors also have spectacular views, including, to the south, of those residents in their transparent homes.”

And so I went on, analysing Mann J’s judgment in detail, but that analysis is now completely redundant. The Supreme Court has overturned the ruling both of Mann J and subsequent ruling of the Court of Appeal and held, by a majority of three to two that the Tate was liable in nuisance for inviting the public to look out from a viewing platform from which they can, and many do, peer into the claimants’ flats – and (the saga is far from over yet) another court will now need to grapple with the issue of what remedies (injunction/damages) may be appropriate.

However, for planners, it is still worth reading paragraphs 29 to 53 of Mann J’s first instance judgment, where he sets out in detail the planning history of the properties.

Because, for all of us engaged in the town and country planning process, the big question is whether it should be the role of the planning system to seek to prevent juxtapositions of uses like this – or is that a matter for private law (and this case is now a demonstration of the remedies available for individuals who have their private law rights infringed)?

 I agree with a post by Dentons’ Michele Vas this week, It’s official – it’s not the role of the planning system to police private rights – or is it? (2 February 2023):

Whilst this case did concern a very particular set of circumstances as to the level of invasion of privacy the Claimants were subjected to (i.e. I suspect “overlooking” alone is unlikely to be sufficient to base a private nuisance claim on) it does stress how fundamental good design in new development is to avoid future private nuisance claims.

Placemaking, understanding and respecting the integrity of neighbourhoods should be a building block to good design.  A further thought is that there is no useful “planning tool” to avoid or minimise future private nuisance claims; unlike property rights, it is not a right which can be lawfully interfered with or compulsorily acquired by relying on a local planning authority’s statutory powers.

Whilst the judgment is an incredibly welcome confirmation that the planning system is not there to police private rights, it is a reminder that design of development is at the heart to preventing these issues arising in the first place.

 I had noted down pretty much the same passages in the judgment as she identifies, namely paragraphs 109 and 110 from Lord Leggatt’s majority judgment:

Reliance on planning law

109. The second matter of policy raised by the Court of Appeal was a suggestion that planning laws and regulations would be a better medium for controlling “inappropriate overlooking” than the common law of nuisance (para 83). This seems to me to overlook (if I may use the term) the fact that, while both may sometimes be relevant, planning laws and the common law of nuisance have different functions. Unlike the common law of nuisance, the planning system does not have as its object preventing or compensating violations of private rights in the use of land. Its purpose is to control the development of land in the public interest. The objectives which a planning authority may take into account in formulating policy and in deciding whether to grant permission for building on land or for a material change of use are open-ended and include a broad range of environmental, social and economic considerations. While a planning authority is likely to consider the potential effect of a new building or use of land on the amenity value of neighbouring properties, there is no obligation to give this factor any particular weight in the assessment. Quite apart from this, as Lord Neuberger observed in Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 95:

“when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights.”

110. For such reasons, the Supreme Court made it clear in Lawrence that planning laws are not a substitute or alternative for the protection provided by the common law of nuisance. As Carnwath LJ said in Biffa Waste, para 46(ii), in a passage quoted with approval by Lord Neuberger in Lawrence, at para 92:

“Short of express or implied statutory authority to commit a nuisance … there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”

The practical as well as legal irrelevance of planning permission in this case is apparent from the judge’s finding that no consideration was given to overlooking in the planning process for the Tate extension: [2019] Ch 369, paras 58-63.”

It is also worth noting that Lord Sales’ minority judgment does not dissent in terms of the role of the planning system:

“148. The designs for the Blavatnik Building always included a viewing gallery in some form, although its precise extent varied through successive iterations of the design. Planning policy for the South Bank encourages the construction of viewing galleries in buildings of significant height. However, there is no planning document which indicates that overlooking by the viewing gallery in the direction of Block C was considered by the local planning authority at any stage. It is not likely that the planning authority considered the extent of overlooking. Further, while the Neo Bankside developer was aware of the plans for a viewing gallery, it did not foresee the level of intrusion which resulted. In broad terms, the design and construction of the Blavatnik Building with the viewing gallery in its final form took place in parallel with the design and construction of Neo Bankside, without the effects of the one on the other so far as visual intrusion was concerned being fully appreciated or addressed.”

201. At para 81 the Court of Appeal also pointed out that overlooking is frequently a ground of objection to planning applications and noted that “any recognition that the cause of action in nuisance includes overlooking raises the prospect of claims in nuisance when such a planning objection has been rejected”. However, other forms of activity which can give rise to claims in nuisance, such as the generation of noise, smoke or smells, are also matters which may be addressed in objections to planning applications, so this does not give rise to any point of distinction. More fundamentally, as this court pointed out in Lawrence, at paras 77-95 per Lord Neuberger, the planning regime is concerned with issues of the public interest, not with resolving questions of individual rights. So it is not surprising, and is not a matter of particular concern, that a cause of action in nuisance may be found to exist in a case where an objection to the grant of planning permission founded on similar matters has been rejected. A grant of planning permission pursuant to the administrative processes under the planning regime cannot remove private rights which neighbouring landowners may have. See also Hunter, p 710D, per Lord Hoffmann and Lawrence, paras 156 (Lord Sumption), 165 (Lord Mance) and 193 (Lord Carnwath).”

This must all surely be right. The right approach to the determination of any application for planning permission is whether the proposal is in accordance with the provisions of the local plan unless material considerations indicate otherwise. There may often be policies which seek to protect existing residential amenity (although when I look for instance at the current Southwark local plan, postdating these proposals, I see no specific references to protection of existing residents’ privacy or to avoiding overlooking). Even without local policy support, aspect of a development proposal which may adversely affect neighbours are certainly capable of being a material consideration in the determination of an application for planning permission, but as always it is for the decision-maker to decide how much weight to apply to those considerations.

I don’t believe that the judgment increases the onus on local planning authorities to consider privacy/overlooking considerations: planning decisions can only go so far and private law remedies are the ultimate safety net. And of course the circumstances of the Tate Modern case, by virtue of the unusual nature of the viewing platform and the extent of its use, should not be applied too widely. However, one would hope that the Government’s increased emphasis on design in the planning process may reduce the risks of these sorts of unanticipated juxtapositions in the future. It will be interesting to see the Government’s proposed National Development Management Policies in due course…

Simon Ricketts, 4 February 2023

Personal views, et cetera

Photograph by Jay Mullins courtesy of Unsplash