Running Down That Hillside

We now have the judgment of the Supreme Court in Hillside Parks Limited v Snowdonia National Park Authority (2 November 2022).

The case concerns the relationship between successive grants of planning permission for development on the same land and, in particular, about the effect of implementing one planning permission on another planning permission relating to the same site.

The facts concerned, in basic summary, a full planning permission for the development of 401 dwellings at Balkan Hill, near Aberdyfi in the Snowdonia National Park, granted in 1967. Development was to be in accordance with a detailed “master plan” showing the proposed location of each house and the layout of a road system for the estate.

Only 41 of the dwellings have been built to date, none in accordance with the masterplan. The developer, Hillside Parks Limited, has applied for and been granted a series of additional planning permissions permitting development which has taken place on parts of the site.

The Supreme Court has followed the Court of Appeal and High Court in concluding that development pursuant to the 1967 planning permission cannotlawfully be continued:

The courts below were right to hold that the 1967 permission was a permission to carry out a single scheme of development on the Balkan Hill site and cannot be construed as separately permitting particular parts of the scheme to be built alongside development on the site authorised by independent permissions. It is possible in principle for a local planning authority to grant a planning permission which approves a modification of such an entire scheme rather than constituting a separate permission referable just to part of the scheme. The Developer has failed to show, however, that the additional planning permissions under which development has been carried out on the Balkan Hill site since 1987 should be construed in this way. Therefore, that development is inconsistent with the 1967 permission and has had the effect that it is physically impossible to develop the Balkan Hill site in accordance with the Master Plan approved by the 1967 permission (as subsequently modified down to 1987). Furthermore, other development has been carried out for which the Developer has failed to show that any planning permission was obtained. This development also makes it physically impossible to develop the site in accordance with the Master Plan approved by the 1967 permission (as subsequently modified).” (paragraph 100).

Whilst the specific facts of the case are unusual (including a degree of uncertainty as to the intended procedural status and effect of the subsequent planning permissions, several of which on their face are described as “variations” of the 1967 planning permission) the Supreme Court sets down some general principles to be applied to situations concerning overlapping permissions. The judgment clarifies some ambiguities arising from the earlier Court of Appeal judgment, although ambiguities remain.

One ambiguity indeed is as to the extent to which the principles set out apply to outline planning permissions, given passages such as paragraph 20:

In this case, we are concerned with grants of full planning permission, in relation to which it is to be expected that a reasonable reader would understand that the detailed plans submitted with the application have particular significance.”

On first reading, I draw the following principles from the judgment:

  1. Approval of the Pilkington principle

In essence, the principle illustrated by the Pilkington case [[1973] 1 WLR 1527, Divisional Court] is that a planning permission does not authorise development if and when, as a result of physical alteration of the land to which the permission relates, it becomes physically impossible to carry out the development for which the permission was granted (without a further grant of planning permission) … Where the test of physical impossibility is met, the reason why further development carried out in reliance on the permission is unlawful is simply that the development is not authorised by the terms of the permission, with the result that it does not comply with section 57(1).” (paragraph 45)

“…([I]n the absence of clear express provision making it severable) a planning permission is not to be construed as authorising further development if at any stage compliance with the permission becomes physically impossible.” (see paragraph 68)

(my emboldening).

  1. Interpretation of planning permissions for multi-unit developments

A planning permission for a multi-unit development is unlikely properly to be interpreted as severable into a set of discrete permissions to construct each individual element of the scheme.

However, see the reference above to the possibility of “clear express provision making it severable”.  An early thought in reaction to the judgment is that in relation to large multi-phased planning permissions this may already be the case. Where it is not, it may often be useful in the future for it to be introduced.

  1. The whole development is not unlawful if a proposed development cannot be completed fully in accordance with the planning permission

The Supreme Court doubted that it was correct that “in carrying out a building operation, any deviation from the planning permission automatically renders everything built unlawful, even in relation to a single building” and considered that it was certainly not the case that failure to complete a building operation for which planning permission has been granted renders the whole operation including any development carried out unlawful (To that extent the Supreme Court disagreed with remarks of Lord Hobhouse in Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22).

  1. Under the Pilkington principle, departures must be material

The Pilkington principle should not be pressed too far. Rightly in our view, the Authority has not argued on this appeal that the continuing authority of a planning permission is dependent on exact compliance with the permission such that any departure from the permitted scheme, however minor, has the result that no further development is authorised unless and until exact compliance is achieved or the permission is varied. That would be an unduly rigid and unrealistic approach to adopt and, for that reason, would generally be an unreasonable construction to put on the document recording the grant of planning permission – all the more so where the permission is for a large multi-unit development. The ordinary presumption must be that a departure will have this effect only if it is material in the context of the scheme as a whole: see Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, 230. What is or is not material is plainly a matter of fact and degree” (paragraph 69)

  1. How to vary a planning permission

Aside from the specific statutory procedures (section 73 and section 96A – and potentially in due course the additional procedure proposed in the Levelling-up and Regeneration Bill), what else can a developer do where it wishes to depart from the planning permission it has been granted?

“73 … [Counsel for Hillside] also submitted that it would cause serious practical inconvenience if a developer who, when carrying out a large development, encounters a local difficulty or wishes for other reasons to depart from the approved scheme in one particular area of the site cannot obtain permission to do so without losing the benefit of the original permission and having to apply for a fresh planning permission for the remaining development on other parts of the site.

74.          In our view, that is indeed the legal position where, as here, a developer has been granted a full planning permission for one entire scheme and wishes to depart from it in a material way. It is a consequence of the very limited powers that a local planning authority currently has to make changes to an existing planning permission. But although this feature of the planning legislation means that developers may face practical hurdles, the problems should not be exaggerated. Despite the limited power to amend an existing planning permission, there is no reason why an approved development scheme cannot be modified by an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications. The position then would be that the developer has two permissions in relation to the whole site, with different terms, and is entitled to proceed under the second.

75.          The Authority has argued that, because the planning legislation does not confer any power on a local planning authority to make a material change to an existing planning permission, a later planning permission cannot have the effect of modifying in any material way the development scheme authorised by an earlier permission.

76.          The trial judge, HHJ Keyser QC, did not find this argument persuasive and nor do we…”

(my emboldening).

If I have this right, this would be a procedure to fall back on in a situation where the Pilkington principle would otherwise bite i.e. where, even though development will be unchanged pursuant to part of the planning permission (1) that part can’t be shown to be clearly severable from the remainder (or presumably amended via section 96A or section 73 so as to be clearly severable) and (2) it would now be physically impossible to complete the planning permission in accordance with its terms (its original terms or presumably as amended via section 96A or section 73) if a separate permission were to be granted in relation to part of the development area covered by the permission.

  1. No principle of abandonment of planning permissions

The developer’s argument that Pilkington should be analysed as a case resting on a principle of abandonment was rejected. The Supreme Court does not accept “that there is any principle in planning law whereby a planning permission can be abandoned” (paragraph 35).

I hope this brief initial run down is a helpful introduction to what will in due course be a very familiar text for all of us. More anon I’m sure.

Simon Ricketts, 2 November 2022

Personal views, et cetera

Courtesy Mel Poole on Unsplashed

Clangers: Does An LPA Owe A Duty Of Care To An Applicant For Planning Permission?

Many a frustrated participant in the planning system has asked from time to time: is there any financial redress for mistreatment allegedly received at the hands of a local planning authority? (To be fair, sometimes a frustrated local planning authority may indeed also wonder what redress it has against mistreatment received at the hands of applicants or objectors).

Beyond the possibility of an award of costs on appeal (inadequate in that it will only cover professional costs in relation to the appeal stage rather than application stage, although still sometimes high, viz the figure of £2.1m reportedly agreed this week by Uttlesford District Council to be payable to Stansted Airport) or the possibility of obtaining a voluntary payment of compensation by way of a ruling by the Local Government Ombudsman, in what circumstances might the authority be sued in negligence?

The negligence route has now, expensively, been tested in Primavera Associates Limited v Hertsmere Borough Council (Leech J, 25 October 2022). Four days in what used to be known as the Chancery Division of the High Court, with various expert witnesses on both sides. It’s a horror story of a situation – what should have been a small and straightforward development project in Radlett, Hertfordshire promoted by Shandler Homes on behalf of Primavera Associates Limited. As is often the case in these situations, in the cold light of day neither party, neither applicant not local planning authority, could be said to have been entirely blameless.

As described from paragraph 36 onwards of the judgment, planning permission was granted on 3 September 2012 for the demolition of a house and the erection of seven self-contained apartments, following an application submitted on 13 January 2012. The planning permission was then challenged by the owner of the neighbouring property who had previously sought to redevelop it together with the Shandler Homes property and the council consented to judgment on the basis that a planning condition referred to a plan showing an incorrectly drawn visibility splay.

The application was then redetermined, with the council resisting submissions from the objector’s solicitors (supported by an opinion by Rupert Warren KC) that the application should now be assessed against the current development plan. Oh dear, another judicial review ensued and again the council consented to judgment.

A fresh application for permission was then submitted on 2 April 2014, for a very similar scheme. Delays ensued whilst financial viability appraisal work was undertaken to check whether the applicant’s proposed commuted sum towards affordable housing was sufficient.

By 14 November 2014 Shandler Homes and Primavera were threatening to bring proceedings in negligence against the council. Delays continued (I’m at paragraph 85 now – it really is a sorry tale) and by 14 October 2015 another letter was sent threatening proceedings in negligence. During this period CIL liability increased and then the council started to insist upon a clawback mechanism to secure 60% of any surplus that arose on a subsequent viability review to be carried out.

The application was resolved to be approved on 21 April 2016 and following fractious negotiations over the section 106 agreement, planning permission was issued on 28 September 2016.

A third application for planning permission was submitted on 30 September 2016, increasing the number of flats proposed from seven to ten, which was approved on 15 March 2017.

Primera sued Hertsmere Council for around £1.7m, which it claimed to be the losses suffered due to what it considered to be negligent conduct on the part of the council.

To turn briefly to the law. As I’m sure you know, in order to succeed in a claim in negligence it is necessary for the following factors to have been established:

  • The defendant owed a duty to the claimant

  • The defendant breached the duty owed to the claimant

  • The defendant’s breach of duty caused the claimant to suffer loss
  • The loss caused by the defendant’s breach of duty is recoverable

Duty of care

From paragraph 179 Leech J sets out the case law in detail as to when a duty of care arises, and does not arise. This includes, at paragraphs 203 to 215, the case law in relation to planning matters.

His findings start at paragraph 221. First of all no duty of care arose as a result of the statutory nature of the functions being undertaken by the council. The council did not give “any assurance to Shandler Homes that it would decide either application in a particular way or within a particular time. In either case, the remedy was to appeal.” The fact that an application fee was paid did not change the analysis, or indeed lead to a contractual relationship between the parties. In any event, any duty of care would not have stretched beyond Shandler Homes to Primavera and other entities related to the promotion of the development. No could any assumption of liability be inferred from the manner in which the council had behaved towards Primavera:

(1) I have found that the Council’s officers and the Committee’s members did not give any commercial or legal advice to Primavera or to Fusion (on its behalf) upon which Primavera (or Fusion) relied in relation to the First Application either when it was originally submitted or when it was submitted in a revised form.

(2) I have also found that Mr Down took a calculated decision not to appeal against the non-determination of the Second Application in the knowledge that the position was uncertain and changing. I am satisfied that Primavera chose to take the risk of any delay or flaw in the statutory process rather than to appeal.

(3) But even if (contrary to my finding of fact) Mr Down did not consider an appeal to be a realistic option because Mr Taylor and he did not know what they would have been appealing against, I have also held this belief was an unreasonable one and not induced by any representation or assurance made by the Council.

(4) I have found that in the period between 13 April 2013 and 27 September 2016 the Council did not assume responsibility for the progress and determination of the Second Application within a specific time frame or within a time which Mr Taylor or Mr Down considered reasonable. I have also found that Fusion and Primavera adopted a confrontational and heavy-handed approach. In my judgment, Mr Taylor’s complaints and the Letters of Claim which Lawrence Stephens sent to the Council negated any reliance by Primavera upon the competence or efficiency of the Council.”

He concludes that the claim fails because the council did not owe any duty of care to Primavera to exercise reasonable care in processing and determining the applications.

However, he goes on in any event to consider the further issues: breach of duty, causation and assessment of damages (if his finding on duty of care were to be overturned on appeal).

Breach of duty:

If the Council owed a duty of care (contrary to my finding above), then I find that it committed a breach of that duty and failed to exercise reasonable skill and care by determining the revised First Application by reference to the planning policy at the date on which the First Application was submitted and not by reference to the emerging planning policy at the date of the Second Decision. For the avoidance of any doubt, I add that I do not find that the Council failed to exercise reasonable care in relation to any other aspect of the First Application or the First and Second Decisions.”

If the Council owed a duty of care (contrary to my finding above), then … I also find that the Council was negligent and responsible for a six-month delay in the progress of the Second Application between January and July 2015. I dismiss all of the other allegations of negligence and lack of reasonable care against the Council.

Causation:

I also find on a balance of probabilities that if the Council had acted with reasonable care throughout the period between the submission of the Second Application on 2 April 2014 and 27 September 2016 when the Second S106 Agreement took effect, it would have taken six months less to progress and determine the Second Application and the Council would have issued the Third Decision by 21 October 2015. However, I would also have found that the conduct of Shandler Homes broke the chain of causation because (as I have found) Mr Down took a calculated decision not to appeal against the non-determination of the Second Application at any time between 3 June 2014 and 3 December 2014 (or to negotiate an extension of time for an appeal).”

Assessment of damages:

If I had found that the Council owed such a duty of care, I would also have found that the Council had committed two breaches of duty and that if it had not committed the first of those breaches of duty, it would have granted planning permission for the Second Application on 28 January 2014. I would, however, have dismissed all of the heads of loss claimed by Primavera apart from the claim relating to the Affordable Housing Contribution and the Additional Housing Contribution. Primavera adduced no evidence to prove these losses at trial and even this is wrong I would not have awarded any more than £134,724.80 in damages.

Concluding thoughts

The case certainly brings with it some salutary lessons – about trying to avoid the sort of breakdown of trust between the parties which led to so many flashpoints and mistakes on both sides. The applicant’s team, seeing life from its perspective, increasingly concerned about the cost, expense and uncertainties arising from what should have been a straightforward planning application process, was no doubt furious at the clangers on the part of the council’s officers and the timescales to which they were working. It’s easy to say perhaps from a distance, but a more consensual approach, providing good objective advice for the benefit of all parties where necessary, might have been more fruitful for the applicant than resorting to what the judge described as a “confrontational and heavy-handed approach”. And litigation, ultimately, was not the answer.

In other news, has Elon Musk found any Clangers on Mars yet? Plenty of surprises left for the rest of 2022 I’m sure.

Simon Ricketts, 29 October 2022

Personal views, et cetera

IZs: Some Handy Existing Legislation?

I know we all lose bits of legislation down the sofa. 

The Government’s 24 September 2022 guidance on investment zones in England said this:

The government will look to introduce primary legislation in order to enable the offer on tax and simplified regulations. The final offer will be subject to the passage of that legislation through parliament.”

There really isn’t much clarity as to the nature and extent of any primary legislation that will in fact be required to deliver the regimes envisaged for each investment zone (potentially bespoke for that investment zone). When you add this to the wider confusion as to the relationship of the proposed Planning and Infrastructure Bill with the current Levelling-up and Regeneration Bill (with much of what was trailed for the former either already within the latter – eg environmental law reform – or shortly to be added by way of amendments.- eg amendments to NSIP processes – or able to be secured by way of secondary legislation), some clarity from Government is urgently needed. 

Turning to the question of what amended planning regimes may be appropriate for some investment zones, people have rightly pointed to the potential use of local development orders, which for example the Government has previously encouraged in relation to enterprise zones and freeports. 

However I’m wondering whether, instead of further primary legislation to set out some unspecified new procedure (which sounds slow and impractical), the Government has considered whether two provisions which are already on the statute book are in fact sufficient: simplified planning zones and planning freedoms schemes. Are ministers even aware of them? I would be interested in people’s experiences with either. 

Simplified Planning Zones were introduced by way of section 82 of the Town and Country Planning Act 1990 which provides as follows:

(1) A simplified planning zone is an area in respect of which a simplified planning zone scheme is in force.

(2) The adoption or approval of a simplified planning zone scheme has effect to grant in relation to the zone, or any part of it specified in the scheme, planning permission—

(a) for development specified in the scheme, or

(b) for development of any class so specified.

(3) Planning permission under a simplified planning zone scheme may be unconditional or subject to such conditions, limitations or exceptions as may be specified in the scheme.

See also the Town and Country Planning (Simplified Planning Zones) Regulations 1992.

This is a good explainer, with examples: How simple are Simplified Planning Zones? (Local Government Lawyer, 4 February 2016) and here is some information about Slough Borough Council’s Slough Trading Estate SPZ.  

Planning freedom schemes were introduced by section 154 of the Housing and Planning Act 2016.

From the explanatory notes to section 154:

Section 154: Planning freedoms: right for local areas to request alterations to planning system

441 This section enables the Secretary of State, by regulations, to make planning freedom schemes in England. Planning freedom schemes may only be made following a request from the local planning authority for the relevant area and only if the Secretary of State considers the scheme will lead to additional homes being built.

442 Before bringing forward proposals for a scheme the local planning authority must consult in their local area.

443 Such schemes will operate for a specified period (although subsection (7) includes the power to bring schemes to an end early, for example, where the local planning authority asks the Secretary of State to do so).

444 Planning freedom schemes will apply in relation to a specified planning area which will be the area of a local planning authority or an area comprising two or more adjoining areas of local planning authorities. The Secretary of State may restrict the number of planning freedom schemes in force at any one time.

Is anyone aware of this, extremely open-ended, power ever having been used? 

Planning legislation is full of these false starts and dead ends. I’m sure there’s plenty more that you can point to. Regardless of any substantive changes, a spring clean of the whole legislative framework is well overdue. Although who knows what we’ll find. 

I hope people enjoyed listening to the clubhouse chat with Hashi Mohamed last week. If you missed it you can listen back here.

Simon Ricketts, 8 October 2022

Personal views, et cetera

Courtesy Kelly Sikkema, Unsplash

It’s Planning Law Month In The Supreme Court!

The UK Supreme Court, that is. The US Supreme Court has gone back at least 50, maybe 55, years as we all know. 

I’m ignoring as too painful for this blog post:

  • those rulings, which had their gestation partly in the process by which the judiciary is appointed in the US and partly in that country’s Delphic and out of date written constitution
  • the current uncertainties at the heart of UK politics, which must be giving rise to the question as to whether this country should have a written constitution. 

I’m also not yet making any predictions about what the changes within DLUHC ministerial team mean for the planning system reforms that are currently underway. 

However let’s just say that Where Did Our LURB Go? is pretty likely to be a future blog post title.

Whilst all this has been swirling around, two cases are before the UK Supreme Court which raise fascinating planning law questions, both of them having their root in what is, in the context of our relatively youthful postwar planning system, ancient and well-known case law.

On 4 July 2022 the court (Lord Reed, Lord Briggs, Lord Sales, Lord Leggatt and Lady Rose) heard Hillside Parks Limited v Snowdonia National Park Authority

I was very pleased to be part of the Hillside Parks team, behind Charlie Banner QC, Robin Green & Matt Finn & lead solicitor David Harries (Aaron & Partners). Before being appointed, I wrote a 7 November 2020 blog post Multiple Planning Permissions, Antique Planning Permissions: Hillside which set out my concerns with the Court of Appeal’s ruling. 

There is a brief summary of the issues before the court and relevant facts on the Supreme Court website and that page also includes links to recordings of the day’s proceedings, featuring some lively questioning of Charlie and (appearing for the park authority) of Gwion Lewis QC by the Supreme Court justices. 

At the heart of the arguments was the question of the proper application of  Pilkington v Secretary of State for the Environment (1973), where the Court of Appeal had held that where there were two incompatible permissions, the developer could not implement the earlier development when the later had rendered it no longer capable of implementation in the permitted terms. What is the position where the later permissions are for changes to one part of a wider development approved in the original planning permission? Zack Simons has done a good #planoraks blog post on the subject (of course): When you can’t build both – clashing permissions  (8 January 2021). 

How long until judgment? Your guess is as good as mine. The Supreme Court website says this:

“As a very broad indication, judgments tend to follow between three to nine months after the conclusion of the appeal hearing, although in some cases it may be earlier than that.”

On 12 July 2022 a similarly constituted court (Lord Reed, Lord Hodge, Lord Kitchin, Lord Sales and Lady Rose) will hear DB Symmetry Limited v Swindon Borough Council. The summary on the Supreme Court website sets out the issue as follows:

“Whether the principle enunciated by the Court of Appeal in Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 WLR 240, that a planning condition could not lawfully require the developer to dedicate land for public purposes without the payment of compensation, is correct in law. 


Proper interpreted in light of the answer to the first issue, what is the legal effect of the relevant planning condition.”

There is some background and commentary on the Court of Appeal’s judgment in my 17 October 2020 blog post Do Your Conditions Have Symmetry In Mind? 

It is going to be useful to have an up to date articulation by the Supreme Court of the proper approach to both of these sets of issues: overlapping permissions and also what can be secured by condition. Indeed the rulings will have implications for the Levelling-up and Regeneration Bill: respectively (1) does clause 98 go far enough in providing a new procedure for amending permissions and (2) if the role of section 106 agreements is to be much diminished under the new infrastructure levy system, how much of the heavy lifting can lawfully done by way of imposition of planning conditions?

In the meantime, there is plenty to listen to at least:

  • My Town Legal colleagues Meeta Kaur, Victoria McKeegan and Nikita Sellers have embarked upon a new podcast, Planning Law (With Chickens), which is very very good. There is a bumper first episode, with special guest Stephanie Hall, available via eg Apple and Spotify.
  • Sam Stafford kindly invited me onto his 50 Shades of Planning podcast to talk about the LURB with Catriona Riddell, Jennie Baker and Tony Burton. The episode will be released shortly. 
  • As previously mentioned, our next Planning Law Unplanned discussion on Clubhouse will be at 6 pm on 19 July: “LURB: who will have the power?” Do join here. Indeed, if you would like to speak do let me know – we would like a diverse range of voices and views. 

Simon Ricketts, 9 July 2022

Personal views, et cetera

Sad When Our Planning System Is Media Laughing Stock

It was hard not to laugh – and back in February 2021 laughs were in short supply. But that Handforth Parish Council viral video was also deeply depressing as a vignette of the planning system in action and hardly a recruitment drive for parish councils.

This has been another bad week for the planning system in the media.

“Your proposal is whack”

Your proposal is whack’: Chaos as ‘junior worker’ who thought he was testing dummy council website rejects and approves REAL planning applications – including allowing two pubs to be demolished – but they’re all legally BINDING (Daily Mail, 9 September 2021):

• “Staff at Swale Council, Kent accidentally rejected or approved five applications

Blunder was made by a ‘junior’ staff member at Mid Kent Planning Support team

The person was trying to resolve software issues, but in doing so, five ‘dummy’ decisions, used to test the website was working, were accidentally published

Among them included the rejection of an animal sanctuary to stay on its site

• Two Kent pubs were also given permission to be demolished or part-demolished

• A butcher’s change-of-use application in Sittingbourne was turned down

A farm was granted planning permission with 20 conditions, listed just as 1 – 20”

It’s certainly not very clever that anyone untrained was left unsupervised with access to the business end of the local planning authority’s IT system. This has obviously caused a big legal mess. Nicola Gooch sets out the law in her 10 September 2021 LinkedIn blog post.

Older lawyers can’t help thinking in Latin, unwelcome in the courts these days but handily concise:

Functus officio – the LPA has made its final decision (to issue the planning permission or refusal notice) and can’t re-open it.

• Administrative decisions are very rarely treated by the court as void ab initio (of no legal effect from the date they were purported to be made, even without a quashing order from the court), no matter how absurd – it takes a formal application to the court for judicial review to undo the mistake by quashing the decision, enabling it to be re-taken.

Accordingly, even with no arguments being made to the contrary by any interested parties, proceedings will need to be issued in the High Court on behalf of the council, a consent order agreed by the parties and then (usually after a wait of several weeks) rubber-stamped by the court – much money and much time wasted.

As Nicola identifies, this is by no means the first example of this sort of thing, although I do find it bewildering – was each decision not only generated by the system but then actually transmitted, without approval of a senior officer with the necessary delegated authority?There is surely a failing in the council’s internal system.

Local Government Lawyer reported in November 2020 as follows on the South Cambridgeshire examples she mentions:

“South Cambridgeshire District Council is to commence proceedings in the High Court after discovering two planning permission errors.

The local authority said one mistake had led to planning permission for an extension and annexe in Steeple Morden being issued in error. The permission was granted despite the application still being open for people to comment on.

“This planning decision, issued without the relevant authorisation, was caused by human error when the wrong box was ticked on the planning computer system,” it explained.

The second case saw a planning permission being issued without the accompanying conditions. It related to the landscaping, layout and other details around eight new homes in Great Abington.

Another mistake was the subject of a ruling by the Scottish Court of Session (Outer House) in Archid Architecture and Interior Design v Dundee City Council (20 August 2013). The Council had intended to refuse an application but instead granted planning permission but with reasons for refusal. It tried to get away with simply issuing a second notice, refusing permission. However, the applicant succeeded in obtaining a declaration from the court upholding the validity of the first notice. The court decided that a decision issued by a planning authority, however legally flawed, is to be treated as valid unless and until it is overturned in court proceedings.

When taken to extremes, this does start to look absurd. Whilst of course people should be able to rely on a planning permission or refusal notice that on the face of the document looks legitimate, the concept is strained when you have a refusal notice with the reason for refusal being “No mate, proper Whack” or, in another Swale example, a planning permission issued with the conditions: “(2) Incy (2) Wincy (3) Spider”. What if he or she had issued a planning permission for development in another district – in South Cambridgeshire, say – would that also be valid until quashed?

Any argument for the “voidable not void” approach on the basis that there needs to be certainty in the system (that a permission is valid until quashed, and that there is a short deadline for legal challenge after which the permission can be relied upon as valid) begins surely to lose some legitimacy when planning permissions are quashed after many years as happened in the Thornton Hotel case I mentioned in my 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review or this year’s Croyde Area Residents Association, R (On the Application Of) v North Devon District Council (Lieven J, 19 March 2021) where a 2014 planning permission was quashed that had mistakenly authorised development in relation to a wider area than had been intended.

“I hope Al Qaeda bombs the f…… ugly thing”

Chaotic scenes at planning meeting as anger erupts over new West Hampstead development (Camden New Journal, 9 September 2021). The video of two local objectors screaming vitriol at Camden’s Planning Committee last night makes uncomfortable viewing. If you want to understand what the scheme actually was, perhaps read the officer’s report (from page 191) in relation to the application and in particular the plans and images from page 235 to page 257. In my view it is an excellent scheme but that’s nothing really to do with it – there was no excuse for that reaction. We are all entitled to our own views but it is depressing that individuals feel driven to scream at their locally elected representatives like this. I do not use the often unfairly insulting and counter-productive “NIMBY” insult, but you can see why people do.

By this afternoon, the Secretary of State himself was tweeting about it:

And the planning system’s journal of record was of course also soon on the band wagon, ‘I hope Al-Qaeda bombs the f***** ugly thing!’: Moment two women yell abuse at Camden Council bosses for approving four new homes and turning area into a ‘s**t-hole’ before one hurls CHAIR during live-stream meeting (Daily Mail, 10 September 2021).

None of this is healthy.

Simon Ricketts, 10 September 2021

Personal views, et cetera

Thank you to everyone who attended our fantastic Clubhouse event last week with Graham Stallwood, Bridget Rosewell, Alice Lester and James Cross. It was a hard one to beat. This week’s will be a more informal session – do turn up if you would like to say hello – and maybe join some chat about what’s happening in the literally whacky world of planning. Link here.

This Is Not A Blog Post

Faithful reader, life’s hard enough and I’m giving you another week off from a proper blog post. However…

The High Court rulings and planning appeal decisions keep coming and it’s worth subscribing to the Town Library free weekly updates for those, including great summaries of every High Court ruling, prepared by my Town Legal colleagues.

I know I go on about clubhouse but do join one of our Planning Law Unplanned sessions if you can. I suppose that in tone it’s a cross between a live podcast (there’s no subsequent recording – miss it and it’s gone), a radio phone-in show and an after-work chat in the pub around a (large) table. Clubhouse recently upgraded their audio system to what they call spatial audio and if you listen now on earphones on an iphone or ipad you’ll notice that there is indeed the sense that you are in a room with the voices coming from different directions, as if around the table.

This Tuesday’s (7 September 2021, 6 to 7.15 pm) is genuinely unmissable: “Planning application/appeal timescales – tell us your tales”. It follows on from my last blog post, How Long Has This Been Going On and features the following special guests: Graham Stallwood (director of operations at The Planning Inspectorate), Bridget Rosewell (chair of the 2018 independent review into planning appeal inquiries), Alice Lester (director regeneration at Brent Council) & James Cross (strategic sites project planner, Arun District Council).

Timing is all, so they say. What are people’s current experiences of “the system”, good & bad?

In relation to appeals, PINS these days publishes excellent data but where are the pinchpoints that people experience in practice (without referring to specific cases)? Post lockdown, are we now on our way back to the improved timescales for appeal inquiries that were being achieved as a result of the Rosewell reforms? What about hearings and written reps appeals? How are we finding the move back from wholly screen-based events?

In relation to applications, what approaches by applicants and/or LPA can help avoid undue delays? How can we speed up negotiation of section 106 agreements? What is the role for pre-app discussions and early public engagement?

Please join us for a good-natured, positive but hopefully probing session. You are free just to listen or to participate in the discussion. Indeed we would love to hear your tales, of woe or joy! Link to app here.

Finally, clubhouse obviously is a platform for all sorts of discussions on all manner of topics. Nothing to do with work – any reference to planning or law, or indeed whatever work you do, is entirely banned – but tomorrow evening (Sunday 5 September, 8 pm) a few of us are hosting the third in an occasional series of events I’ve called Sound Recommendations, which is basically just chats about music, around a theme, as a result of which we put together a spotify playlist of what’s been mentioned (search for Sound Recommendations #1 and #2 on spotify). Tomorrow night’s theme is: “GIGS: first, best, last, next”. Do join us for that one too! Link here. (And if you’re only reading this after the event you’ll have to console yourself by searching for the Sound Recommendations #3 playlist).

Maybe next week I’ll get round to a proper post again….

Simon Ricketts, 4 September 2021

Personal views, et cetera

How Long Has This Been Going On?

Time is money. Time is unmet needs. Time is unrealised public benefits.

I just wanted to capture some of the current, frankly depressing, data that is out there on application and appeal timescales.

The purpose of this post is to underline that there is a significant problem to be addressed. What to do about it will be for another post – there is certainly much that can be done that does not require (1) legislation (2) additional resources or (3) any procedural shortcuts.

Applications

A piece from yesterday’s Planning daily online: Council signs off 2,380-home urban extension almost four years after committee approval (£). Four years is certainly going it some but I can confirm from constant first-hand experience how difficult it can be to move a project from resolution to grant to permission at any speed. The larger or more complex the project, the longer those negotiations over the section 106 agreement and associated aspects can end up taking.

My colleague Lida Nguyen has been looking at the position in London. She has looked at all applications for planning permission which were referred to the Mayor between 3 January and 11 December 2020, so applications of potential strategic importance as defined in the Mayor of London Order 2008 and, for those which were then approved by the relevant borough (without intervention by the Mayor or secretary of State), she has looked at the average time that the application took from validation to the borough’s resolution to approve and from the borough’s resolution to approve to permission being issued. Discarding a few anomalous cases, this left 88 to be analysed.

In my humble view the statistics are appalling, but not surprising:

Application submission to resolution to approve

Median: 228.5 days

Mean: 269 days

Resolution to approve to grant of permission

Median: 218.5 days

Mean: 259 days

It’s rather deflating for applicants and (when you stand back from the detail) surely absurd that resolution to grant in reality only marks the halfway point to a permission in relation to significant projects in London. Wouldn’t it be a start for boroughs, the Mayor and those acting for applicants to set a target of halving each of those figures and agreeing the necessary steps to achieve that reduction?

Appeals

My 25 May 2019 blog post Pace Making: Progress At PINS reported on Bridget Rosewell’s recommendation, adopted by the Planning Inspectorate, that inquiry appeals decided by an inspector (i.e. not recovered by the Secretary of State) should be decided within 24 weeks of receipt and that where the Secretary of State is to be the decision-maker, inspectors’ reports should be submitted to the Secretary of State within 30 weeks of receipt of the appeal. Initial progress was really impressive – until the first lockdown struck in March 2020. After a slow start (see my 2 May 2020 blog post There Is No E In Inquiry), PINS of course eventually, to the massive credit of all involved, embraced virtual hearings, inquiries and examinations and the risk of an impossible backlog was averted. However, it is clear from the latest Planning Inspectorate statistical update (19 August 2021) that there is still much work to do:

“The mean average time to make a decision, across all cases in the last 12 months (Aug 20 to Jul 21), was 27 weeks. The median time is 23 weeks.

The median time to decide a case decreased by 0.6 weeks between June and July 21, with the median being 21.4 weeks.

Median timeliness by procedure type is shown in the summary table below.

Performance since April 21 against the median measure has only varied by 0.7 weeks, between 21.4 weeks and 22.1 weeks. Performance had been improving between November 20 and March 21. For inquiries, in the last two months, cases have taken longer to decide as a result of very old enforcement inquiry cases being decided.

Enforcement decisions made in the last 12 months had a median decision time of 34 weeks. Looking at the annual totals, the median and mean time to decision for specialist decisions have been broadly the same as for enforcement decisions, and longer than the median for planning decisions. Since February 21 there has been a change in this trend, with Specialist cases being quicker than Enforcement.

The median time for planning appeals decided by inquiry under the Rosewell Process over the 12 months to July 21 is 35 weeks. This is quicker than other types of casework decided by inquiry.

Whilst the extent of statistical information provided these days is welcome, it is difficult sometimes to track the figures through the different tables so as to work out what the likely timescale outcome for a prospective appellant will turn out to be. I have also looked in vain within the statistics for any information as the time being taken between appeal receipt and validation – a traditional black hole when it comes to appeal timescales. I’m also struggling to see any breakdown as to what the “Rosewell” inquiries were (35 weeks average) as compared to inquiries overall (79 weeks!).

That overall 27 weeks average is deceptively encouraging for anyone looking at anything other than a written representations appeal. Because those appeals make up 95% of the total of course they massively skew the mean figure. But even then, although not reflected in these statistics, my own anecdotal impression is that validation of appeals which proceed by way of written representations or hearing is very slow indeed, raising a large question mark over the overall statistics. Possibly something to do with the focus on Rosewell inquiry appeal targets. Am I being unfair? What solid information on this is there out there? If there isn’t any, why not??

The Planning Inspectorate Annual Report and Accounts (July 2021) contains further statistical information, with tables such as these looking back at the changing position over the last five years:

In order to meet Rosewell targets, surely on that last table the 90th percentile needs to come down from 66 weeks to 24 weeks – and to be measured from receipt of appeal rather than validation?

Again, as with timescales for major applications in London, with appeal inquiries, surely we are looking at the need to more than halve current timescales?

All tables above have been taken from PINS documentation, for which thanks.

Simon Ricketts, 20 August 2021

Personal views, et cetera

Planning Law Unplanned is having a summer break this week, before returning at 6pm on Tuesday 31 August for somewhat of a BECG/DP9 special, London Elections 2022: Politics Meets Planning. Join the club here for notifications of this and future clubhouse Planning Law Unplanned events.

Photograph by Ben White on Unsplash

Safety & Planning

To what extent is human safety, and the safe construction of buildings, a matter for the planning system? It can be difficult to determine and this blog post just scratches the surface – there’s a book to be written by someone (not me!) on the subject.

Last week the High Court handed down judgment in Valero Logistics UK Limited v Plymouth City Council (Thornton J, 30 June 2021). Valero and another company operate distilled fuel storage depots, the closest of which is approximately 125m away from a helipad within the grounds of Victoria House, Plymouth. “The depots are “establishments” regulated under the Control of Major Accident Hazards Regulations (SI2015/483) (‘the COMAH sites’) because of the intrinsic dangers to human health and the environment which the products handled and stored there present. Highly flammable fuel is regularly unloaded at a dock approximately 400 metres south east of the site and conveyed by over-ground pipes to the Claimants’ depots, where it is stored in above-ground tanks.”

They were challenging the council’s grant of planning permission for commercial use of the helipad which is currently only used for purposes ancillary to use of the residential use of the house. They had the following five, inter-related, grounds of challenge:

“Ground 1 – the Defendant failed to consider a material consideration by not considering the risks posed by the development to the COMAH sites.

Ground 2 – the Defendant misunderstood the “fallback” position and, by relying on that misunderstanding, it skewed the process by which it made the decision.

Ground 3 – the Defendant acted irrationally by relying on the existence of other regulatory regimes in deciding to grant permission.

Ground 4 – the Defendant erred in law by granting permission to an application that conflicted with the development plan when no other material considerations justified such a decision.

Ground 5 – the decision was irrational.

The Claimants point to the potentially catastrophic consequences of a helicopter crashing onto highly flammable fuel and say that what unites the grounds is a decision-making process and decision that abdicates responsibility for the dangers created by the proposed development. In particular, the Defendant conspicuously failed to engage with the scale of the risk posed to the COMAH sites by commercially operated helicopters flying at low heights over large quantities of highly flammable fuel. To the extent the Defendant recognised any risk, it sought to off-load it onto the Civil Aviation Authority (CAA) even though the CAA did/does not have the mandate or the expertise to evaluate the consequences on the ground of crashing aircraft or to take land-based decisions accordingly. These remain the safety responsibilities of others including the Defendant who is said to have been, and remains, in denial about this.”

The claim failed on all grounds. I want just to point to the summary by Thornton J as to the approach to be taken to safety and other matters covered by other regulatory regimes:

“Where a regulatory regime exists to deal with an issue raised by a planning application, it is open to a Local Planning Authority to place reliance upon the effective operation of that regime in determining an application for planning permission. However, the Local Planning Authority cannot simply ignore the issues in question. It must satisfy itself that the other regulatory regime is capable of regulating the relevant issues..”

The safety concerns were indeed considered by the council’s planning committee. As summarised by the judge:

“It is clear from the [discussion at the planning committee] that the Planning Officer and Members recognised that the risks to the COMAH sites from a helicopter crash were a principal issue in their consideration of the planning application. Extensive consideration was given to the risks and their mitigation including: how the helicopter is operated (under regulatory controls imposed by the CAA); who operates it (professional pilots); type and class of helicopter (Performance Class 1); and where the helicopter is flown (precise flight paths to and from the Site, mainly over water and strictly enforced). In addition, the Members ensured direct communications between the Site Operator and COMAH sites (as well as the Harbour Commissioners) prior to flights. The Committee understood correctly that it must exercise its judgment to assess the risks of the proposal having taken account of the views of the HSE and Civil Aviation Authority. The planning judgment reached was that the current ancillary ad hoc private helicopter use from the Site was less safe than the increased regulation over and greater professionalism of, commercial flying operations from the Site.

The Claimants criticise the Committee’s understanding of risk analysis but they construe risk assessment and minimisation too narrowly to assert that the risks to the COMAH sites cannot be accounted for unless specifically addressed. This is to ignore the broader set of technical and organisational mitigation to reduce the risk of a helicopter crash. The Claimants submit that the Defendant should itself have gone to the helicopter accident statistics and done its own risk assessment to test the 1 in a billion chance of catastrophic helicopter failure set out in the Interested Party’s risk assessment but, as the Planning Officer said during the debate, the Planning Committee are not specialist risk assessors. The Committee heard representations from Valero on the safety risks at the Committee meeting. The Claimants’ submissions seek to hypercritically retest the merits of the decision. It is correct to say that the officer erred in reporting the risk of failure to the Committee as 1 in 9 billion not 1 in 1 billion. The risk was however correctly reported in the Officer’s written report. It is well established that the reports of Planning Officers must not be subject to hypercritical analysis. The same must apply with even greater force to the oral discussion at a Committee meeting where an officer is responding on his feet to questions from members without the luxury of contemplation allowed for in the production of a written document. It is apparent from a review of the transcript of the whole meeting that the Officer and Committee members understood (and were concerned) about the nature of the risks posed by the proposed development to the COMAH sites and further understood that it was ultimately a matter of planning judgment as to whether the risks and mitigation measures (general helicopter technical and organisational requirements, as well as specific COMAH site requirements and regulation by the CAA) were acceptable. They formed the view that they were acceptable, which was a view they were, in my judgment, entitled to come to on the evidence before them.”

So, a decision maker can rely on the effective operation of another regulatory regime, as long as it satisfies itself that the other regulatory regime is capable of regulating the relevant issues.

(Aside from issues of safety and major accidents, the “overlap with other regulatory regimes” question arose in R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019) which I covered in my 1 June 2019 blog post Chickens**t EIA, where a planning permission was quashed on the basis that the decision maker had wrongly concluded that odour and dust issues arising from the proposed spreading of manure would be adequately policed by the Environment Agency via its IPPC permitting regime).

The following complications arise:

First of all, quite an onus is placed on the decision maker, given how complex it is to ascertain the nature of risks arising and how the regulatory regime operates, in the context of the possibly tragic consequences of making the wrong decision – and often in the face of vociferous detailed objections.

Secondly, the question of what is a material planning consideration is famously amorphous and over time issues as to building safety have been drawn into the planning system, which could be dealt with by way of other regulatory systems (or which are dealt with, but at a much later stage).

At a local level, think for example of some central London authorities’ detailed controls over subterranean development (see my 5 December 2016 blog post First World Problems: Basements).

At a national level, in response to the Grenfell tragedy and following commitments made in Building a Safer Future: Proposals for Reform of the Building Safety Regulatory System in the light of Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety the Government has made the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, which introduces a requirement for a fire statement to be submitted with applications for planning permission for development involving a building (1) contains two or more dwellings or educational accommodation and (2) contains 7 or more storeys or is 18 metres or more in height. The fire statement is published on the planning register and the Health and Safety Executive must consulted before the grant of planning permission involving a high-rise residential building in certain circumstances. The new regime, known as “Planning Gateway One”, applies to planning applications made from 1 August 2021 onwards and the Government’s Planning Practice Guidance has been updated. “The changes are intended to help ensure that applicants and decision-makers consider planning issues relevant to fire safety, bringing forward thinking on fire safety matters as they relate to land use planning to the earliest possible stage in the development process and result in better schemes which fully integrate thinking on fire safety.”

This is obviously prudent, rather than for vital safety issues to be left for consideration through the Building Regulations and other requirements at a later stage in the process. But, again local planning authorities are increasingly being drawn into matters outside their traditional remit. What level of scrutiny will they need to give to the statements and on what basis are they justified in requiring further information, even if the HSE is satisfied?

The judge in Valero previously presided over another high profile case as to the extent of a local planning authority’s duties in relation to public safety. In Crest Nicholson Operations Limited v West Berkshire Council (Thornton J, 12 February 2021) Crest and others challenged West Berkshire Council’s designation of a Detailed Emergency Planning Zone (“DEPZ”) under the Radiation (Emergency Preparedness and Public Information) Regulations 2019, which were “part of an international, EU and national response to the meltdown of three reactors at the Fukushima Daiichi nuclear power plant in Japan in March 2011 following an undersea earthquake.”

“One of the key changes to emergency planning, reflected in the Regulations, is to require risk assessment and planning for events which have a low likelihood of occurrence but high impact in the event they do occur; as with the Fukushima disaster. Another change, specific to the Regulations, concerns a shift in responsibility for deciding on the extent of a geographical zone in which it is proportionate to plan for protective action in the event of a radiation emergency. The zone is referred to in the Regulations as a ‘Detailed Emergency Planning Zone’ (DEPZ). Responsibility used to lie with either the Office for Nuclear Regulation or the Health and Safety Executive but now rests with the relevant local authority, who must designate the zone on the basis of a recommendation from the site operator.

On 12 March 2020, West Berkshire District Council designated the DEPZ around the Burghfield Atomic Weapons Establishment with a minimum radius of 3160 m from the centre of the site. The site is of national strategic importance. Nuclear weapons are assembled, maintained and decommissioned there. Under the previous regime, the DEPZ was based on a minimum radius of 1600 metres. The extension covers much of the 700 hectares of land belonging to the Claimants and previously earmarked for the development of 15000 homes.

The Claimants contend that the rationale for the new and radically extended DEPZ on a recommendation by the privately run operator, AWE, is simply not known. The only publicly facing document contains, at best, a partial rationale for the designation, which is insufficient, as a matter of law, to meet the requirements of the Regulations. The document was not made available to the public until after the DEPZ was designated which was procedurally improper and in breach of statutory requirements. Regulatory oversight of the designation process has been deficient.”

The challenge failed. Those seeking to second-guess decisions that a public authority has reached on matters that fall within the authority’s technical expertise definitely face an uphill struggle:

The Courts have recognised the need for judicial restraint where the issue under scrutiny falls within the particular specialism or expertise of the defendant public authority. In R(Mott) v Environment Agency Beatson LJ observed that “a regulatory body such as the [Environment] Agency is clearly entitled to deploy its experience, technical expertise and statutory mandate in support of its decisions, and to expect a court considering a challenge by judicial review to have regard to that expertise” (§63). In this case the defendant public authority is the local authority which does not itself hold the technical expertise itself to assess AWE’s work. Nonetheless it drew on assistance and advice from the ONR and PHE. I consider this to be akin to the position where the defendant public authority relies on experts, which the Courts have acknowledged entitles the public authority to a margin of appreciation (relevant that the defendant “had access to internal expert advice and the views of external bodies” in deciding whether there was material before the defendant on which it could rationally be decided that the approval should be made: R(Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin)(Divisional Court) at §30 (Singh LJ)) (see also “Where a screening decision is based on the opinion of experts, which is relevant and informed, the decision maker is entitled to rely upon their advice”; Lang J in R (Swire) v Secretary of State for Housing Communities and Local Government [2020] EWHC 1298 (Admin) at §61).

This all of course places much power in the hands of public bodies such as the Health and Safety Executive, Environment Agency, Public Health England and Office for Nuclear Regulation.

In practice not only does it become difficult for local planning authorities to do anything other than rubber-stamp the advice that they receive given that to do so without sufficient reasoning might not just render their decision liable to challenge but they also need to be aware of the potential for liability in common law negligence to arise. After all, in Kane v New Forest District Council (Court of Appeal, 13 June 2001) it was held that a pedestrian injured by a car when he had left a footpath to cross a road had a real prospect of success in a negligence claim against a local planning authority, given that the authority had required the path to be provided in relation to a development but had not done anything to make sure that the crossing point would be visible to drivers.

The court said this: “it was [the local planning authority] who required this footpath to be constructed. I cannot accept that in these circumstances they were entitled to wash their hands of that danger and simply leave it to others to cure it by improving the sightlines. It is one thing to say that at the time when the respondents required the construction of this footpath they had every reason to suppose that the improvements along The White Cottage frontage would ultimately allow it to be safely opened and used: quite another to say that they were later entitled to stand idly by whilst, as they must have known, the footpath lay open to the public in a recognisably dangerous state.”

The NPPF simply has references to the desirability of “safe communities” and “safe places” and these specific passages:

Local planning authorities should consult the appropriate bodies when considering applications for the siting of, or changes to, major hazard sites, installations or pipelines, or for development around them.” (paragraph 45).

Planning policies and decisions should promote public safety and take into account wider security and defence requirements by:

a) anticipating and addressing possible malicious threats and natural hazards, especially in locations where large numbers of people are expected to congregate. Policies for relevant areas (such as town centre and regeneration frameworks), and the layout and design of developments, should be informed by the most up-to-date information available from the police and other agencies about the nature of potential threats and their implications. This includes appropriate and proportionate steps that can be taken to reduce vulnerability, increase resilience and ensure public safety and security; and

b) recognising and supporting development required for operational defence and security purposes, and ensuring that operational sites are not affected adversely by the impact of other development proposed in the area.” (paragraph 95).”

As I say, I’ve only scratched the surface of an important subject.

Simon Ricketts, 3 July 2021

Personal views, et cetera

This week, from 6 to 7.15 pm on Tuesday 6 July we have another big clubhouse Planning Law Unplanned event, We Need To Talk About Green Belt, leading off with contributions from barristers Jonathan Easton and Zack Simons, who will give a first-hand insight into their recent Bolton and Colney Heath inquiry decisions. Free invite to the app and event here.

I’m Sorry I Haven’t A CLEUD

Certificates of lawfulness are very useful, but care is still needed, as two recent cases illustrate.

But first, to explain about the two types of certificate provided for under the Town and Country Planning Act 1990 and the consequent jargon about CLEUDs and CLOPUDs.

The “certificate of lawfulness of existing use or development” (“CLEUD”) procedure, under section 191 of the 1990 Act:

“(1) If any person wishes to ascertain whether—

(a) any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.”

“(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”

“(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.”

The “certificate of lawfulness of proposed use or development” (“CLOPUD”) procedure, under section 192 of the 1990 Act:

“(1) If any person wishes to ascertain whether—

(a) any proposed use of buildings or other land; or

(b) any operations proposed to be carried out in, on, over or under land,

would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.”

“(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”

“(4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness.”

Section 193 (7) “A local planning authority may revoke a certificate under either of those sections if, on the application for the certificate—

(a) a statement was made or document used which was false in a material particular; or

(b) any material information was withheld.”

There is discussion about the distinctions between the two procedures, CLEUD and CLOPUD, in the Government of the Republic of France v Royal Borough of Kensington & Chelsea (Court of Appeal, 12 June 2017) but basically a CLEUD certifies that the development that has already taken place was lawful (i.e. had the benefit of any necessary planning permission) and a CLOPUD certifies that proposed development would be lawful (i.e. would not require any further planning permission).

Either certificate may be revoked by a local planning authority if it was granted on the basis of false information or if material information was withheld. CLOPUDs carry the additional risk that they may no longer be able to be relied upon as determinative of lawfulness if “there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness”.

R (Ocado Retail Limited) v London Borough of Islington (Holgate J, 7 June 2021) concerned the revocation by Islington Council of a CLEUD granted on 26 April 2019 to Telereal Trillium. The effect of the CLEUD was to certify that four of Telereal’s units on an industrial date were in lawful use for storage or distribution purposes, given that they been used for those purposes for at least the last ten years in breach of a condition on a previous planning permission. As is usually the case, the certificate application had been determined without public consultation and by delegated powers. Only when Ocado then made a planning application for works to the property so as to be able to use it as one of their distribution facilities did local residents find out that the certificate had been issued. They provided information to the council which caused it to make the revocation order, relying on the following reasons set out in an officer’s report:

“(i) Telereal’s application had relied on units A-D as “four interlinked units” forming a single planning unit, without mentioning a lack of interconnection between units B and C (paras. 11, 13 and 19);
(ii) Telereal had not referred to a statement in the 2011 planning application that units C-D were unused at that time and, being surplus to requirements, had been marketed since 2006 as a separate unit. Telereal had not produced photographs taken in 2011 showing the empty units. This information contrasted with the false statement in the application that between 1992 and 2013 units A-D had been fully operational as a warehouse and also with the reliance placed upon photographs taken in 2006 produced by Mr. Molony. This was not a case where units had simply not been used to capacity (paras. 11, 17 and 18);
(iii) The statutory declaration had been false in stating that since 1992 the whole site had been in use as a warehousing/storage depot, that the use had been continuous throughout, and that the photographs submitted were “typical of the uses” (para. 18);
(iv) The statutory declaration had withheld the fact that Mr. Molony, who was professing to give first-hand evidence, had not visited the site during Royal Mail’s lease[3] and so could not attest to its use during that period (para.18);
(v) The application had failed to refer to Royal Mail ceasing to use the premises by, at the latest, 2015 (paras. 11 and 17);
(vi) The application and the decision in 2019 had proceeded on the incorrect legal basis that the issue was whether there had been a 10-year period of continuous use in breach of condition at any time in the past, without that lawful use being subsequently abandoned or suspended. Instead, the law had been correctly stated in Ellis (para.22). In any event, even applying “the wrong legal tests” relied upon by Telereal, the applicant had been required to provide an accurate factual account of the use over time. The false statements and withholding of information were still material to that issue (para.23);
(vii) The false assertion about the interlinked nature of units A-D, as well as the lack of use and the separate marketing of units C and D, were relevant to the identification of the correct planning unit (para.28);

(viii) On the exercise of the discretion to revoke the CLEUD, the legislation assumes the provision of “correct and complete material information.” Had the false statements not been made and/or material information withheld, Islington “would have been alerted to the need to carry out further investigations in particular as to the planning unit” and “could have come to a different decision” (para.8).

Ocado challenged the revocation by way of judicial review on a series of grounds, a number of which raise interesting and difficult planning law issues, but for the purposes of this blog post it is sufficient to say that the claim failed. Holgate J held that the council was within its powers in deciding to revoke the certificate on the basis of applying the test in section 193 (7).

It is an important judgment for anyone dealing with certificate applications, with some helpful judicial pointers.

As to the drafting of a statutory declaration in support of a certificate application:

“Care needs to be taken in the drafting of any statutory declaration in support of an application for a certificate under s.191 (or s.192). Such a document is intended to have a formal and solemn status in a non-judicial process where oaths are not administered. It is an offence for a person knowingly and wilfully to make a statutory declaration containing a statement which is false in a material particular (s.5 of the Perjury Act 1911). This offence is “triable either way” and so there is no specific time limit on the bringing of a prosecution. Whether or not a statutory declaration is used to provide evidence to a local planning authority, s.194 makes it an offence for a person, for the purposes of obtaining a decision on an application under s.191 or s.192, to make a statement knowingly or recklessly which is false or misleading in a material particular or, with an intent to deceive, to use any document which is materially false or misleading or to withhold material information. In s.194(3) Parliament has expressly disapplied the normal 6-month time limit in s.127 of the Magistrates’ Courts Act 1980 for the bringing of a prosecution in respect of a summary only offence. Section 194(3) is all of a piece with the power of revocation in s.193(7), which is exercisable at any time after the grant of a CLEUD.

To enable an authority to assess the weight to be placed upon a statutory declaration or witness statement, it is good practice for the author to make plain which matters are within his own personal knowledge and, unless it is obvious, how that knowledge was obtained. For each matter outside his own knowledge, he should identify the specific source relied upon. These are essentially the principles applied to witness statements in civil litigation (CPR PD32 para.18.2) and it is difficult to see why the approach should be any less rigorous in the context of s.171B where a declaration may be dealing with continuity over a long period of time.

As to whether certificate applications should be publicised:

“It is beneficial to the quality of decision-making on s.191 applications, which deal with past events, that persons or bodies with relevant information on the grounds for seeking a CLEUD should be able to be involved, whether supporting or opposing an application. If they are not, there is potentially an increased risk of any certificate granted becoming the subject of an application for judicial review, or revocation under s.193(7), with consequential delays for a landowner wishing to rely upon that decision. If, on the other hand public participation results in the refusal of a CLEUD, the applicant is entitled to pursue the matter on appeal, where the evidence can be examined and tested.

It could be said to be unsatisfactory that whether consultation takes place should depend upon the exercise of discretion by individual planning officers, rather than there being a uniform national procedure. Similar concerns were raised by Collins J in Sumption v London Borough of Greenwich [2008] 1 P&CR 20 at [8]. The point is illustrated by paragraph 008 of the relevant part of the National Planning Practice Guidance, which states that “it may be reasonable for a local planning authority to seek evidence from other sources e.g., parish councils or neighbours, if there is good reason to believe they may possess relevant information about the content of a specific application”. The difficulty is that an authority is unlikely to be able to identify all situations in which members of the public have something material to contribute, either on the decision whether to grant a certificate or the precise scope of any certificate.”

As to the extent of the power to revoke a certificate:

“A CLEUD or a CLOPUD may only be revoked by a local planning authority on the grounds set out in s.193(7). The power of revocation may not be used, for example, because the authority wishes to revisit the merits of the application, or has changed its mind about the findings of fact it has made or the inferences or conclusions it has drawn from the material submitted.

As to other matters to take into account in deciding whether to revoke:

“By way of example, the local planning authority might take into account the effect of revoking the certificate on affected landowners, particularly if time has elapsed and successors in title demonstrate the harm they would suffer. In that event, it could also be relevant to consider whether a successor in title was involved in, or aware of, the application for a certificate, particularly if it intended to rely upon any certificate granted. Where a local authority has reason to conclude that material information was deliberately withheld at the application stage, or that there has been material concealment of information after the certificate was issued, those matters could be taken into account as weighing in favour of revocation. Although the planning merits of a development or a legitimised breach of condition are irrelevant to whether sub-paragraphs (a) or (b) of s.193(7) are satisfied, a local authority may have regard to that aspect when exercising its discretion whether to revoke a certificate. But it is entirely a matter for the authority whether to consider planning benefits or harm at all and, if so, to what extent, subject only to review on the grounds of irrationality.”

I mentioned the additional risk, with CLOPUDs, that they lose their effect if there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining the lawfulness of the proposed development. There was discussion about this in Croyde Area Residents Association) v North Devon District Council (Lieven J, 19 March 2021).

The case concerned an application for judicial review to quash the grant of planning permission on 27 January 2014 for the use of lodges, static caravans and touring caravans at Ruda Holiday Park, Croyde, Braunton Devon. The judge allowed such a late challenge to be brought, applying the principles in R (Thornton Hall Hotel Ltd) v Wirral Metropolitan Borough Council (Court of Appeal, 30 April 2019) (covered in my 18 May 2019 blog post Slow Claim Coming: Limiting JRs) but much of the discussion in the case concerned a CLOPUD which was subsequently granted on appeal on 21 February 2020 once a dispute had arisen as to the extent of land which had the benefit of the planning permission, due to a mistake in the way in which the boundaries of the application had been shown (“…roughly 22 hectares of land were included within the red line which before 2014 had no permission for caravans or lodges to be stationed”).

There is an absolute statutory bar on challenging the validity of certificates granted upon appeal after six weeks but challenges can of course be brought to planning permissions granted by local planning authorities outside that six weeks period (on the principles set out in that Thornton Hall Hotel case). That was why this was just a challenge to the January 2014 permission. The land owner, represented by James Maurici QC, sought to argue that to allow a late challenge to the planning permission, as argued for by the claimant, represented by Richard Turney, would undermine the absolute bar on any legal challenge to the CLOPUD. The judge disagreed:

“I am concerned that Mr Turney’s argument does result in the undermining of the LDC, and therefore might be said to undermine the purpose of the statutory provision. However, in my view there are two answers to this. Firstly, it is clear from Challinor and from s.192(4) that the LDC does not create absolute certainty of the lawfulness of the use going forward in any event. The statute envisages that there may be a material change which removes the certified lawfulness and I see no reason why the subsequent quashing of a planning permission should not be such a material change. Secondly, the mischief that Mr Maurici relies upon can in my view be dealt with by the exercise of the court’s discretion not to quash if on the facts of the case that is the appropriate response. It would be a highly unusual, if not exceptional, situation where the court would quash a planning permission where the effect was to remove the benefit of an LDC. As I explain below, I consider this to be such an exceptional case. However, in the vast majority of cases the existence of the LDC will be an overwhelming reason not to quash the planning permission.”

So the judge assumes that the quashing of the planning permission will amount to a material change in a matter that was relevant to determining the lawfulness of the development certified in the CLOPUD. It is not clear from the judgment whether the development described in the CLOPUD had subsequently already been started – that would of course preclude the operation of section 192 (4). (NB I understand that permission to appeal to the Court of Appeal has been sought).

Lessons:

– Be scrupulously accurate when submitting any application for a CLEUD or CLOPUD, and do not withhold any material information. Otherwise, it may come back to bite you or your successor, by operation of section 193 (7).

⁃ In relation to CLOPUDs, be wary of any potential material changes that may come to undermine your certificate. You are at risk until “the use is instituted or the operations are begun”.

Simon Ricketts, 12 June 2021

Personal views, et cetera

It was a busy Clubhouse Planning Law Unplanned week! Many of you will have tuned into our session on Tuesday in relation to the Lichfields Taking Stock report and/or Thursday’s event arranged at about eight hours’ notice when Duncan Field and Zack Simons led a session on the HCLG Committee’s report on the future of the planning system. This Tuesday 15 June at 6pm we have another amazing session, this time about starting new consultancies, firms and practices, with a series of founders’ stories, including Roger Hepher (hgh Consulting), Paula Carney (CarneySweeney), Kelly Ryder (The Planning Lab), Mark Gimingham (i-Transport), Claire Dickinson (Quod), Rachel Naylor & Abbey Musker (Trium Environmental Consulting LLP ) and tax specialist Mitch Young (Fusion Consulting Ltd). Join us! Invite to app and event here.

Choiceplace, Wrong Place

Choiceplace Properties Limited v Secretary of State (Dove J, 27 April 2021) amounts to a short and sharp lesson for applicants and their advisers: make sure your application plans are accurate, not just in relation to your development proposals but as to the relationship of the proposals to the existing streetscape or landscape, particularly if a condition of the permission requires that development is to be carried out in accordance with those (scaled) plans.

Planning permission had been granted for a small block of flats to be built in north London. Condition 1 required the development to be carried out in accordance with a set of approved plans. The set included drawing “P.04, street elevations”.

This is an extract from the plan:

Courtesy of London Borough of Barnet planning portal

To quote from Dove J:

“Not long after the permission had been granted the claimant mobilised in order to implement the development. In December 2018, the claimant was advised by the architect that it had retained to prepare detailed construction drawings that the street scene drawing P.04 was inaccurate. In essence, the drawing, which was one of those listed in condition 1 along with the other drawings forming part of the pack accompanying the application, was in error in purporting to show that the proposed development would have a ridge height lower than the neighbouring building 159 Holden Road, when in fact the ridge height of the proposed building would be higher. Whereas the street scene in drawing P.04 showed the buildings stepping down in height from 159 via the proposal to 157, where the ridge height of 157 Holden Road was shown to be lower than the application site proposed building, in fact the proposed building was taller than both of them.”

I suspect that it is quite unusual that an error such as this is spotted pre-construction. The stakes are even higher for all concerned if the discrepancy is spotted at a later stage.

The local planning authority, London Borough of Barnet, took the position that the permitted development could not be lawfully implemented. The parties waved opposing counsel’s opinions at each other. The applicant, Choiceplace, made an application for a certificate of lawfulness of proposed use or development under section 192 of the Town and Country Planning Act 1990 to seek to make good its position. The application was refused by Barnet and the subsequent appeal was dismissed by an inspector.

Some extracts from the inspector’s decision letter:

“In my view the starting point is that when interpreting a condition it should be asked what a reasonable reader would understand the words to mean. In this case it clear to me the development should be built in accordance with the plans. At its simplest this is impossible because to build it in accordance with P.03 and P.06 the building will not look like the building shown in P.04. In other words the plans are inconsistent. The condition doesn’t require the development to be in accord with some of the plans, or parts of the plans, but with the approved plans, and I think it reasonable to imply the word “all” there, again on the basis that is what an ordinary reading of the condition implies.

Starting from this point, it could be argued that the P.04 is merely illustrative, the buildings either side could change shape or size or even be demolished, but that seems to me to be rather missing the point. Firstly, P.04 is clearly not illustrative, it is not a simple sketch purporting to show a view, but is an allegedly scale drawing with the heights of the neighbour at No 159 drawn on to specifically compare to the proposal. Secondly, whether the neighbours can change is irrelevant. The drawing shows the proposed building in a relationship to the neighbours at the time the application was made regardless of any theoretical future changes. That relationship should have been replicable on site on the date the permission was granted and it was not.

If we delve further into the extrinsic evidence to see if there is anything else to suggest that reliance on P.04 would be excessive or in some way unreasonable then it becomes clear, for the reasons given in the Council’s opinion, that the streetscene drawing was important in the determination of the application, which was only allowed by the committee by a narrow margin. Furthermore it is only by detailed analysis of various spot heights across several of the drawings that the errors are revealed. The Council should be able to rely on accurately scaled drawings, especially when the drawing in question is important to determining the acceptability of the proposal.”

Dove J agreed with the inspector:

“In my judgment, there is no reason why the depicted heights of the existing buildings should be regarded as illustrative or somehow excluded from the requirements of condition 1 on the planning consent. As was pointed out during the course of argument, a relationship between a proposed development and the existing height of either adjacent structures or indeed adjacent ground levels is a matter to be accurately depicted on plans accompanying planning permission for good reason. It is at the very least to be assumed to be an accurate depiction, in the absence of any specific text on the drawing indicating that elements of it are not to scale. The Inspector was correct in pointing out that the drawing showed a relationship between the proposed development and surrounding buildings which should have been capable of replication on the site at the time permission was granted and it was not. In short, the development is not capable of being implemented in accordance with the approved drawings because it is not capable of being implemented in a manner which replicates the street elevations both longitudinally and axially which are purported to be shown to scale on drawing P.04. To reach that conclusion does not involve any suggestion that the planning application granted might be capable of controlling the scale or appearance of adjacent dwellings beyond the application on site; it is simply a reflection of the inaccuracy in the plans leading to an inability to construct a development which accords with that which is depicted upon them.”

A simple case but with some potentially far-reaching conclusions for applicants:

1. Of course, be careful that all drawings, plans and written descriptions of your development proposal are accurate, are internally consistent and describe accurately the surrounding environment – particularly where by condition you are required to build in accordance with what has been set out. If there need to be caveats as to accuracy, include them.

2. To what extent has someone, at some remove from the detail, audited whether this is in fact the case and confirmed it, such that you can rely on that confirmation if an issue subsequently arises? It’s not the local planning authority’s job.

3. Always check that you will be able to comply with plans and other details that are set out in planning conditions. The condition here was all encompassing: “The development hereby permitted shall be carried out in accordance with the following approved plans: Site Location Plan; Drawing no. P.01 Rev C; Drawing no. P.02 Rev C; Drawing no. P.03 Rev B; Drawing no. P.04; Drawing no. P.05; Drawing no. P.06 Rev A; Landscaping Scheme Drawing no. TH/A3/1497/LS; Arboricultural Impact Assessment & Method Statement by Trevor Heaps Arboricultural Consultancy Ltd Ref: TH 1497 dated 11th December 2017 including drawing no. TH/A3/1497/TPP; Sustainability Statement by Henry Planning; Planning statement by Henry Planning; Document titled “Holden Road, London, N12 8SP – Part M4(2) Category 2 Accessible and Adaptable Dwellings”. I am always wary of such an approach. For instance, why were documents listed that were not even “plans” and precisely which elements of those statements were to be incorporated into the condition?

Simon Ricketts, 7 May 2021

Personal views, et cetera

NB Next Tuesday’s Queen’s Speech should be interesting, in terms of whether we will see any detail released as to the contents of the proposed Planning Bill and the Government’s proposed way forward, and what else is on the Government’s agenda impacting upon our little world. No surprise that this will be our main clubhouse #PlanningLawUnplanned topic for 6pm that evening. I hope you can join us – if you have an iPhone, here is an invitation.