So Who Did Win The SPG JR?

Isn’t it heartwarming when the opposing parties in litigation all claim to have won? He said wryly.

Ouseley J’s judgment in McCarthy & Stone Retirement Lifestyles Limited, Churchill Retirement Living Limited, Pegasus Life Limited and Renaissance Retirement Limited v Mayor of London was handed down at 10.30 am on 23 May.

The Mayor rapidly issued a press release that morning, Judge rules in favour of Mayor’s threshold approach to housing.

However, the subsequent press releases by McCarthy & Stone Judge rules in favour of retirement consortium’s judicial review of the Mayor of London’s SPG and by Renaissance Retirement later that day seemed to tell a different story.

So that they can be checked for factual, typographical or grammatical errors or ambiguities, Planning Court judgments are usually issued in draft to the parties at least 24 hours ahead of being handed down, under conditions of strict confidentiality. Disclosure beyond the lawyers and parties themselves is a contempt of court and can bring criminal sanctions. However, what that advance sight does mean is that, by the time that the judgment is formally handed down (often with the parties not needing to be present and with submissions about remedies, costs orders and so on dealt with separately by email), the parties have got to grips with the often complex analysis within it and are ready to influence the way in which the narrative appears in traditional and social media, particularly the breaking online news items in the specialist press.

Planning law can be difficult in its abstractions and it can take time and strong coffee to arrive at a full understanding of the implications of a judgment (particularly without a familiarity with the evidence presented and submissions made to the court). This blog always includes links to the judgment transcripts because, however detailed the summary, there is no substitute for reading the document itself, but even then it can be hard. All credit to Holgate J in Parkhurst for appending parts of the inspector’s report to provide readers with the necessary context, but that was still a complex judgment (there have been some glib summaries!) and always of course watch for the political spin (Cheshire East Council’s “Cheshire East wins landmark legal judgement for residents in fear of housing sprawl” press release, following its loss in the Supreme Court in Suffolk Coastal , with ultimately an award of costs against it, being a classic of the genre!).

Back to the case in hand. So who really did win?

The claimants are all developers of specialist housing for the elderly. Their main concern with the Mayor’s 2017 affordable housing and viability SPG was that their schemes, usually on small sites, are caught by its requirement for a late stage viability review but were not caught under the adopted London Plan, which refers to the mechanism in the context of schemes which “in whole or in part…are likely to take many years to implement“.

[I summarised the SPG in my 20 August 2017 blog post 20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG. (Warning: the Mayor of London’s SPGs are not subject to the same legal regime that applies to local planning authorities in preparing SPDs, summarised in the first part of my 1 December 2017 blog post What’s For The Plan, What’s Supplementary?)]

The claimants’ evidence was that they developed smaller sites – “usually brownfield, higher build costs, significant communal facilities and spaces which were not for sale – making them more costly per square metre than most market housing, and particularly so in London. These schemes were constructed in a single phase, and could not meet affordable specialist housing accommodation requirements on-site, as had been accepted for years; they always provided viability appraisals to justify off-site contributions to affordable housing, and always had to be completed as a whole before any elderly occupiers moved in; they had a markedly slower selling rate. This made the Claimants less able to compete with general house builders in site acquisition.”

Their evidence was that “the acute pressures, on the viability of specialist housing schemes, made it essential that the risk of the development’s returns falling significantly below expectations was reduced to a minimum. They relied on various forms of borrowing to fund site purchases. The standard but notional 20 percent development return used in such appraisals was the bare minimum “on the basis that the risk associated with the affordable housing cost is known…If there is a risk that [that] cost might rise significantly, the risk profile becomes unacceptable….” Mr Warren emphasised that it is the risk which matters when deciding on what price to pay for a site. And it is that extra risk which Mr Burgess said affected them more than those in the general market. The effect of the late stage review was felt by the Claimants at the stage of bidding for the sites in the first place; the uncertainty about the amount of money which might have to be paid over at the late stage review affected the calculation of risk for borrowing, in such a way as to make the funding impossible.”

The judge made no ruling as to whether these concerns were justified and they were not accepted by the Mayor but this was the claimants’ explanation as to why the issues mattered to them.

[I note at this point that the proceedings were brought in the knowledge that the emerging new London Plan would in any event be proposing an equivalent late stage review mechanism. The parameters of that mechanism will no doubt be considered as part of the examination into the draft Plan (rumoured as likely to take place from November 2018 to February 2019)].

So the claimants’ objective plainly was to challenge that requirement for a late stage review of viability in relation to schemes like theirs which could not be said to be “likely to take many years to implement” (although the claimants sought to argue that it was single phase schemes that should not be caught).

In order to demolish that requirement, they contended that the SPG was unlawful and in so doing relied on three grounds:

(1) it constitutes policy which should only be in the London Plan, which is currently being revised; the SPG was also inconsistent with that Plan;

(2) the SPG is a “plan or programme” which required a Strategic Environmental Assessment, SEA, under the Environmental Assessment of Plans and Programmes Regulations, SI 2004 No.1633 but which had not been undertaken; and

(3) it was produced without due regard being had to the constituent parts of the public sector equality duty, PSED, in s149 Equality Act 2010.”

Ouseley J rejected grounds 2 and 3 as unarguable and I’ll say no more about them.

In relation to ground 1, Rupert Warren QC for the claimants first argued that the SPG contained policies which could only be within the London Plan itself, namely “the 35 percent threshold, the fast-track, and the viability tested route, with three viability appraisals, (initial, early stage and late stage), the deliberately slow-track.”, all of which are indeed now proposed as policy in the draft London Plan.

The judge largely sidestepped this issue: “I do not want this judgment to be misread as holding that the SPG, and at this level of detail, must as a matter of law be in the London Plan or alternatively that the SPG cannot lawfully be included in the Plan as policy“. He did not interfere with the Mayor’s decision to treat the matters as appropriate for an SPG.

He commented that whether the emerging policies that reflect those SPG requirements are appropriately strategic for the Plan will be a matter for the inspector to determine following his or her examination of it: “They may contain a level of detail for the control of negotiations in quite small forms of development, and larger non-PSI developments, which excludes them from s334, though I do not doubt that the levels of affordable housing developed on new housing sites, can be seen as a strategic matter. In particular, when the draft London Plan goes for public examination, the question of whether draft policy H6, which takes the SPG into the draft Plan, is “strategic” and “general” may be one on which the inspector after the examination in public expresses a view. I would not want what I say to resolve the content of the draft London Plan, in advance of any inspector’s consideration and report.”

Rupert Warren QC’s second argument under ground 1 was that the SPG was inconsistent with the adopted London Plan. The judge stated:

I am not prepared to hold that conflict with development plan policy of itself makes a non-statutory document unlawful. If it states that it is in conflict with the development plan because that plan is now out of date, for example because of changes in Government policy as might be found in the NPPF, or because the review of the Plan was delayed for proper reasons, I see no basis for it to be unlawful. The weight to be given to it is quite another in the light of s38(6), but the NPPF contains advice which conflicts with development plans up and down the country, and is not on that account unlawful. If an authority seeks to put forward some policy to cover the period when it is out of date, which could happen very quickly with new government policy, I see no reason to hold its actions unlawful. The plan-led system is supported by the proper application of s38(6), which can readily accommodate expressions of policy in conflict with the development plan. It does so often when a new draft plan is issued.”

So, inconsistency of itself does not lead to an SPG being unlawful. However, as identified by the judge:

Here the Mayor clearly did not intend to produce SPG in conflict with the London Plan, let alone to avoid the development plan process. The Executive Summary of the SPG at [4] states that it is “guidance to ensure that existing policy is as effective as possible…it does not and cannot introduce new policy.” Indeed, the consistency of the SPG with the London Plan was a theme of the Defendant’s response to Grounds 2 and 3, SEA and PSED. It is inherent in the concept of SPG that it purports to supplement and not to contradict development plan policy. In so far as he did produce SPG in conflict with the London Plan, he would have misdirected himself as to the meaning and effect of either the Plan or the SPG and so failed, in promulgating it, to have regard to a material consideration. ”

So, inconsistency may well lead to an SPG being unlawful, if the policy-maker did not intend there to be any inconsistency, as was the case with this SPG.

Mr Warren is reported as pointing to two inconsistencies: “(1) the most important, is the introduction by the SPG of a late stage review to single phase sites where the London Plan only envisaged those for phased developments; (2) the adoption of a 35 per cent affordable housing on-site threshold at which no viability information was required, whereas the London Plan required each site to provide the maximum reasonable amount of affordable housing, which could be greater than 35 percent.”

The judge did not find that the 35% threshold was inconsistent with the adopted Plan (hence the focus of the Mayor’s press release!) but he did find there was inconsistency in relation to the requirement for a late stage review:

By contrast, the language of the London Plan does not permit the imposition of a requirement for all sites over 10 homes, of a specific requirement to produce at least three viability appraisals, and more if the phases so turn out. Nor does it permit it exceptionally. It permits it only where, in general, the timescale or scale of development means that it is likely to take many years to complete a phase or the whole.”

So, he found for the claimants on the issue which had led them to bring the claim in the first place.

The judgment indicates that he will now “hear submissions on the appropriate remedy, if any, for the inconsistency I have found to exist“. But it seems to me that whether the relevant parts of the SPG are formally quashed or not is neither here nor there – the effect of the ruling is that the Mayor cannot lawfully rely on the SPG in requiring a late stage viability review in relation to the sorts of schemes that they promote.

Of course, that may be a Pyrrhic victory. As the judge goes on to comment:

The status of SPG matters little now that the draft London Plan has been published and consulted upon, containing H6. Draft plans often are inconsistent with their predecessors and are given increasing weight as they progress, as outlined in the NPPF. Once the Mayor has considered the consultation responses to the draft Plan, the period for delivering which has expired, and has amended the Plan as he sees fit, it will have no lesser weight than the SPG. Giving some weight to draft policy which is inconsistent with the development plan is not uncommon. The NPPF contains material which is not consistent with developmental plans. The issue about the status and consistency of the SPG is not one of continuing importance.”

That may be so, but presumably the claimants went into the litigation with their eyes open, given the emerging draft London Plan. This will indeed be a temporary win if they do not persuade the inspector that late stage reviews are not appropriate in relation to smaller, usually single phased, schemes. But that will be an issue to be debated without pre-existing support in the form of the SPG.

Who won? The claimants on the point that I suspect they cared most about. The Mayor on the point that I suspect he cared most about: avoiding collateral damage from the proceedings, in the form of any wider adverse ruling on other matters such as the 35% threshold or the validity of the document as a whole.

Simon Ricketts, 26 May 2018

Personal views, et cetera

All About That Base

Good planning relies on good baselines. Determining the correct baseline or fallback position is the vital starting point for determining the effects that a development proposal would have, but is not easy – often involving the need for judgment as to what can be done in any event without planning permission or what the position would be in any event in terms of, for instance air quality, highways movements or the effect on the level of daylight and sunlight that existing properties enjoy.

In Wiltshire Waste Alliance Limited v Secretary of State (Sir Ross Cranston, 10 May 2018), an inspector had granted permission on appeal for the extension of a waste recycling plant.

Before him the company’s case was that if the appeal was dismissed the appeal site would continue to operate pursuant to a series of admittedly complicated planning permissions which, in any event, would allow a significant number of uses. The appeal was advanced on the basis of these “no project” baselines being in existence. No other grounds were advanced for the grant of planning permission. Essentially the claimant’s case against the appeal was that these baseline activities were not in fact permitted under the permissions operating. Further, for practical reasons what was permitted was limited and in any event could not take place.

In his decision letter the inspector had identified that it was crucial to the proper determination of the appeal that the effects of generated HGV traffic on the highway network and air quality were calculated “on a precautionary basis and compared with any planning fall-back position from which realistic baseline positions are drawn. It is established law that for a fall-back position to be taken into account it must be legally possible with respect to existing permitted land uses and also likely to occur on available evidence.”

The planning permission for the existing facility did not include any condition restricting the amount of waste that could be treated, but the application for it had indicated a figure of up to 25,000 tonnes per annum for one area, whereas the fallback position being relied upon by the operator at the appeal had assumed that this could be increased to 75,000 tonnes without the need for planning permission. It argued that the 25,000 figure was no limitation (applying the I’m Your Man case, recently approved of by the Court of Appeal in Lambeth LBC v Secretary of State). The claimant argued that the inspector had not considered whether such an increase in the quantity of material treated would have amounted to a material change of use by way of intensification. Retired High Court judge Sir Ross Cranston accepted the claimant’s argument, but also determined, as had been conceded by the Secretary of State, that the inspector had also wrongly noted that the application document referring to the 25,000 tonnes figure had not been incorporated by reference into the permission. Sir Ross Cranston’s summary of the arguments and reasoning is brief. (In the light of the Lambeth case I don’t see how incorporation by reference of the application document is relevant.)

As well as meaning that the inspector had made a legal error in the way that he had considered the fallback position, the judge accepted that the approach that had been taken “has the potential to infect the conclusions regarding the baseline scenarios” for the purposes of assessment of likely significant environmental effects in the environmental impact assessment.

It is a cautionary tale – ensure that you can justify any fallback or baseline position that you rely upon.

Whilst it didn’t matter for the purposes of the judgment, I assume that the proposal was assessed under the 2011 EIA Regulations. The 2017 Regulations are more prescriptive. EIA now needs to include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge“.

The more far-reaching and longer-term the effects of a project, the more complex the analysis ends up being, as can be seen from the Secretary of State’s decision dated 10 May 2018 to authorise the development consent order applied for by Transport for London in relation to the proposed Silvertown twin-bore road tunnel under the Thames (a scheme which also was promoted under the previous EIA legislation). The task of analysing what would be the position in terms of issues such as congestion and air quality is complex. There will be much focus on his conclusion on air quality effects in particular, namely that “greater weight needs to be placed on the impact of the Development on the zone [for the Greater Urban London area as a whole] rather than at individual receptors. The Secretary of States therefore places weight on the fact that whilst some receptors will experience a worsening in air quality as a result of the Development, overall the Development should have a beneficial impact on air quality and that the Development is not predicted to delay compliance with the [Air Quality Directive] in the timeframes that the Updated [Air Quality Plan], including the zone plan for the Greater Urban London area, sets out as being the quickest possible time.”

We have seen recently how assumptions as to air quality levels can be proved wrong in ways that are unexpected, such as the VW emissions scandal that threw into question the degree to which air quality levels would improve as newer vehicles replaced older ones on the road, or ways which are possibly less unexpected, such as the Government’s delayed compliance with the Air Quality Directive.

Accurate analysis is of course equally necessary with more routine non-EIA projects: that is, accurate analysis both in the relevant technical assessment, whatever it may be, and accurate analysis by the decision maker in taking it into account in reaching a decision. R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) was a recent example of a planning permission being quashed (that the council had granted to itself for an affordable housing development) because of incorrect conclusions being drawn from a report on sunlight and daylight issues, that in itself was held to be significantly misleading in a number of respects, both in relation to the relevant baseline position and in its analysis of compliance with the relevant BRE guidelines that had been incorporated into the council’s local plan. However, every case inevitably turns on its own facts and, as the judge identified, the threshold for challenge is high:

⁃ Baroness Hale in Morge v Hampshire County Council (Supreme Court, 19 January 2011: “reports obviously have to be clear and full enough to enable [members] to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves

⁃ Lindblom LJ in Mansell v Tonbridge and Malling Borough Council(Court of Appeal, 8 September 2017): “The question for the court will always be whether, on a fair reading of his report as a whole, the officer has significantly misled the members on a matter bearing upon their decision, and the error goes uncorrected before the decision is made. Minor mistakes may be excused. It is only if the advice is such as to misdirect the members in a serious way—for example, by failing to draw their attention to considerations material to their decision or bringing into account considerations that are immaterial, or misinforming them about relevant facts, or providing them with a false understanding of relevant planning policy—that the court will be able to conclude that their decision was rendered unlawful by the advice they were given.


Where the line is drawn between an officer’s advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact.., or has plainly misdirected the members as to the meaning of a relevant policy… There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law…. But unless there is some distinct and material defect in the officer’s advice, the court will not interfere
.”

⁃ Section 31 (2A) of the Senior Courts Act 1981 provides that the High Court “must refuse to grant relief on an application for judicial review…if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” unless it is appropriate to disregard this “for reasons of exceptional public interest.”

Simon Ricketts, 12 May 2018

Personal views, et cetera

Fawlty Powers: When Is A Permission Safe From Judicial Review?

A case last month arising from a howler of a permission for the erection of three marquees in the grounds of a hotel, a permission that was intended to be temporary but was issued without any condition to that effect, has potentially created a real mess. 
Pretty much the main thing that the commercial and financial world always wants from any consenting or licensing system, and certainly the planning system, is certainty as to when any necessary consent or licence, such as a planning permission, is free from legal challenge. Central to the legal due diligence work in relation to any operational business with a bricks and mortar presence, for instance in connection with its financing or acquisition, and certainly in relation to any property or development financing or acquisition, will be the need to report on the operative planning permissions and whether they are now beyond risk of being quashed by the courts. Once the judicial review period has passed, it is assumed that a permission can safely be relied upon, money can be lent or invested, properties or companies can be acquired. If the judicial review period has not yet expired, transactions will often be made conditional on its expiry without proceedings having been commenced. 

Judicial review periods are deliberately short so that we can all safely rely on public bodies’ decisions after a relatively short period. Compared with the six or twelve years’ limitation periods that are common in private law, the traditional principle in relation to judicial review is that proceedings must be brought promptly and in any event not later than three months after the grounds upon which the claim is based first arose (Civil Procedure Rules Part 54.4). 

In our planning world, time limits are usually even tighter:
– In relation to statutory challenges, for instance under section 288 of the Town and Country Planning Act 1990 for challenges of decisions of the Secretary of State and his inspectors on planning appeals and called-in planning applications, or under section 113 of the Planning and Compulsory Purchase Act 2004 for challenges of adopted development plans, the relevant time limit is six weeks. 
– Since 2013, the deadline for bringing judicial review proceedings in relation to other matters arising under the Planning Acts (care needed over that definition) is six weeks. 

But it isn’t quite as easy as assuming that, if these deadlines have passed, the relevant decision is free from any risk of judicial review. CPR rule 3.1 (2) (a) gives judges some discretion. Except where the rules provide otherwise, the court may “extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)“. 
A separate form needs to be submitted with the claim, asking for a time extension and explaining why it is justified. The Administrative Court Judicial Review Guide states:
The Court will require evidence explaining the delay. The Court will only extend time if an adequate explanation is given for the delay, and if the Court is satisfied that an extension of time will not cause substantial hardship or prejudice to the defendant or any other party, and that an extension of time will not be detrimental to good administration.
The Court of Appeal last year in Connors and others v Secretary of State (17 November 2017) stressed the extent to which the onus is on the claimant to justify being allowed to bring a claim out of time and waiting to learn the outcome of another case was not a sufficient ground:
“In the context of planning decision-making, this court has made it very clear that the exercise of judicial discretion to permit very late challenges to proceed by way of claims for judicial review will rarely be appropriate – regardless of whether the claimant has had available to him and acted upon legal advice (see the judgment of Sales L.J., with whom Lord Dyson M.R. and Tomlinson L.J. agreed, in R. (on the application of Gerber) v Wiltshire Council [2016] 1 W.L.R. 2593, at paragraphs 45 to 58).”
R (Gerber) v (1) Wiltshire Council (Court of Appeal, 23 February 2016) was a case I mentioned in my 24 March 2018 blog post Once More Unto The Breach Of Legitimate Expectation, Dear Friends. The claimant sought to challenge a planning permission for a solar farm project over a year after the permission had been issued. At first instance, Dove J had been persuaded to allow the claim, accepting that the delay was justified first because there had been a breach of legitimate expectation, established by the council’s statement of community involvement, that he would be consulted at application stage about the proposal and so had an excuse for not knowing about the permission being granted and secondly that part of the delay had been caused by a first firm of solicitors having given ‘incomplete’ advice as to his potential remedies. The parties all accepted that there were in fact errors with the permission which made it unlawful. 

The Court of Appeal rejected on the facts the SCI breach of legitimate expectation argument and thought that the abortive approach to the first firm of solicitors was not a sufficient excuse for the delay. Refusing to allow the claim to be brought out of time it took on board took into account that “substantial hardship or prejudice” would be caused to the solar farm operator, which in the meantime had built its facility:
“On 23 July 2014 Terraform completed an Initial Public Offering on the NASDAQ Global Select Market based on a prospectus listing Norrington as a project generating cash flow in the United Kingdom. Terraform and Norrington make the point in these proceedings that if the planning permission is quashed, that will harm the ability of companies seeking to invest in green energy generation in the United Kingdom to attract investors to fund such projects, because of the uncertainty whether they will be able to rely on planning permissions granted by planning authorities to carry out such developments even though they have gone without challenge within the time provided for in CPR Part 54.5 and indeed, as in this case, for a considerably longer period.”

“The evidence for Norrington and Terraform, the substance of which was accepted by the judge, is that if the planning permission is quashed and they are required to dismantle the solar farm, the cost of dismantling it and restoring the Site to agricultural use would be around £1.5 million. In addition, the cost of installing the solar farm of about £10.5 million would have been wasted and lost. In addition, a premium of £2000 paid for an option to take the lease and locked-in rental payments of approximately £36,300 under the lease would also be wasted.
Sales LJ  concluded: 

“In my judgment, where proper notice of an application for planning permission has been given pursuant to the 2010 Order it is not appropriate to extend time for bringing a legal challenge to the grant of such permission simply because an objector did not notice what was happening. Extending time in such a case so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming, as happened here. Prompt legal action after grant of a planning permission to challenge its lawfulness will be required in all cases, unless very special reasons can be shown of a kind which are wholly absent in this case. Especial speed will be expected in the case of objectors who have been involved in the planning process throughout, as emphasised by Keene LJ in Finn-Kelcey at [24], but it does not follow that the strong requirement of prompt action will be substantially relaxed in the case of someone who, despite a planning authority’s compliance with the notification rules laid down in law, remained in ignorance.
The Court of Appeal did extend the time for bringing a claim in Croke v Secretary of State (Court of Appeal, 6 June 2017) which was, as so often, somewhat of a comedy of errors. Given that the deadline for lodging the claim was 23 March 2016, this is what happened:
“The Applicant, who is acting in person, wished to challenge the Inspector’s decision. He proposed to do so by issuing a section 288 claim in the Administrative Court Office at the Royal Courts of Justice, in person, on 23 March 2016. However, that day, he missed his train. Therefore, he emailed the relevant documents to a friend, Mr Miller, who was apparently located only a few minutes from the court; and he asked him to file the claim. It is the Applicant’s case, accepted by the judge below for the purposes of the application before her and by Mr Mills for the Secretary of State today, that Mr Miller arrived at the Royal Courts of Justice at 4.25pm; but, although the advertised closing time for the court was 4.30pm, he was refused entry at the main front entrance of the building, the security guard there informing Mr Miller that the counters were closed.

The following day, Thursday 24 March, the Applicant personally attended the Administrative Court Office, where he arrived at 3.30pm. It was Maundy Thursday and, for the court office, the last working day before the Easter break. Due to the volume of people in the queue, he was not seen until about 5pm, when he was informed by a member of staff that he had used an out-of-date claim form, and he would need to complete a different form. He was given a copy of the new form, and he asked if he could complete it there and then. He was told that he would have to return the next working day. The following day was Good Friday, and the next day upon which the court office was open was Tuesday 29 March. The Applicant attended the Administrative Court Office that day, and filed the claim.”



The court at first instance struck out the claim as out of time. The Court of Appeal however granted permission to Mr Croke to appeal, taking into account that there did not appear to be any legal authority applying to these precise facts:
“Having considered the ground of appeal with particular care – and not without some hesitation – I am persuaded that this appeal is arguable, particularly given the absence of authority on this point. It is also noteworthy that this issue affects not just section 288 claims, but a variety of proceedings where there are strict time limits. Therefore, although the Applicant himself accepts that the merits of his particular case may not be the strongest or attract great sympathy, the issue of principle involved does or may have some broader importance.”
(I don’t know what then happened with Poor Mr Croke’s claim. Deadlines, the risk of missing or incorrect paperwork (or an incorrectly drawn cheque), reduced court hours for filing out of court terms and the current long queues at the Royal Courts of Justice to file claims all combine to give solicitors nightmares – clients, please don’t leave it to the last moment!). 
All this brings us to last month’s case, R (Thornton Hall Hotel Limited) v Wigan Metropolitan Council (Kerr J, 23 March 2018).
The claimant operates Thornton Hall Hotel and the interested party, Thornton Holdings Limited, operates Thornton Manor. The hotels are competitors for wedding bookings and other functions. 

On 7 September 2011 Wigan Council’s planning committee resolved to grant planning permission for three marquees to be erected in the grounds of Thornton Manor. The hotel is in the green belt (as well as being listed grade II* – any Fawlty Towers references in this blog post are by the way wholly inappropriate as will be seen from the above image, courtesy of hitched.co.uk). According to the judgment the committee resolved that very special circumstances existed to allow for the erection of the marquees for a limited period of five years so as to secure “the “generation of an income stream” to enable restoration of the gardens, which were in decline and at risk“. The proposed permission with appropriate conditions was drafted. Indeed, a draft in that form was annexed to a section 106 agreement that was entered into on 11 November 2011. However, the actual permission that was issued on 20 December 2011 and placed on the council’s website omitted any conditions whatsoever, no restriction to five years, no nothing. 
The agent for Thornton Holdings cottoned onto this immediately and said nothing. However the problem was it seems not apparent to the council until the five years period expired and the marquees were not dismantled. The council took a report to committee in July 2017 accepting that a mistake had occurred. A little over a month later (and almost six years after the decision complained of, ie the issue of the incomplete permission) Thornton Hall Hotel Limited brought its proceedings, which were not opposed by the council – so the hearing was purely hotel versus competitor hotel. 
Kerr J allowed the late challenge, and quashed the permission, for nine reasons:
1. The error had been made in issuing the flawed permission. 
2. Permanent permission would not granted and would not have been in the public interest. 
3. “If the marquees are now allowed to stay permanently, the proper operation of the planning process will have been subverted.”
4. That would be contrary to the public interest. 

5. The interested party was aware of the error. 

6. “it follows that the interested party ran its commercial operation at Thornton Manor from 22 December 2011 knowing that the presence of the marquees after 19 December 2016 would be, at the very least, a matter of possible controversy and possible legal challenge. It was not, in my judgment, realistic to rely on expiry of the three month limitation period without also bringing the issue into the open, which the interested party decided not to do.”

7. It follows that the interested party cannot say that it would be prejudiced by the quashing due to lost bookings. 

8. “it is said by the interested party that it would be detrimental to good administration if the marquees have to be removed. Normally, detriment to good administration in public law cases relates to the undesirability of interfering with the provision of public services rather than commercial interests. I see no detriment to good administration in rectifying the error. I think it is detrimental to good administration that the marquees are still there. Good administration includes correct implementation of planning decisions.”

9. “the interested party signed the section 106 agreement embodying the omitted conditions including the five year time limit. Yet, it proceeds in this litigation as if it were not bound by the terms of that agreement. That seems to me only to compound the unconscionability of its position. It undertook in private law the same obligations as it denies in public law.”

As they say, hard cases make bad law. Whilst clearly no-one should have any sympathy for the interested party, which saw that it had by luck gained something it never deserved, there are really serious repercussions and I can’t see that other factors were taken on board by the judge, for instance:
1. There is no discussion of the public interest in being able to rely on permissions once free from legal challenge. When acting on the acquisition of properties or businesses, what do we now need to do to ensure that our client isn’t going to find that its permission is similarly flawed? Sometimes it will not be at all obvious. Does the permission, even if many years old, need to be checked against the resolution to grant? What about other latent flaws in it?
2. Surely, the council should have sought a revocation or modification order. No doubt it would have had to pay substantial compensation to Thornton Holdings but is that relevant? The permission was on the website and could have been challenged within the deadline. No-one challenged it (and why indeed should it be down to a competitor to spend money at risk on a challenge? What if it hadn’t?). It used to be considered that authorities, in considering whether to make a revocation or modification order, couldn’t take their potential compensation liability into account. To my mind it was a sad day when that changed as a result of the Supreme Court’s ruling in Health & Safety Executive v Wolverhampton City Council (Supreme Court, 18 July 2002). As a result, revocation and modification orders are almost unused. 

3. There are of course many examples of flawed permissions which authorities issued in error where hitherto the possibility of a late challenge does not appear to have been considered. (See some of them in my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions). Is this ruling, even if only slightly, going to open the floodgates, particularly in relation to the errors that most frequently occur on section 73 permissions where it turns out that previous restrictive conditions have been lost, for example as to the types of goods that may be sold from a retail park?

Does anyone knows whether an application for permission to appeal has been made? I would welcome views as to how we all take on board the practical implications of this case. Or do we simply regard it as turning on fairly extreme facts? I’m not so sure. 

Simon Ricketts, 7 April 2018

Personal views, et cetera


No conditions, you say?”

Once More Unto The Breach Of Legitimate Expectation, Dear Friends

Life can be tough. A public authority may have complied with the letter of the law but by its actions you feel that you have been treated unfairly. 
Of course, complying with what the legislation strictly requires is not the limit of an authority’s legal responsibilities. The authority also must comply with wider principles of administrative law, which include:
– not making a decision which is irrational (very difficult to persuade a court that a decision is irrational)
– not having a closed mind (challenges of local planning authorities these days on that ground have been made more difficult by section 25 of the Localism Act 2011)

– a basic duty of procedural fairness, which includes a “duty of consultation…where there is a legitimate of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation.” (Lord Reed in R (Moseley) v London Borough of Haringey (Supreme Court, 24 October 2014).

Given that estoppel (eg holding a planning officer to an assurance that they may have given you) really has very little place in the planning system since R v East Sussex County Council, ex parte Reprotech (Pebsham) Ltd (House of Lords, 28 February 2002), there have inevitably been many attempts to persuade the courts that there has been procedural unfairness – that there has been a breach of a legitimate expectation that you would be consulted before the authority takes a particular decision. 
The purpose of this blog post is simply to make the obvious point that it isn’t that easy. The courts draw the concept very tightly. 
The most comprehensive recent summary of the principles of procedural and substantive legitimate expectation in our little planning law world is set out by Dove J in Richborough and others v Secretary of State (12 January 2018), the written ministerial statement case, where various house builders and land promoters sought to argue that on the basis of the Government’s “regular past practice, there was a legitimate expectation that the defendant would consult the house building industry in relation to:


a. any change to National Planning Policy for housing, or alternatively, 


b. any major change for National Policy for housing or, alternatively,


c. any major change to the policy pertaining to five year housing supply in national policy.”

Dove J reviewed the case law and identified from a Court of Appeal ruling, Bhatt Murphy v Independent Assessor (2008), that for procedural legitimate expectation (the right to be consulted before a decision or policy change) there has to be “an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation...”. For substantive legitimate expectation (the right to compel the authority to continue a policy rather than change or abolish it) there is the additional requirement that the court will have to “decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power“. 
Unequivocal” is a high threshold. In Richborough, Dove J found that “the evidence does not establish that there has been an unequivocal assurance on the basis of practice that a WMS in relation to national planning policy for housing would not be issued without prior consultation. It is clear that on at least two occasions the defendant has issued WMS without consultation affecting national planning policy for housing. Thus I am unconvinced on the evidence that the claimants have established a legitimate expectation that they would be consulted on the WMS.”
This month, procedural legitimate expectation was sought to be relied upon as a ground of challenge in Kebbell Developments Limited v Leeds City Council (Court of Appeal, 14 March 2018). Here, the challenge was to Leeds City Council’s modifications made, without consultation, to a neighbourhood plan following receipt of the inspector’s report and before putting it to a referendum. The unfortunate owners of a development site potentially prejudiced by the additional wording introduced sought to argue without success that there was a legislative requirement for consultation with an additional argument that not to consult would in any event be procedurally unfair. The Court of Appeal rejected all grounds. Lindblom LJ gave the main judgment but Singh LJ (elevated to the Court of Appeal last year and with a formidable public law background) gave an additional judgment, which includes a useful analysis of the duty to consult, dividing it into two types:
– “procedural fairness in the treatment of persons whose legally protected interests may be adversely affected” (which is what we have been looking at so far in this blog post). He doesn’t see this strictly as a duty of consultation:
Procedural fairness in the former context is really the modern term for what used to be called “natural justice”, in particular the limb of it which used to be called audi alteram partem (“hear the other side”). Public law no longer talks of “judicial” or “quasi-judicial” disputes and so even the notion of a “hearing” seems inapt now but the fundamental requirement of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority’s decision to make representations to that authority before (or at least usually before) the decision is taken. To refer to “consultation” in that context is not wrong as a matter of language but I think it would be better to avoid using it in that context, so as to avoid confusion with the sense in which it is used in the context of public participation in a public authority’s processes for making policy or perhaps some form of legislation such as rules.”
– “public participation in a public authority’s decision-making process“, where the source of the authority’s obligation will very often be legislation. (Although not always, it seems to me, eg cases in relation to authorities’ statement of community involvement – authorities fail to comply with their SCI at their peril). 
It seems to me that this constrains the ambit of the breach of legitimate expectation principle even further. 
The Court of Appeal may conceivably return to the question of legitimate expectation before long, given that according to Landmark Chambers the court has given permission for an appeal in R (Save Britain’s Heritage) v Secretary of State (Lang J, 29 November, 2017). This was the challenge to the Secretary of State’s decision not to call in the Paddington Cube application for his own determination. As set out in the judgment, Save argued that the “decision was unlawful because he failed to give reasons for not calling in the applications, in breach of the Claimant’s legitimate expectation that reasons would be given. The legitimate expectation arose from a change in practice, announced in a Green Paper and in Parliament in December 2001. Thereafter, ministers began to give reasons for not calling in planning applications, when previously they had not done so.
Lang J had rejected the claim:
“In this case, in 2001, a new practice of giving reasons for non-intervention was introduced by the then minister, and it was clearly and unequivocally announced in the Green Paper, and in Parliament. In my view, this could well have given rise to a legitimate expectation that reasons would be given for non-intervention, if it had remained in operation. A failure to give reasons in accordance with the established practice could have been a potential breach of the legitimate expectation, and thus unlawful unless justified. 


However, by the date of the Claimant’s application to the Defendant in December 2016 and the Defendant’s decision in March 2017, there was no longer an established practice that reasons would be given for a decision not to call in an application. On the contrary, the established practice was that reasons would not be given. I consider that the earlier statements and practice relied upon by the Claimant had been superseded by 2016/2017 and so could no longer found an expectation that reasons would be given. If any such expectation was held, it had ceased to be a legitimate one, because of the change in practice.”

Despite permission to appeal having been given, I wonder whether Save will proceed. According to the Landmark summary it seems that the court has made clear that even if the challenge is successful it will not result in the quashing of the permission which Westminster City Council has now issued. What is sought is also a classic example of a substantive rather than procedural legitimate expectation – ie not that the claimant should have been consulted, but that the defendant should not have changed its policy, which engages the additional test I set out earlier. 
Two earlier failed claims by way of example:
In R (Leicestershire Police and Crime Commissioner) v Blaby DC (Foskett J, 27 May 2014) a police force tried to argue that it had a legitimate expectation of further consultation in relation to planning obligations, from which it would benefit, before a section 106 agreement was completed. 
The judge said this:
“There is, of course, a good deal of authority on the issue of legitimate expectation. I am quite prepared to accept for present purposes that a course of dealing between two parties in the kind of context with which this case is concerned can in some circumstances give rise to a legitimate expectation that some particular process will be followed by the public authority the subject of the challenged decision before the decision is taken. The course of dealing can be on such a basis that the necessarily “clear and unambiguous” representation upon which such an expectation is based may arise.

Did anything of that nature arise in this case? I do not think so. What one can see from the communications to which I have referred is a pattern of negotiation, in effect between the Claimant and the developers with the Defendant as the intermediary, where no unequivocal representation was made by the Defendant that could have led to an expectation that it would be consulted “on the level of and timing of the delivery of the contribution”. That having been said, however, there can be little doubt that the Defendant was aware of the Claimant’s view on the timing of the premises contribution which, in one sense, was the most significant part of what was required by way of infrastructure funding. The equipment contribution was discussed and the police could have given “chapter and verse” on that if they had chosen to do so prior to the final discussions between the Defendant and the developers. However, I do not see any basis for a specific obligation on the Defendant’s part to inquire about that.”
A second failed example, this time as to substantive legitimate expectation, in R (on the application of Godfrey) v Southwark LBC (Court of Appeal, 24 April 2012):
The claim is based on the council’s failure to give effect to an understanding in relation to the provision of a community centre as a part of the proposed development. It was submitted that the council has failed to take account of a material planning consideration, the project brief, and that the council has not implemented its own policy 7P. Further, there was a substantive legitimate expectation that better facilities would be provided than have been provided by the permission. Reliance is placed on documents issued by the council in 2002 and 2003 and discussions which took place at that time between council officers and local residents.

Again, on the facts the claim was rejected. 

All of this is not to say that a breach of legitimate expectation claim will never succeed. In R (Majed) v London Borough of Camden (2010), the Court of Appeal held that a local planning authority‘s statement of community involvement gave rise to a legitimate expectation that the consultation set out in it (which was additional to the statutory minimum) would be carried out. The Court held that legitimate expectation came into play when there was a promise or a practice to do more than that which was required by statute and that the statement of community involvement issued by the local authority was a “paradigm example” of such a promise and practice.

This was revisited in R (Gerber) v Wiltshire Council (Court of Appeal, 23 February 2016), although, as so often, the claim failed on the facts:
“40. With respect to the judge, I accept the submission of the appellants that he erred in his ruling that on its proper interpretation the SCI contained an unambiguous promise to consult Mr Gerber directly about the application for planning permission, which the Council failed to honour. The judge arrived at this conclusion by running together para. 5.6 of the SCI with the summary of the position in Appendix 1 to the SCI, set out above. In my judgment, however, on a proper interpretation of the SCI the relevant policy is that set out in para. 5.6, and it cannot be said that it is possible to read that in conjunction with Appendix 1 in order to spell out a clear and unambiguous promise in accordance with the relevant standard in MFK Underwriting Agencies that any neighbour affected by an application for planning permission would be consulted directly by the Council.
41. Paragraph 5.6 of the SCI is clearly set out within that document as the relevant policy for consultation of neighbours. It is expressly directed to consultation of the owners of properties adjoining sites for proposed development. Gifford Hall does not adjoin the Site in the present case, so Mr Gerber could not bring himself within the scope of para. 5.6.

42. In my view, it is not possible to say that the text in Appendix 1 leads to the conclusion that the SCI contains a clear and unambiguous promise that anything more extensive will be done by the Council by way of consultation: (i) para. 5.6 is drafted in precise terms which conflict with the wider interpretation which the judge sought to spell out of the SCI, so at best (from Mr Gerber’s point of view) there is an ambiguity in the SCI; but in any event, (ii) para. 5.6 is highlighted in the main text of the SCI and clearly identifies the content of the relevant policy in the SCI, so it must be regarded as setting out the definitive statement of what the Council promises to do; and (iii) Appendix 1 to the SCI, although poorly drafted, is not part of the main text of the document and does not purport to set out definitive policy promises or to qualify the main text of the SCI, but only sets out a summary of different options to make broad comparisons between them. 

43. Although the proper interpretation of the SCI is an objective matter for the court and the way in which the parties may have read the SCI is in no way definitive, I think it is fair to point out that in the letter of 22 April 2014 Mr Gerber and his then solicitors identified para. 5.6 in the SCI, and not Appendix 1, as containing the relevant statement of policy by the Council. In my opinion, they were correct to do so.

44. There was, therefore, no breach of legitimate expectation by the Council. Mr Gerber says that other non-adjoining properties received individual notifications of the application for planning permission, but the Council has given an explanation why that happened which appears reasonable. The important point for present purposes, however, is that whether the Council’s explanation is accepted or not, this feature of the case does not support Mr Gerber’s legitimate expectation submission, founded as it is on what he maintains the Council promised in the SCI itself.”

When you feel wronged, as undoubtedly all of these claimants did, it can be tempting to expect your lawyer to raise sword of justice above head and invoke the spirit of Henry V, Act III, Scene 1, and not very Shakespearean to be talking of proceeding with caution, but what you definitely need is unequivocal assurance in more ways than one. 

Simon Ricketts, 24 March 2018
Personal views, et cetera

Expletive Deleted: Revising Policy

I learned today from an Independent piece (27 January 2018) that “an “expletive” originally meant any unnecessary word or phrase used to fill out a sentence. It comes from the Latin ex-, out, and plere, fill, and came to mean a swear word only in the 19th century.”
This coincides with what I was going to cover in this blog post, namely the need for more precise drafting of policy, particularly in relation to the NPPF, and particularly if the courts continue with their present approach to policy interpretation disputes.  

When the Commons CLG Select Committee reported in 2011 on its inquiry into the draft of what became the current NPPF, its conclusions included this passage:
Brevity and simplicity are to be applauded in any document. However, we consider that the NPPF does not achieve clarity by its brevity; critical wording has been lost and what remains is often unhelpfully vague. If the NPPF is to be a document that assists with practical decision-making, rather than a lawyers’ charter or an easy-to-read guide to the planning system, its drafting must be more precise and consistent, and sufficiently detailed to enable local authorities to write their own Local Plans. The Government should carefully consider the alternative drafts, submitted by many organisations as part of DCLG’s consultation, in order to produce a tighter, clearer document, and should not make a fetish of how many pages it is. Examples of such words and phrases needing tighter definitions in the NPPF include: ‘significant weight’; ‘great weight’; ‘substantial weight’; ‘considerable weight’; ‘significant flexibility’; ‘a high degree of certainty’; ‘sustainable economic growth’; ‘absent’; ‘silent’; ‘indeterminate’; ‘out-of-date’; ‘certificate of conformity’, ‘where practical’; and ‘where reasonable‘.”
Whilst changes were made in the final 2012 document, too much was left loose. In retrospect, there was an obvious reason: the one document was trying to provide at least three separate things:
– political advocacy as to policy outcomes sought by the Government

– a precise framework for local authority policy making and decision taking

– a significantly condensed version of numerous previous policy documents

It may be fine and convenient to use loose, sometimes emotive (“the golden thread”) or purely exhorting language for a document with solely that first role, but certainly not the second or third, where precise words matter.  
It is also a mistake to imagine that, in order to be more precise, a document has to be longer. In fact there are far too many adjectives and adverbs in the current NPPF and I would be red-pen brutal. Is each necessary? For instance, what is the difference between “evidence” and “compelling evidence” (para 48), “positively seek” vs “seek” (para 14) or “significantly and demonstrably outweigh” vs “significantly outweigh” (also para 14)?
If the word is necessary, is its meaning sufficiently defined or calibrated? By this I mean, what precisely is meant by, for instance, “substantial” (used 11 times), or “significant”/”significantly” (used 27 times) or “exceptional” (used 9 times)? If the answer is that this is for the LPA to determine, say that. However, I am not sure that this is often what is meant and the participants descend into trying to weigh the indeterminate presumption in favour of the plan in section 38(6) of the 2004 as against various matters which are either given an uncertain degree of additional weight by national policy or by statute (for instance the unhelpfully differing terminology in relation to specific duties on decision makers in relation to listed buildings, conservation areas and AONBs in sections 66(1) – “special regard” – and 72(1) – “special attention” – of the Listed Buildings Act 1990 and section 85(1) – “regard” – of the Countryside and Rights of Way Act 2000 respectively). 
Apples with pears perhaps but contrast the analysis of proposals as against policy with the more methodical and internally consistent categorisation of effects in the environmental impact assessment process. Through the good work of IEMA and others, standardised terms have recognised meanings. We need to work towards that in relation to for example judging harm to designated heritage assets for the purposes of paragraphs 132 to 134 of the current NPPF – practical consequences flow from whether there is likely to be “harm” and whether any harm is likely to be “substantial” or “less than substantial”, with practitioners recognising different degrees of harm within those policy categories. 
This doesn’t just matter to lawyers. Jonathan Edis and Elizabeth Stephen in A Consultant’s view of the NPPF (Papers from the Institute of Archaeology, 2013):

The problem is that we know there is harm, but we are not given the words to describe it and convert it into a form where it can be put into the planning balance consistently. We know from recent appeal decisions that less than substantial harm can include levels of impact that are also described as significant and considerable, which concentrates a disconcerting number of similar adjectives in a small conceptual space. Lower down the scale we also know that less than substantial harm can accommodate effects which are described as minor, which is easier to swallow. However, the NPPF provides no framework within which to rank these terms, and there is no indication of how to describe the lowest level of harm to be considered under paragraph 134 of the NPPF

Definition doesn’t necessarily mean greater length or making the document less readable. The existing glossary could be expanded, or there could be a clearer read-through to the relevant passages in the Planning Practice Guidance (with hyper-text links in the NPPF to all defined terms). But in some instances, the policy wording in the NPPF could itself be made more specific. Indeed this is what the Government has consulted upon in relation to the relevant test for amending green belt boundaries: the guidance in paragraph 83 that “Green Belt boundaries should only be altered in exceptional circumstances, through the preparation or review of the Local Plan” is proposed (see paragraph 1.39 of the Government’s February 2017 Housing White Paper) to be replaced with specific criteria that are to be applied. 
The problems arising from loose wording are evident from the extent of litigation that has revolved around specific words and phrases of the NPPF, litigation which has obvious costs, both direct (for the participants) and indirect (for society and the economy). 
In Suffolk Coastal (see my 5 May 2017 blog post NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying?), Lord Carnwath described the NPPF as “a simplification of national policy guidance, designed for the lay-reader“, but it can’t just be that. (Indeed for the lay-reader I suspect it is hopelessly confusing and raises all sorts of unjustified expectations). It does need to have some legal precision if it is intended to have practical effects. Lord Reed in Tesco Stores Limited v Dundee City Council states that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context“. This is an interpretative role that the courts cannot step back from, although being careful to recognise that, as stated by Lord Carnwath in Suffolk Coastal, “the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two.”

Does Government analyse the extent to which litigation could have been reduced by clearer policy wording? Why for instance was the Suffolk Coastal saga not stopped well before the Supreme Court by a ministerial clarification of how paragraphs 14 and 49 are intended to work?

The courts are also placed in a bind. They are rightly turned to for resolution of disputes as to what the words actually mean, but they strain against overlaying their own interpretation upon the words themselves and from interfering with the application, as opposed to interpretation, of policy. Challenges are routinely being knocked back on the basis of “excessive legalism” but the disputes arising are often not in truth “legalistic”, they are (in line with the Tesco case) disputes as to what the policy in question actually means, which surely matters. Is it acceptable (from the perspective of fairness and predictability) or sensible (from the perspective of the Government achieving its desired policy outcomes and reducing delays caused by appeals) to have vague statements in policy that can be read in different ways (and which the courts will refrain from defining)?
The distinction between policy interpretation and policy application can be difficult to make. It often flows only from a decision by the court as to whether the decision-maker’s interpretation was correct, for which the applicant first has to litigate. For instance, this week the Court of Appeal in Jelson Limited v Secretary of State (19 January 2018) declined to quash an inspector’s decision on the basis of an alleged incorrect approach to arriving at a figure for objectively assessed housing needs in the relevant area. Christopher Lockhart-Mummery QC on behalf of Jelson pointed to various alleged mistakes in the inspector’s approach as against the requirements of the NPPF. 

As a result, Mr Lockhart-Mummery submitted, the inspector failed to approach her assessment of the “full need” for affordable housing as she should have done, and failed to identify, with “clarity and precision”, a robust figure for the “full, objectively assessed needs” for housing in the council’s area. 

I cannot accept those submissions. They collide with the most basic principle in the court’s jurisdiction to review planning decisions, which is that matters of planning judgment are not for the court, but for the decision-maker – here an inspector appointed by the Secretary of State – and that the decision-maker’s exercise of planning judgment will not be overturned except on clearly demonstrated public law grounds.”
The court held that the inspector had not misunderstood the approach to be taken and that her conclusions were therefore beyond challenge. 
Paragraphs 23 and 24 of Lindblom LJ’s judgment are important:
“As this court has emphasized in Oadby and Wigston Borough Council, against the background of its earlier decisions in Hunston Properties Ltd.and Gallagher Estates Ltd., national policy and guidance does not dictate, for decision-making on applications for planning permission and appeals, exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need against which to test the relevant supply (see paragraphs 35 and 36 of my judgment). In this respect, government policy, though elaborated at length in the guidance in the PPG, is not prescriptive. Where the Government wanted to be more specific in the parameters it set for decision-makers considering whether a local planning authority could demonstrate the required five-year supply of housing land, it was – in laying down the approach to calculating the supply of deliverable housing sites in paragraphs 47 and 49 of the NPPF, and, in particular, in carefully defining the concept of a “deliverable” site (see my judgment in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, at paragraph 36). 

Responsibility for the assessment of housing need lies with the decision-maker, and is no part of the court’s role in reviewing the decision. Although the decision-maker is clearly expected to establish, at least to a reasonable level of accuracy and reliability, a level of housing need that represents the “full, objectively assessed needs” as a basis for determining whether a five-year supply exists, this is not an “exact science” (the expression used in paragraph 2a-014-20140306 of the PPG). It is an evaluation that involves the decision-maker’s exercise of planning judgment on the available material, which may not be perfect or complete (see the judgment of Lang J. in Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), at paragraph 27). The scope for a reasonable and lawful planning judgment here is broad (see the judgment of Hickinbottom J. in Stratford-on-Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin), at paragraph 43). Often there may be no single correct figure representing the “full, objectively assessed needs” for housing in the relevant area. More than one figure may be reasonable to use. It may well be sensible to adopt a range, rather than trying to identify a single figure. Unless relevant policy in the NPPF or guidance in the PPG has plainly been misunderstood or misapplied, the crucial question will always be whether planning judgment has been exercised lawfully, on the relevant material, in assessing housing need in the relevant area (see paragraphs 32 to 38 of my judgment in Oadby and Wigston Borough Council). A legalistic approach is more likely to obscure the answer to this question than reveal it (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council).”

This reflects what Lindblom LJ stressed in Mansell v Tonbridge and Malling Borough Counci (Court of Appeal, 8 September 2017):

The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. A particular policy, or even a particular phrase or word in a policy, will sometimes provide planning lawyers with a “doctrinal controversy”. But even when the higher courts disagree as to the meaning of the words in dispute, and even when the policy-maker’s own understanding of the policy has not been accepted, the debate in which lawyers have engaged may turn out to have been in vain – because, when a planning decision has to be made, the effect of the relevant policies, taken together, may be exactly the same whichever construction is right (see paragraph 22 of my judgment in Barwood v East Staffordshire Borough Council). That of course may not always be so. One thing, however, is certain, and ought to be stressed. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also – however well or badly a policy is expressed – that the court’s interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect – in every case – good sense and fairness in the court’s review of a planning decision, not the hypercritical approach the court is often urged to adopt.”

But “excessive legalism” is in itself a value-laden term. What is an acceptable level of “legalism”? What is the difference between correct legal interpretation and unacceptable legalism? Is legalism sometimes excessive even if it is based on a correct legal interpretation?
We have seen a similar approach by the courts in the retail planning area, where there is still much genuine uncertainty as to the proper application of the sequential test and specifically as to the flexibility required of the applicant in looking for potentially more central locations (NPPF, paragraph 24). I referred in my blog post Town Centres First? Two Recent Decisions (22 December 2017) to words of caution by Ouseley J, in refusing permission in relation to the Tollgate Colchester challenge) as to the dangers of relying too heavily on judicial interpretation of policy. We have now obtained a transcript of his judgment (contact me if you would like a copy). It includes this passage:

“I simply make this word of warning in the light of the decision I have come to, which I will shortly reveal, that what I said in Aldergate Properties also comes with a warning I gave in Aldergate Properties, that the language that the court uses to explain what a policy means in a particular context is not a substitute for the words of the policy itself, which fall to be construed and then applied in relation to the particular circumstances at issue. The words of para.24 are very simple but are intended, however, for application in a wide variety of circumstances, and no one phrase is necessarily apt for application, still less as a substitute, in all the circumstances. I had also intended by the use of the word “broad” and “approximate” something a little more flexible than the word “closely similar” as a substitute might have indicated.”

That may sound sensible, but the words of the policy allow for differing interpretations. How does one determine the appropriate interpretation for the specific circumstances and is the applicant and local community alike in the hands largely of the decision-maker? Is that the latitude the Government intended to give?
Whatever emerges as the draft revised NPPF really needs to be stress-tested and amended accordingly. Which are the words and phrases over which we will all inevitably fall out and how to lance those disputes now by a bit more clarity, rather than in court or at planning appeal? What is the Government willing to leave to authorities and inspectors to work out? I am not necessarily suggesting a longer document but certainly delineation between supporting explanatory test and policy; a more rigorous approach to defined terms, and an adjectival haircut. 
Simon Ricketts, 27 January 2018
Personal views, et cetera

Money & Justice: Tribunal Fees, Licensing Fees, Court Costs

Topical issue: what are the legal constraints on the Government and local authorities in setting the fee rates and cost recovery regimes for administrative and court processes?
Claimant and applicant fee rates in particular are seen by the Government as a lever to seek to 
– ensure that users of procedures make a fair contribution to the costs of providing them

– reduce the burden on the public purse and

– winnow out those who are seen as misusing the system. 

This is however a dangerous game, if access to justice is to be maintained in accordance with domestic and international legal principles. How to get it right?
Dove J heard on 19 July the judicial review by RSPB, Friends of the Earth and ClientEarth of the Government’s changes to the cost capping regime regime that applies to JRs relating to environmental law matters. They take the position that the changes breach the Aarhus Convention’s requirement that access to environmental justice must be available, without prohibitive cost. I have previously blogged on the Government’s changes. ClientEarth issued this press release after the hearing but judgment has been reserved. 

I would not be surprised if that set of proceedings did not end up in the Supreme Court. If so, it could be a worthy sequel to two interesting rulings from the Supreme Court in the last couple of weeks in relation to different subject areas but that same underlying theme. 

R (Unison) v Lord Chancellor (Supreme Court, 26 July 2017) concerned a challenge by trade union Unison to the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Supreme Court agreed with the claimant that the fee regime for claimants in employment tribunal proceedings and appellants in relation to appeals to the Employment Appeal Tribunal was unlawful because of its effects on access to justice. The full judgment handed down by Lord Reed and supplementary judgment by Lady Hale in relation to discrimination issues are well worth reading. Here are some quotes, which you may care to read with our planning system in mind:
There is a “constitutional right of access to justice: that is to say, access to the courts (and tribunals: R v Secretary of State for the Home Department, Ex p Saleem [2001] 1 WLR 443).” (paragraph 65)
At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.” (paragraph 68)
“People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations.” (paragraph 71)
“There is however no dispute that the purposes which underlay the making of the Fees Order are legitimate. Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice. Measures that deter the bringing of frivolous and vexatious cases can also increase the efficiency of the justice system and overall access to justice.” (paragraph 86)
“The Lord Chancellor cannot, however, lawfully impose whatever fees he chooses in order to achieve those purposes. It follows from the authorities cited that the Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice. That will be so because section 42 of the 2007 Act contains no words authorising the prevention of access to the relevant tribunals. That is indeed accepted by the Lord Chancellor. ” (paragraph 87)
“In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence now before the court, considered realistically and as a whole, leads to the conclusion that that requirement is not met. In the first place, as the Review Report concludes, “it is clear that there has been a sharp, substantial and sustained fall in the volume of case receipts as a result of the introduction of fees”. While the Review Report fairly states that there is no conclusive evidence that the fees have prevented people from bringing claims, the court does not require conclusive evidence: as the Hillingdon case indicates, it is sufficient in this context if a real risk is demonstrated. The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.” (paragraph 91)
“The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable.” (paragraph 93)
“Given the conclusion that the fees imposed by the Fees Order are in practice unaffordable by some people, and that they are so high as in practice to prevent even people who can afford them from pursuing claims for small amounts and non- monetary claims, it follows that the Fees Order imposes limitations on the exercise of EU rights which are disproportionate, and that it is therefore unlawful under EU law.” (paragraph 117)
The previous week the Supreme Court had returned to the difficult and long-running saga of challenges to Westminster City Council’s fees regime for the licensing of sex shops. The case has been an unholy mess for the Council. It had been setting licensing fees at a rate that included its costs of enforcing the licensing scheme against unlicensed third parties running sex shops. The fee was made up of two parts. One part was payable regarding the administration of the application and was non-refundable. Another part (which was considerably larger – £29,435 in 2011/12) was for the management of the licensing regime and was refundable if the application was refused. Licensed shops brought a challenge, arguing that the second element of the fee was in breach of the Provision of Services Regulations 2009 (SI 2009/2999) (which had been made to give effect domestically to EU Directive 2006/123/EC) and that the only fees that the Council could levy related to the administrative costs of processing the relevant applications and monitoring compliance with the terms of the licence by licence holder, rather than fund enforcement against those who didn’t seek or obtain licences. 
Regulation 18 of the 2009 Regulations provides that:
“(2) Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must not – 

(a) be dissuasive, or

(b) unduly complicate or delay the provision of the service”

“(4) Any charges provided for by a competent authority which applicants may incur under an authorisation scheme must be reasonable and proportionate to the cost of the procedures and formalities under the scheme and must not exceed the cost of those procedures and formalities.”

The Court of Appeal had upheld the claim in 2013 and as a result made repayments totalling £1,189,466 to the licence holders, together with a further £227,779.15 which it paid, it turned out, by mistake. 
However, the Supreme Court overturned that ruling in 2015, finding that the fees regime was basically lawful. There was one aspect which the court referred to the European Court of Justice, namely the way in which the part of the fee which covered wider enforcement costs was paid upfront when the application was made but only repaid if the application was unsuccessful. The European Court confirmed in November 2016 that this aspect of the regime was indeed unlawful. 
The case came back to the Supreme Court with the Council arguing that it was entitled to be paid or repaid the sums it repaid to licence holders in 2013 and the licence holders in turn contending that they are entitled to retain the repayment made to them in full, because it was charged in a way which in part at least had been unlawful. In its judgment dated 19 July 2017 the court basically agreed with the Council that it is entitled to be reimbursed to the extent that it has raised fees lawfully, but it has remitted the case to the Administrative Court to resolve a whole host of complexities that arise from the whole mess, including a number of accounting issues, complications arising where licensees have ceased to exist and the recovery of the monies that the Council had paid by mistake. 
Implications for planning
It may be thought that our planning system currently has the opposite problem: many applicants would be willing to pay higher application fees if the fees enabled authorities to staff up and offer a faster, better, service. The Government went less far than many would have wished when it announced in its February 2017 housing white paper that:
“We will increase nationally set planning fees. Local authorities will be able to increase fees by 20% from July 2017 if they commit to invest the additional fee income in their planning department. We are also minded to allow an increase of a further 20% for those authorities who are delivering the homes their communities need and we will consult further on the detail. Alongside we will keep the resourcing of local authority planning departments, and where fees can be charged, under review.” (para 2.15)
But even that relatively weak and overdue measure has not yet been brought into effect. 
More controversially the white paper indicated that the Government would consult on introducing a fee for applicants submitting planning appeals: “We are interested in views on this approach and in particular whether it is possible to design a fee in such a way that it does not discourage developers, particularly SMEs, from bringing forward legitimate appeals. One option would be for the fee to be capped, for example at a maximum of £2000 for the most expensive route (full inquiry). All fees could be refunded in certain circumstances, such as when an appeal is successful, and there could be lower fees for less complex cases.”

The white paper consultation sought views on: 
“a) how the fee could be designed in such a way that it did not discourage developers, particularly smaller and medium sized firms, from bringing forward legitimate appeals; 

b) the level of the fee and whether it could be refunded in certain circumstances, such as when an appeal is successful; and 

c) whether there could be lower fees for less complex cases.”

This is another area where we await an indication of whether the new ministerial team will take a different approach. Careful note will need to be taken of the Supreme Court’s rulings in Unison and in Heming. 
Finally, court fees continue to increase, most recently, from 26 July 2016, by way of the Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016 . The Order’s explanatory memorandum puts it like this:
“The majority of fees affected by this instrument will be increased by a rate which is above the level of inflation. The Government has decided, in view of the financial circumstances and given the reductions to public spending, that such an increase is necessary in order to make sure that the courts and tribunals are adequately funded and access to justice is protected, in the long term.
In relation to judicial review, the fee levels are still relatively modest compared to some other court procedures but are still significant sums for some claimants to find, particularly at short notice:
– application for permission to apply £154 (previously £140)

– request to reconsider at a renewal hearing £385 (previously £350)

– to proceed to a full hearing if permission is granted £770, or £385 if reconsideration fee already paid (previously £700 and £350)

There is that tired saying about justice in England being open to all, like the Ritz Hotel. It’s true, save that the Ritz doesn’t close its doors for months on end. The court term ends on Monday 31 July (with the next term starting on 1 October). 
The end of this term marks the end of an era for the Supreme Court: Lords Neuberger and Clarke are retiring (there is an amusing Legalcheek account of their 28 July valedictory speeches) and Lady Hale will become president (only of the Supreme Court unfortunately rather than of the western world). If only we were to see more blogging from the retired judiciary such as that of Sir Henry Brooke. Do read his recent blog post on a truly surreal Tribunal case. 
 Simon Ricketts, 29 July 2017
Personal views, et cetera

Aarhus: Caps In The Air Again

 The Aarhus Convention requires that access to justice in environmental matters should be “be fair, equitable, timely and not prohibitively expensive”. 
Dear patient reader, you will recall that in 2013 the Government introduced a relatively simple mutual costs capping system. It is described in my 19 November 2016 blog post Mending Aarhus, along with a summary of the Government’s response to consultation in 2015 as to proposed changes to the regime to address a number of practical flaws or unfairnesses.
Rule 8(5) of the Civil Procedure (Amendment) Rules 2017  came into force on 28 February 2017, largely implementing the Government’s November 2016 proposals.
The new rules will change the nature of planning litigation in a number of important ways:
1. The procedure was available for judicial review litigation concerning “environmental matters”. The reference to “environmental matters” has been replaced by more specific references to claims within the scope of Articles of the Aarhus Convention that relate to access to environmental information and environmental assessment. Claimants challenging decisions in relation to non-EIA development may now find that they can no longer secure costs protection, even though their claim concerns environmental issues. 
2. The procedure is widened from judicial review litigation to include challenges to enforcement notice appeal decisions but, contrary to what the Government has previously indicated, not section 288 planning appeal decision challenges (nor indeed other statutory appeals, for instance in relation to plan making or compulsory purchase orders). 
3. The procedure is now only open to “members of the public” as defined in the Aarhus Convention (the Convention defines “the public” as “one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups”). The interpretation will ultimately be for the courts to determine (more unnecessary cost and uncertainty) but in my view this is likely to exclude local authorities and other emanations of the state, including parish councils. The idea of a district or borough council seeking to rely on Aarhus costs capping in a claim against another council has sometimes been bizarre but query whether poor as church mice parish councils should be similarly shut out. 
4. Any claimant seeking to have its costs exposure capped will have to file and serve with the claim form a “schedule of the claimant’s financial resources which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth”. It will be crucial, in the short period of time available before the claim is filed and served, to make sure that what is said is both accurate and is not likely to lead the court, on application by the defendant or of its own accord, to increase or remove the caps, having regard to the following principles:
Varying the limit on costs recoverable from a party in an Aarhus Convention claim 45.44.—(1) The court may vary the amounts in rule 45.43 or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim.
(2) The court may vary such an amount or remove such a limit only if satisfied that— 
* (a)  to do so would not make the costs of the proceedings prohibitively expensive for the claimant; and 


* (b)  in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant. 


(3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either— 

(a) exceed the financial resources of the claimant; or 

(b) are objectively unreasonable having regard to— 

(i) the situation of the parties;
(ii) whether the claimant has a reasonable prospect of success; 

(iii) the importance of what is at stake for the claimant; 

(iv) the importance of what is at stake for the environment; 

(v) the complexity of the relevant law and procedure;and 

(vi) whether the claim is frivolous

There are some big uncertainties in these criteria. For example, what are the “financial resources” of the claimant? Is the claimant expected to sell illiquid capital assets (such as his or her home, or cash in his or her pension) to meet a costs award that has a short deadline for compliance? If what is at stake is of great importance to the claimant, for example the loss of his home, should he be prepared to accept a higher cap? Does the claimant have to own up to what he is paying his own lawyer? How detailed must the information be as to financial support received from, for instance, contributors to a litigation fighting fund? Will potential contributors be discouraged from reaching in their pockets?
Is this the end of wealthy litigants, whether corporates or individuals, relying on costs capping? Few surely would have any problem with that (if you embark on litigation, be prepared to meet to the other side’s costs if you lose – someone has to) but will this also kick out the JAMs? Will the big NGOs face difficulties explaining that a cap of more than £10,000 would be prohibitively expensive? Will the uncertainties prevent potential litigants from embarking on proceedings in case they lose protection when it is too late in practical terms to back out?
5. Defendants who unsuccessfully challenge costs caps will no longer face an award of costs on an indemnity basis in relation to their challenge. Surely challenges will be much more frequent – and the threat, in responses to pre-action letters, of challenges to costs caps so as to discourage potential claimants. 
6. Any hearing on costs capping issues may be held “in private if it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality”. If hearings are required, which judges seek to avoid on costs cap issues so as not add to the costs burden of the parties, what personal financial information wouldn’t fall into that category?
7. The rules now make clear, in line with case law, that where there are multiple claimants, the £5,000 (for an individual) and £10,000 (for a group) caps apply to each claimant rather than being apportioned between them. 
8. The costs capping regime has now been extended to the Court of Appeal but only in the most sketchy way, not materially changing current practice. The Court of Appeal is simply directed to “consider whether the costs of the proceedings will be prohibitively expensive for a party who was a claimant” and “if they will be, make an order limiting the recoverable costs to the extent necessary to prevent this”.
The House of Lords Secondary Legislation Scrutiny Committee has strongly criticised the amended rules: “The MoJ has not provided a convincing case for changing from the previous standardised system of cost capping, which was well understood, to this more complex system which appears to have significant potential to increase both the costs for public administration and the uncapped litigation costs of the claimant”. 

Furthermore, in bad timing for the Government, the UN Aarhus Convention Compliance Committee published a report on 24 February 2017, only four days before the amended rules came into force, continuing to express concerns about the operation in England and Wales of costs capping in environmental cases and the changes that were consulted upon in 2015: “with the exception of the proposal to broaden the scope of “Aarhus claims” to include statutory appeals falling within article 9, paragraph 2, of the Convention” [ironically now not fully included as it transpires!] “all proposed amendments would increase rather than decrease uncertainty and risk of prohibitive costs for claimants”. 

The compliance of the amended rules with the Convention is heading for the courts, following a judicial review brought by ClientEarth, Friends of the Earth and RSPB. 
As both poacher and gamekeeper, what do I think? The 2013 rules have not been working badly but it has been absurd on occasion to see wealthy individuals and substantial companies and groups take advantage of extremely low costs caps in litigation against local authorities that have increasingly tight budgets. What would be wrong in that situation in having a mechanism for doubling or trebling the default £5,000/£10,000 cap, as long as the mechanism can be kept as fast and simple as possible? Balancing simplicity against fairness to all is as always the challenge – and for the developer sitting on the sidelines as an interested party the real devil, as always, is delay. 
Simon Ricketts 11.3.17
Personal views, et cetera

NB Invaluable to this piece was first a call from Nicola Gooch at Irwin Mitchell on 28 February, then this good Will Upton blog post and then finally a thought-provoking Francis Taylor Building event presented by Robert McCracken QC, Ned Westaway and Charles Streeten.