Various of us, including Victoria, will be discussing the documents in detail at our clubhouse Planning Law Unplanned session from 6pm on Tuesday 27 July 2021. Do join us, either to listen or to make your views known. A link is here.
The House of Commons HCLG Committee report on permitted development rights
The Committee’s report was published on 22 July 2021.
I recommend reading the report itself. But some extracts from the summary:
“Whilst we understand the intention behind the recent changes, we have concerns about their impact, including on local planning authorities (LPAs) and the critical role they play in place-making. The ability of LPAs to control permitted development is limited to certain prescribed matters, principally those set out in the prior approval process. We support the use of prior approval and other conditions to control the quality of permitted development, but we heard the regime had become so complicated it was now little different from the full planning system. Furthermore, the Government has not explained how its approach to PDR fits with its proposed reforms in the planning White Paper. In particular, the recent changes appear to contradict the increased focus in the White Paper on plan-led development and local democratic involvement.
For these reasons, we recommend the Government pause any further extensions of permitted development rights for change of use to residential, including the new class MA right, which is due to take effect on 1 August, and conduct a review of their role within the wider planning system. As part of that review, we recommend it set out its long-term vision for permitted development for change of use to residential and explain how it plans to retain the benefits of these PDRs whilst not also sacrificing the ability of LPAs to shape their communities.
We broadly welcome the new use class E, as we can see the advantages of greater flexibility, but we are concerned it allows out-of-town premises, such as office blocks, to convert to retail without having first gone through the sequential test.”
This post collects together in one place some of the recent planning, environmental and compulsory purchase litigation in relation to the High Speed Two rail project.
R (Keir) v Natural England (16 April 2021, Lang J; further hearing before Holgate J, 23 April 2021, judgment reserved)
This is the interim injunction granted by Lang J preventing HS2 and its contractors from varying out works at Jones’ Hill Wood, Buckinghamshire, until either the disposal of the claim or a further order.
The claim itself has Natural England as the defendant and seeks to challenge its grant of a licence under the Conservation of Habitats Regulations 2017 in relation to works that may disturb a protected species of bat.
The question as to whether the injunction should be maintained came back to court yesterday, 23 April, before Holgate J, as well as whether permission should be granted in the claim itself, and he has reserved judgment until 2pm on 26 April.
Secretary of State for Transport v Curzon Park Limited (Court of Appeal hearing, 21 and 22 April 2021, judgment reserved)
This was an appeal by the Secretary of State for Transport against a ruling by the Upper Tribunal on 23 January 2020. My Town Legal colleagues Raj Gupta and Paul Arnett have been acting for the first respondent, landowner Curzon Park Limited, instructing James Pereira QC and Caroline Daly. Thank you Paul for this summary:
The case concerns certificates of appropriate alternative development (‘CAADs’) under the Land Compensation Act 1961. A CAAD is a means of applying to the local planning authority to seek a determination as to what the land could have been used for if the CPO scheme did not exist. Its purpose it to identify every description of development for which planning permission could reasonably have been expected to be granted on the valuation date if the land had not been compulsorily purchased. Importantly, subject to a right of appeal, the grant of a CAAD conclusively establishes that the development is what is known as ‘appropriate alternative development’. This is significant as:
• When compensation is assessed it must be assumed that planning permission for that development(s) in the CAAD either was in force at the valuation date or would with certainty be in force at some future date and
• Following reforms in the Localism Act 2001, where there is, at the valuation date, a reasonable expectation of a particular planning permission being granted (disregarding the CPO scheme and CPO) contained in a CAAD it is assumed that the planning permission is in force which converts the reasonable expectation into a certainty.
There are four adjoining sites, each compulsorily acquired by HS2 for the purposes of constructing the Curzon Street HS2 station terminus at Cuzon Street Birmingham – four different landowners and four different valuation dates (i.e. vesting dates under the GVD process). Each landowner applied for a CAAD for mixed use development including purpose-build student accommodation (PBSA). In the real world, the cumulative effects of the proposed adjoining developments (e.g. including but not limited to the proposed quantum and need for PBSA in light of a PBSA need in the local plan) would have been a material planning consideration. However, Birmingham City Council considered each CAAD application in isolation. The Secretary of State argued that they should have considered the other CAAD applications as notional planning applications and, therefore, as material considerations which would have been very likely to result in CAADs issued for smaller scale mixed-used development being issued leading to a lower total compensation award and bill for HS2. The preliminary legal issue to be determined by the Upper Tribunal and now the Court of Appeal is:
‘Whether, and if so how, in determining an application for a certificate of appropriate alternative development under section 17 LCA 1961 (CAAD) the decision-maker in determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14 LCA 1961 may take into account the development of other land where such development is proposed as appropriate alternative development in other CAAD applications made or determined arising from the compulsory acquisition of land for the same underlying scheme’.
The Upper Tribunal had rejected the landowners’ argument that the scheme cancellation assumption (i.e. disregarding the CPO scheme) under the Land Compensation Act 1961 required CAAD applications on other sites to be disregarded. However, critically, the Tribunal agreed with the landowners’ that CAAD applications were not a material planning consideration and that there was no statutory basis for treating them as notional planning applications as the Secretary of State has argued. The Tribunal also disagreed with the Secretary of State that the landowners’ interpretation of the statutory scheme would lead to excessive compensation pointing out that the landowners’ ability to develop their own land in their own interests was taken away when their land was safeguarded for HS2 and from November 2013 when the HS2 scheme was launched until 2018 when the land interests were finally acquired by HS2 any planning permissions for these sites would have been determined in the shadow of the HS2 scheme and safeguarding of the land. The Secretary of State appealed the Upper Tribunal decision and the Court of Appeal granted permission to appeal in July 2020 noting that the appeal raises an important point on the principle of equivalence (i.e. the principle underpinning the CPO Compensation Code) that a landowner should be no worse off but no better off in financial terms after the acquisition than they were before) which may have widespread consequences for the cost of major infrastructure projects.
A judgment from the Court of Appeal (Lewison LJ, Lindblom LJ and Moylan LJ) is expected in the next month or so.
This was an appeal against the refusal by HS2 Limited to disclose, pursuant to the Environmental Information Regulations 2004, information as to the potential effect of its works on chalk aquifers in the Colne Valley. The information requested was as follows:
“What risk assessments have taken place, of the potential increased risk to controlled waters as a result of imminent works by HS2 contractors along the Newyears Green bourne and surrounding wetland?
Are any of the risk assessments independent from the developers (HS2) and where are the risk assessment (sic) accessible to the public?”
By the time of the hearing before the First Tier Tribunal, three reports had been disclosed, redacted. The Tribunal summarised the issues before it as follows:
“(1) whether HS2 correctly identified the three reports as being the environmental information which Ms Green requested and whether there was further material held which came within the request;
(2) whether at the time of Ms Green’s request the three reports were “still in the course of completion” or comprised “unfinished documents” and, if so, whether the public interest in maintaining the regulation 12(4)(d) exception outweighed that in disclosure;
(3) whether disclosure of those parts of the three reports which have been redacted in reliance on regulation 12(5)(a) would have adversely affected “public safety” and, if so, whether the public interest in maintaining the regulation 12(5)(a) exception outweighed the public interest in their disclosure.”
The Tribunal found, expressing its reasoning in strong terms, that the public interest in disclosure outweighed the public interest in maintaining any exemption.
“The reports in question in this case concern a major infrastructure project which gives rise to substantial and legitimate environmental concerns. They specifically relate to the risks of contamination to the drinking water supplied to up to 3.2 million people resulting from the construction of the HS2 line. This is clearly environmental information of a fundamental nature of great public interest.”
HS2 appeared to be concerned that “if the versions of the reports current in January 2019 were made public they “… could have been used to try and impact work undertaken in finalising the information”.
“It seems to us that such an approach almost entirely negates the possibility of the public having any input on the decision-making process in this kind of case, which goes against a large part of the reason for allowing public access to environmental information.
The suggestion that public officials concerned in making enquiries and freely discussing options to mitigate environmental problems might be discouraged or undermined by early disclosure of their work seems to us rather fanciful and was not supported by any kind of evidence; the case is not comparable in our view to that of senior officials indulging in “blue sky” thinking about policy options. We accept that the material is “highly technical” but we cannot see why a lack of understanding on the part of the public would have any negative impact on HS2’s work; if a member of the public or a pressure group wanted to contribute to the debate in a way that was likely to have any effect on the decision-making process they would no doubt have to engage the services of someone like Dr Talbot, who would be able to enter the debate in a well- informed and helpful way.”
“HS2’s second main point, that the Environment Agency will be approving and supervising everything, does not seem to us of great weight. Of course the Environment Agency is there to act in the public interest in relation to the environment but its involvement cannot be any kind of answer to the need for public knowledge of and involvement in environmental decisions. The EA is itself fallible and should be open to scrutiny. If the public could simply entrust everything to it there would be no need for the EIR.
HS2’s third main point is that if inchoate information is released it could be misleading and they would incur unnecessary expense correcting false impressions. We were not presented with any specific evidence or examples to illustrate how this problem might have been encountered in practice. It does not seem to us a very compelling point.”
This was an interim ruling in an application for judicial review, made only nine days previously, of the decision by HS2 Limited to extract the protesters that were occupying the tunnel under Euston Square Gardens and alleging a failure to safely manage Euston Square Gardens in a manner compatible with HS2 Limited’s obligations under the European Convention of Human Rights. It followed a rejection of an application by Mr Maxey for an interim injunction and followed an order made requiring him to cease any further tunnelling activity, to provide certain categories of information to HS2 Limited or others and to leave the tunnel safely, with which he had not complied.
At the hearing, Mr Maxey was renewing his “application for orders requiring (a) the cessation of operations to extract the protesters from the tunnel and (b) to implement an exclusion zone. In addition, the Claimant has expanded the interest relief he seeks to include provision forthwith by the Defendant of (a) oxygen monitoring equipment; (b) a hard-wired communication method; (c) food and drinking water for the Claimant and the protesters; and (d) to make arrangements for the removal of human waste from the tunnel.” He was also seeking to overturn the orders against him.
The judge rejected Mr Maxey’s arguments:
“While I accept that the Defendant is (or at the very least there is a good argument that the Defendant is) currently under a duty to take all reasonable steps to protect those in the tunnel under the site (including the Claimant) from death or serious injury, on the evidence before me there is no realistic prospect of the Court finding that the Defendant is breaching its duty. In my judgment, the claim for interim relief does not meet the first test.
That suffices to dispose of the interim relief application. But if it were necessary to consider the balance of convenience, I would have to bear in mind the strong public interest in permitting a public authority’s decision (here a decision to proceed with the operation and a decision as to the necessary safeguards) to remain in force pending a final hearing of the application for judicial review, so the party applying for interim relief must make out a strong case for the grant of interim relief. The Claimant has not come close to establishing a strong enough case to justify the Court stopping the operations to remove those who are in the tunnel, given the compelling evidence as to how dangerous it is for them to remain there.”
I summarised this case in my 9 January 2021 blog post Judges & Climate Change. It was Chris Packham’s failed challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee, the grounds considered by the Court of Appeal being “whether the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done” and “whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008”.
This case was heard consecutively with the Packham appeal. It related to Hillingdon’s challenge to the Secretary of State’s decision to allow (against his inspector’s recommendations) an appeal against Hillingdon’s refusal to grant HS2 Limited’s application for approval, under the Act authorising the relevant stage of the HS2 project, of plans and specifications for proposed works associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation. HS2 Limited had refused to provide Hillingdon with information so that an assessment could be made as to the effect of the proposed works on archaeological remains, HS2 Limited’s position being that it was “under no obligation to furnish such information and evidence. It says that this is because it will, in due course, conduct relevant investigations itself into the potential impact of the development upon any archaeological remains and take all necessary mitigation and modification steps. HS2 Ltd says that it will do this under a guidance document which forms part of its contract with the Secretary of State for Transport which sets out its obligations as the nominated undertaker for the HS2 Project.”
Lang J had upheld the Secretary of State’s decision but this was overturned by the Court of Appeal:
“The key to this case lies in a careful reading of Schedule 17 and the powers and obligations it imposes upon local authorities and upon HS2 Ltd. In our judgment, the duty to perform an assessment of impact, and possible mitigation and modification measures under Schedule 17, has been imposed by Parliament squarely and exclusively upon the local authority. It cannot be circumvented by the contractor taking it upon itself to conduct some non-statutory investigation into impact. We also conclude that the authority is under no duty to process a request for approval from HS2 Ltd unless it is accompanied by evidence and information adequate and sufficient to enable the authority to perform its statutory duty.”
[Subsequent note: Please also see London Borough of Hillingdon v Secretary of State for Transport (Ouseley J, 13 April 2021), “Hillingdon 2” where on the facts Ouseley J reached a different conclusion, holding that an inspector had not acted unlawfully in determining an appeal without information sought by the council from HS2 Limited as to the lorry routes to be used by construction lorries to and from the HS2 construction sites within its area].
This was a judicial review claim brought by the owner of a listed Georgian building near Regents Park. The property was separated by a large retaining wall, built in 1901, from the perimeter of the existing railway. “It rests approximately 17 metres from the front of the property and the drop from the level of the road to the railway below is approximately 10 metres. Unsurprisingly, given that the substrate is London clay, the wall has suffered periodic movement and shows signs of cracking. The Claimant’s expert says that it is “metastable”.”
The claimant was concerned as to the engineering solution arrived at for that section of the route, which was known as the Three Tunnels design. “This judicial review challenge is directed to the safety of the Three Tunnels design in the specific context of the outbound tunnel travelling so close to the base of the retaining wall. It is contended on the back of expert engineering evidence that this aspect of the design has engendered an engineering challenge which is insurmountable: in the result, the design is inherently dangerous. The risk is of catastrophic collapse of the retaining wall, either during the tunnelling works or subsequently, which would if it arose cause at the very least serious damage to the Claimant’s property. Consequently, the Claimant asserts a breach of section 6 of the Human Rights Act 1998 because her rights under Article 8 and A1P1 of the Convention have been violated.”
The judge boiled the questions down to the following:
“has the Claimant demonstrated that she is directly and seriously affected by the implementation of the Three Tunnels design, given the risk of catastrophic collapse identified by Mr Elliff? In my view, that question sub-divides into the following:
(1) should I conclude on all the evidence that the Three Tunnels design is so inherently flawed in the vicinity of the retaining wall that no engineering solution could be found to construct it safely? and
(2) have the Defendants already committed themselves to implement the Three Tunnels design regardless of any further work to be undertaken under Stage 2?
After detailed consideration of expert engineering expert on both sides, the judge rejected the claim.
This was a compulsory purchase case, about whether an owner of four units on the Saltley Business Park in Birmingham, faced with compulsory purchase of one of them, had served counter-notices in time such as to trigger its potential ability to require acquisition of its interests in all four buildings. The court ruled that it had not.
It certainly seems an age since R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014) where in a previous law firm life I acted for the claimant, instructing David Elvin QC and Charlie Banner (now QC). The case concerned whether the publication by the Government of its command paper, “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” engaged strategic environmental assessment requirements and whether the hybrid bill procedure would comply with the requirements of the Environmental Impact Assessment Directive (for more on the HS2 hybrid bill procedure, see my 30 July 2016 blog post HS2: The Very Select Committeehttps://simonicity.com/2016/07/30/hs2-the-very-select-committee/). The loss still grates. And in consequence of that ruling…
There’s a slow, slow train comin’.
Simon Ricketts, 24 April 2021
Personal views, et cetera
Thank you to my Town Legal colleague Lida Nguyen for collating a number of these cases.
Our clubhouse Planning Law, Unplanned session at 6pm on 27 April will follow a similar theme, so if you are interested in issues relating to HS2 or in wider questions as to judicial review, interim injunctions, access to information or compulsory purchase compensation, do join us, whether to contribute to the discussion or just listen in. As always, contact me if you would like an invitation to the clubhouse app (which is still iphone only I’m afraid).
When cat herders describe their job to a friend, they probably say “It’s like editing a legal textbook written by 20 barristers from the same set of chambers, to an over-arching style guide, and a deadline”.
As editor of the new second edition of “Cornerstone on the Planning Court” (Bloomsbury Professional), Michael Bedford QC would make an excellent herder of cats. Or maybe Cornerstone Barristers are just a collaborative bunch. After all, “Cornerstone on the Planning Court” is part of a series that includes Cornerstone on “Anti-Social Behaviour”, on “Information Law” and on “Social Housing Fraud”.
The first edition of Cornerstone on the Planning Court (which shall I call COTPC1) was published in September 2015, just under 18 months after the Planning Court was created. Our office copy is well-thumbed, corner-folded and spine-broken. Beyond the Civil Procedure Rules and practice directions (which, folks, don’t tell you half of what you need to know!), it has provided the main source of rigorous but practical guidance as to the operation of this new forum, now the sharp end for most litigation of relevance to planners and planning lawyers but which structurally occupies an uncertain space as a specialist list within the Queen’s Bench Division of the High Court (see also my 8 July 2018 blog post, The Planning Court).
The Planning Court has proved remarkably popular. By traditional litigation standards, the permission stage is rapid, followed by a final hearing for those cases which have not been sieved out through that process. Cases earmarked as “significant” are allocated to judges who are particularly experienced in planning law matters. There has also been an enormous throughput.
The nature of the court, separate but not separate from the wider judicial review functions of the Administrative Court, serves to obscure even basic statistics as to its overall caseload. So I was really taken by a video post last week from Mark Howells at Kings Chambers, Data and statistics of planning judicial reviews (6 April 2021) a deep dive into zipped files and data entries for information which surely should be made more easily available.
With so much new case law, together with changes to costs protection procedures, COTPC2 is a welcome update.
The second half of the book, pages 245 to 451, comprises the relevant Civil Procedure Rules themselves and related practice directions, protocols and forms. The first half of the book combines insightful summaries of the historical development of planning law and its current components, together with judicial review and statutory challenges (at a level which would be a good read even for those new to the subject) and of the many key legal principles arising in Planning Court claims, with detailed from-soup-to-nuts practical guidance for practitioners as to every aspect of the litigation process.
The foreword to COTPC2 is by Holgate J, who takes care to distinguish between decision-making procedures within the planning system which “determine the merits of the competing arguments in each case. The Court exists to deal solely with any public law issues that arise from those decisions and to do so as efficiently as possible, avoiding unnecessary delay”. He refers to “two of the fundamental foundations of our constitution: the rule of law and the separation of power between the courts, the legislature and the executive. These govern the Planning Court just as much as any other part of our legal system”. He quotes Lord Carnwath in the Suffolk Coastal case, one of the most influential cases since COTPC1:
“…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 judgment in the application of that policy; and not to elide the two”.
We have been warned.
The constitutional role of administrative law is of course a topical issue. My 12 September 2020 blog post, Faulks Review Of Administrative Law: Call For Evidence reported on the review instituted last year by the Government. Many of us were somewhat fearful as to what might emerge but the March 2021 report is to my mind an impressive, considered, piece of work.
My only disappointment is that the “no nonsense” approach of the Planning Court in many respects, particularly in relation to timescales, might have been endorsed as appropriate for wider adoption but instead we seem simply to have been acknowledged as operating in our own little world…
Particular congratulations should go to Celina Colquhoun (39 Essex chambers), as the only planning barrister on the review panel.
The Government has published a consultation document setting out proposed reforms to administrative law in response to the recommendations in the review, with a deadline of 29 April 2021. I noticed this week that ironically the Ministry of Justice has already received a threat of judicial review, from a solicitors’ firm, on the basis that the deadline is considered to be too short.
But I’ll pause there because this post was intended as a review of a book about Planning Court judicial review rather than a review of a proposed judicial review of a proposed review of judicial review.
There is one overwhelming selling point of COTPC2 for me: in the nicest possible way, it will help me sleep.
After all, who of us does not stay awake worrying about phantom missed deadlines, overlong bundles, unnecessary witness statements, late settlement notifications and everything else that can possibly go wrong?
We all want to stay out of trouble in the Planning Court, so thank you Michael and colleagues.
Simon Ricketts, 10 April 2021
Personal views, et cetera
PS This week’s Planning Law, Unplanned clubhouse session (6pm on 13 April) will have as its theme your most bizarre planning inquiry/court hearing/site visit/planning committee stories. We want to hear them on the night, with a prize to the best.
Jessie J is no judge and when it comes to litigation costs “forget about the price tag” is poor advice.
Aarhus cost caps
I last blogged about Aarhus Convention cost capping in my 22 June blog post No Time To Be 21: Where Are We With Aarhus Costs Protection? The detail is in that blog post but basically the regime allows a potential claimant in many planning and environmental cases to cap exposure to the other’s side’s costs (if the claim fails) to (subject to case by case variations) £5,000 for an individual and otherwise £10,000. As a quid pro quo, if the claimant succeeds, the claimant can only recover (subject to case by case variations) £35,000 from the other side towards its costs.
A big question, unanswered until this month, was whether these amounts are inclusive or exclusive of VAT. This only matters if the party seeking to recover the costs is not VAT-registered and cannot recover its VAT. But it matters a lot to most individuals and campaign groups.
The issue was decided following written submissions in R (Friends of the Earth) v Secretary of State for Transport (Court of Appeal, 13 January 2021). The background doesn’t matter much but is odd – Friends of the Earth were one of the parties in the Heathrow cases that won in the Court of Appeal against the Secretary of State for Transport, but the case only proceeded to the Supreme Court because interested party Heathrow Airport Limited appealed. Despite the Court of Appeal’s ruling being overturned, Secretary of State for Transport remained on the hook for Friends of the Earth’s costs from the Court of Appeal and, before then, the Divisional Court.
The relevant Aarhus Convention based costs order that had previously been made by the Court of Appeal in the main proceedings was:
“The Defendant is to pay the costs of the Claimant in the Divisional Court and in this Court, subject to detailed assessment and a cap of £35,000 in respect of the costs in the Divisional Court, and a cap of £35,000 in respect of the costs in this Court.”
Friends of the Earth submitted that this meant they were due a contribution of £70,000 towards their costs, as well as the VAT element, i.e. £84,000. (Incidentally this is the express statutory position in Northern Ireland – in England and Wales the Civil Procedure Rules are silent on the issue). The Secretary of State submitted that the cap was inclusive of any VAT element.
The Court of Appeal sided with the Secretary of State for four reasons:
“First, that is the natural meaning of the words used in those provisions. The figures are set out as absolute amounts, without qualification.
Secondly, this construction is supported by the history of the consultation exercise and the response to it by the Government in the process which led up to the enactment of CPR 45.43.
Thirdly, it does not seem to us that this would impede or frustrate the implementation in domestic law of the Aarhus Convention. That Convention simply requires that the costs of environmental litigation such as this should not be prohibitive. It does not require a contracting State to specify a particular ceiling, still less to state whether it is inclusive or exclusive of VAT.
Fourthly, the fact that the regulations applicable in Northern Ireland expressly provide for the ceilings to be exclusive of VAT does not assist FoE. Indeed, it suggests that, when the relevant legislative body wished to make the point clear, it was able to, and did so.”
So the bottom line is that the £70,000 entitlement had become an entitlement to £58,333.33 plus the VAT element on that amount.
There is an element of unequal treatment in this – if the party claiming costs were able to recover VAT the cap would in practice apply to its net costs figure, the VAT element only being an issue where the party can’t recover its VAT. Time to amend the CPR to accord with the Northern Ireland position?
Incidentally, I recommend a short YouTube summary on the case by Kings Chambers’ Martin Carter. As I write, the video has had 36 views and Jessie J’s Price Tag has had 731 million views. Come on planoraks!
Other court costs awards
Stepping aside from Aarhus costs capping, the general principle is that “if a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown why he should not recover his reasonable costs” (Lord Toulson in R (on the application of Hunt) v North Somerset Council (Supreme Court, 22 July 2015) but the court of course always has a wide discretion.
That discretion may well result in no award or a reduced award. Two examples which may serve to manage expectations:
In Tomkins v City of London Corporation (Lang J, 8 December 2020) the claimant challenged the making of an experimental traffic order in relation to Beech Street, which runs under the Barbican Estate. He won on three of eight grounds but was not awarded costs:
“The Claimant’s application for the City to pay his costs is refused. Although he succeeded on three of the eight grounds, he did not succeed in quashing the [experimental traffic order]. The Council succeeded on five of the grounds, and the issues on which the Council succeeded occupied the majority of the hearing, and the post-hearing submissions. The City incurred significant costs in preparing and presenting those issues. Their costs far exceed the Claimant’s claim for costs in respect of the grounds on which he was successful. The City is not pressing for its costs, but has instead proposed that there should be no order for costs. In all the circumstances I consider that this is a just and appropriate order.”
In Flaxby Park Ltd v Harrogate Borough Council (Holgate J, 25 November 2020) the claimant had sought to challenge the adoption of part of the Harrogate local plan on three grounds and succeeded on part of one ground. To cut a long story short (literally), Holgate J did not allow the claimant to recover the costs of an original bundle which he considered to be disproportionately lengthy or of the preparation of a witness statement which he determined to be unnecessary, and awarded the claimant 15% of the balance of its costs:
“I do not accept HBC’s submissions that there should be no order as to costs. … It was necessary for FPL to bring proceedings, but they ought to have been on a much more limited scale. Taking into account also the unnecessary expenditure to which HBC has been put in order to resist the substantial parts of the claim where FPL was unsuccessful, FPL should be awarded only 15% of its costs…”
The judgment includes a helpful review of the case law in relation to challenges to inspectors’ awards of costs, leading to the following conclusion by the judge:
“the authorities establish the following propositions:
(i) the Secretary of State is entitled to adopt a policy about costs and having done so his inspectors must apply it;
(ii) the policy is that costs may be awarded against a party for unreasonable behaviour resulting in unnecessary or wasted expense;
(iii) “unreasonable” means unreasonable in the ordinary sense of the word, not unreasonable in a Wednesbury sense;
(iv) a Council’s behaviour may be unreasonable if its refusal of planning permission could not be supported by substantial evidence, but that is not the only test and there may be other relevant factors;
(v) one example is if a developer signs a section 106 agreement; it is accepting that it is reasonable even though the inspector may not be persuaded that it is necessary.”
The Council had sought to argue that it was wrong for it to be penalised for late withdrawal of its requirement for an affordable housing contribution and for the consequence of a late indication of particular highways concerns but the judge declined to interfere with the judgment of the inspector. For instance, on the second complaint:
“In my view this is one of those cases where a different inspector may have reached a different conclusion. However, I cannot conceive that Mr Upton has surmounted the high hurdle necessary to establish that this inspector’s decision was flawed. The case which Mr Village QC put to the inspector was that the Council had not raised what became condition 19, or the further contribution to traffic calming in Darlington Drive/Parsonage Chase, until immediately before the exchange of evidence on 6 January 2020, too late to avoid the preparation of Attwood’s highways evidence. When these were raised as a way forward, Attwood agreed and it was an example of the Council’s failure to review the case promptly following the lodging of the appeal, one of the examples the PPG gives as indicating unreasonable behaviour (at para. 049, referred to earlier).”
(Town Legal’s Town Library summary of the case is here).
A few recent cases illustrate how vulnerable planning permissions can be to judicial review where there are material errors or omissions in the officer’s report to committee.
R (Wyeth-Price) v Guildford Borough Council (Lang J, 8 December 2020) is a classic example, and Lang J sets out in her judgment a textbook explanation of the legal framework, established by caselaw, in relation to decision making and officers’ reports.
It seems to me that the most risk-prone areas of an officer’s report will be:
⁃ summaries of the conclusions of often detailed and highly technical analysis, where the decision maker must not be “significantly misled” by the summary or indirectly by the material on which the summary is based – classic areas for scrutiny being effects on daylight and sunlight, viability, air quality, and noise
⁃ the interaction with other legal regimes, for example environmental impact assessment, the Conservation of Habitats Regulations or the public sector equality duty
⁃ application of legal or policy tests – classic areas being the NPPF tilted balance, green belt, AONB and heritage.
Wyeth-Price is another in a rich seam of cases where the High Court has quashed a planning permission due to the failure of the officer properly to apply the heritage tests in the NPPF, which must have been frustrating to Bewley Homes, which had achieved, so it thought, planning permission for 73 dwellings at Ash Manor, Ash Green, Guildford, following a committee resolution on 4 December 2019 on the basis of a 49 page officer’s report.
The effect on nearby listed buildings was a central issue in the consideration of the application. To quote from Lang J’s judgment:
“Adjacent to the Site…there is a small complex of historic buildings and farm structures, known as Ash Manor. The largest building within the complex is Grade II* listed and has been converted into two residential dwellings, known as Ash Manor and Old Manor Cottage. The Oast House lies to the south of it and its stables are Grade II listed. To the south of this is a further residential dwelling known as Oak Barn which is also Grade II listed. The significance of Ash Manor is derived from its historic and architectural interest as a moated manor house, thought to have thirteenth century origins, with successive phases of development dating to the sixteenth, seventeenth and mid-twentieth centuries. According to Historic England, the current agricultural and open character of the setting of Ash Manor is one that has remained constant through its history. It advised that the proposed development would cause harm to the setting of the heritage assets, assessed at less than substantial harm.”
“A homeowner in Ash Green is hoping that a new Grade II* listing from Historic England may prevent proposed developments that would surround his moated 13th-century manor house with nearly 200 houses, possibly more if further envisioned development phases are built out.
David Weller, who owns Old Manor Cottage, half of the original medieval Ash Manor House, off Foreman Road, said: “If the proposed developments go ahead the setting of our historic house will be ruined for good.”
The challenge was brought by a local resident who was formerly the chair of the Ash Green Residents’ Association. There were three grounds:
“i) Ground 1: Failure to apply section 66(1) of the PLBCAA 1990 and failure to take account of paragraphs 193 and 194 of the Framework.
ii) Ground 2: Failure to have regard to a relevant consideration, namely, the advice of Surrey Wildlife Trust in respect of a veteran tree at the Site, and acting irrationally in departing from the advice without reasons.
iii) Ground 3: Failure to have regard to material considerations concerning flooding at the Site and/or acting irrationally by ignoring expert evidence on this matter”
Grounds 2 and 3 failed and so I am just focusing on ground 1, relating to section 66(1) of the Listed Buildings Act (“In considering whether to grant planning permission…for development which affects a listed building or its setting, the local planning authority…shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”) and paragraphs 193 and 194 of the NPPF:
“193. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.
194. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification. Substantial harm to or loss of:
a) grade II listed buildings, or grade II registered parks or gardens, should be exceptional;
b) assets of the highest significance, notably scheduled monuments, protected wreck sites, registered battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.”
Lang J sets out the relevant tests and case law in her judgment before summarising the problems with the report:
“The Claimant submitted that the planning officer’s report seriously misled the Planning Committee by failing to advise members on the weight to be given to the harm to heritage assets in the balancing exercise. Although he set out section 66(1) PLBCAA 1990, he did not explain that a finding of harm to a listed building is a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. He failed to refer at all to paragraph 193 of the Framework, which requires “great weight” to be given to the asset’s conservation and the more important the asset, the greater the weight should be. He also failed to refer to paragraph 194 which requires a “clear and convincing justification” for any harm. Applying the approach of Sales LJ in Mordue, the Claimant submitted that there were positive indications in the report that the officer had not taken paragraphs 193 and 194 into account.”
“The planning officer expressly referred to the duty under section 66(1) PLBCAA 1990, both in his advice on the statutory framework and at the critical stage of the balancing exercise. However, he did not advise members on how they were required to apply the section 66(1) duty to the balancing exercise. The application of the section 66(1) duty is not explicitly clear from the wording of section 66(1), as demonstrated by the fact that it was only after the case of Barnwell that it was fully appreciated by experienced planning inspectors and lawyers that section 66(1) imposed a duty to treat a finding of harm to a listed building as a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise and that it was not open to the decision-maker merely to give the harm such weight as he thinks fit, in the exercise of his planning judgment.”
“Can it be inferred that the planning officer in this case took into account paragraphs 193 and 194 of the Framework in the balancing exercise he conducted in his report and thereby enabled members of the Planning Committee to take them into account?
In my view, there were several positive indications to the contrary…”
“Thus, in 2017, members were advised that the effect of section 66(1) PLBCAA 1990 was that a finding of harm to a listed building was a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. Members were also reminded, for the second time, of the guidance in the Framework that “great weight” should be given to the asset’s conservation – the more important the asset, the greater the weight should be – and that any harm or loss required “clear and convincing justification” for any harm. None of this advice was given in the October 2019 report. The fact that, in 2017, the planning officer was recommending refusal of permission, whereas, in 2019, he was recommending a grant of permission, ought not to have had any bearing on whether or not to include this advice in the report, and it was not suggested that it did.
“I now return to the question whether the advice was seriously misleading, thereby misleading the members in a material way so that, but for the flawed advice, the Planning Committee’s decision would or might have been different. In my judgment, the planning officer must have been aware of the guidance given by the Court of Appeal in Barnwell on the application of the section 66(1) duty to the balancing exercise and the guidance in paragraphs 193 and 194 of the Framework, as it is well-known among professional planners and he advised on it in the 2017 report. However, on a fair reading of his October 2019 report, he did not advise members of the Planning Committee on this guidance and he did not apply it when he undertook the balancing exercise on this occasion.
At the hearing I asked the parties whether an experienced member of the Planning Committee, who had been referred to this guidance in other applications, perhaps even the 2017 application, might have been aware of the guidance, even though it was not to be found in the planning officer’s report. When I raised this possibility with the parties, Mr Williams for the Council did not wish to rely upon it. Mr Fitzsimons for the Claimant rejected it on the basis that busy Committee members relied upon the officer’s report and did not do their own research. On instructions, he said that new members had recently been appointed to the Planning Committee, following elections, and so it could not safely be assumed that they were aware of the guidance, from the 2017 application or any other. It seems to me that if a member of the Planning Committee did consider that the planning officer’s report did not give accurate and/or sufficient advice on how to conduct the balancing exercise, the matter would have been raised at the meetings. The minutes of the two meetings of the Planning Committee do not record that members sought further clarification or guidance on how to conduct the balancing exercise at those meetings. Therefore I conclude that members of the Planning Committee relied only upon the advice given in the planning officer’s reports.”
There was also a short addendum report addressing amendments made to the scheme but this “report repeated the error of advising members to undertake an untilted balancing exercise, weighing the less than substantial harm to the heritage assets against the public benefits of the proposal without apparently taking into account the requirement to accord “considerable importance and weight” to a finding of harm to a listed building and “great weight” to the asset’s conservation, as a Grade II* listed building, and the need for a “clear and convincing justification” for any harm.”
In concluding that the effect of the officer’s balancing exercise was to “play down the part of the exercise represented by [paragraph 193 and 194] and to tilt the balance towards emphasising the absence of substantial harm and the public benefits to be weighed on the other side of the balance“, Lang J draws upon another case earlier this year R (Liverpool Open and Green Spaces Community Interest Company). Liverpool City Council (Court of Appeal, 9 July 2020) where the Court of Appeal quashed planning permission on the basis that there was a “substantial doubt” as to whether the section 66(1) duty had been met where the officer’s report had failed to refer to objections to the proposals from the council’s Urban Design and Heritage Conservation team, a conclusion “only strengthened by the absence, at least from the section of the officer’s report in which his assessment is set out, of any steer to the members that a finding of harm to the setting of the listed building was a consideration to which they must give “considerable importance and weight“.
In fact, omissions from a report of a reference to relevant objections – or misleading inferences from a lack of an objection – are a particularly high risk area. The Court of Appeal in the Liverpool case refer back to R (Loader) v Rother District Council (Court of Appeal, 28 July 2016) where the officer’s “report had indicated that the Victorian Society, which had objected to a previous application, had made no comments on the new proposal. In fact, they had not been consulted. The appellant argued that the committee might have been left, wrongly, with the impression that the Victorian Society were now satisfied with the revised design. This court accepted that “[in] the context of the duty [in section 66(1)], … in taking this misinformation into account, [the committee] could be said to have proceeded on the basis of an error of fact”, but that “the unlawfulness [was] better described as the taking into account of an immaterial consideration” (paragraph 57). This was enough to justify quashing the planning permission (paragraph 58).”
We now have an even more dramatic example in the case of the One Eastside development in Birmingham, a proposal for 667 apartments in a 51 storey tower near Curzon Street station.
The scheme was the subject of a 5 December 2019 Committee report (from page 122 of the pdf) but the resulting planning permission was challenged by nearby land owner LaSalle (See e.g. BD Online Glancy Nicholls tower faces judicial review ((9 November 2020).
Greg Jones QC and Esther Drabkin-Reiter have been acting for LaSalle and it seems from Francis Taylor Building’s 9 December 2020 press statement that the council has consented to judgment on the basis that “an objection to the proposed development made by the Victorian Society was not reported to the Planning Committee and further that the objection made by the Victorian Society went beyond those matters identified by Historic England which were reported to the Planning Committee.”
How precarious a planning permission can be until it has passed the deadline for a legal challenge (time again to tout my proposal that the judicial review pre-action protocol should encourage early identification by claimants of these sorts of points, before planning permission is issued – my 30 May 2020 blog post Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated? – whilst recognising that in some cases, including possibly the One Eastside example, the extent of the errors and omissions may only in fact become clear through the litigation process itself).
A Town/Landmark Chambers webinar on the Planning Court in practice and the future implications of the Faulks review is taking place at 5.30pm on 14 October, when I will be joined by Landmark Chambers’ John Litton QC, Tim Buley QC and Jenny Wigley, together with my Town partner Duncan Field. Free registration here: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ .
The webinar is in part a follow-on from the development of the Town/Landmark Chambers Case Explorer (a case searching and statistical analysis tool containing every judgment of the Planning Court since its creation in 2014 to June 2020, together with appellate judgments) and in part will consider the likely implications of the Faulks Review Of Administrative Law, which I covered in a 12 September 2020 blog post . The call for evidence deadline of 19 October 2020 is fast approaching.
But what I wanted to give you a taste of in this short post is how, with data scientist Joseph White of legal engineers Simmons Wavelength, we’ve begun to play around with new ways of exploring the contents of the Planning Court Case Explorer, and in particular the ways in which case law develops – the Planning Court Case Network.
The following images illustrate a visualised “citation network” of Planning Court cases. Each circle or ‘node’ represents a case, and each line or ‘edge’ between two nodes represents where one case has cited another (a line that curves clockwise from one case represents where that case has cited another, and a line that curves anti-clockwise represents where it has been cited). The more times a case has been cited, the larger the node.
The lone nodes on the perimeter represent cases that do not cite other cases and which have not been cited in subsequent cases.
Selecting an individual case node allows you to see some case topic keywords (extracted with a data science technique for language processing), a link to Bailii and all “incoming” links (later cases that cite the selected case) and “outgoing” links (earlier cases that the selected case cites itself).
In terms of the network layout, citations between cases draw them closer together, so what naturally emerges is dense groups or ‘clusters’ of cases that are closely related to each other (which is also represented to a certain extent by the colours).
The connections are fascinating. Whilst the data is not guaranteed to be 100% accurate we can see what are the most influential cases: Suffolk Coastal assumes centre stage as the most cited case in the whole network (62 citations!). Champion, has its own network of 30 citations, and Dover District Council v CPRE Kent has 22 citations.
Just pretty images or can I be the first to say… PlanLawTech?!
At last – the Secretary of State announced on 30 September 2020 that dwellings created by way of permitted development rights will need to comply with the nationally described space standard.
There is no timescale given for when the change will be effected, which will need to be by way of a further statutory instrument amending the 2015 General Permitted Development Order. We have already had four such SIs already this year and further changes are in the queue, such as giving effect to the 14 July 2020 announcement that planning permission will be required for the demolition of theatres, concert halls and live music venues and giving effect to the proposed relaxation of permitted development rights for 5G infrastructure (of which more below). Good luck keeping up! (It’s odd how the Government can keep updating the Planning Practice Guidance but Parliament still does not make available up to date consolidated versions of secondary legislation, whether in our planning law field or for instance in relation to coronavirus measures.)
I dealt with the nationally described space standard in my 23 March 2019 blog post We Have Standards. Since being introduced in 2015, it has been up to each local planning authority to decide whether to adopt the standard as policy in its local plan. Once it is made a legal requirement for permitted development schemes we will have the curious position that in some areas, where authorities have not adopted it as local policy, it will be required for permitted development schemes but not for projects which are pursued by way of a traditional planning application.
It is disappointing that the additional requirement was not introduced in the June and July 2020 statutory instruments, which for instance introduced the additional prior approval requirement of “adequate natural light” (NB “adequate” undefined – wait for the arguments).
Public pressure and a continuing trail of adverse media stories in relation to office to residential schemes presumably have played their part (most recently Rowan Moore’s 27 September Observer piece ‘It’s like an open prison’: the catastrophe of converting office blocks to homes). As for the 30 September timing of the announcement? That’s obvious – later that day a Commons debate took place, as scheduled, in relation to Labour’s motion that the three statutory instruments amending the General Permitted Development Order be revoked. The announcement neutralised one of the most obvious lines of attack. Predictably the motion was defeated, entirely along party lines, 327 votes to 206 votes.
And now there is yet another judicial review underway, into the Government’s 22 July 2020 announcement that it proposes to extend “permitted development rights to support the deployment of 5G and extend mobile coverage”. There is a piece about the challenge here: Government faces legal challenge over 5G phone masts ‘safety fears’ (Evening Standard, 1 October 2020). As with the Rights: Community: Action judicial review it is crowd funded. The Rights: Community: Action challenge appears to have raised £12,245 “of £25,000 stretch target from 271 pledges”. The 5G challenge appears to have raised £66,615 pledged “of £150,000 stretch target from 2,004 pledges”.
As with most crowdfunded litigation there is no analysis for potential donors on the crowdjustice website of its prospects of success, or what the judicial review process entails, but there is a link to the prospective claimants’ pre-action letter dated 21 August 2020 which alleges that the consultation process leading to the 22 July 2020 announcement was unlawful and was in breach of the public sector equality duty – and Aarhus Convention costs protection is sought. Without prejudging at all whether there is any basis for the complaints, this all is of course familiar territory in relation to these sorts of claims.
Finally, some plugs:
5.30 pm 7 October 2020
How will the Combined Infrastructure Levy work, how should it work?
(Town Legal with special guest MHCLG’s director of planning, Simon Gallagher)
And lastly, watch out for a new series by Cratus and Town, Steve Quartermain in Discussion. The first episode is an hour long conversation with Secretary of State Robert Jenrick. More news will appear on the Cratus website.
In my 15 August 2020 blog post, Introducing The Planning Court Case Explorer, I referred to the independent review of administrative law chaired by Lord Faulks, that the Government has commissioned. The review has now published, quietly it must be said, a call for evidence on 7 September 2020, with a deadline for responses of noon on 19 October 2020 (to be emailed to IRAL@justice.gov.uk).
The examination question that the review has been given by the Government is this:
“Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”
The review is politically charged. The Conservative party’s 2019 manifesto said this:
“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”
I suspect their focus will be on the, inevitably politicised, constitutional law litigation that we saw last year. That is an issue which is above this blog’s pay grade, but as a planning lawyer I’m concerned that any reform to administrative law may be to the detriment of the role of the Planning Court in relation to disputes arising under our planning system. And as we begin to move to a new system, the Planning Court will have a crucial role in joining the dots given the inevitable uncertainties that will arise. We need that process to be fast, efficient and, above all, trusted. The oversight of the process by the courts is a vital element in ensuring that our system continues to comply with, for example, the requirements of the Aarhus Convention and of Article 6 of the European Convention on Human Rights (and if anyone suggests that these things don’t matter, just wait till their property is compulsorily acquired without justification, or a dodgy planning permission is issued without any proper remedy in the courts).
I just read again the House of Lords rulings in the Alconbury cases (9 May 2001), which concerned the question as to whether various aspects of the planning system as it was at that time met the requirements of the European Convention on Human Rights, at that point having recently been incorporated into UK law by way of the Human Rights Act 1998. The House of Lords concluded that the system complied with the Convention, but on the basis that an essential element of that system was the supervisory role of the courts in reviewing the lawfulness and rationality of administrative decisions taken in the process.
My nervousness as to where we may eventually end up is accentuated by the current furore over clause 45 of the United Kingdom Internal Market Bill, due to receive its second reading in the House of Commons on 15 September.
Imagine if the next Town and Country Planning Act rendered non-justiciable any regulations made under that Act? How convenient for a Government keen to proceed fast by way of secondary legislation and no doubt unhappy with the inevitable challenges it faces along the way (of which the Rights Community Action judicial review covered in last week’s blog post is a classic example).
Or if procedural failures in relation to decisions led to a rap over the knuckles for the authority rather than an undoing of what was done outside its powers?
Or if judicial review were codified in statute in such a way as to close out challenges to rationality or challenges on grounds such as bias, or legitimate expectation?
Of course, I hope that all of this is unlikely. I have some residual faith that there remains a basic understanding of the importance of the rule of law. I was pleased to see on Friday that the British Property Federation is canvassing its members in reaction to the call for evidence and I hope that other industry bodies do the same. After all, business needs predictability and to know that it is to be treated fairly – this is not just the domain of campaigners and communities!
If you have specific experiences of the role of judicial review in relation to the planning system, please do consider responding to that call for evidence.
As with any examination questions, do read the initial rubric first:
“The Independent Review of Administrative Law (IRAL) panel invites the submission of evidence on how well or effectively judicial review balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on the business of government, both locally and centrally. The panel is particularly interested in any notable trends in judicial review over the last thirty to forty years. Specifically, the panel is interested in understanding whether the balance struck is the same now as it was before, and whether it should be struck differently going forward.
The panel would like to hear from people who have direct experience in judicial review cases, including those who provide services to claimants and defendants involved in such cases, from professionals who practice in this area of law; as well as from observers of, and commentators on, the process. The panel are particularly interested in receiving evidence around any observed trends in judicial review, how judicial review works in practice and the impact and effectiveness of judicial rulings in resolving the issues raised by judicial review.”
So, what matters is direct experiences, evidence and data rather than rhetoric.
These are the specific areas which the review will be considering:
“• Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.
• Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.
• Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.
• Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.”
The call for evidence starts with a questionnaire for “Government Departments” (but which I would suggest is equally relevant for local authorities):
“1. In your experience, and making full allowance for the importance of maintaining the rule of law, do any of the following aspects of judicial review seriously impede the proper or effective discharge of central or local governmental functions? If so, could you explain why, providing as much evidence as you can in support?
a. judicial review for mistake of law
b. judicial review for mistake of fact
c. judicial review for some kind of procedural impropriety (such as bias, a
failure to consult, or failure to give someone a hearing)
d. judicial review for disappointing someone’s legitimate expectations
e. judicial review for Wednesbury unreasonableness
f. judicial review on the ground that irrelevant considerations have been taken into account or that relevant considerations have not been taken into account
g. any other ground of judicial review
h. the remedies that are available when an application for judicial review is successful
i. rules on who may make an application for judicial review
j. rules on the time limits within which an application for judicial review must be made
k. the time it takes to mount defences to applications for judicial review
2. In relation to your decision making, does the prospect of being judicially reviewed improve your ability to make decisions? If it does not, does it result in compromises which reduce the effectiveness of decisions? How do the costs (actual or potential) of judicial review impact decisions?
3. Are there any other concerns about the impact of the law on judicial review on the functioning of government (both local and central) that are not covered in your answer to the previous question, and that you would like to bring to the Panel’s attention?”
No doubt the responses to these questions, from those inevitably on the receiving end of judicial review, will point to the delays and uncertainty caused by legal challenges, but of course that is only one side of the story, which is why it is so important that there are responses from a wide section of business and society to the main questions which I set out below:
“1. Are there any comments you would like to make, in response to the questions asked in the above questionnaire for government departments and other public bodies?
2. In light of the IRAL’s terms of reference, are there any improvements to the law on judicial review that you can suggest making that are not covered in your response to question (1)?
Section 2 – Codification and Clarity
3. Is there a case for statutory intervention in the judicial review process? If so, would statute add certainty and clarity to judicial reviews? To what other ends could statute be used?
4. Is it clear what decisions/powers are subject to Judicial Review and which are not? Should certain decision not be subject to judicial review? If so, which?
5. Is the process of i) making a Judicial Review claim, ii) responding to a Judicial Review claim and/or iii) appealing a Judicial Review decision to the Court of Appeal/ Supreme Court clear?
Section 3 – Process and Procedure
6. Do you think the current Judicial Review procedure strikes the right balance between enabling time for a claimant to lodge a claim, and ensuring effective government and good administration without too many delays?
7. Are the rules regarding costs in judicial reviews too lenient on unsuccessful parties or applied too leniently in the Courts?
8. Are the costs of Judicial Review claims proportionate? If not, how would proportionality best be achieved? Should standing be a consideration for the panel? How are unmeritorious claims currently treated? Should they be treated differently?
9. Are remedies granted as a result of a successful judicial review too inflexible? If so, does this inflexibility have additional undesirable consequences? Would alternative remedies be beneficial?
10. What more can be done by the decision maker or the claimant to minimise the need to proceed with judicial review?
11. Do you have any experience of settlement prior to trial? Do you have experience of settlement ‘at the door of court’? If so, how often does this occur? If this happens often, why do you think this is so?
12. Do you think that there should be more of a role for Alternative Dispute Resolution (ADR) in Judicial Review proceedings? If so, what type of ADR would be best to be used?
13. Do you have experience of litigation where issues of standing have arisen? If so, do you think the rules of public interest standing are treated too leniently by the courts?”
Whether you come from the standpoint of a developer, local authority or community representative, when you strip away the legalism (as we will try to do) all of this really does matter in practice – not just in relation to the small minority of matters that end up in the Planning Court, but in relation to the operation of the system as a whole: fair and predictable procedures are only possible if we know that there are rules, and that remedies are available if they are broken. And when challenges are brought, they need to be resolved with speed, fairness and efficiency.
“We understand why many participants – not just local authorities, but statutory consultees and the Planning Inspectorate – are risk averse. Judicial review is expensive, and to lose a judicial review in the courts is bad for the reputation of either [sic]. And judicial reviews can be precedent setting, establishing a new interpretation of the law. We think the proposals set out in the document should remove the risk of judicial review substantially. Most judicial reviews are about imprecise and unclearly worded policies or law. Our plans for an overhaul of planning law to create simple and clear processes and for plans that set out clear requirements and standards will substantially remove the scope for ambiguity and therefore challenge.” (Planning For The Future white paper, paragraph 5.16)
You can’t really contemplate any reform on the planning system without considering the role of the courts in the way that the system works in practice. Plainly where a public body (whether the state or a local authority) acts outside its powers, someone thereby affected needs to have access to an effective remedy, usually an order that renders it to be of no legal effect. Quite apart from the rights and procedures deriving from domestic common law principles, UK has international obligations to maintain such processes under Article 6 of the European Convention on Human Rights and, specifically in relation to access to environmental justice, under the third pillar of the Aarhus Convention. You can’t embark on a new system without a functioning mechanism to ensure that everyone plays by the rules.
Whilst essential as a backstop against abuse of power, the role of the courts in the operation of the planning system does of course need to be kept to a minimum. There are two areas in particular where there has always been scope to reduce the number of unnecessary claims:
1. As mentioned in that passage in the white paper, many (I’m not sure I would say “most”) “judicial reviews are about imprecise and unclearly worded policies or law.” As regards that first area, the aspiration in the white paper (“an overhaul of planning law to create simple and clear processes and for plans that set out clear requirements and standards will substantially remove the scope for ambiguity and therefore challenge”) is worthy but at present purely wishful thinking. We anticipate now a separate “Autumn” consultation into potential changes to EU-derived legislation, with a view to streamlining for instance SEA and EIA processes (no surprise – see e.g. my 4 July 2020 Have We Got Planning Newts For You: Back To Brexit blog post as well as Environment Secretary George Eustice’s 20 July 2020 speech). Of course, EU-derived environmental legislation (although, to be accurate, this is not about the EU – the relevant EU directives in turn implemented wider international treaty obligations) has been at the root of much planning caselaw, but the white paper’s proposals introduce a wide range of fresh tensions and uncertainties into the process – whether that be about the central imposition of housing requirements on local authorities, accelerated routes to development approvals or the proposed shift to a wholly new mechanism for the funding and delivery of affordable housing and infrastructure.
2. Claimants should be discouraged from using litigation simply as a tactic to secure delay or publicity, or in order to have a “low consequences” speculative last throw of the dice. Some steps have been taken to address this in recent years, most importantly the establishment of the Planning Court in March 2014 so that cases could be dealt with more quickly, by specialist judges, by the introduction of a permission stage in relation to section 288 challenges and by tightening the rules on costs protection (see my 22 June 2019 blog post No Time To Be 21: Where Are We With Aarhus Costs Protection?).
The lack of statistics as to the effectiveness of the Planning Court is frustrating. I went into this in my 8 July 2018 blog post The Planning Court and Richard Harwood QC has also recently expressed similar frustrations in the July 2020 39 Essex Chambers planning, environment and property newsletter, How common are High Court planning challenges?
At Town we recently decided to do something about it. Working alongside Landmark Chambers, on 13 August 2020 we unveiled what we call the Planning Court Case Explorer. The Case Explorer brings together, in one dataset, all judgments of the Planning Court after a full hearing, since its establishment in March 2014 to the end of June 2020 quarter by quarter (25 quarters), together with all subsequent appellate judgments. That amounts to 377 judgments by the Planning Court, 105 by the Court of Appeal and 11 by the Supreme Court. The data captured includes the length of time between the decision under challenge and the ruling, parties, judge and subject matter, with a link to the bailii transcript and usually our Town Library summary, and with a variety of search options so as to be able to interrogate the data, by way of clicking into the tables.
Only now, through this data, can it be seen that the average duration between a decision under challenge and the first instance ruling in relation to that decision is 293 days and can the extent of further delay be seen when a case goes to the Court of Appeal (an average of 726 days between the decision and the ruling) or there after to the Supreme Court (1,000 days!). In the context of a six weeks’ deadline for bring the claim in the first place and then the initial permission stage, that 293 days’ figure in my view is not unreasonable. The subsequent delays on appeal are in my view wholly unjustifiable.
Which judge in the High Court has handed down the most rulings? Lang J (69 judgments), followed a long way behind by Holgate J (28). Which Court of Appeal judge in relation to appeals from rulings by the Planning Court? Unsurprisingly Lindblom LJ (56). For each judge there is a list of his or her judgments.
Which are the most frequent parties? The Secretary of State is way ahead of the field, unsurprisingly, with 267 cases. Second, the Royal Borough of Kensington and Chelsea (14 rulings). Third, Gladman Developments Limited (12).
There are limitations to the work – for instance we have not focused on win/lose statistics, given the variety of permutations of outcome, and we have not analysed the much larger number of claims which are sieved out at the permission stage. However, I hope that the analysis is a useful step towards greater transparency.
The work now has additional topicality. The Government is not just proposing to reform the planning system. On 31 July 2020 it launched an “independent panel to look at judicial review”.
As set out in the press statement:
“Specifically, the review will consider:
• Whether the terms of Judicial Review should be written into law
• Whether certain executive decisions should be decided on by judges
• Which grounds and remedies should be available in claims brought against the government
• Any further procedural reforms to Judicial Review, such as timings and the appeal process”
It is very good to see Celina Colquhoun, as a well-respected and leading planning barrister, on the panel, and I hope that the operation of the Planning Court can perhaps be held out as a useful precedent, with its proactive, relatively quick, case management and judges familiar with our subject area, meaning quicker hearings with, in my view, a greater degree of predictability of outcome. 493 planning cases going to a full hearing (including appeals) in just over six years? That’s not many at all in my view, given the inherent contentious nature of our work and the extent to which there is room for dispute and uncertainty. Despite all the usual gnashing of teeth, isn’t this one aspect of our planning system that is actually working (or at least would be once the Court of Appeal adopts the same approach to timescales as the Planning Court)? In fact, where would we be without regular clarification from the courts as to what the legislation actually means?!
The next time you hear someone reprise Dominic Cummings’ February 2020 riff on the need for “urgent action on the farce that judicial review has become”, it’s worth thinking back to cases like R (Holborn Studios) v London Borough of Hackney (No 2) (Dove J, 11 June 2020). Sometimes it’s only the pesky lawyers (here Richard Harwood QC and solicitor Susan Ring, as well of course as a switched on judge) who, via judicial review, are finally able to cut through the sheer fudge and obfuscation of the planning application process.
This was the second time around for Holborn Studios, described in the judgment as “the leaseholder of 49-50 Eagle Wharf Road where they run one of the largest photographic studio complexes in Europe”. The studios have long campaigned against the proposed redevelopment of their building (for instance see What will become of Holborn Studios? (Londonist, 25 August 2017)).
The first planning permission which the London Borough of Hackney had purported to grant, in November 2016, was quashed by the High Court in R (Holborn Studios) v London Borough of Hackney (No 1) (Deputy Judge John Howell QC, 10 November 2017). The judge found that there had been an unlawful failure to consult the claimants and others on amendments made to the planning application and that the council had unfairly failed to disclose unredacted two letters on which officers had relied to support their view that proposed studio spaces in the basement were workable and that their layout was acceptable.
By the time of that first judgment a second application for planning permission had already been made. It was granted on 9 August 2019. Richard Harwood QC had indeed spoken at the planning committee meeting on behalf of Holborn Studios, seemingly to no avail. Again judicial review. The campaign against redevelopment continued (for instance see Battle to save Holborn Studios continues as celebrities and photographers line up in support (Hackney Citizen, 18 November 2019)).
When the case was heard in front of Dove J on 17 March 2020 there were three grounds of challenge but it is worth focusing on the first two, namely:
“Ground one is a sequence of legal contentions related to the information provided in respect of the viability assessment for the proposed development which informed the contributions which were sought from the interested party, in particular in relation to affordable housing. It is said by the claimant that the defendant’s approach to this issue failed to comply with national planning policy in relation to the provision of information in respect of viability assessments; that the defendant’s approach was in breach of a legitimate expectation in respect of the disclosure of viability information and, finally, that as a matter of law the viability information provided was in breach of the defendant’s duties in relation to the publication of background papers to the committee report. Ground two is the allegation that the defendant’s guidance for the members of its planning committee were unlawful in so far as they precluded members from reading lobbying material submitted to them by consultees and required that instead this material was passed to officers unread.”
Or even better if you have ten minutes, read the judgment itself. Summaries sometimes do not bring across the starkness of the judge’s description of events and analysis.
Some choice passages from the judgment:
A concern was raised by Mr Harwood at the planning committee meeting that “that the material on viability in the public domain appeared to demonstrate that the interested party’s consultants had undertaken the exercise on the basis of a residualised value, rather than taking an existing use value plus approach which was what was required by policy” and the point was also taken up by a councillor. Dove J chooses to relate the following, including a verbatim quotation of the meaningless response that councillors received:
“Mr Robert Carney, who had been one of the defendant’s officers and who had been involved with the consideration and negotiation of the viability of the development (albeit that by the time he attended the committee meeting he was working for a consultancy) was called upon to address these concerns, and in particular whether or not a residualised value approach had been taken to the viability exercise. His observations in respect of this issue, as recorded on the transcript contained within the court’s papers, were as follows:
“Perhaps I’ll deal with the specifics of the, the values of where- of where they have been reported and Stuart will want to talk about, uh, the transparency of the information in the public domain. So I just want to clarify, we’ve used an existing use value plus approach in accordance with all guidance and the- what that approach- that approach forms was known as benchmark land value, that’s referred to in the table at 5.3.62. Uh, you have the applicant’s proposed benchmark land value and then the independent assessor’s benchmark land value. And what you do is you, uh, look at the residual land value and the appraisal, basically, given them the residual land value, show them the appraisal equals or is more than the benchmark- benchmark land value, the scheme is viable. Because what that means is that a hypothetical, uh, developer can purchase the site at a figure above the benchmark land value. And we see in appraisal it’s just shy of that benchmark land value. But basically, um, through our negotiations we accepted that the scheme had maximised, uh, it’s viability with the, um, agreed contributions.”
On the failure to make all of the viability appraisal information as background papers to the committee report;
“The first point raised is whether or not the defendant complied with its obligations under the 1972 Act in relation to the provision and listing of background papers. In short, I have no doubt that the defendant failed to comply with its obligations under section 100 D of the 1972 Act, not simply in relation to listing background papers but also in failing to provide them for inspection. It is clear from the evidence which has been set out above, including in particular the evidence of Mr Carney, that there was a significant quantity of documentation bearing upon the viability issues generated both before and especially after those documents that were published in relation to viability on the defendant’s website. It appears clear from Mr Carney’s evidence that, after the material from September 2018 which the defendant published, there was a significant volume of further technical work addressing ground rents and their impact on existing use value, the derivation of figures for the planning obligations and CIL and also the identification of a benchmark land value. Whilst not all of this material needed to be produced and listed it is simply inconceivable that none of this material would have qualified under section 100 D (5) of the 1972 Act. Clearly the contents of the committee report dealing with the viability exercise and its ultimate conclusions as to the affordable housing contribution which could legitimately be required, depended upon the contents of this material. There was, therefore, information which should have been listed and of which copies should have been provided for inspection.”
On the approach that should be taken to viability appraisal:
“In my view there are some clear principles set out in the Framework and the PPG to which it refers. Firstly, in accordance with the Framework viability assessments (where they are justified) should reflect the approach set out in PPG, and be made publicly available. Secondly, and in following the approach recommended in the Framework and the PPG, standardised inputs should be used including, for the purpose of land value, a benchmark land value based upon existing use value plus as described in the PPG. Thirdly, as set out in the PPG, the inputs and findings of a viability assessment should be set out “in a way that aids clear interpretation and interrogation by decision-makers” and be made publicly available save in exceptional circumstances. As the PPG makes clear, the preparation of a viability assessment “is not usually specific to that developer and thereby need not contain commercially sensitive data”. Even if some elements of the assessment are commercially sensitive, as the PPG points out, they can be aggregated in a published viability assessment so as to avoid disclosure of sensitive material.”
On whether elements of viability information should be treated as exempt from disclosure:
“As Mr Harwood pointed out in his submissions, there is an exception to the definition of exempt information contained in paragraph 10 of Schedule 12 to the 1972 Act where “the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” In my judgment the existence of the policy contained in the Framework and the guidance contained in the PPG have an important bearing on the consideration of whether or not there is a public interest in disclosing the information contained in a viability assessment (even if it is properly to be characterised as commercially sensitive, bearing in mind the observations in the PPG about the extent to which information in such an assessment would be specific to a particular developer). It is clear from the material in the Framework and the PPG that save in exceptional circumstances the anticipation is that viability assessments, including their standardised inputs, will be placed in the public domain in order to ensure transparency, accountability and access to decision-taking for communities affected by development. The interests which placing viability assessments into the public domain serve are clearly public interests, which in my view support the contention that such assessments are not exempt information unless the exceptional circumstances spoken to by the PPG arise and solely an executive summary should be put in the public domain. It is unclear to me based on the material before the court how, if ever, the defendant ever considered the question of the public interest in relation to this exemption in the context of the relevant national planning policy. I am, therefore, unable to accept the submission advanced on behalf of the defendant that their failure to comply with section 100 D of the 1972 Act was a matter justified by the contention that the material withheld was exempt information. “
As to whether the viability information publicly available was comprehensive and coherent:
“In my view there are critical elements of the material in the public domain in relation to viability, set out in the documentation published on the defendant’s website and in the committee report, which are opaque and unexplained.”
If you deal regularly with viability appraisal you then need to read in full paragraphs 67 to 70 for an account by the judge of some of the deficiencies.
Drawing the threads together:
““Drawing the threads together, the material contained in the public domain at the time when the decision was taken by the planning committee to resolve to grant planning permission was inconsistent and opaque. It contained figures which differed in relation to, for instance, benchmark land value and the differences between the figures were not explained. No explanation was provided as to how the benchmark land value had been arrived at in terms of establishing an existing use value and identify a landowner’s premium as was asserted to have been case. Read against the background of the policy and guidance contained in the Framework and the PPG it was not possible to identify from the material in the public domain standardised inputs of the existing use value and landowner’s premium, and the purpose of the policy to secure transparency and accountability in the production of viability assessment was not served. In particular, it was plain from the material available at the time of the decision (in particular in terms of the material inconsistencies in the material produced in September 2018 and the differences from the material in the committee report) that there was substantial additional background material on which the committee report was based which was neither listed nor available for inspection in accordance with the requirements of the 1972 Act. In my view the principles identified in the case of Joicey by Cranston J at paragraph 47 are clearly on point, since the purpose of having a legal obligation to confer a right to know in relation to material underpinning a democratic decision-taking process is to enable members of the public to make well-informed observations on the substance of the decision. The failure to provide the background material underpinning the viability assessment in the present case, in circumstances where such material as was in the public domain was opaque and incoherent, was a clear and material legal error in the decision-taking process. In reality, in my judgment, the material with which the public was provided failed Mr Fraser-Urquhart’s own test of being adequate to enable the member of the public to make a sensible response to the consultation on the application.”
On the council’s attempt to prevent the direct lobbying of councillors
“… bearing in mind the importance of the decisions which the members of the planning committee are making, and the fact that they are acting in the context of a democratically representative role, the need for the communication of views and opinions between councillors and the public whom they represent must be afforded significant weight. In my view, it would be extremely difficult to justify as proportionate the discouragement, prohibition or prevention of communication between public and the councillors representing them which was otherwise in accordance with the law.”
“Receiving communications from objectors to an application for planning permission is an important feature of freedom of expression in connection with democratic decision-taking and in undertaking this aspect of local authority business. Whilst it may make perfect sense after the communication has been read for the member to pass it on to officers (so that for instance its existence can be logged in the file relating to the application, and any issues which need to be addressed in advice to members can be taken up in a committee report), the preclusion or prevention of members reading such material could not be justified as proportionate since it would serve no proper purpose in the decision-taking process. Any concern that members might receive misleading or illegitimate material will be resolved by the passing of that correspondence to officers, so that any such problem of that kind would be rectified. In my view there is an additional issue of fairness which arises if members of the planning committee are prevented from reading lobbying material from objectors and required to pass that information unread to their officers. The position that would leave members in would be that they would be reliant only on material from the applicant placed on the public record as part of the application or the information and opinions summarised and edited in the committee report. It is an important feature of the opportunity of an objector to a planning application to be able to present that objection and the points which they wish to make in the manner which they believe will make them most cogent and persuasive. Of course, it is a matter for the individual councillor in the discharge of his responsibilities to choose what evidence and opinion it is that he or she wishes to study in discharging the responsibility of determining a planning application, but the issue in the present case is having the access to all the material bearing upon the application in order to make that choice. If the choice is curtailed by an instruction not to read any lobbying material from members of the public that has a significant impact on the ability of a member of the public to make a case in relation to a proposed development making the points that they wish to make in the way in which they would wish to make them.”
“The standard correspondence clearly advised against members of the public writing directly to members of the committee; there was no warrant for that advice or discouragement and it impeded the freedom of expression of a member of the public who was entitled to write to a member of the planning committee setting out in his or her own terms the points they wish to be considered in respect of an application and expect that the member would have the opportunity to read it. It appears that Councillor Stops was under the impression that he was to resist being lobbied by either an applicant or member of the public, and Councillor Snell had apparently taken legal advice to the effect that he should refrain from reading any lobbying letter and forward it on to officers. Neither of these approaches reflects the defendant’s Code, nor does it reflect the entitlement to freedom of expression in accordance with the legal principles set out above.”
The case is a really helpful reminder to all of us of a few lessons:
Don’t get blinded by bad science. Good science is clear. Yes, viability appraisal includes some maths and you need to make sure that you understand the structure of the policy as to how viability appraisals should be conducted for the purposes in relation to the determination of planning applications. Subject to those points, if you don’t understand what is being said, you need to probe. A good viability appraisal does make sense and does tie in with policy and indeed common sense. And the process of arriving at an agreed viability appraisal should not be a behind the scenes negotiation. Memories of the R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) line of cases on daylight and sunlight – if the specialist input is not clear, and carried out in accordance with the relevant technical guidance such that the decision maker is not significantly misled, or if the detail that is needed for anyone to make sense of the position is held back, there is a plain risk of the resultant planning permission being struck down.
The approach to be taken to viability, both in terms of methodology and openness, has changed as a result of Government policy, and that is recognised by the courts.
Recognise that the value of having decisions taken at planning committee by elected councillors rests both in their being properly briefed by officers and also in their role as democratic representatives, not shielded from appropriate lobbying as if they were some jury.
However upsetting it may be for those whose decisions are overturned (and I recognise that there can be unwelcome consequences), without judicial review decision makers would pretty much be free to operate with impunity, to hell with the evidence (see also Westferry Printworks). That would be a farce.