What Is Mitigation?

If you are asking this in the context of People Over Wind (EU Court of Justice, 12 April 2018), you are asking the wrong question. Whilst the reference to “mitigation” is useful shorthand (as in my 20 April 2018 blog post, EU Court Ruling: Ignore Mitigation Measures In Habitats Screening), the precise position is more complicated and, despite a helpful judgment of the High Court this week, not easy to resolve in a practical way.

The People Over Wind ruling can be summarised very briefly by paraphrasing its final paragraph: In order for a competent authority to determine whether it is necessary to carry out an appropriate assessment of the implications, for a site protected under the Habitats Directive or Birds Directive, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.

In that case the measures which the court held could not be taken into account were requirements to be contained in a construction management plan to “provide details of intended construction practice for the development, including … (k) means to ensure that surface water run-off is controlled such that no silt or other pollutants enter watercourses …’.”

In referring the case to the EU Court of Justice, the Irish High Court had referred to the requirements as “mitigating measures“. The promoter of the scheme which was under challenge had described them as “protective measures“, but the EU Court of Justice disregarded the distinction:

“25     […] Article 6 of the Habitats Directive divides measures into three categories, namely conservation measures, preventive measures and compensatory measures, provided for in Article 6(1), (2) and (4) respectively. It is clear from the wording of Article 6 of the Habitats Directive that that provision contains no reference to any concept of ‘mitigating measure’ (see, to that effect, judgment of 21 July 2016, Orleans and Others, C‑387/15 and C‑388/15, EU:C:2016:583, paragraphs 57 and 58 and the case-law cited).

26      It follows that, as is apparent from the reasoning of the request for a preliminary ruling, that the measures which the referring court describes as ‘mitigating measures’, and which Coillte refers to as ‘protective measures’, should be understood as denoting measures that are intended to avoid or reduce the harmful effects of the envisaged project on the site concerned.”

The court’s position was clear: “full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment.”

So the big question is whether there are any measures which can be taken into account at the screening stage which are not caught as avoidance or reduction measures.

There was a judgment of the High Court this week, R (Langton) v Secretary of State for Environment, Food & Rural Affairs and Natural England (Sir Ross Cranston, 15 August 2018), where this is dealt with briefly in the context of a broader series of challenges arising from DEFRA’s badger culling programme and (more relevant for the purposes of this blog post) decisions in August and September 2017 by Natural England to grant badger culling licences. I only address the latter below, although I may come back in a later blog post to other parts of the judgment in the context of the requirements of a lawful consultation process.

The claimant argued that in granting licences in Special Protection Areas and Special Areas of Conservation, Natural England had not carried out adequate assessment under the Habitats Regulations.

Natural England’s standard form assessments, undertaken in May 2017. “In each case the conclusion to these screening assessments was that the licensed culling of badgers was unlikely to have a significant effect on the qualifying features of the relevant site. In none of the areas was an in-combination assessment considered applicable.” (paragraph 79)

The assessments identified the possible disturbance effects of badger culling as follows:

“disturbance to the species (firearm report, lamping, vehicles, humans), physical damage to habitats/species (vehicles, trampling, digging-in of traps), physical damage to non-target species, and “indirect damage to species from an increased abundance of other mammalian predators (in particular foxes) due to reduced badger population density.”” (paragraph 81)

Each of the assessments referred to “mitigation measures” which had been incorporated into the proposal and stated that complying “with the mitigation measures will ensure that there is no significant likely effect alone“.

The measures were various restrictions proposed to be included as conditions on licences, including:

⁃ limiting shooting activities to outside the bird breeding season

⁃ restricting vehicles to existing tracks

⁃ various restrictions on the location of traps and of activities. (paragraph 83)

Sir Ross Cranston sets out the law on Habitats Regulations Assessment at paragraphs 94 to 96 and then addresses the challenge to the validity of the decisions from paragraph 126 onwards.

The claimant argued that Natural England hadn’t adopted a precautionary approach (particularly in relation to the risks arising from a greater proliferation of foxes as a result of badger culling), and as a consequence had not even carried out HRA screening in relation to a number of SACs and SPAs, and that the screening process had improperly taken into account avoidance or reduction measures in breach of People Over Wind.

The court said this on the precautionary principle:

“The precautionary principle in this context is fundamental, but “[i]t is for a third party who asserts that there is a risk which cannot be excluded on the basis of objective information to produce credible evidence to the court that the risk is a real one…”: R (on the application of DLA Delivery Ltd.) v Lewes District Council [2017] EWCA Civ 58, [30], Lindblom LJ (with whom Lewison LJ agreed), Boggis v Natural England[2009] EWCA Civ 1061, [37], per Sullivan LJ (with whom Longmore and Mummery L.JJ agreed).” (paragraph 133)

The court considered that “Natural England’s failures, even if only to record that no consideration of the risk was necessary with these close-by sites to cull areas, was a breach of its duty under the Habitats Regulations.” (paragraph 133).

However, it found that, on the evidence, the outcome would not have been substantially different if it had considered fox predation risk arising from granting culling licences

The court then turned to the implications of People Over Wind from paragraph 154 onwards. It referred to the Hart judgment from 2008, approved by the Court of Appeal in Smyth (2015) finding that there was no legal reason why preventative safeguarding measures incorporated into a project should be ignored at the initial screening stage.

It has of course been widely assumed that this approach has been overruled by People Over Wind. It is therefore intriguing how Sir Ross Cranston addresses the issue.

In paragraph 155 he refers to the measures in People Over Wind as measures “which seem to have involved reducing run-off” and indicates that the EU Court of Justice had found that they “should be understood as denoting measures intended to avoid or reduce the harmful effects of the envisaged project on the site concerned“.

He records at paragraph 156 the claimant as submitting that “the conditions which Natural England had attached to the cull licences, following advice to applicants, fell within the People Over Wind ruling and should not have been taken into account at the screening stage. These were that no culling activity would take place in certain locations (e.g., Severn Estuary SPA) or at certain times of the year (e.g., bird-breeding season with Dorset Heathlands SPA and Poole Harbour SPA).”

In the final paragraph of a 76 page judgment he then simply concludes:

“In my view the licence conditions which Natural England attached to the licences in Areas 16 and 17 are not the mitigating or protective measures which featured in the People Over Wind ruling. They are properly characterised as integral features of the project which Natural England needed to assess under the Habitats Regulations. I accept Natural England’s submission that it would be contrary to common sense for Natural England to have to assume that culling was going to take place at times and places where the applicants did not propose to do so.”

So what do we take from this? On this basis we have up to date first instance authority (I do not know whether permission to appeal is being sought) for asserting that integral features within a scheme can be taken into account. But how is it to be determined when a condition restricting operations is or is not an integral feature? I can see that conditions that define the temporal and physical limits of a permitted activity can be said to be integral features but there is not always a clear dividing line. Were the construction management plan requirements in People Over Wind so very different?

What I do take from it is the potential willingness of our judiciary (or at least one judge, technically retired – which is why he is not referred to as “Mr Justice Cranston“) to seek to push back against the ruling and seek to retain the traditional, more pragmatic, approach from Hart.

Are our courts going to be able to hold that line? The approach in Langton appears to me to be potentially less restrictive than for instance the Planning Inspectorate’s advice to inspectors (9 May 2018), which states at paragraph 17 that “there is no definition of what constitutes avoidance and reduction measures and what could be viewed as an integral part of a works or development proposal. If a measure is being introduced to avoid or reduce an effect on a European site then it can be viewed as mitigation. This includes measures outlined in SPDs such as the provision of Sustainable Alternative Natural Greenspace and Strategic Access Management and Monitoring as in the Thames Basin Heaths approach. However it can also include ‘embedded mitigation’ such as a commitment within a development proposal to employing standard methods to prevent run-off from vehicles contaminating watercourses.”

Compensatory measures

Aside from the issue arising from People Over Wind as to what are “mitigation” (short-hand for “avoidance or reduction“) measures, which need to be disregarded in the screening process (but can be taken into account as part of appropriate assessment if the need for appropriate assessment is not screened out) there is the issue as to what “mitigation” measures are in fact “compensatory” measures which cannot even be taken into account at the appropriate assessment stage.

This was the subject matter of the latest relevant EU Court of Justice case, which in short-hand I will refer to as Grace, Sweetman (25 July 2018) arising from yet another challenge brought by Irish environmental campaigner Peter Sweetman, this time against the Irish national planning board’s decision to grant permission for a wind farm project on land that stretches from Slieve Felim in Limerick to Silvermines Mountains in Tipperary, that was designated as a Special Protection Area because it hosts the natural habitat of the hen harrier.

The proposal would result in the permanent and temporary loss of habitat (directly through clearance of trees at each turbine location and indirectly on the assumption that foraging hen harriers would not come within 250m of a wind turbine) but a species and habitat management plan was proposed that envisaged the restoration of various areas to blanket bog, particularly suitable for hen harriers, and a ‘sensitive’ management regime that would provide suitable foraging habitat and an ecological corridor between two areas of open bog.

Ms Grace and Mr Sweetman argued that the management plan measures amounted to compensatory measures and therefore could not be taken into account at appropriate assessment stage by the planning board in its ruling that there would be no adverse effect on the integrity of the SPA.

The Irish Supreme Court referred the issue to the EU Court of Justice as to whether Article 6(3) of the Habitats Directive “is to be interpreted as meaning that the measures proposed in the management plan relating to the contested development which seek to ensure that the total area providing suitable habitat will not be reduced and could even be enhanced may, in the circumstances of the present case, be classified as mitigating measures, or whether they must be regarded as compensatory measures within the meaning of Article 6(4) of the Habitats Directive.”

As in People Over Wind, the EU Court of Justice noted that “mitigating measures” is not referred to in the Directive. It indicated that “the Court has previously observed that the effectiveness of the protective measures provided for in Article 6 of the Habitats Directive is intended to avoid a situation where competent national authorities allow so-called ‘mitigating’ measures’ — which are in reality compensatory measures — in order to circumvent the specific procedures laid down in Article 6(3) of the directive and authorise projects which adversely affect the integrity of the site concerned“.

It interpreted the referring court’s question “as asking, in essence, whether Article 6 of the Habitats Directive must be interpreted as meaning that, where it is intended to carry out a project on a site designated for the protection and conservation of certain species, of which the area suitable for providing for the needs of a protected species fluctuates over time, and the temporary or permanent effect of that project will be that some parts of the site will no longer be able to provide a suitable habitat for the species in question, the fact that the project includes measures to ensure that, after an appropriate assessment of the implications of the project has been carried out and throughout the lifetime of the project, the part of the site that is in fact likely to provide a suitable habitat will not be reduced and indeed may be enhanced may be taken into account for the purpose of the assessment that must be carried out in accordance with Article 6(3) of the directive to ensure that the project in question will not adversely affect the integrity of the site concerned, or whether that fact falls to be considered, if need be, under Article 6(4) of the directive.”

It noted that “there is a distinction to be drawn between protective measures forming part of a project and intended avoid or reduce any direct adverse effects that may be caused by the project in order to ensure that the project does not adversely affect the integrity of the area, which are covered by Article 6(3), and measures which, in accordance with Article 6(4), are aimed at compensating for the negative effects of the project on a protected area and cannot be taken into account in the assessment of the implications of the project“.

“As a general rule, any positive effects of the future creation of a new habitat, which is aimed at compensating for the loss of area and quality of that habitat type in a protected area, are highly difficult to forecast with any degree of certainty or will be visible only in the future.”

It held that the measures were compensatory and could not be taken into account at the appropriate assessment stage. Article 6 was to be interpreted as meaning that, “where it is intended to carry out a project on a site designated for the protection and conservation of certain species, of which the area suitable for providing for the needs of a protected species fluctuates over time, and the temporary or permanent effect of that project will be that some parts of the site will no longer be able to provide a suitable habitat for the species in question, the fact that the project includes measures to ensure that, after an appropriate assessment of the implications of the project has been carried out and throughout the lifetime of the project, the part of the site that is in fact likely to provide a suitable habitat will not be reduced and indeed may be enhanced may not be taken into account for the purpose of the assessment that must be carried out in accordance with Article 6(3) of the directive to ensure that the project in question will not adversely affect the integrity of the site concerned; that fact falls to be considered, if need be, under Article 6(4) of the directive.”

For some projects this is potentially as problematic a ruling as People Over Wind, given that unless any adverse effect on the integrity of any SPA or SAC cannot be ruled out without relying on measures of this nature, the scheme can only proceed if it can be demonstrated that there are imperative reasons of overriding public interest – a high test.

In conclusion, when dealing with plans and schemes with potential effects on SPAS and SACs, precise analysis is needed of the true nature of any proposed measures being relied upon to “mitigate” (short-hand) the potential harmful effects of the development. The relevant question at screening stage is whether they are measures intended to avoid or reduce those effects or can they be said to be measures which are integral features of the project? The relevant question at appropriate assessment stage is whether they are in fact measures intended to compensate for a reduction in the parts of the site that will be able to provide a suitable habitat for the relevant species?

Simon Ricketts, 18 August 2018

Personal views, et cetera

Image courtesy of http://www.badgerwatchdorset.co.uk

The Big Society Theory

“We’ve got to have rules and obey them. After all, we’re not savages. We’re English, and the English are best at everything.” (W. Golding, Lord of the Flies)

David Cameron was reported in a Third Sector piece last year as accepting that his Big Society agenda (first set out in detail in his 19 July 2010 Liverpool speech) had its failings. Whilst he did not “accept the criticism that the agenda, which encouraged more voluntary participation in public and community life and services, was simply a cover to disguise public sector funding cuts“, he believed “the fair criticism that was made kind of came in two parts”. The first was that “you can’t expect all of these big society organisations, all of these social entrepreneurs, all of these charities and voluntary bodies to spring into life”.

The second fair part of the criticism, he said, was that “you can’t expect them to be able to cover all of the country, every region of the country, all in one go”.

These organisations were “very often under-capitalised, have problems in replicating their service” and had “difficulties expanding and getting the access to great technology or brilliant management or great systems”, said Cameron.”

Well, plenty of us with practical experience of the Localism Act 2011 would have a few additional comments. It is interesting to look back at what we were predicting when the Bill was going through Parliament – I don’t think I was that far off the mark in a Financial Times piece, Future Plans (27 May 2011, subscription-only). We all had concerns about the complicated procedures within the new legislation, likely to be most used those with the time and money, not always with pro-development objectives in mind. Neighbourhood plans have generated serial litigation, due to their often unhappy fit with other tiers of plan-making. Procedures such as the Community Right To Build have hardly been used. Others, such as the designation of land or property as Assets of Community Value lead to much activity and adversarial process (eg the cases referred to in my 14 July 2018 blog post, 2 ACV Disputes), whilst ultimately being pretty toothless.

Has the Big Society, localism, neighbourhood planning – call it what you will – led to better, more positive, planning outcomes that meet public needs? What should be the respective roles of democratically elected local government and of community-based bodies?

A short LinkedIn post by Nick Dines prompted me to have a quick look at a paper published this week by DCMS, Civil Society Strategy: building a future that works for everyone (9 August 2018).

What is Civil Society for a start?

“Civil society refers to all individuals and organisations, when undertaking activities with the primary purpose of delivering social value, independent of state control. The government wants to build a partnership with charities and social enterprises, with volunteers, community groups and faith groups, with public service mutuals, socially responsible businesses and investors, and with the institutions which bring sports, arts, heritage, and culture to our communities.”

The purpose of the strategy is to set out “how the government will work to support and to strengthen civil society, without compromising its independence.”

What caught my eye in Nick’s post was a reference to the possible implications of this for planning. In fact, without any detail, the document drops some pretty worrying hints and one wonders what co-ordination has so far taken place between DCMS and MHCLG:

“The government will launch the Innovation in Democracy programme to pilot participatory democracy approaches, whereby people are empowered to deliberate and participate in the public decisions that affect their communities. The government will work with local authorities to trial face- to-face deliberation (such as Citizens’ Juries) complemented by online civic tech tools to increase broad engagement and transparency.”

Public votes on planning decisions? That would be popular no doubt, for those wishing to derail controversial schemes but we may as well tear up the current planning system and NPPF – and forget about meeting any objectively assessed needs. Bottom-up planning? It’s that Big Society Theory, folks.

Furthermore:

“The government will continue to encourage communities to use the community rights available to them. We will issue revised guidance to help communities take ownership of local assets. We will signpost support and advice available to communities to improve and shape where they live through the new Community Guide to Action and the MyCommunity website, the licence for which we have recently renewed.

[…] the government is exploring means of ensuring community-led enterprises which take over public assets or services are able to secure the funding they need”

I note that this is in a period within which local government struggles to maintain libraries and other public services, with pressure to cut budgets in fact increasing (see for instance a Room 151 piece, Councils anticipate cutting services to ‘legal minimum’ published on 9 August 2018, that reports on a recent survey of council leaders carried out by the New Local Government Network). The very definition of “civil society” by implication excludes local government. Money for “community-led enterprises” rather than democratically-led local authorities? It’s that Big Society Theory, folks.

And:

“The government will explore the suggestion that the Social Value Act should be applied to other areas of public decision-making such as planning and community asset transfer. ”

..which is an enigmatic and rather odd comment. The Public Services (Social Value) Act 2012 imposes a duty on public authorities, in procuring public services, to consider:

(a) “how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and

(b)  how, in conducting the process of procurement, it might act with a view to securing that improvement.”

If what is proposed is the extension, beyond contract procurement and into planning, of the duty to consider how the relevant decision “might improve the economic, social and environmental well-being of the relevant area“, this would add nothing of any value whatsoever given, for instance, the very definition of sustainable development at the heart of the old and new NPPF.

Of course let’s do whatever we can to increase people’s engagement with their communities but also, more importantly (in the face of the increasing threat posed by anti-democratic populism – where a large social media following can be more influential than votes in the ballet box), local representative democracy. Neighbourhood planning and localism should not be at the expense of local representative democracy. If district and borough councils are seen as having real clout and the wherewithal to improve the conditions of their constituents, people will turn out to vote and an increasingly wide and talented cross-section of the local community will be prepared to invest time in carrying out roles as elected councillors for their wards. That’s my civil society strategy anyway.

Who wants the conch next?

Simon Ricketts, 12 August 2018

Personal views, et cetera

NB I thought this was a great bit of community enterprise though:

Housing Needs, Housing Shortfalls

“We’ve got five years, my brain hurts a lot

We’ve got five years, that’s all we’ve got”

(David Bowie)

The new NPPF introduces the requirement for local planning authorities to use a standard method to arrive at their local housing needs assessment, “unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.”

However, the precise methodology and authority by authority figures are still a moving target. The Government said this in its “response to consultation” document, published alongside the new NPPF:

“A number of responses to this question provided comment on the proposed local housing need method. The government is aware that lower than previously forecast population projections have an impact on the outputs associated with the method. Specifically it is noted that the revised projections are likely to result in the minimum need numbers generated by the method being subject to a significant reduction, once the relevant household projection figures are released in September 2018.

In the housing white paper the government was clear that reforms set out (which included the introduction of a standard method for assessing housing need) should lead to more homes being built. In order to ensure that the outputs associated with the method are consistent with this, we will consider adjusting the method after the household projections are released in September 2018. We will consult on the specific details of any change at that time.

It should be noted that the intention is to consider adjusting the method to ensure that the starting point in the plan-making process is consistent in aggregate with the proposals in Planning for the right homes in the right places consultation and continues to be consistent with ensuring that 300,000 homes are built per year by the mid 2020s.”

Inevitably, with change comes uncertainty as to how the new policies will be applied to applications and plans which are currently in the pipeline. There are three key transitional arrangements:

⁃ “The policies in the previous Framework will apply for the purpose of examining plans, where those plans are submitted [for examination] on or before 24 January 2019” (paragraph 214)

⁃ “The Housing Delivery Test will apply from the day following the publication of the Housing Delivery Test results in November 2018” (paragraph 215)

⁃ “The policies in this Framework are material considerations which should be taken into account in dealing with applications from the day of its publication” [ie 24 July 2018] (paragraph 212).

I want to look at a few specific issues of interest (to me at least):

The application of the new NPPF to the draft London Plan

The footnote to paragraph to paragraph 214 is more specific than the draft, in making it clear that the equivalent cut-off date for the London Plan is “the point at which the Mayor sends to the Panel copies of all representations made in accordance with regulation 8(1) of the Town and Country Planning (London Spatial Development Strategy) Regulations 2000“, meaning that the current Draft London Plan, for which a Panel of three inspectors has been appointed to hold an examination in public late this year, will be tested against the 2012 NPPF.

As underlined in his 27 July 2018 letter to the London Mayor, even when it is tested against the 2012 NPPF the Secretary of State is “not convinced” that the assessment of need in the current draft “reflects the full extent of housing need in London to tackle affordability problems.” He is looking to see modifications on a series of matters:

⁃ “A number of policy areas in the draft that are inconsistent with national policy, such as your policies allowing development on residential gardens and your policy on car parking. [NB whilst these might be areas of political difference they are not areas where the MHCLG’s approach would drive up numbers – far from it]

⁃ The detail and complexity of the policies within the draft London Plan have the potential to limit accessibility to the planning system and development.

⁃ The draft Plan strays considerably beyond providing a strategic framework.

⁃ The draft Plan does not provide enough information to explain the approach you will take to ensure your targets are delivered, including collaboration with boroughs and neighbouring areas.

⁃ There are a number of policies in the draft Plan which seek to deal with matters relating to building standards and safety. It is important that there is a consistent approach to setting building standards through the framework of Building Regulations”

But, presumably as a quid pro quo for not sending the plan back to the drawing board to be tested against the methodology for assessing housing need in the new NPPF (which would arrive at significantly higher need figures than the basis for the draft plan), the Secretary of State is looking for the Mayor to review and revise the plan as soon as it is adopted:

“It remains crucial however that you bring forward a revised London Plan that has regard to new national policies at the earliest opportunity. You will want to note paragraph 33 and annex 1 of the revised National Planning Policy Framework, which sets out that the Government expects plans to be reviewed early where all identified housing need is not being met and to ensure a plan is in place which reflects current national policy. I would therefore expect you to review the London Plan to reflect the revised National Planning Policy Framework immediately once the London Plan has been published. I remind you that if this is not forthcoming, I have powers to direct the review to ensure London delivers the plan and homes that communities need.”

Of course, since the current draft is not likely to be adopted until late 2019 and Sadiq Khan’s current term ends in May 2020, this will presumably increase the potential for politicking as between candidates and parties. Not good for consensus building, or perhaps other kinds of building, although if a new plan does not come forward presumably we can expect to see more MHCLG intervention in relation to major applications in London.

Other plans submitted for examination before 24 January 2019

Nothing in planning is of course black and white. Paragraph 214 of the new NPPF says that plans submitted for examination before 24 January 2019 will still be tested against the 2012 NPPF, but of course the 2012 NPPF allowed significant room for argument as to what the appropriate methodology might be for any authority “to use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework“. To what extent might inspectors allow the new standard method to be used for plans submitted before 24 January 2019?

Already since the publication of the new NPPF we have seen the East Cambridgeshire local plan inspector, Louise Nurser, issue her preliminary findings in a letter dated 30 July 2018 in which she accepts that the use of the new standard methodology is appropriate “in the particular circumstances of East Cambridgeshire” even though the plan was plainly submitted well before the relevant date. I set out her reasoning below:

“I conclude that it is a sound approach for the standard method to be used to set the OAN for housing within East Cambridgeshire at a minimum of 11,960 dwellings between 2016 and 2036. Indeed, in the context of a Strategic Housing Market Assessment (PE05) of considerable vintage (2013), which had already been used as the primary evidence base for the development strategy which is to be superseded by the Plan before me, it would not have been appropriate to update the evidence base in isolation of the wider HMA, so that it could be used a second time. Ideally, for the purposes of this plan, the housing needs of the wider Housing Market Area would have been thoroughly considered through a new Housing Market Assessment.

However, it is clear from the different stages in which the constituent plan making bodies find themselves that such a scenario would be unrealistic, particularly in the context of the clear indication from the recently published Framework that the standard method should be used in plan making in the future, and as a consequence, it is highly improbable that a completely new HMA would ever be commissioned.

I draw particular comfort from the fact that the annual dwelling requirement using the revised OAN figure of October 2016, for the district, which is based on the SHMA, is 586 dwellings per annum (PE06). This is comparable with the figure of 598 dwellings per annum, using the standard method (PE07). As such, the use of the standard method to determine East Cambridge’s housing needs is an acceptable and a pragmatic approach to determining the district’s needs. In coming to this conclusion, I must stress that my conclusions relate to the particular circumstances of East Cambridgeshire, which has already adopted a plan on the basis of the 2013 SHMA evidence.”

I can see that there does not seem to be a significant difference in the case of East Cambridgeshire as to the outcome under the two approaches, but is her reasoning essentially, as she says, pragmatic – it would have been impractical to expect the 2013 strategic housing market assessment to have been updated as a base for the new plan? Might this be a position that various other authorities find themselves in? Does the new standard method amount to an appropriate evidence base for these purposes?

What now of the tilted balance?

Paragraph 11 of the new NPPF of course contains an amended form of what was paragraphs 14 and 49 of the 2012 document, the presumption in favour of sustainable development (or the “tilted balance” in the jargon) which applies where there is a shortfall in housing supply.

There is a shortfall where:

⁃ the “local planning authority cannot demonstrate a five year supply of deliverable housing sites” (with a 5 to 20% buffer – see paragraph 73); or where

⁃ (for decisions after the publication of the Housing Delivery Test results in November 2018) the Housing Delivery Test indicates that the delivery of housing was substantially below the housing requirement over the previous three years (with “substantially below” defined in paragraph 215 – starting at 25% of what is required and ratcheting up first to 45% and then to 75%).

Where there is a shortfall, the “policies which are most important for determining the application” are deemed to be out of date, meaning that planning permission should be granted unless (i) the application of policies in the NPPF that protect a defined list of categories of areas or assets of particular importance provides a clear reason for refusing the development proposed or (ii) “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed the policies in this Framework taken as a whole“.

In my view this wording is clearer than the 2012 NPPF and should be easier to apply.

However, the effects of a shortfall are much reduced where there is a neighbourhood plan (which, after 11 December 2018, must be less than two years old) which contains policies and allocations to meet its identified housing requirement, the local planning authority has at least a three year supply of deliverable housing sites and the authority’s housing delivery was at least 45% of that required over the previous three years (25% until December 2019). (See paragraphs 14 and 216). In these circumstances, “the adverse impact of allowing development that conflicts with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits“.

Relevance of degree of shortfall

In deciding an appeal against the refusal of planning permission for housing development, how far does the decision-maker have to go in calculating the extent of any shortfall in the five-year supply of housing land? That was precisely the question considered last week by the Court of Appeal in Hallam Land Management Limited v Secretary of State (Court of Appeal, 31 July 2018). The case concerns the policies within the 2012 NPPF but the principles are just as applicable to the new NPPF.

In his decision letter dated 9 November 2016 the Secretary of State had dismissed an appeal by Hallam Land against refusal of planning permission by Eastleigh Borough Council for a development of up to 225 dwellings, a 60-bed care home and 40 care units together with associated development in Hamble.

His conclusions as to the degree of shortfall in housing supply simply stated this:

“The Secretary of State notes the Inspector’s comment (IR108) that at the time of inquiry the Council were not able to demonstrate more than a four and a half years supply of deliverable housing land, and that there is evidence of an existing need for affordable housing. Whilst the Secretary of State notes that the Council are now of the view that they are able to demonstrate a 4.86 year supply...”

Weighing this shortfall into the balance he dismissed the appeal on the basis that the adverse impacts of the proposal would significantly and demonstrably outweigh its benefits.

Had he reached a properly reasoned decision on the housing supply question or had he just ducked it? At the inquiry there had been much argument as to the extent of housing supply. Hallam asserted that it was between 1.78 and 2.92 years. In post inquiry representations, the council asserted that the figure was now 4.86 years. However two inspectors’ appeal decisions in the borough had concluded otherwise. In the 24 May 2016 Bubb Lane decision letter the inspector had found that the council had a “considerable way to go to demonstrate a five year supply of deliverable sites”. In the 7 October 2016 Botley Road decision letter the inspector had concluded that there were 4.25 years of supply.

It is not necessary for the decision maker to arrive at a precise conclusion as to the level of shortfall. As Lindblom LJ states:

“Relevant authority in this court, and at first instance, does not support the proposition that, for the purposes of the appropriate balancing exercise under the policy in paragraph 14 of the NPPF, the decision-maker’s weighting of restrictive local plan policies, or of the proposal’s conflict with such policies, will always require an exact quantification of the shortfall in the supply of housing land.”

Accordingly, Lindblom LJ did not “think that in this case the Secretary of State could fairly be criticized, in principle, for not having expressed a conclusion on the shortfall in the supply of housing land with great arithmetical precision. He was entitled to confine himself to an approximate figure or range – if that is what he did. Government policy in the NPPF did not require him to do more than that. There was nothing in the circumstances of this case that made it unreasonable for him in the “Wednesbury” sense, or otherwise unlawful, not to establish a mathematically exact figure for the shortfall. It would not have been an error of law or inappropriate for him to do so, but if, as a matter of planning judgment, he chose not to do it there was nothing legally wrong with that.”

It was not clear “whether the Secretary of State reached any concluded view on the scale of the “acknowledged shortfall”. His reference in paragraph 17 to “the limited shortfall in housing land supply” suggests he had not found it possible to accept Hallam Land’s case at the inquiry, as recorded by the inspector in paragraph 62 of his report, that the supply of housing land was as low as “2.92 years, or 1.78 years if the need for affordable housing is included”, or even the “material shortfall” to which the inspector had referred in paragraph 108, in the light of the council’s concession that it was “not able to demonstrate more than a four and a half years supply of deliverable housing land”. A “limited shortfall” could hardly be equated to a “material shortfall”. It would have been a more apt description of the shortfall the council had now acknowledged in conceding, or contending, that it was able to demonstrate a supply of 4.86 years – the figure to which the Secretary of State referred in paragraphs 19 and 30 of his decision letter.”

“If he did adopt, or at least assume, a figure of 4.86 years’ supply of housing land, or even a range of between four and half and 4.86 years, his approach could not, I think, be stigmatized as unlawful in either of those two respects. It could not be said, at least in the circumstances of this case, that he erred in law in failing to calculate exactly what the shortfall was. In principle, he was entitled to conclude that no greater precision was required than that the level of housing land supply fell within a clearly identified range below the requisite five years, and that, in the balancing exercise provided for in paragraph 14 of the NPPF, realistic conclusions could therefore be reached on the weight to be given to the benefits of the development and its conflict with relevant policies of the local plan. Such conclusions would not, I think, exceed a reasonable and lawful planning judgment.”

However, “even if that assumption is made in favour of the Secretary of State, there is in my view a fatal defect in his decision in his failure to engage with the conclusions on housing land supply in the recent decisions in the Bubb Lane and Botley Road appeals.”

“In both decision letters the shortfall was characterized as “significant”, which plainly it was. This was more akin to saying that it was a “material shortfall”, as the inspector in Hallam Land’s appeal had himself described it in paragraph 108 of his decision letter. Neither description – a “significant” shortfall or a “material” one – can be squared with the Secretary of State’s use of the adjective “limited”. They are, on any view, quite different concepts.”

“Quite apart from the language they used to describe it, the inspectors’ findings and conclusions as to the extent of the shortfall – only “something in the order of four year supply” in the Bubb Lane appeal and only “4.25 years’ supply” in the Botley Road appeal – were also substantially different from the extent of the shortfall apparently accepted or assumed by the Secretary of State in his decision in this case, which was as high as 4.86 years’ supply on the basis of evidence from the council that had been before the inspector in the Botley Road appeal and rejected by him.”

“One is left with genuine – not merely forensic – confusion on this important point, and the uncomfortable impression that the Secretary of State did not come to grips with the inspectors’ conclusions on housing land supply in those two very recent appeal decisions.”

In a short judgment, agreeing with the lead judgment of Lindblom LJ, Davis LJ makes the position plain:

“I have the greatest difficulty in seeing how an overall planning judgment thereafter could properly be made without having at least some appreciation of the extent of the shortfall. That is not to say that the extent of the shortfall will itself be a key consideration. It may or not be: that is itself a planning judgment, to be assessed in the light of the various policies and other relevant considerations. But it ordinarily will be a relevant and material consideration, requiring to be evaluated.

The reason is obvious and involves no excessive legalism at all. The extent (be it relatively large or relatively small) of any such shortfall will bear directly on the weight to be given to the benefits or disbenefits of the proposed development.”

The decision was quashed.

Was David Bowie writing for the Secretary of State, or for all of us?

“My brain hurt like a warehouse, it had no room to spare

I had to cram so many things to store everything in there”

Simon Ricketts, 5 August 2018

Personal views, et cetera

The Town Library: Planning Court Case Law Resource

If you are a user of this blog, you may be interested in our new resource: The Town Library. It has been a labour of love.

In starting up as a planning law firm, what we really wanted was a case law service providing weekly summaries of, and hypertext links through to, all final judgments of the Planning Court from the previous week, as well as all subsequent appellate judgments and other court rulings of relevance to planning lawyers, together with access to a complete chronological list of all rulings since the Planning Court was established in April 2014. We found that this sort of focused resource is not available, even on a paid subscription basis from commercial providers of legal information services.

But rather than giving up, we embarked on creating our own service, helped by legal engineers Wavelength Law and the invaluable BAILII case law resource (to which we have made a charitable donation).

Our summaries (prepared by my colleagues Susie Herbert and Harriet Ballard) start in March 2018, although the list of cases in the Town Library goes back to 2014.

For the last couple of months we have been testing and using the Town Library internally but now, and until further notice, we are opening this up as a free service to all. The system please just requires your details for subscription to the weekly update (click here).

Some restrictions and disclaimers:

⁃ Summaries are provided for information only rather than to be relied upon as legal advice.

⁃ This is a free service and we depend on the goodwill of BAILII. Please abide by their reproduction and copyright policy and consider a donation – the Government should take responsibility for ensuring that there is free access to rulings of our courts, but it doesn’t.

⁃ Weekly updates may be sparse between now and the new court term starting on 1 October (although there have been a few interesting cases this week which will appear in next week’s update).

⁃ We are learning as we go. Feedback is welcome. Please don’t be surprised if there is the occasional glitch or omission.

We hope soon to be able to draw upon all of this information so as to provide some statistical analysis that I hope will help regular users of the Planning Court. My 8 July 2018 blog post raised an eyebrow at what little specific information there is as to how the court is performing.

Further wings of the Town Library are…planned.

Simon Ricketts, 2 August 2018

Personal views, et cetera

Maximus: Dove J Ruling On PINS Validation Approach

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

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

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

Maximus relied on three grounds of challenge:

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

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

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

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

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

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

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

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

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

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

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

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

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

Simon Ricketts, 29 July 2018

Personal views, et cetera

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

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

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

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

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

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

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

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

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

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

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

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

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

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

⁃ viability

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

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

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

⁃ Key appeal statistics

⁃ Planning appeal statistics

⁃ Planning appeals inquiries process timeline (illustrative)

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

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

Simon Ricketts, 25 July 2018

Personal views, et cetera

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

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

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

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

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

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

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

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

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

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

The judge drew out three points:

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

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

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

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

The challenge revolved around two issues:

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

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

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

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

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

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

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

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

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

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

Simon Ricketts, 20 July 2018

Personal views, et cetera

2 ACV Disputes

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

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

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

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

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

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

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

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

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

The judge concludes with a withering final paragraph:

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

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

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

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

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

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

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


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

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

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

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

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

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

Lord Justice Davis added:

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

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

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

Simon Ricketts, 14 July 2018

Personal views, et cetera

The Planning Court

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

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

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

“a judicial review or statutory challenge which —

(a) involves any of the following matters —

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

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

(iii) wayleaves;

(iv) highways and other rights of way;

(v) compulsory purchase orders;

(vi) village greens;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Significant cases are defined as those which:

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

(b) raise important points of law;

(c) generate significant public interest; or

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

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

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

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

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

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

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

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

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

So, what do the general JR statistics show?

This is an extract from a table showing success rates:

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

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

Who are the defendants? The commentary says this:

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

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

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

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

Simon Ricketts, 6 July 2018

Personal views, et cetera

Challenging Plans Before They Are Hatched

Can you challenge a draft local plan in the High Court before it is submitted to the Secretary of State for examination? When does the ouster in section 113 of the Planning and Compulsory Purchase Act 2004 kick in, which prevents development plan documents from being “questioned in any legal proceedings” except by way of an application for leave made before the end of six weeks beginning with the date that the document is adopted by the local planning authority?

These ouster provisions in legislation cause problems. For instance, in my 4 February 2017 blog post Hillingdon JR: Lucky Strike Out?, I reported on a case where the equivalent provision in relation to challenges to national policy statements under the NSIPs regime was relied upon to strike out a challenge to the Government’s announcement of a decision to publish a draft airports NPS.

R (CK Properties (Theydon Bois) Limited) v Epping Forest District Council (Supperstone J, 29 June 2018) concerned a challenge by a developer to Epping Forest District Council’s decision on 14 December 2017 to proceed with regulation 19 consultation of the submission version of its draft local plan prior to its submission to the Secretary of State for examination.

For those not familiar with the process, in summary authorities first have to carry out consultation in relation to their proposed development plans under Regulation 18 of the Town and Country Planning (Local Planning) (England) Regulations 2012 and take that consultation into account in preparing a revised version either for further Regulation 18 consultation or, if they consider that the document is ready for examination, for submission to the Secretary of State – in which case they must then carry out further consultation, under Regulation 19, before submitting the plan along with the representations received in response to that further consultation.

Remember back when many local planning authorities were racing to submit their local plans before a deadline of 31 March 2018, when the Government was indicating that its proposed standardised methodology for assessing housing needs would need to be used for plans submitted after that date? Of course that date then slipped with the delays to the draft revised NPPF to a date which will now be six months after the new NPPF is published but that’s another story.

Epping Forest was one of those authorities rushing to submit its plan, a district where the new standardised methodology would apparently increase the required housing provision over the plan period from some 11,400 to 20,306 homes. Some difference.

CK Properties have a site which was not allocated for residential development. Its complaint in the legal proceedings was that the appendix to the council’s site selection report that assessed the various sites considered for allocation and explaining its reasoning was not available at the time the council made its decision to consult on the submission version of its plan, despite assurances in its statement of community involvement that such background documents would be made available. The claimant secured an order from the Planning Court on 20 March 2018 restraining the council from submitting the plan for examination until the claim had been determined.

At the full hearing, the council sought to argue that regardless of the position in relation to the matters complained of, the effect of section 113 was that any challenge would have to await adoption of the plan.

It’s an important issue – can those aggrieved by a decision by a local planning authority to submit its plan to the Secretary of State for examination, challenge that decision by way of judicial review or do they have to store up their complaint until the plan is finally adopted?

The High Court had previously considered a challenge to a decision taken at an earlier stage in the development plan process in The Manydown Company Limited v Basingstoke and Deane Borough Council (Lindblom J, 17 April 2012), allowing judicial review proceedings to be brought of a decision by a council to approve a pre-submission draft core strategy for consultation (the equivalent of what is now the regulation 18 stage under the 2012 Regulations). The judge postulated that the position might be different in relation to the submission draft of a plan but considered that section 113 did not preclude challenges to pre-submission drafts.

Indeed the judge saw good sense not closing out the potential for an early challenge:

“In a case such as this, an early and prompt claim for judicial review makes it possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving much time and expense – including the expense of public money – that might otherwise be wasted. In principle it cannot be wrong to tackle errors that are properly amenable to judicial review, when otherwise they would have to await the adoption of the plan before the court can put them right.”

The High Court had also considered in IM Properties Development Limited v Lichfield District Council (Patterson J, 18 July 2014) the different question as to whether judicial review proceedings could be brought in relation to main modifications to a local plan or whether the challenge could only be brought post plan adoption by way of section 113. The court determined that the latter position was correct:

“Once a document becomes a Development Plan document within the meaning of section 113 of the 2004 Act the statutory language is clear : it must not be questioned in any legal proceedings except in so far as is provided by the other provisions of the section. Sub-section (11)(c) makes it clear that for the purposes of a Development Plan document or a revision of it the date when it is adopted by the Local Planning Authority is the relevant date from when time runs within which the bring a statutory challenge.

It is quite clear, in my judgment and not inconsistent with the Manydown judgment, that once a document has been submitted for examination it is a Development Plan document. The main modifications which have been proposed and which will be the subject of examination are potentially part of that relevant document. To permit any other interpretation would be to give a licence to satellite litigation at an advanced stage of the Development Plan process.”

Having considered the scope of section 113 and these two previous authorities (neither covering the situation of an authority’s decision to proceed with a submission draft plan), Supperstone J concluded that the authority’s decision to prepare for submission of the plan could indeed be challenged by way of judicial review and was not closed out by section 113.

Whilst the claim ultimately failed because the judge did not find any of the grounds of challenge to be made out, the potential implications of the ruling are significant. There is very clearly now a window for judicial review of a local planning authority’s decision to embark on regulation 19 consultation (the formal precursor to submission of the plan for examination). The window closes when the plan is submitted for examination and any subsequent challenge can only be brought once the plan has been adopted. If there are clear grounds for challenge (for instance on the basis of procedural failings in the process to that date) why wait for submission of the plan and its eventual adoption? Indeed, might claimants challenging an adopted plan be criticised and even denied relief if they could have brought proceedings at the earlier stage?

Whilst there is something to be said for the Lindblom LJ (as he now is) view, expressed in Manydown, that early challenge (rather than having potential challenges stored up) can be a good thing, it can surely also be a bad thing if it slows down the process, particularly if, as is so often the case, the challenge is ultimately dismissed.

I assume that one reason why the claimant brought the early challenge in Epping Forest, and secured the interim order obtained from the court preventing submission of the plan until the full hearing had taken place into the challenge, was to seek to ensure that the plan was not submitted until the deadline had passed after which the Government’s standardised methodology for assessing housing needs had been introduced – given that the new methodology would require additional housing sites to be found. However, such have been the delays with the introduction of that methodology and such has been the speed of the court process to date (I do not know whether permission to appeal is being sought) it is very likely that the council will still be in a position to submit its plan on the basis of the old methodology.

Simon Ricketts, 30 June 2018

Personal views, et cetera