Two interesting judgments by Holgate J already this month:
Newcastle Upon Tyne City Council v Secretary of State (Holgate J, 1 November 2022)
In this case Holgate J found that the inspector in granting planning permission had taken into account a legally irrelevant consideration in assessing the level of harm caused to the neighbouring Grade I listed St Ann’s Church (paras 60-79). The inspector’s decision had accounted for the fact that the level of harm to the Church could not be further minimised by a different design. The court held however that even if the level of harm was “minimised” by the current design, this said nothing about what that “minimised” level of harm amounts to – harm to a heritage asset might be “minimised” by the design proposed but nevertheless still be “substantial”. Another reminder of the care that needs to be taken by decision makers in relation to the NPPF heritage test heffalump traps (see also for instance my 12 December 2020 blog post, Where’s The Harm In That? Misreporting Heritage Effects).
The Judge dismissed two further grounds of challenge, including a challenge that the inspector had wrongly considered the likely deliverability of the scheme. Holgate J held that there was no reason why deliverability could not be a material consideration in the determination of a planning application/appeal if relevant to the merits of the proposal – in this case, the site was owned by Homes England and this was relevant to the likelihood of delivery given its statutory function to promote regeneration.
(Thanks to my colleague Emma McDonald for her initial summary of the case for our Town Library Planning Court Weekly Updates (subscribe for free here).
No original work from me at all this week because I’m now going to reproduce Landmark Chambers’ summary of the ruling on this important and recurring issue – I had started to draft my own but it was less concise – for any more than this do read the judgment itself):
“In a judgment handed down at 5.30pm this evening, Mr Justice Holgate has dismissed applications by two local planning authorities to continue injunctions previously granted without notice, which had the effect of preventing the use of hotels in the two authorities’ areas to accommodate asylum seekers (including those being relocated from the overcrowded facility at Manston).
The claims were brought by the two councils under s. 187B Town and Country Planning Act on the basis that using the hotels to accommodate asylum seekers would amount to a material change of use, from use as a hotel to use as a hostel. Noting that the mere fact that a hostel was not in the same use class as a hotel did not of itself establish that the change was “material”, and that the distinction between a hotel and a hostel was “fine”, Holgate J nevertheless accepted that there was a serious issue to be tried. However, applying the American Cyanamid balance of convenience, he concluded that the factors in favour of discharging the injunction clearly outweigh those in favour of continuing it. In particular:
1. The distinction between use as a hostel and use as a hotel was fine. Whether there was a material difference depended upon the planning harm identified by the claimants.
2. There would not be any irreparable damage or harm. The use would not cause any environmental damage or any harm to the amenity of neighbouring uses. The buildings would not be altered and there would be no issues relating to traffic generation.
3. Although there is a public interest in enforcement action being taken against breaches of planning control, the integrity of the planning system is not undermined by the normal enforcement regime, which allows alleged breaches to continue while the merits of an appeal are under consideration.
4. The defendant’s conduct was not a flagrant breach of planning control. There were respectable arguments that planning permission was not needed.
5. The Home office was facing an unprecedented increase in the number of asylum seekers, the vast majority of who it was under a duty to accommodate. Without the ability to contract for the use of hotels there was a real risk of some asylum seekers becoming homeless.
6. In the claim brought by Ipswich, the Council’s concerns about the potential impact on tourism were “tepid”.
7. The proposed use would be temporary in nature. If that turned out not to be the case there were “plenty of other weapons in the LPA’s enforcement armoury to tackle the issue”.”
Simon Ricketts, 12 November 2022
Personal views, et cetera