Transcript Simon Bird QC

Planning Law Update
Simon Bird QC
TOPICS
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Recovery vs Disposal
Interpreting planning permissions
Applying policy
Heritage Issues
SEA and reasonable alternative options
Development Management cases
Recovery vs Disposal
R(Tarmac Aggregates) v SSEFRA [2016] PTSR 491
Restoration of a sand and gravel quarry in
accordance with an approved scheme the subject
of a planning condition amounted to recovery not
disposal for the purposes of the WFD
Principal Objective
Court of Appeal held that the principal objective was
ecological improvement of the site and the
requirement to restore under the planning
condition meant that if waste were not used,
other materials would have to be. The operation
was therefore one of waste recovery
Interpreting planning permissions
(aka “What have I done?”)
Trump International Golf Club Scotland v Scottish
Ministers [2015] UKSC 74
• Failed challenge to grant of consent under s.36 Electricity
Act 1989 for a wind farm near golf resort
• Supreme Court rejected principal contention that a
condition was void for uncertainty as it contained no
mechanism enabling the Scottish Ministers to secure that
the development was constructed in accordance with the
design statement i.e. No implementation clause
Trump
• Court held that condition was enforceable without
needing to imply terms but declined to accept that there
was no scope in an appropriate case to imply conditions
distinguishing a number of cases dealing with planning
conditions which have held that no such power existed.
However, the Courts would exercise great restraint in
implying terms into public documents
• The Planning Court has subsequently held that Trump
applies to planning permissions and not just consents
under the Electricity Act
Dunnett Investments Ltd v SSCLG [2016] EWHC 534
(Admin)
Issue what did the following condition mean?
“This use of this building shall be for purposes falling within
Class B1 (Business) as defined in the Town and Country
Planning (Use Classes) Order 1987, and for no other
purpose whatsoever, without express planning consent
from the Local Planning Authority first being obtained”
Patterson J held that Trump was of assistance in interpreting
planning permissions and had moved the law on in terms of
implied conditions.
Dunnett
Principles:
• Planning conditions need to be construed in the context of the pp as a
whole
• They should be construed in a commonsense way and given a sensible
meaning if at all possible
• There is no reason to exclude an implied condition but a pp is a public
document which may be relied upon by parties unrelated to those
originally involved
• A cautious approach is required given the means of enforcement
which include criminal proceedings
• The issue is what a reasonable reader would understand the condition
to mean and the reason for imposition will inform that conclusion
Applying the development plan – when does
a development accord or conflict?
Tiviot Way Investments Ltd v SSCLG [2015]
EWHC 2489 (Admin)
• SoS disagreed with his Inspector and dismissed
an appeal for up to 500 houses on the ground
that the scheme conflicted with a longstanding
policy objective of maintaining a green wedge
between Ingleby Barwick and Thornaby
• No mention was made of the many other policies
of the Core Strategy with which the appeal
proposal complied
• The decision was successfully challenged on the
ground that section 38(6) of the 2004 Act
requires the decision maker to assess whether a
proposed development complies with the
development plan as a whole and not just one
policy
• That requires an evaluation of the main policy
areas that are relevant to the proposal
SSCLG v BDW Trading Ltd [2016] EWCA Civ
493
C/A reversed High Court finding that in simple case
where a single policy was principally engaged
there was no requirement for elaborate reasoning
provided it was clear the policy was faced up to
and what conclusion was reached as to
compliance or otherwise
Heritage Assets and Statutory Presumptions
Listed buildings, any special architectural or historic
interest or feature they possess and their setting
Conservation Areas – character or appearance
East Northamptonshire District Council v
Secretary of State [2014] EWCA Civ 137
Jones v Mordue [2016] 1 P&CR 12
Blackpool BC v SSCLG [2016] EWHC 1059
• Presumption in favour of preservation of listed
buildings, their settings and the character and
appearance of Conservation Areas
• Considerable importance and weight should be
attached to any harm
Alternatives – Development Management
When is an alternative site or scheme a material
consideration which must be had regard to?
R (Westerleigh Group Ltd) v Aylesbury Vale
District Council [2015] EWHC 885
• Crematorium proposal on 3.7 ha of Grade 3A
land, in open countryside and with presence of
Great Crested Newts
• Rival operator promoting a pdl site with no
European Protected Species
• Report to committee recommended approval but
without treating the alternative scheme as a
material consideration
Patterson J held:
Whether or not an alternative scheme was a material
consideration was a matter of judgment
Absent some statutory requirement or special circumstance,
the decision maker was not required to eliminate possible
alternatives
On the pure broad planning issues, the loss of a small piece of
high quality agricultural land and a little bit of open
countryside was not “special” and there was no clear conflict
with the development plan
BUT
Reg 53(9) of the Habitats Regulations 2010 prevents EN
granting a licence for works which have the potential to
disturb a European Protected species unless it is satisfied that
“there is no satisfactory alternative”
The Council as local planning authority were obliged to
consider whether it was likely that NE would grant a licence
and the failure to consider whether the competing scheme as
an alternative meant that they had erred in this respect.
Alternatives – Plan Making
• Environmental Assessment of Plans and Programmes
(Wales) Regulations 2004
• What is a reasonable alternative option? How must it be
dealt with in the SEA process?
R(Friends of the Earth Ltd) v The Welsh Ministers
[2016] Env LR 1
• Issue – whether Welsh Government had failed to identify
describe and evaluate reasonable alternatives to the
proposed M4 improvement around Newport
• FOE contended that all of the options assessed adopted
the same alignment over the Gwent Levels SSSI at its most
sensitive area and that this routeing was selected before
any EAPP Regs compliant assessment had been
undertaken
Friends of the Earth
Hickinbottom J rejected the claim
On the facts he held that the only other options suggested
were not reasonable options i.e. they were not capable of
meeting the objectives which the decision maker was
working to
Importantly the judge approved the words of Ouseley J in
R(Bucks County Council v SSETR [2013] EWHC 481 (Admin)
that there is no requirement to explain alternative objectives
or why they are thought to be worth achieving. It is
alternative means of meeting the objectives which is the
focus of SEA
Friends of the Earth
Principles distilled
• Reasonable alternatives does not include all “possible” alternatives.
The word reasonable imports an evaluative judgement for the lpa
• An alternative which does not attain the stated objectives is not
reasonable
• Options may change in status from reasonable to not reasonable and
back again in the iterative process
• However, once the conclusion is reached that an option is not a
reasonable one, it requires no further assessment provided there is no
change in circumstances
• Outline reasons must be given for the choice and rejection of options
i.e. Dealing with the main reasons
Friends of the Earth
Importantly Hickinbottom J stressed that SEA:
“imposes purely procedural requirements. Of course, to
ensure effectiveness, that environmental assessment must
be performed during the preparation of the plan or
programme, and before its adoption...; but it imposes no
substantive obligations with regard to the decision itself,
e.g. to choose the option that will cause the least
environmental harm”
R (oao Williams) v Powys County Council [2016]
EWHC 480 (Admin)
Issue: Was the grant of pp for a single turbine unlawful given the absence
of any consideration of the effect of the development on a Grade II*
listed church?
Facts:
• No one had raised the effect on the setting of the church during the
consideration of the application or a preceding application
• Post grant, a planning officer visited the locality and wrote a report
concluding that the turbine would not be visible from the church and
that in the only medium range views the setting would not be harmed
Williams
The judge held:
• The s.66(1) Listed Buildings Act duty arises from the
existence of the listed building and not what anyone does
or does not say about it
• In some circumstances it will not be sufficient to rely on
silence
• Here however, the fact that no one had ever raised the
issue in lengthy planning proceedings helped to show that
the post-decision confirmation was a genuine explanation
of a decision lawfully taken and not an attempt to conceal
a material deficiency