2018 Case Law Update

2018 CASE LAW UPDATE Scott Lyness Landmark Chambers Introduction 1. The perennial difficulty with presenting case law updates is reconciling the cascade of judgments, the disparate issues they cover and the limited time that is available to explain them. 2. Despite its length, this paper is not comprehensive; rather it tries to corral the main developments of the past year or so by discussing them on a topic-by-topic basis, dealing with cases in a vague order of importance or interest under each topic. It covers a period of roughly a year up to 27 November 2018. Separate slides will focus on a selection of the cases which are covered in more detail below. 3. If it is possible to discern any underlying theme in recent cases, it is the resolve of the Courts to discourage claims which seek to stray beyond the permissible boundaries of legal challenges in the planning field. The decision of the Supreme Court in Tesco Stores, which confirmed that the interpretation of planning policy was a matter of law for the Courts, has been seen by many as encouraging a far greater degree of litigation, particularly at a time when the decision to government to streamline policy in the NPPF inevitably gave rise to questions of how that new policy should be construed. 4. But in Suffolk Coastal [2017] UKSC 37 the Supreme Court was at pains to highlight (at [23]) the “particularly unfortunate” “over-legalisation of the planning process.” It emphasised how the role of courts in interpreting planning policy should not be overstated; how statements of policy are not statutory texts and must be read in that light, in accordance with the natural language used; how the Courts should respect the expertise of the specialist planning inspectors, starting at least from the presumption that they will have understood the NPPF correctly; and how issues of genuine interpretation need to be distinguished from issues of application (see [23]-[26]). 5. That clear message has resounded from the Courts in the past year, through the active discouragement of challenges which involve the “excessive legalism infecting the planning system” (Mansell v. Tonbridge and Malling BC [2018] EWCA at [41]), or "hypercritical scrutiny" of decisions which are “laboriously dissected in an effort to find fault” (St Modwen Developments v. SSCLG [2017] EWCA Civ 1643 at [7]). The dangers of excessively forensic analysis of decision letters and overwrought linguistic analysis, when “planning policies do not normally require intricate discussion of their meaning,” (Mansell, ibid) are plain. 1 6. That said, litigation on the interpretation of NPP1 has prompted government to amend policy by producing NPPF2; and it seems likely that those writing legal updates next year may be faced with a similar spate of authorities to discuss. 7. The topics covered below are as follows: Page (1) Interpretation of policy 3 (2) Housing 7 (3) Green Belt 13 (4) Valued Landscapes 16 (5) Heritage 18 (6) Viability 22 (7) Habitats/EIA 25 (8) Air Quality 39 (9) Environmental information 41 (10) Challenges to policy 42 (11) Conditions 52 (12) Obligations 55 (13) CIL 60 (14) Reasons 63 (15) Officers’ reports 67 (16) Consistency in decision-making 69 (17) Reserved matters 72 (18) Permitted development 76 (19) Procedural issues 78 (20) Enforcement 91 (21) Public Sector Equality Duty 95 (22) Town and village greens 97 (23) Assets of Community Value 102 (24) Public Procurement 104 2 Interpretation of policy 8. This general topic covers cases which could be included under more specific headings, but it is included here to illustrate that despite the warnings of the Courts about challenges confusing the application of policy (which is essentially a judgment for the decision-maker) with its interpretation (which is for the Courts), issues of construction do arise. In Suffolk Coastal the Supreme Court recognised that the courts "may sometimes be needed to resolve distinct issues of law" ([36]) and this has genuinely been the case with some aspects of NPPF1. Several topics which encompass more than one case are considered below. There have been a few other cases which show the potential for this type of challenge to continue. 9. Preston New Road Action Group v. SSCLG [2018] EWCA Civ 9 concerned an challenge over the interpretation of policies in a minerals local plan (policies CS5 and DM2) which respectively stated (in part) (i) that criteria would be developed for considering proposals to ensure that important landscapes would be “protected from harm” and (ii) that development would be supported where all material impacts that would cause demonstrable harm “can be eliminated or reduced to acceptable levels and where proposals will, where appropriate, make a positive contribution” to social, economic or environmental interests. It was alleged that an Inspector on appeal had erred in finding that policy CS5 would be complied with because the harm to the landscape would only be temporary, when any harm would be enough to cause a breach. 10. The Court of Appeal upheld that judgment below that Policy CS5 could not be read to prohibit any harm to the landscape, including temporary harm ([18-[19]). It was a policy specifically concerned, in part, with the working of minerals, which will likely alter the landscape during the extraction phase, but where effects will often be reversed or repaired in the course of the site’s restoration. The policy was a strategic policy and looked to a further policy to translate its objectives and requirements into criteria for considering proposals. It should be read with DM2, which anticipated that harm might arise. And even if policy DM2 were ignored expressions such as “protected from harm”, “protect” and “protected” in the policy were not to be read as foreclosing the exercise of planning judgment but require judgment to be exercised, having regard to the particular facts and circumstances of the case in hand, bearing in mind that the broad concept of “harm” is not defined in Policy CS5. The policy allowed a planning judgment, in a particular case, that temporary effects on the landscape - even if likely to last for several years before their remediation - would not offend its objectives and would not constitute a conflict with it. 11. In response to the claim that the Inspector had ignored the part of policy DM2 which refers to whether the proposed development would make a “positive contribution” of any relevant kind, it was held that the policy did not require the refusal of planning permission for proposals that do not hold in prospect such a contribution. The policy was deliberately qualified by the important words “where appropriate” so if, for whatever reason, it was not “appropriate” for a particular proposal to make a “positive contribution” of some kind, the policy did not rule out, or presume against, the grant of planning permission for it ([24-8]). 3 12. Two other cases underscore the importance of looking at the particular policies in question. In Chichester District Council v Secretary of State for Housing, Communities and Local Government & Anor [2018] EWHC 2386 (Admin) the claimant unsuccessfully challenged an Inspector’s decision letter on the ground that it was irrational to rely upon a distinction between the “policies” of the Neighbourhood Plan and its “aims”. 13. There the relevant policies identified settlement boundaries and allocated sites for development, but did not "presume against development outside of the settlement boundaries" and referred to boundaries being addressed in the Local Plan. The Inspector thought the proposal was "at odds with the aims" of the Neighbourhood Plan with regard to the location of new housing ie not to be located north of an identified railway crossing to avoid traffic congestion. But this aim was not expressed in the wording of the policies. The Inspector could rationally draw a distinction between the policies and their aims and conclude that the proposals did not conflict with the policies in the Neighbourhood Plan. 14. This can be compared with Canterbury City Council v. SSCLG [2018] EWHC 1611 (Admin), where it was alleged that an Inspector failed to properly interpret a housing policy. The claimant argued that whereas the policy identified particular types of location for housing development, it followed that areas inconsistent with those which have been identified were not supported by and conflicted with the implicit "negative corollary" within the policy. The policy in question stated that “the City Council will permit residential development on sites allocated for housing or mixed use as shown on the Proposals Map...On other non-identified sites on previously developed land within the urban areas, planning permission will also be granted (unless other identified criteria applied). It was held ([33]) that: “Taking the language of the policy itself, and without reference to any of the explanatory text, it is clear that the purpose of the policy is to identify, for the purposes of housing development, the types of location where the plan required housing development to take place....It follows that if housing development is proposed in a location which does not accord with the types of locations specified in the policy, that proposal will be inconsistent with and unsupported by the policy and therefore not in accordance with it and in conflict with it”. 15. A couple of other cases do not fall neatly within the policy topics considered below. 16. In R (Green) v South Downs National Park Authority [2018] EWHC 604 (Admin) Stuart-Smith J. had to consider whether in granting permission for the redevelopment of Madehurst Lodge, a Grade II listed building in the South Downs National Park the Authority had, by reference to opinions written by Landmark’s James Maurici QC, failed to properly consider whether what was proposed was “major development” pursuant to NPPF1 [116].

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