Update | Planning: large-scale housing decisions and the NPPF

The government has launched a high-level consultation on streamlining the English planning application process, though it is light on detail and cannot sensibly be considered until more detail is available later in the year. Under pressure from the Treasury, DEFRA conducted a review of the Habitat Regulations earlier this year, the outputs of which are now being implemented. The habitats regime is regarded by many as a brake on a variety of large-scale infrastructure projects. However, a recent decision on an offshore wind farm is a timely reminder of the unavoidable legal teeth this regime has when compared to normal planning decisions and where discretion is ultimately king.

The Department of Energy and Climate Change (DECC) recently announced its decision on three applications for offshore wind farms to be constructed in the Wash off the Norfolk coast. DECC consented two of these schemes but refused permission for the third, Docking Shoal.

The refusal of this application highlights the importance of the Habitat Regulations and the impact these can have on development proposals.

The Habitat Regulations is an umbrella term which is used to refer to a number of different pieces of domestic legislation which are derived from European directives for the protection of certain animals, birds and their habitats. The aim and purpose of the directives and the regulations is to protect the integrity of certain identified species and their habitats.

The species in question in the Wash was the sandwich tern. DECC concluded that while two of the three offshore wind farms could be constructed and operated without an adverse impact on the integrity of this species, the combined effect of all three schemes would have resulted in an adverse impact on integrity of the relevant special protection area.

The difficulty with the Habitat Regulations is that they afford the decision maker very little scope to approve schemes where an adverse impact on integrity is identified. In this respect the Habitat Regulations are much more stringent than the environmental impact assessment process which does afford decision makers the discretion to approve projects even where significant impacts of the environment are identified.

Under the Habitat Regulations, schemes which are predicted to have an adverse effect on integrity will only be consented if they can satisfy the imperative reasons of overriding public interest (IROPI) test. That is a demanding hurdle to clear, though it has been invoked on a variety of ports and other schemes onshore and not one that was even considered by DECC when refusing the Docking Shoal application.

Central government has identified the Habitat Regulations as a potential barrier to new development and DEFRA carried out a review of them and how they are implemented earlier in the year. There is ?far more subjectivity and need for professional judgment in these matters than is widely appreciated, and it will be interesting to see the effects of this review over the coming period.

NPPF v localism

The Secretary of State recently granted permission on appeal for two sites in Gloucestershire, which will provide ?a total of one thousand new homes, and ?in so doing made some interesting comments in relation to the local planning authority’s lack of a five-year housing supply and localism.

The sites sit outside the development boundary, in open countryside. The local planning authority argued that their rejection of the schemes was justified based on their landscape impact, prematurity ?and localism.

The Secretary of State emphasised that the most significant material consideration was the lack of a five-year housing supply. This was above considerations relating to the landscape impact of the site, and his own localism agenda.

The willingness of the Secretary of State to prioritise satisfying a housing need shows the significance that this is given by the government. Although in this appeal it should be noted that there was a lack of a plan-led solution to the housing shortage, the Secretary of State also granted permission on the same day for a 350 dwelling scheme near Manchester to assist a lack of a five-year supply where the local plan was up to date. In both instances the presumption in favour of sustainable development as contained in the National Planning Policy Framework (NPPF) featured in the Secretary of State’s decision.

The Secretary of State also made some interesting comments on the role of localism where there is no up-to-date local plan. The Gloucestershire decision letter stated that the power for communities to have input into developments in their area also came with the responsibility to ensure that a ?local plan was in place. Not having an up-to-date plan will lead to the power “to ?have a say over the scale, location and timing of developments” being removed. Local planning authorities should bear this in mind.

Revoking planning permission

Section 97 of the Town and Country Planning Act 1990 gives a local planning authority the ability to revoke or modify planning permission where it considers it expedient to do so. However, exercising that power normally gives to a right of compensation, payable by the local authority.

In the recent case of The Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34, the Supreme Court was asked to consider whether the amount of compensation payable could amount to a material consideration which a local authority could take into account when deciding whether to use its s97 powers.

The Court of Appeal had previously answered this query in the affirmative [2010] EWCA Civ 892 but leave was given to appeal to the Supreme Court on the basis that the point is of general importance and a definitive decision was desirable.

A unanimous Supreme Court dismissed the appeal and supported the Court of Appeal’s decision that compensation costs could be taken into account by the local planning authority (LPA) when considering the expediency of revoking permission.

The Court’s decision is unambiguous, and reverses the long standing previous position, but does raise questions as to What weight should be attached to compensation as a consideration. Will compensation act as a trump card for LPAs, allowing them to refuse to act where doing so would put them at financial risk?

The Supreme Court did not think such practical issues should be a cause for concern. Its view was that a LPA would “find it difficult to defend the rationality of a refusal to act, if the only reason were other demands on its budget”. It was also noted that the Act gives the Secretary of State call-in powers which could be used to make a revocation order where the LPA fails to.

In practice, the prospect of having to ?pay compensation has meant that revocations of planning permissions are relatively rare. Local authorities have chosen to take alternative approaches, such as raising judicial review proceedings against their own grant of planning permission. By allowing the cost of revoking a permission to be taken into account it is likely to make revocation orders even more of a rarity. However, any local authority seeking to rely on compensation as a material consideration will need to supply a detailed account of why this outweighs other considerations.

Breach of natural justice

Ashley v Secretary of State for Communities and Local Government [2012] EWCA Civ 559 ? a local planning authority refused planning permission for a housing development on several grounds including noise disturbance to existing residents.

The refusal was appealed by the developer and was dealt with by written representations rather than an inquiry or appeal. A local resident, Mr Ashley was required to submit comments as an interested person by the end of the six-week stage of the appeal, which he did one week before it closed.

On the last day of the six-week period, the developer appellant submitted an expert noise report, which stated that noise levels would be acceptable to local residents. Mr Ashley did not comment on the report and was unaware it had been submitted.

In allowing the appeal, the inspector relied on the report in his decision. The inspector concluded that the proposal would not be significantly harmful to living conditions and also noted the “absence of any contrary evidence” to that in the report.

At first instance, the High Court held that the onus was on Mr Ashley to both inspect the local authority planning register and make a request of the Inspector to ask for more time to respond to the noise report. ?As he had done neither, the Court refused his claim.

The Court of Appeal disagreed and allowed the appeal on the grounds that there had been a breach of natural justice.

The Court found that the written representations procedure had been chosen over the other modes of appeal as expert evidence was not expected. The expert report had been produced at the very end of the six-week period and as the interested parties had no knowledge of its submission, Mr Ashley was not at fault for not reviewing the planning register after that date. The Court felt that the Inspector should have considered the fairness of the situation given the mode of appeal.

The inspector’s decision was quashed even though he had followed the relevant government guidance devised to deal with this type of appeal. The Court of Appeal suggested that the Planning Inspectorate Guidance 1/2009 should be reviewed in light of this decision.

The decision highlights the importance ?of choosing the appropriate method of appeal, and in also ensuring all sides get ?fair notice of evidence. Although the developer limited the opportunity for commenting on its evidence, ultimately this prejudiced their appeal.