Update: planning and environmental law

Challenges and appeals

London Borough of Haringey v Secretary of State for Communities and Local Government [2008] EWHC (QB); [2008] WLR (D) 145 is of interest in two respects, the approach to assumptions of lawfulness of a use and the way in which an inspector should raise any new matter which the parties had not addressed. In this case the appeal had been dealt with by way of written representations where parties are not permitted to make submissions at the site visit. The inspector granted planning permission for the unauthorised use for education, training and worship of a unit in premises within an area designated by the claimant in its development plan as a 'defined employment area industrial location'. On his site visit he had observed that the adjacent unit was being used as an educational facility. He concluded that since he had no evidence that the neighbouring use was unauthorised it must be lawful and that a return to an employment use on the appeal site would be incompatible with the neighbouring educational use. He held that this was a material consideration to justify a departure from the development plan. The inspector had upheld the second defendant's appeal against an enforcement notice on ground (a) in s 174(2) of the TCPA 1990 namely that planning permission ought to be granted for the unauthorised use of unit 1. Sullivan J held that the inspector's claim that 'nothing had been put before [him] to indicate that the educational use of units 1a and 2 was unauthorised' was erroneous. There was no evidence whatsoever before the inspector regarding the lawfulness of the use of units 1a and 2. The claim form and witness statement affirmed the true position. No planning permission for educational use had been given and there was no evidence that such use had begun more than 10 years before the enforcement notice was served. Further, the terms of a previous inspector's decision, which upheld an enforcement notice and refused planning permission for change of use of unit 6 to a place of worship, should have indicated to the inspector that it was unlikely that the use of units 1a and 2 for educational purposes was lawful. The inspector should have raised the matter after the site visit as a matter of elementary fairness and common sense given that the conclusion that the use was not unauthorised was fundamental to the rest of his decision. There was nothing in the second defendant's appeal notice that related to anything other than the use of unit 1 for the purposes of education and worship. The use of units 1a and 2 was a new point devised by the inspector that should have been put to the claimant local planning authority. The consequence of the successful application under s 288 of the Act was that the grant of planning permission was quashed. The consequence of the successful s 289 appeal was that the decision quashing the enforcement notice was itself quashed, and the appeal against the enforcement notice was revived and remitted for re-determination..

R (Technoprint plc) v Leeds City Council [2007] EWHC 638 (Admin) concerned the grant of retrospective permission to retain reverse jet filters installed at a paint manufacturing works. The first claimant occupied business premises located on another part of the same site and the second claimant, who owned the first claimant company, lived in a residential house that was also located on the site. They had objected to the grant principally on the ground that the jet filters created excessive noise. Having received heard evidence from experts and the council's environmental health officers, the council's planning panel had been minded to refuse consent but had indicated that it was prepared to consider noise attenuation measures. However at a further meeting the panel was minded to grant consent. The applicant had not provided any details of noise attenuation measures or how any such measures would be implemented, so the panel delegated its powers to the chief planning officer, who granted consent subject to conditions as to operating hours, and to noise attenuation measures that were to be agreed and installed within three months of the grant. Noise attenuation measures were subsequently implemented but no details were provided beforehand. The claimants contended that the decision to grant consent was irrational and perverse because there had been no evidence as to how the noise from the jet filters was to be attenuated such that the panel could properly have changed its earlier opinion. The court agreed and allowing the application for judicial review.

In R (Jones) v Swansea City & County Council [2007] EWHC 213 (Admin) the challenge was to the grant of permission for a neighbour's first-floor front extension. The court held that it had been incumbent on the council to make an overall assessment that included an assessment as to whether or not the proposal contravened the guidelines for maximum distances between windows. He found that had this been done, a conclusion would have been reached that at least one of the proposed windows breached the guidelines by a considerable distance and there was a real possibility that the result might have been different, as committees often rejected proposals that were in breach of published guidelines even if an officer had recommended approval. However, the court exercised its discretion not to quash because the evidence demonstrated that the council had embarked on its reconsideration with an open mind and had before them all that was relevant.

In so doing the court placed great weight on the fact that the members of the committee decided to view the building for themselves and that re-appraisal was a compelling reason why relief should not be granted in the context of the instant case. One cannot a little uneasy upon this use of judicial discretion. The better approach should be for a council to submit to judgment at the earliest stage and then move to reconsider. Reconsiderations made in the midst of litigation are generally unlikely to command public confidence.

Fall back positions

In R (Orange Personal Communications Services Limited) v Birmingham City Council & Smalldene (Midlands) Limited [2007] EWHC 760 (Admin) Orange owned and operated a site that housed a telecommunications switch which contained sensitive equipment. They shared a privately maintained access road with Smalldene, which owned an adjacent site. Smalldene's predecessors had been granted consent to use the land for storage and distribution of quarry products but that consent had never been implemented and had expired. In 2004 Smalldene applied to turn the site into a waste handling and storage development. Orange objected on the basis that dust could interfere with the operation of the switch, and submitted an environmental report on the effects of the proposed development. The application was subsequently withdrawn. Smalldene then applied for change of use from vacant industrial land to a vehicle depot for up to 14 lorries and six construction vehicles. Orange objected once again.

It relied on the environmental report that had been prepared for the previous application. In the committee report the officer had attached no weight to Orange's environmental report. At the meeting the officer had wrongly told the committee that the actual lawful use of the site was for quarry products, as identified in the expired 1999 consent. The court held that the effect of the officer wrongly informing the committee that there was an extant consent for a similar use, more severe in its potential impact than the one they were considering, identified a fall back position which obliged the decision maker to have regard to it although it was not a true fall back. The court also held that the officer had also acted in an irrational way in refusing to attach any weight to the assessment of harm contained in Orange's environmental report merely as the character of the proposed development was different to that of a waste transfer station.

Strategic environmental assessment

In Seaport Investments [2007] NIQB 62 two plans were challenged for inadequate subjection to proper Strategic Environmental Asessment (SEA). The draft Northern Area Plan 2016, published on 11 May 2005 covered the areas of Ballymoney, Coleraine, Limavady and Moyle, and the draft Magherafelt Area Plan 2015, published on 28 April 2004 and covered the Magherafelt district. The first applicant was a property development company based in Portballintrae, County Antrim, and the second applicants the Magherafelt District Council, together with five property development companies operating in the Magherafelt area. The respondent was the Department of the Environment. In short, the judgment held that the Environmental Assessment of Plans and Programmes Regulations (Northern Ireland) 2004 did not adequately implement in a number of respects the requirements of Directive 2001/42/EEC on the Assessment of the Effects of Certain Plans and Programmes on the Environment.

In particular Weatherup J held that the regulations which designated only one environmental consultation body the Department of the Environment did not properly implement the directive where the Department was the plan making authority itself. In other words there could be no consultation between the Department as plan maker and itself as consultation body required by the Directive. The court also held that the failure to specify actual time period for consultation also failed properly to transpose the directive. The department appealed these two aspects to the court of appeal. A hearing took place on 2 and 3 June and judgment is awaited. Weatherup J also held that the accompanying environmental report failed to comply with a series of requirements of the regulations and that there had been a failure to comply with the regulations. That aspect of the judgment was not appealed and can provide a helpful check-list. The court's consideration of the timing of the production of the environmental report and the draft plan is of particular importance. Weatherup J held that the two should development in 'parallel'.

In R (Howsmoor Developments Ltd) v South Gloucester District Council [2008] EWHC 262 (Admin) a judicial review was brought of the South Gloucestershire Council's SPD Development Brief for the Emersons Green East site that the environmental report was not sufficiently robust to meet SEA requirements. The Brief provided an indicative framework as to how the local plan policy would be carried forward but did not itself make an allocation. The local plan had been adopted before the SEA Directive came into force, however the Planning and Compulsory Purchase Act 2004 made it obligatory for supplementary planning documents, such as the Brief, to be subject to a sustainability assessment and also SEA was required. It was possible in principle to satisfy both requirements through a single document. It was argued that under articles 5 and 13 of the SEA Directive, that the LPA had been required to subject each policy of the local plan to SEA. The court rejected this submission as an attempt to give the Directive retrospective effect by submitting policies adopted before the relevant date to the new regime.

Green belt boundaries

In David Wilson Estates Limited v Mid Bedfordshire District Council [2007] EWHC 266 (Admin) the court considered the need to demonstrate exceptional circumstances under PPG2, over the fixing of a green belt boundary. Under a previous local plan Wilson's site had not been included within the green belt though it had been assigned interim green belt status.

The local planning authority subsequently carried out a review of the green belt and included the Wilson site within it. The local plan inspector recommended that the site should not be included as green belt status was unnecessary to protect it, the council rejected that recommendation. The council contended that consideration of the PPG2 test was not required, as the structure plan in force at the time of the local plan inquiry only required the general extent of the green belt to be defined and not for precise boundaries to be set, which was a matter for it when adopting the local plan.

The High Court accepted the council's submissions and held that as the boundaries of the green belt had not been fixed by the previous local plan the council did not need to have regard to the PPG2 tests as no final decision had previously been reached.