| Winckworth Sherwood |
Issue 34 Planning Ahead |
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bb133eleftPlanning Ahead Issue 34 - October 2010
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| Greater Flexibility for Planning Permission |
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The Department for Communities and Local Government has published guidance on planning permissions following consultation on Greater Flexibility for Planning Permissions. The document sets out the main features and statutory requirements for each procedure and provides practical guidance for their use, explaining how they differ from existing procedures. It also contains a useful summary comparison table. Please click here to download the planning permission document. |
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Judicial Review Fails |
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Berry & Marshall (Bolton Wood) Limited v The Secretary of State for Environment, Food and Rural Affairs & Interested Parties 2010 EWHC 2367 (Admin) concerns the judicial review of an Inspector's decision not to allow an appeal from a refusal of the Environment Agency to grant a permit under the Pollution Prevention and Control Regulations to dispose of waste at a quarry.
The regulations oblige the Environment Agency to refuse a permit unless planning permission is in force relating to the use of the site. The Agency was not satisfied on this point. The claimant appealed, asserting that it enjoyed permitted development rights under the 1995 GPDO, or alternatively, under various historic GDOs from 1950 to 1977. The Inspector refused the appeal.
The Inspector had rejected the claimant's case in relation to the 1995 GPDO but failed to deal adequately with submissions relating to historic rights. The claimant could only succeed on a reasons challenge if it showed it had been substantially prejudiced by this failure.
The application related to a site defined in a 1983 waste disposal licence. Before the Town and Country Planning GDO 1988, each waste deposit had planning consent by virtue of the historic GDOs and the area of deposit could be increased so long as its height was not extended above surrounding land. The 1988 Order revoked the general consent. Thus, any later deposit that extended the area or increased its height was a material change of use requiring planning permission. To rely on historic rights, the claimant had to show that before 1988 it had deposited waste on the entire area for which it now sought a permit. The conclusion from the Inspector's findings was that it had not done so. There was no extant planning permission for the whole site and the claimant could not establish prejudice. |
| Renewable Energy and Protection of Natural Habitats |
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In the recent case of R (on the application of Michael William Hulme) v (1) Secretary of State for Communities and Local Government (2) West Devon Borough Council (3) RES Developments Ltd [2010] EWHC 2386 (Admin), an applicant objector applied to quash a decision of the Secretary of State by his planning inspector, who granted planning permission on appeal for the erection of nine wind turbines close to residential homes. It was held that the Inspector had not mistakenly granted planning consent as the planning conditions which were imposed protected the living conditions of local residents and the Inspector had considered possible harm to the local bat population, notwithstanding that he did not expressly mention Directive 92/43/EEC and the Conservation (Natural Habitats & Co) Regulations 1994. The planning conditions had to be read in the context of the decision. The Inspector was found to have provided clear and sufficient reasons and had considered all relevant policy and material. The inspector's finding that any harm was fairly limited meant that there was no legal obligation to consider alternatives modes or sites, although these had been considered as appropriate. A legal obligation to do so only arose when there were clear planning objections. |
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Two cases have recently considered the effect of a new planning permission on earlier planning obligations or conditions. In R. (on the application of Prudential Assurance Co Ltd) v Sunderland City Council and Peel Investments (UK) Ltd [2010] EWHC 1771 (Admin) the issue was the effect on an earlier s.52 (now, effectively, s.106) agreement and Stevenage Borough Council v Secretary of State for Communities and Local Government and another [2010] EWHC 1289 (Admin). The latter case (although decided earlier) is not reported. It is, however cited in the Prudential case. Both cases confirm that a new planning permission opens a new chapter in the planning history and that the earlier restrictions do not continue to apply. |
| Development in a Green Belt and Very Special Circumstances |
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In the case of Hayden-Cook v (1) Secretary of State for Communities and Local Government (2) Guildford Borough Council [2010] EWHC 2551 (Admin), an applicant applied to quash a decision of the Secretary of State to dismiss his appeal against refusal of planning permission to build in a Green Belt. The applicant proposed to demolish two dwellings and replace them with two larger dwellings. These would be set back further from the road which he claimed would be safer. The Inspector found that the benefits of redevelopment could be realised by building the houses nearer in size to the original dwellings and accordingly very special circumstances did not exist to justify the development in the Green Belt.
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R (on the application of Iceland Foods Ltd) v Newport City Council
QBD (Admin), LTL, 12/10/2010 |
| Feedback |
PLANNING AHEAD
Issue 34 October 2010
Welcome to the latest issue of Planning Ahead, Winckworth Sherwood's monthly update on Planning Law. Here we comment on the latest changes to the law, and the important topical issues of the month. If there are any particular issues that you feel should be covered, please do let us know in the feedback section below.
The topics covered in this months edition are:
Government's Spending Review
The Government has published its biggest programme of spending cuts for decades in the Spending Review announced on 20 October. £81 billion will be cut from public spending over 4 years and the budgets of Councils, welfare and police will all be affected.
Eric Pickles, Secretary of State for Communities and Local Government has written to leaders of local authorities setting out how the Spending Review will affect local government. Key councils will face, on average, a loss of grant of 7.25% in each of the next four years. They will, however, receive more flexibility and financial freedom. Changes relating to planning include:
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Replacement of Regional Development Agencies with local enterprise partnerships.
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The New Homes Bonus Scheme which will reward communities that build houses.
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Introduction of a Regional Growth Fund worth £1.4 billion to create jobs and growth in areas currently heavily dependent on the public sector.
Please click here to read the letter to local authorities.
Environmental Information Regulations 2004
Public benefit in disclosing developer's viability report outweighs commercial sensitivities
The case of Bristol City Council v (1) Information Commissioner (2) Portland and Brunswick Squares Association EA/2010/0012 concerns an application for planning permission to refurbish a listed building owned by the council and to demolish the adjacent Lakota building in a conservation area. In line with PPG15, the developer lodged details of a scheme involving retention of the Lakota building and a report showing it would be unviable.
A local residents' group made an EIR application for sight of the report. The council refused to disclose it, relying on the qualified exemption for commercial confidentiality at regulation 12(5) (e). The group complained to the Information Commissioner who decided the exception did not apply. The council appealed.
The report comprised "environmental information" for the purpose of the EIR. The Tribunal found that it was commercial in nature, subject to confidentiality to protect a legitimate economic interest and disclosure would adversely affect such confidentiality. However, the Tribunal concluded that the public interest in disclosure "substantially outweighed" the public interest in maintaining the exemption; giving weight to the requirements of PPG 15, the desirability of public participation in planning, the particular scrupulousness required because the council owned part of the development site and the mismatch of resources between developer and residents' group. It was "very significant" that the information was directly relevant to an imminent, controversial decision concerning demolition of a protected building. Although the Tribunal emphasised that its decision does not set a precedent, it is clearly of interest to local planning authorities, developers and residents' associations.
Greater Flexibility for Planning Permission
The Department for Communities and Local Government has published guidance on planning permissions following consultation on Greater Flexibility for Planning Permissions. The document sets out the main features and statutory requirements for each procedure and provides practical guidance for their use, explaining how they differ from existing procedures. It also contains a useful summary comparison table. Please click here to download the planning permission document.
Judicial Review Fails
Inspector did not provide adequate reasons for decision but claimant suffered no prejudice
Berry & Marshall (Bolton Wood) Limited v The Secretary of State for Environment, Food and Rural Affairs & Interested Parties 2010 EWHC 2367 (Admin) concerns the judicial review of an Inspector's decision not to allow an appeal from a refusal of the Environment Agency to grant a permit under the Pollution Prevention and Control Regulations to dispose of waste at a quarry.
The regulations oblige the Environment Agency to refuse a permit unless planning permission is in force relating to the use of the site. The Agency was not satisfied on this point. The claimant appealed, asserting that it enjoyed permitted development rights under the 1995 GPDO, or alternatively, under various historic GDOs from 1950 to 1977. The Inspector refused the appeal.
The Inspector had rejected the claimant's case in relation to the 1995 GPDO but failed to deal adequately with submissions relating to historic rights. The claimant could only succeed on a reasons challenge if it showed it had been substantially prejudiced by this failure.
The application related to a site defined in a 1983 waste disposal licence. Before the Town and Country Planning GDO 1988, each waste deposit had planning consent by virtue of the historic GDOs and the area of deposit could be increased so long as its height was not extended above surrounding land. The 1988 Order revoked the general consent. Thus, any later deposit that extended the area or increased its height was a material change of use requiring planning permission. To rely on historic rights, the claimant had to show that before 1988 it had deposited waste on the entire area for which it now sought a permit. The conclusion from the Inspector's findings was that it had not done so. There was no extant planning permission for the whole site and the claimant could not establish prejudice.
Renewable Energy and Protection of Natural Habitats
In the recent case of R (on the application of Michael William Hulme) v (1) Secretary of State for Communities and Local Government (2) West Devon Borough Council (3) RES Developments Ltd [2010] EWHC 2386 (Admin), an applicant objector applied to quash a decision of the Secretary of State by his planning inspector who granted planning permission on appeal for the erection of nine wind turbines close to residential homes. It was held that the Inspector had not mistakenly granted planning consent as the planning conditions which were imposed protected the living conditions of local residents and the Inspector had considered possible harm to the local bat population, notwithstanding that he did not expressly mention Directive 92/43/EEC and the Conservation (Natural Habitats & Co) Regulations 1994. The planning conditions had to be read in the context of the decision. The Inspector was found to have provided clear and sufficient reasons and had considered all relevant policy and material. The Inspector's finding that any harm was fairly limited meant that there was no legal obligation to consider alternatives modes or sites, although these had been considered as appropriate. A legal obligation to do so only arose when there were clear planning objections.
The Effect of New Planning Permission on Earlier Conditions
Two cases have recently considered the effect of a new planning permission on earlier planning obligations or conditions. In R. (on the application of Prudential Assurance Co Ltd) v Sunderland City Council and Peel Investments (UK) Ltd [2010] EWHC 1771 (Admin) the issue was the effect on an earlier s.52 (now, effectively, s.106) agreement and Stevenage Borough Council v Secretary of State for Communities and Local Government and another [2010] EWHC 1289 (Admin). The latter case (although decided earlier) is not reported. It is, however cited in the Prudential case. Both cases confirm that a new planning permission opens a new chapter in the planning history and that the earlier restrictions do not continue to apply.
Development in a Green Belt and Very Special Circumstances
In the case of Hayden-Cook v (1) Secretary of State for Communities and Local Government (2) Guildford Borough Council [2010] EWHC 2551 (Admin), an applicant applied to quash a decision of the Secretary of State to dismiss his appeal against refusal of planning permission to build in a Green Belt. The applicant proposed to demolish two dwellings and replace them with two larger dwellings. These would be set back further from the road, which he claimed would be safer. The Inspector found that the benefits of redevelopment could be realised by building the houses nearer in size to the original dwellings and accordingly very special circumstances did not exist to justify the development in the Green Belt.
It was held that the obligation was on the applicant to show that very special circumstances existed to justify the proposed development. The Inspector could take into account the fact that the advantages of redevelopment could be achieved by building smaller houses and had correctly assessed whether the applicant could be expected to provide alternative proposals. The applicant could not claim that the only way to address safety concerns was to build the larger houses and could not justify the larger scheme.
Compulsory Purchase Order
Lawfulness of general vesting declaration
R (on the application of Iceland Foods Ltd) v Newport City Council
In relation to the redevelopment of a city centre precinct, the claimant failed to establish that the defendant local authority had executed and served a general vesting declaration for a purpose different from or collateral to that which underpinned the confirmation of a compulsory purchase order.
QBD (Admin), LTL, 12/10/2010
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