Legal Beagle – August 2019 edition

11 casework reviews – Allowed or Dismissed?

Welcome to the Urbanissta Legal Beagle’s casework reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgements and decisions that might be useful to you, day-to-day.

Here are 11 recent planning appeals, giving you insights into the latest precedents:

Case 1:

LB Lambeth v SoS for Housing Communities and Local Government and Others
[2019] UKSC 33

This is an unusual but interesting case about planning permission granted under
section 73, that is without complying with conditions imposed by an earlier

Despite going all the way to the Supreme Court it is not possible to say precisely how the law in this area has been developed by this case. The case concerns a Homebase in Streatham.

Permission was originally granted for its erection in 1985 and that permission had a condition, number 6 attached which restricted the use to the sale of DIY goods only and no other purposes, including any purpose in Class I of the 1972 Use Classes Order then in force. The effect of this was to restrict food sales, amongst other things. The reason given was because of the greater traffic likely to be attracted to a large retail store without such a restriction.

In 2010 permission was granted for a variation of condition 6 (1985) so as to allow for the sale of a wider range of goods but still not including food. The new restrictions were set out in condition 1 (2010). The reason for the condition was again the concern about traffic generation.

In 2014 the Council granted permission under section 73 for what it intended to be a further loosening of restrictions on what may be sold from the store whilst still preventing the sale of food. However, it sought to do this not by imposing a condition on the 2014 permission restricting the goods that may be sold but by specifying the goods that may be sold in the description of the development in the body of the decision, in these terms:

The retail unit hereby permitted shall be used for the sale and display of non- food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking or re-enacting that Order with or without modification), for no other goods.

There were only 3 conditions attached to this permission (that development must be begun within 3 years; details of the staff car parking, and requiring a traffic survey within 12 months). Crucially, the 2014 permission did not repeat Condition 1 or any of the other conditions from the 2010 permission. Spotting that there was, therefore, no condition restricting what may be sold from the store, the developer applied for a CLOPUD under section 192 TCPA for unrestricted use of the store. The Council refused the application but an appeal to the Secretary of State was allowed. The SoS granted a certificate of lawfulness of proposed use for:

The use of the premises … for purposes within Use Class A1 of the Town and Country Planning (Use Classes) Order 1987 (as amended) without restriction on the goods that may be sold.

The reason given by the SoS was that no condition had been imposed on 2014 permission to restrict the nature of the retail use to specific uses in Class A1. The problem for Lambeth arose because of the effect of sections 171A and 55(2)(f) TCPA 1990. The former defines a breach of planning control as either carrying out development without planning permission or failing to comply with a condition or the limitation imposed; the latter provides that use of land or buildings for a different purpose within the same Use Class is not development. The consequence of this is that, so long as the change from one retail use to another remained within the same Use Class (A1), it would not amount to development and, because the purported restrictions on what may be sold in the 2014 permission were not included within a condition, nor would it amount to a breach of condition.

The Council’s challenges to the Secretary of State’s award of the certificate were unsuccessful in the High Court and the Court of Appeal. An interesting feature of this case is that, throughout its passage through these courts, it was clear that everybody knew what Lambeth was trying to do, to restrict sales from the store, particularly of food. But it was held that because they had not sought to achieve that aim by the conventionally accepted way of imposing a condition on the section 73 permission their intention had not been articulated so as to have legal effect. In short, the faulty drafting of the 2014 permission had allowed unrestricted permission to arise and there was nothing the courts could do about it. The Supreme Court did do something about it, however.

Lord Carnwath, with whose judgment the other Law Lords and Lady agreed, began by noting that section 73 applications are often made and granted for development that has already taken place, as in this case. What section 73 does not do is to say what is to happen if an LPA wishes with the grant of new permission to change some conditions but to leave others in place, although there is guidance (and common practice – not followed by Lambeth in this case) that the LPA should repeat the relevant conditions from the original permission.

Under the heading ‘Principles of interpretation,’ Lord Carnwath found that whatever the legal character of the document in question the starting point is to find the ‘natural and ordinary meaning’ of the words used in that document in their context and in light of common sense. With this in mind, he found essentially that the 2014 planning permission has to be read at face value. When this is done it is ‘clear and unambiguous’ that what the council was approving was the ‘variation of one condition from the original wording to the proposed wording, in effect substituting one for the other’. There was nothing, he went on, to indicate an intention to remove the restriction on the sale of other than non- food goods.

Lord Carnwath also noted that the suggested difficulties of interpretation did not arise from any ambiguity in the 2014 permission itself, rather from the supposed inconsistencies, firstly with the statutory context of section 73, and secondly with the treatment of the other conditions in the remainder of the permission document. Addressing the first difficulty, the Court found that since it was common ground that the 2014 permission was for something, it never having been suggested otherwise, the permission must be taken as it is (ie how it was written without a separate condition restricting use). Any reasonable reader, mindful of the common but legally inaccurate understanding of section 73 as conferring a power to ‘vary’ or ‘amend’ the condition would see no conflict with section 73, notwithstanding the absence of a reason for the condition.
In respect of the second difficulty, Lord Carnwath did acknowledge some ‘internal inconsistencies’ in the way the 2014 permission had been worded, particularly the second part of it, but found that reading the document as a whole it could be given sensible meaning without undue distortion.

In short, the Court held that a reasonable reader would read the 2014 permission as simply varying the original permission subject to the additional 3 conditions. The fact that the main change in what may be sold was articulated in the description of development rather than by being controlled by a condition ultimately did not matter, in the SC’s judgment. The Judgment then goes on to give some comment on the other relevant 2010 conditions which had not been repeated in the 2014 permission. It was argued that, although these had not been incorporated into the new permission, they continued to have an effect so far as they were not inconsistent with anything in the 2014 permission. The Court accepted this as correct, although noting that it was always a matter of construction whether later permission is compatible with the continued effect of the earlier permission for the same piece of land. Lord Carnwath put it this way: Accordingly, they would remain valid and binding – not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation. It is possible that these remarks may cause difficulties in the future where, for example, there are a number of permissions for a site and it may be difficult to ascertain which of the former conditions still apply. I also consider that this undermines the view that a section 73 permission, like any other permission, must be capable of being understood on its own terms without the reader having to undertake extensive planning detective work to be clear about what conditions still apply. That said, and this is what in my opinion is unusual about this case, Lord Carnwath then repeats the advice as currently set out in the PPG that when issuing a fresh permission under section 73 all relevant former conditions from the earlier permission should be repeated in the new.

Download Decision here: LB Lambeth v SoS for Housing and Communities and Local Government

Case notes provided by our guest barrister, Giles Atkinson of 6 Pump Court.

Case 2:

Case re: CO/2135/2018
Decision date: 13th December 2018
Claimant: Giodarno Ltd
Defendant: London Borough of Camden

The claimant, Giordano Limited, is the owner of a six-storey building used for offices and warehousing in Windmill Street in the London Borough of Camden had obtained planning permission to convert it into six flats back in 2011. At that point, Camden Council did not require a CIL payment, the court heard.

The planning permission was implemented and remained extant, but this had not been completed and the building remained vacant and uninhabitable. The owner later decided to apply for a planning application to develop three larger flats, rather than six smaller ones and was granted planning permission for that development in June last year.

However, the council then issued a formal liability notice in January this year demanding a CIL payment of £547,419.09.

In challenging the bill by way of judicial review in the High Court, the owner argued that it was exempt from having to pay CIL by operation of Regulation 40(7)(ii) of the CIL Regulations 2010 because the property was already in residential use.

The issue in the claim is whether, on a proper interpretation and application of regulation 40(7) of the Community Infrastructure Levy Regulations 2010 as amended ‘CIL Regulations’, the Claimant is liable for CIL.

According to the judgement, regulation 40(7)(ii) excludes CIL liability where a development’s existing use is ‘able to be carried on lawfully and permanently without further planning permission’.

The developer claimed that although the works permitted by the six-flat permission had not been completed, it had been validly implemented and the residential use of the building had thus been established.

However, Camden Council argued that the building was not in residential use at the time of the 2017 permission, so no exemption could be made.

The court held that the Council was correct to conclude that the claimant did not satisfy the conditions in regulation 40(7)(ii) for a statutory deduction, despite the confusing wording of its letter.

In dismissing the claimant’s arguments, however, Mrs Justice Lang noted that, at the time that the permission for the three-flat was granted, the building was a ‘mere shell’ without any of the facilities required to make it fit for habitation.

The fact that no actual residential use had by then occurred was the very reason why the owner had to apply for planning consent in respect of the three-flat development, the judge said, rather than relying on permitted development rights allowing offices and warehouses to be converted into housing.

The Court ruled that the development could not have been carried through lawfully without further planning permission and therefore the local authority was entitled to charge CIL.


Download Decision here: Giordano v London Borough of Camden

Case 3:

PINS Appeal ref: APP/E590685
SGC Planning ref: PA/17/01920
Decision date: 10th June 2019
Appellant: Sainsburys Supermarket Ltd
Respondent: London Borough of Tower Hamlets

Housing secretary James Brokenshire has used his ministerial powers to refuse planning permission for a 471-home redevelopment of a supermarket site in east London – against the advice of his planning inspector. The findings of a planning inquiry into Sainsbury’s proposals for its 3.1 ha site at Whitechapel recommended Brokenshire to approve the proposed scheme.

The housing Secretary said the scheme – which in addition to the homes would also have delivered a replacement supermarket, an energy centre and an educational facility – would have an unacceptable impact on light to existing homes and on neighbouring heritage buildings.

The appeal was recovered for the Secretary of State’s determination on 14th December 2017, in pursuant of Section 79, and paragraph 3 of Schedule 6 of Town and Country Planning Act 1990. The Inspector had recommended that the appeal be allowed, and planning permission be granted for the proposed scheme.

The original proposals for the Sainsbury’s Whitechapel site included a 33-storey tower and would have delivered 559 new homes. The tower was subsequently reduced to 28 storeys, however, Tower Hamlets council rejected the development proposal in 2017. The reasons for the refusal included the “substantial harm” the development will cause to the setting of the nearby Grade 1 Listed Trinity Green Alms-houses.

The subsequent version of the eight-block scheme reduced the height of the tallest element to 14 storeys and trimmed the number of homes. Sainsbury’s appealed Tower Hamlets’ non-determination of this application and planning inspector David Nicholson took evidence on it at an inquiry last October.

The report of the planning inspector stated that the public benefits of the scheme outweighed impacts on local heritage assets, however, had accepted that the scheme would result in an “appreciable reduction in daylight and some significant loss of sunlight” for neighbouring homes.

The Secretary of State in reaching its decision has had to give regard to Section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires that development proposals be determined in accordance with the development plan unless material planning considerations indicate otherwise. As a result, Housing Secretary held that, many existing neighbours would experience “a gloomier outlook than they do at present”, and that a large number of windows would be affected, and this would result in the harmful impact that carried “substantial weight” against the application. He further ruled that, whilst the scheme’s design and public-realm improvements tipped the balance in favour of approval, the heritage impacts and daylight issues will be in conflict with the Borough council development plan and the government’s National Planning Policy Framework (NPPF).

Download Decision here: Sainsbury’s v London of Tower Hamlets

Case 4:

Case re: CO/3276/2018
Decision date: 20th January 2019
Claimant: Gladman Developments Ltd
Defendant: Secretary of State for Housing & Central Bedfordshire Council

A High Court judge has overturned a dismissal at the appeal of land promoter Gladman Development’s plans to build 135 homes in Bedfordshire, ruling that a planning inspector had not given ‘anything like adequate’ reasons for his decision.

The Claimants made an application for planning permission to Central Bedfordshire Council for the development of up to 135 residential dwellings (including up to 35% affordable housing) the
introduction of structural planting and landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation, vehicular access points and other ancillary works at Langford Road, Henlow, Bedfordshire.

The claimants planning application was refused by the Council in October 2016. The Claimants then appealed under Section 78 of the Town and Country Planning Act 1990 and, after a public inquiry, a planning inspector dismissed the company’s appeal against that decision in 2018.

The Claimant made an application to the High Court to challenge the inspector’s decision. As a result, the High Court Judge, Mr Justice Dove has ordered the government to look at the planning application again. The case hinged on a local planning policy – known as ‘DM4’ which strictly limits developments outside existing settlement boundaries.

Gladman contended that there were a number of reasons why policy DM4, and other relevant policy in the Council Core Strategy conflicts with the National Planning Policy Framework, hence, should be afforded less weight or treated less irrelevant to the merits of the development proposal. However, the inspector ruled that the policy was not out of date and that its ‘underlying objectives still hold good’. He gave moderate weight to policy DM4 and declined to apply a ’tilted balance’ in favour of the development.

Overturning that decision, Mr Justice Dove ruled the inspector had not given ‘anything like adequate’ reasons for refusing planning consent and made reference to an earlier planning appeal, concerning a proposed housing development in Meppershall, where another inspector had ruled policy DM4 out of date. The inspector in the Henlow case was obliged to explain why he had reached a different conclusion on ‘precisely the same issue’. He had stated that ‘Where there is a basis for the earlier decision to be distinguished or departed from, then that reason must be identified.’

The Judge found that the inspector did provide ‘anything like adequate’ reasoning to explain why he was distinguishing or departing from the Meppershall decision.

‘He simply did not grapple’ with the issue of whether strict adherence to DM4 would frustrate the council’s ability to achieve a five-year supply of new housing sites.

In overturning the inspector’s decision, the judge also pointed to inconsistencies between policy DM4 and the National Planning Policy Framework.

The ruling means that the Ministry for Housing, Communities and Local Government will have to consider Gladman’s planning application afresh.

Download Decision here: Gladman v Secretary of State for Housing – Central Bedfordshire

Case 5:

Case re: C1/2018/1755
Decision date: 16th May 2019
Appellant: Wiltshire Council
Respondent: Cooper Estates Strategic Land Ltd & Richard Gosnell Royal Wootton Bassett Town Council

The Court of Appeal 6 has overturned the registration of a site in Royal Wootton Bassett in Wiltshire as a town or village green (TVG) after a judge decided that the land had been identified for development in the council’s local plan and was therefore not entitled to the protected status.

The ruling was a victory for the landowner, Cooper Estates Strategic Land, and a costly defeat for Wiltshire Council.

The essentials of a Town and Village Green (TVC) is defined in Section 15 of the Commons Act 2006 are that it consists of land where:  ‘a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years’.

In April 2016, a local campaigner, Mr Richard Gosnell, applied to register the 380 square metre plot, off Vowley View and Highfold, Royal Wootton Bassett as a TVG in 2016. However, Cooper Estates Strategic Land Ltd who owns the land objected to the application on the ground that it was precluded by Section 15C of the Commons Act 2006. However, the council agreed and approved the application.

The grounds for the objection was that the land had been identified for potential development in an adopted development plan document. Accordingly, a trigger event as defined in paragraph 4 of the table had occurred, and there had been no terminating event in relation to that trigger event.

The Council decision was overturned by planning judge, David Elvin QC, in 2018 and the Court of Appeal has now finally overturned the registration.

Having lost its appeal, the court ordered Wiltshire Council to pay £43,000 of legal costs accrued by Cooper Estates in fighting the registration. The case hinged on whether the plot had been identified for potential development in the local development plan, which, under the Growth and Infrastructure Act 2013, would prevent its recognition as a TVG.

Lord Justice Lewison said the plot was not one of 16 strategically important sites specifically
earmarked for housing development in Wiltshire Council’s adopted core strategy. However, the local plan set a target for more than 1,000 new homes to be built within the boundaries of Royal Wootton Basset by 2026. There was ‘a presumption in favour of sustainable development’ within the town, added the judge, who was sitting with Lords Justice Floyd and Henderson.

A map showed the plot lying ‘on the edge of the settlement boundary’ but an adjacent site, outside the boundary, had already been developed for housing.

Dismissing the council’s appeal, the judge concluded ‘In the present case, the development plan
document does show that the land is identified for potential development.’  The plan stated in clear terms that suitable sites within the town would be developed, and that ‘necessarily implied’ that they had been identified for potential development. It is clear from the development plan that the planning authority envisaged that, during the currency of the development plan, over 1,000 new homes would be needed in Royal Wootton Bassett.

The Judge held that to allow the registration of a TVG within the settlement boundary would frustrate the broad objectives of the plan.

This case is believed to be the first in which new rules relating to TVG registrations that were
introduced by the Growth and Infrastructure Act 2013 have come under judicial analysis.

Download Decision here: Wiltshire Council v Cooper Estates Strategic Land Ltd

Case 6:

PINS Appeal ref: APP/P0119/W/17/3189592
SGC Planning ref: PT17/2006/O
Appellant: Bovis Homes
Respondent: South Gloucestershire Council

Permission for 370 homes in the open countryside near Thornbury in Gloucestershire has been
refused by an inspector who ruled that likely harm to nearby listed buildings put the development at odds with the National Planning Policy Framework (NPPF).

Housebuilder, Bovis Homes submitted outline plans to South Gloucestershire Council in April 2017 for the demolition of agricultural buildings and the development of the homes plus a 460 square metre community facility, public open space and associated infrastructure.

The developer subsequently lodged an appeal against non-determination by the local authority. The appeal was held in January and February of 2019 and has now been dismissed by Planning inspector George Baird. South Gloucestershire Council has since indicated to planning inspector George Baird that the application would have been refused.

The reasons given by the Council included: conflict with the council’s core strategy; the scheme’s
potential to undermine growth proposed by the draft West of England joint spatial plan; impact on heritage assets; landscape character and visual amenity; and the walking distance to local facilities.

Bovis had argued that the NPPF’s ‘tilted balance’ in favour of sustainable development applied
because the council’s strategic housing policies were out of date and the NPPF’s policies on
protecting heritage assets do not provide a reason for the refusal.

However, the inspector advised that if harm to a designated heritage asset outweighs the benefits of an application, the NPPF states that its tilted balance would not be engaged, and ‘relevant judgements reiterate that a finding of harm to the setting of a listed building gives rise to a strong presumption against planning permission being granted’.

South Gloucestershire Council had raised concerns about impact on the significance of four listed buildings. The inspector found the scheme would result in varying degrees of less than substantial harm to these buildings and ‘would materially and significantly alter the relationship of these buildings’ with the surrounding area.

The inspector acknowledged the proposal ‘would provide public benefits, particularly in the provision of market and affordable housing, to which I attach significant weight.’

However, the inspector concluded that ‘on balance, the weight that attaches to those benefits does not outweigh the strong presumption against permission being granted and the great weight afforded to the conservation of Morton Grange, Yew Tree Farmhouse, Old Malthouse, Malt Cottage and Manor Farmhouse. Thus, as this scheme fails the Framework paragraph 196 test this disengages the … tilted balance.’

Download Decision here: Bovis Homes v South Gloucestershire Council

Case 7:

Case re: CO/975/2018
Decision date: 16th January 2019
Claimant: Bright Horizons Family Solutions Ltd
Defendant: Secretary of State for Communities and Local Government
Interested Party: Watford Borough Council

A children’ s nursery has failed in its bid to overturn a refusal of consent for two portable buildings on its site after a judge ruled that the premises are not a ‘school’ and therefore does not benefit from permitted development (PD) rights allowing it to expand.

Bright Horizons Family Solutions runs the nursery in a detached former home at 3 Park Avenue,
Watford, where its premises, which have been in use as a nursery since 1997, are a three-storey
former dwelling house in a suburban development of similar houses, mostly Edwardian in date.

The company had previously applied to Watford Borough Council (the interested party) for a
Certificate of Lawful Development in respect of a proposed development by the installation of two linked portable cabins in the garden of the premises, to increase the indoor space available for the nursery. However, Bright Horizons did not wait for a decision before putting the portable buildings in place.

In March 2017, the council refused to grant a certificate and that decision was upheld by planning inspector, Paul Dignan, in January last 2018 and ruled that the nursery is not a school and that provisions within the General Permitted Development Order (GPDO) which enable schools to expand into their grounds without the need for planning permission did not apply to the portacabins.

Bright Horizons challenged that decision at the High Court, insisting that the nursery is
‘predominantly used for education’ and should be categorised as a school.

The High Court Judge, Mark Ockelton dismissed the Claimant appeal and found that the inspector had correctly interpreted the GPDO. He stated that the word ‘school’ in common parlance, indicates an institution where children receive a general education on a considerable number of days a year. He held that the provision of education does not necessarily make an institution a school.  The judge also noted that ‘although riding elephants may be educational, that does not mean that a zoo is a school.’

The commonly used phrase ‘school-age’ encompasses the period of a child’s life when he or she is required by law to attend school. Similarly, the phrase ‘pre-school’ is frequently applied to nurseries and other institutions which provide for children below compulsory school age. He observed that, if an estate agent told a house hunter that at the end of the road there was a good school, the latter would not expect to find a nursery school, however good.

In his judgment, the Judge held that the unqualified use of the word ‘school’ does not in its ordinary meaning include a nursery and rejects the claimant appeal.

The proposition that PD rights that benefit schools apply to all nurseries, or even all registered
nurseries were misplaced.

The rejection of Bright Horizons’s appeal means that the portable buildings were installed in breach of planning control. It will now be for the council to decide whether to grant retrospective planning consent or to take action to enforce the portacabin’s removal.

Download Decision here: Bright Horizons Family Solutions Ltd v Secretary of State for Communities and Local Government

Case 8:

Case re: C1/2017/2947
Decision date: 25th January 2019
Appellants: Emily Shirley and Michael Rundell
Respondent: Secretary of State for Housing, Communities and Local Government
Interested Parties: Canterbury City Council & Corinthian Mountfield Ltd.

The Court of Appeal 8 has ruled that the housing secretary is under no general duty to exercise his planning powers to ensure that particular developments do not breach European air quality standards, opening the way for construction of 4,000 new homes on the outskirts of Canterbury. Canterbury City Council in Kent resolved to grant planning permission for the development off New Dover Road.

This was in the light of a pressing need for more homes in the area and after developers, Corinthian Mountfield Ltd had agreed to spend £3.7 million on air quality measures, including an air monitoring regime, the installation of electric vehicle charging points and the provision of one electric bicycle per dwelling.

The appellants were local campaigners and had appealed against an order dated 23rd
September 2017, dismissing their claim for judicial review of the decision of the respondent, the
Secretary of State, on 29th December 2016, not to call in under section 77 of the Town and Country Planning Act 1990 an application for planning permission for 4,000 dwellings and other development on land at New Dover Road, to the south-east of the city. The interested parties are the local planning authority, Canterbury City Council, and the applicant for planning permission, Corinthian Mountfield Ltd.

They had challenged the secretary of state’s refusal to call in the planning application for central government determination. They argued that the decision not to call it in, was irrational and a breach of his obligations under European Union Directive 2008/50/EC, known as the Air Quality Directive (AQD), and the Air Quality Regulations, known as the regulations, which places a duty on member states to achieve nitrogen dioxide reduction targets in as short a time as possible.
A judicial challenge brought by appellants was, however, dismissed by the High Court. In rejecting their challenge to that ruling, Lord Justice Lindblom noted that air quality is a material planning consideration and can in some cases prove decisive.

However, the Judge held that there was no authority to support the view that the secretary of state was constrained to exercise his very wide discretion in favour of calling in the planning application. Neither the AQD nor the regulations had the effect of narrowing that discretion or transforming it into a duty.

The judge, sitting with Lords Justice Singh and Coulson, also rejected arguments that, as the ‘competent authority’ tasked with enforcing the AQD, the secretary of state owed a general duty to use his powers in respect of individual planning applications to avoid the worsening or prolongation of breaches of prescribed nitrogen oxide limits. His principal duty under the AQD was to prepare and implement a compliant air quality plan.

In addition, the court ruled, the secretary of state’s decision was neither irrational nor perverse, in that he was aware that the council could reconsider the planning application, taking into account any further representations made to it by objectors.

The council had confirmed that it would carry out such reconsideration and would pay particular attention to the likely effects of the development on air quality.

The judge noted that the court’s interpretation of the AQD was clear and that it was thus not necessary to refer the case to the European Court of Justice.

Download Decision here: Shirley & Anor v Secretary of State for Housing, Communities and Local Government

Case 9:

Case re: CO/3140/2018
Decision date: 8th February 2019
Claimant: Mark Jopling
Defendant: Richmond-Upon-Thames London Borough Council and Secretary of State for
Communities and Local Government
Interested Party: Quantum Teddington LLP

Campaigners have scored a High Court 9 victory against a council’s decision not to designate playing fields in west London as a local green space, after a judge ruled that the authority had carried out a ‘plainly inadequate’ and ‘manifestly unfair’ public consultation on the matter.

The Claimant, Mr Mark Jopling challenged the adoption by the First Defendant, Richmond upon Thames London Borough Council (‘the Council’) on 3rd  July 2018 of a Local Plan (‘the Plan’) on the principal ground that a procedural requirement was not complied with, pursuant to s 113 (3)(b) of the Planning and Compulsory Purchase Act 2004 (‘the Act’). The Council does not defend the claim nor does the Second Defendant the Secretary of State for Housing, Communities and Local Government, whose inspector (‘the Inspector’) carried out the statutory examination of the Plan prior to adoption. That examination led to his report dated 26th April 2018 (‘the report’).

The five hectares Udney Park Playing Fields (UPPF) at Teddington were donated to St Mary’s Hospital Medical School by press baron, Lord Beaverbrook, in 1937, but have been owned by a property developer, Quantum Teddington LLP, since 2015, the High Court in London heard. Whilst preserving much of the fields for sporting activities, the company hopes to build 107 flats and a doctor’s surgery on the site. However, the development was opposed by the London Borough of Richmond Upon Thames.

The central issue, in this case, relates to the putative designation by the Council of the Site as Local Green Space (LGS) at a Cabinet Meeting on 13th December 2016. That followed an application for such a designation made by Claimant on behalf of the Teddington Society and the Friends of UPPF (‘FUPP’) which latter organisation he represents in these proceedings. That designation was incorporated into the draft local plan to be submitted thereafter for examination by the Inspector.

At the behest of the campaign group, Friends of UPPF, the council had proposed to designate the playing fields as a local green space in its draft local plan. However, the inspector who carried out the statutory examination of the plan put forward a number of modifications in his April 2018 report to the council.

One of which rejected the field’s designation as a local green space and, whilst disagreeing with him on that point, the council considered itself bound by the report. The end result was that, when the plan was adopted in July last year, the fields were not designated as such. Hence, the Claimant, a member of friends of UPPF Challenged the plan and argued that a procedural requirement had not been complied with.

The modifications proposed by the inspector, which was later circulated for public consultation, did not make clear that they included the de-designation of the fields as a local green space and as a result, the Claimant and other objectors to the proposed development claim that they were not given a proper opportunity to make representations on the point.

The High Court Judge upheld the Claimant’s arguments and held that the public consultation exercise was ‘plainly inadequate’ mainly because it was not clear what was being consulted upon and that, Friends of UPFF had only ‘a very limited opportunity to comment’ on the designation issue. The Judge ruled that ‘The process was manifestly unfair’. He also added that it was ‘certainly conceivable’  that the outcome would have been different had the Claimant been given a proper opportunity to take part in the consultation.

The judge said he would hear further argument as to the relief that Claimant should be granted in the light of his ruling.

Download Decision here: Mark Jopling v Richmond Upon Thames London Borough Council & Secretary of State for Housing, Communities and Local Government

Case: 10

Case re: CO/1279/2018
Decision date: 16th November 2018
Claimant: David Smith-Ryland
Defendant: Warwick District Council

A Warwickshire farmer has failed in a High Court effort to overturn a council’s decision to
discharge a planning condition stipulating that the developer of a neighbouring barn conversion must install acoustic fencing to prevent possible noise complaints from future residents of the property.

Alan Murdoch was granted planning permission for conversion of the barn into residential units in April 2016, subject to a condition that required him to install acoustic fencing to meet the concerns of neighbour David Smith-Ryland, (Claimant) of Plestowes Farm, Barford. The Claimant concern is that any residential occupiers of one of the Barn could bring noise nuisance claims in relation to the use of Its farming tools (dryers) and that the local planning authorities could serve noise abatement notices.

An application for judicial review was brought by the claimant, against the decision of the defendant, Warwick District Council to discharge condition 3 imposed on the planning permission granted on 26th April 2016 which stipulates that acoustic fencing had to be sound-proof enough to ensure that new residents of the barn would not suffer ‘unacceptable disturbance’.

The claimant owns a mixed organic farm involving cattle and grain in Barford, Warwick. On the farm is a shed for 120 cattle, a grain store and a fan shed. The neighbouring property belongs to Alan Murdoch (the interested party) and on the land are three Barns, namely Barn 1, Barn 2 and the long Barn. Barn 1 was used as offices but has planning permission to develop for residential use, subject to condition 3 which is the subject matter for the judicial challenge. The claimant farm operates two dryers both internally and externally, for the drying of grain.

Council planners discharged the condition after Alan Murdoch said (interested party) he would install a fence recommended by acoustic experts. Officers found that the proposed fence would deliver ‘an acceptable acoustic environment’. At the High Court, Smith-Ryland’s lawyers argued that the fence proposed by Murdoch would have been ‘non-compliant’ with the condition had it remained in place. The lifting of the condition meant he would still be exposed to noise nuisance complaints, said his barrister, Paul Cairnes QC.

But dismissing the farmer’s challenge, Mr Justice Jay said that it is clear law that a decision-maker must have regard to relevant considerations and the weight to be given to such considerations is for the planning authority. In this case, a council environmental health officer who approved the fence had clearly taken noise levels into account.

The Judge was quick to remind himself that this was an application for judicial review and not a
Wednesbury challenge in the sense of being a pure irrationality challenge. The Court held that the issue of what would or would not be an ‘unacceptable disturbance is a contextual one involving the application of a planning judgement that cannot be conceptualised in purely mechanistic or numerical terms’.

The council’s decision to lift the condition had not been attacked as irrational and the judge could detect no legal flaw in its conclusions, hence, the Claimant judicial review application was dismissed.

Download Decision here:  David Smith-Ryland v Warwick District Council


Case 11:

Appeal re: C1/2018/2122
Appeal Decision date: 24th May 2019
Appellant: Ms Nicola Squire
Council: Shropshire Council

The recent Court of Appeal decision in Squire v Shropshire Council on appeal from the
Administrative Court, Planning Court and Mr Rhodri Price Q.C sitting as a deputy judge of the High Court is an interesting case. It emphasised the need for LPA to properly assess the
environmental effects of odour and dust that would be generated by a development proposal on third parties land.

This case involves the development proposal for the erection of four poultry buildings and associated development at Footbridge Farm, Tasley, near Bridgnorth. Mr Bower was the owner and the applicant for the planning permission and intends to erect the buildings and use them for intensive rearing of poultry. An environmental permit was granted by the Environmental Agency in April 2017.

The development proposal was objected to by Ms Squire a local resident, whose primary concern was that the large quantities of manure from the poultry buildings when stored and spread on agricultural land, would cause an unacceptable level of odour and dust. The farm was capable of producing more than 150,000 broiler chickens annually, together with more than 2,300 tonnes of manure to which half would be spread on third-party land, including fields close to residential areas on the outskirts of Bridgnorth.

The development was granted planning permission in 2017. The planning officers commented that the spreading of manure is a common agricultural practice. Although it was likely to cause odour, it would be temporary if the manure was plough in, including the obnoxious smells that would emanate from manure that has been stockpiled would all have been lost once crust had formed.

The terms of the environmental permit that was issued in respect of the development by the
Environmental Agency was stated to be sufficient in addressing odour issues and was reported to the council.

The appellant, Nicola Squire – who lives nearby to one of the fields on which the manure would be spread – mounted a judicial review challenge to the planning permission. A High Court Judge, Rhodri Price Lewis QC, dismissed the case last year.

In upholding the appellant’s appeal against that decision, Lord Justice Lindblom found that Local
Planning Officers who recommended the grant of planning consent had misunderstood the terms of an Environment Agency letter.

The Environment Agency had made clear that an environmental permit in respect of the farm, related only to Bower’s land, and not to any other land on which manure would be spread. Noise and dust external to the boundaries of the chicken farm would not be covered by the environmental permit and it was clearly stated by the Environmental Agency that they would play no role in policing the storage and spreading of manure outside the boundary of the farm.

The primary concern of the Environmental Agency was to ensure the reduction of the risk of manure permeating into ground or surface water and there was no guarantee that the terms of the permit would control odour and dust pollution on third-party land.

The Master of the Rolls, Lady Justice King, held that there had been a failure to adequately assess the environmental impact of the storage and spreading of manure as an indirect effect of the development.

Also, the failure of the officers to expressly recognise the need for meaningful assessment of the likely effect of odour from the disposal of a huge amount of manure that a farm such as this on unidentified, third-party land. Lord Justice Lindblom quashed the planning permission and urged the Council to ensure that, when Bower’s application is to be reconsidered, thorough compliance with environmental law, especially environmental impact assessment is achieved.

Download Decision here: Squire v Shropshire Council

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