A number of High Court, Court of Appeal, Planning Court, Planning Inspector and Commission decisions have been made over the course of the summer period that will impact upon a number of factors in the planning system. Over the course of two posts I attach a précis of the key decisions and a brief overview of their potential impacts moving forward in the system.
This part covers challenges relating to decision-maker bias, the Airport Commissions support for Heathrow and the use of Strategic Environmental Assessment.
A fuller analysis of the potential impacts will be encapsulated within my seminars for the professional industry across the 2015/16 period, details of which can be found elsewhere on the website.
11 June 2015
Court of Appeal (Longmore, Davis and Sales LJJ) – Inspector Bias
An appeal was dismissed in relation to the first decision of Collins J ( EWHC 375) who had previously dismissed the claims of bias of the inspectors decision alongside other grounds of challenge. The decisions related to the redevelopment of the Shell Centre on the South Bank; the appeal made by the appellant on the grounds that there was an appearance of bias at the planning inquiry by the inspector.
The Court found that Collins J’s approach to criticism of the inspector had gone further than appropriate based on the evidence before him, finding that the inspectors approach was not bias but inquisitive and investigatorial.
What could have been perceived as potential bias was in fact the inspector cutting straight to the bone on certain issues with a line of questioning that was necessary given the number of issues that needed discussing and the time constraints in place. What may appear to be an emphasis on discussing issues that heavily focuses on one parties particular argument is simply an inspector making sure that they understand all of the issues as robustly as possible to report back to the relevant decision maker; the Secretary of State.
The Court agreed with this and the importance of the decision and impact (or rather avoidance of impact) on decision making moving forward cannot be underestimated. This decision reiterates the point that the approach taken to an inquiry by an inspector cannot be compared as an out of context snapshot against the eventual decision. The inspector has a duty to the decision maker, and the line of questioning within the inquiry is part, but not all, of an information gathering exercise.
1 July 2015
Airports Commission: Final Report
The increase in new aviation capacity cannot be understated in its importance to UK growth and the decision of the Airport Commission to unanimously conclude that the proposal for the new Northwest Runway at Heathrow Airport “presents the strongest case” when the balance of benefits is assessed against environmental and community impacts (with mitigation delivery) has significantly underpinned the credibility of Heathrow’s case.
Having read through the Final Report from afar, I can understand the conclusions reached by the Commission. Whilst the final decision will and was always going to have an impact up a region of receptors, infrastructure growth is essential and the need case, wherever it is eventually provided, overwhelmingly proven. It is then essential that the mitigation package provided for development is exhaustively assessed to make sure it contributes as effectively in reality as it states on paper, and such mitigation proposals are not chipped away at over time as viability costings are squeezed in the years leading up to development.
9 July 2015
Court of Appeal (Richards, McFarlane and Christopher Clarke LJJ) – Understanding Strategic Environmental Assessments (SEA)
The Court of appeal allowed the appeal made by Ashdown Forest Economic Development LLP (Ashdown Forest Economic Development LLP v. Wealdon District Council  EWCA Civ 681) against Sales J.’s dismissal of their challenge to the councils Policy WCS12 of Core Strategy Local Plan.
The Policy required all new development within a 7km radius of Ashdown Forest to provide alternative and natural green space to offset the potential impact of increased visitors to the forest (A “SANGS” Zone). This policy relates to all new development (even for a single dwelling) and had been used on numerous occasions by the council to refuse permission.
The Court held that by adopting WCS12 the requirements of the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes 2004, as the Council had not considered other alternatives to the SANGS Zone approach before adopting it, despite it being clear that environmentally assessing alternatives is a requirement of the SEA Directive.
The Council held the view, upheld by Sales J., that the Habitat Screening Assessment (HSA) undertaken by the Council during the drafting of the Core Strategy sufficiently assessed reasonable alternatives. The appellant disagreed, stating that the HSA concentrated on assessing whether the SANGS Zone would avoid the risk of harm to the forest; therefore the HSA’s conclusion that there were no alternative means of securing the forest was stated without actually testing it. The Court agreed with the appellant.
Not only does the judgement identify the need for Local Authorities to be satisfied that their use and understanding of the distinct differences and application of both SEA’s and Habitat Assessment is robust when forming Policy based on it; it highlights an underlying need to improve the legislative knowledge base available to Local Authorities when preparing Local Plans and in particular the continuous updating of that knowledge base when precedent creates change.
MRICS BSc (Hons) RICS Accredited Expert Witness
NextPhase Development Ltd.