I continue with my assessment of the summers key decisions, following on from Part 1 last week. This part highlights key decisions on challenges made against developers based on technical irregularities, a key judgement in relation to the trend in basement conversions in West London, and perhaps most critical in the short term, affordable housing thresholds on development.
Again, fuller analysis of the potential implications 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.
22 July 2015
Supreme Court – R (Champion) v North Norfolk District Council  UKSC 53 – Challenges based on procedural irregularities
The appeal of  EWCA Civ 1657 concerned the development of two silos and a lorry park with associated facilities on a site close to the River Wensum. The river itself is a Special Area of Conservation (SAC) protected by the EU Habitats Directive (97/92/EC) which is given effect in the UK by the Conservation and Habitats Regulations 2010. The Directive states that assessments on the implications of development must be undertaken where development is likely to impact on an SAC. Further to this, the Environmental Impact Assessment (EIA) Directive, given effect by the Town and Country Planning (Environment Impact Assessment) Regulations, identifies the need for a Local Authority to carry out screening if there is a chance a development could have a significant impact on the environment. If such an impact is identified, an Environmental Statement and public consultation has to be undertaken as part of any application for development.
The original planning application in 2009 provided a Flood Risk Assessment (FRA). Following consultation with statutory bodies, the council issued a screening opinion in 2010 stating that EIA was not required. Between 2010 and 2011 two further FRAs and an ecological assessment were issued by the applicant to remove holding objections from statutory consultees and the council subsequently allowed its officers to approve the application under delegated powers subject to conditions.
The council decided to refer the application back to committee following a number of complaints locally that the application should have required an EIA. The committee subsequently approved the applications subject to conditions.
The appellant successfully challenged the consent before the High Court for failure to comply with EIA legislation but lost in the Court of Appeal. The Supreme Court unanimously dismissed the appeal.
Although an assessment exercise on the environmental impacts was not undertaken within EIA regulations per se, nevertheless a robust assessment of environmental impacts were proven to have been undertaken irrespective of following the EIA procedure or not. The test was undertaken to assess whether the council’s decision would have been different had an EIA been done, and it was concluded it would not have been. Although it was concluded that the application should have included an EIA, the failure to use EIA did not result in a failure to assess the environmental implications of the proposal in a full and proper manner.
The dismissal comes at a time when a number of permitted planning applications have or are being challenged by action groups and third parties on the grounds of not fully complying with the relevant technical directives. Where these challenges are potentially spurious or purely undertaken to create difficulty for the developer this creates a frustration within the industry; gaining planning permission for major planning applications is not a cheap exercise and applications are structured based upon the requirements set by the local authority in consultation. As such, challenges that create development delay do provide a sense of injustice for the developer themselves.
It is a welcome decision, reinforcing similar decisions found in the Supreme Court in Walton v Scottish Ministers  UKSC 44  PTSR 51 and in the Court of Justice of the EU in Germeinde Altrip v Land Rheinland-Pflaz (Case C-72/12)  PTSR 311. It is hoped now the sheer volume of appeals against decisions made in relation to minor procedural defects will significantly drop, to the benefit of the developer and subsequently the socio-economy.
Successful applications that have not demonstrably assessed the development against the requirements of the relevant directives of course should always be subject to further scrutiny in the appropriate arena; however I would hope this decision now underlines the need of a common sense approach to the worthiness of a challenge on development based on technicalities.
23 July 2015
High Court: Lisle-Mainwaring and Force Foundations v Royal Borough Kensington and Chelsea  EWHC 2105 (Admin) – Basement Developments
The High Court dismissed the appeal which was made to challenge the adoption of Policy CR7; the claimants considered that the policy failed to consider permitted development rights to construct basements within dwelling houses and by providing limitations on sizes within the policy would lead to more being constructed under PD rights where no depth limitations apply and no conditions to mitigate for neighbourhood amenity can be secured. A borough wide Article 4 direction has subsequently been made which will come into force in 2016 (if not challenged) removing these rights, which the claimants stated the council were not intending to do before the claimants challenged it. The ground was rejected; the judge considered that the council policy was sound and the Article 4 direction was delivered following an awareness of the PD issue throughout.
The Sustainability Appraisal (its SEA obligation) undertaken in preparation for the adoption of the policy, the claimants considered to contain a lack of assessments of alternatives to the council’s preferred policy, thereby making the adoption of the policy flawed. This was dismissed, the judge concluding that the evaluation of what could be considered to be a reasonable alternative is a matter of judgement for the authority. Ironically, the polar opposite decision was found within Ashdown Forest Economic Development LLP v Wealdon District Council case referred to in Part 1 of this blog, a decision handed down one day after the argument in this case had concluded.
The decision leaves the adopted basement policy CL7 of the Core Strategy in place and provides a blanket covering restrictive policy across the borough for basement conversions that provides a question as to how prescriptive a policy should be when each and every site is subject to differing material factors.
Given the advancement in technologies for what can be delivered in basement conversions, the attractiveness of them for the affluent with developable space at ground level limited and the sheer development values involved, it could be that the council decisions made under the policy could be subject to numerous challenges in the near future.
31 July 2015
High Court: West Berkshire Council and Reading District Council v SoS for Communities and Local Govt  EWHC 2222 – Government Affordable Housing Policy
The High Court quashed the Government changes to: (1) affordable housing policy purporting to exempt developments of 10 units or less from the requirement to make contributions to affordable housing or tariff based contributions and (2) the vacant building credit (VBC) under which developers were to be given credit for existing floor space in any calculation of affordable housing contributions. With regard to affordable housing policy, the Claimants Council argued that the policy had significant consequences for numerous local planning authorities (LPAs) in meeting their responsibilities under the planning system for the provision of affordable housing and listed a substantial number of concerns. With regard to VBC, the Claimants Council submitted that there was no evidence provided by Ministers or the Department to justify either the need for it or its impact. They argued that the credit will actually reduce the amount of affordable housing which Reading District Council will be able to secure from sites not excluded under the smaller sites exemption and as such render it unnecessary.
The Department for Communities and Local Government issued an update to the national PPG following the judgment, on Section 106 Planning Obligations (in which Paras 12-20 related to the Affordable Housing Policy and 21-23 to VBC), issuing Paragraph 30 to the PPG on 1 August 2015, which states:
“Please note that paragraphs 012-023 of the guidance on planning obligations will be removed following the judgment in R (on the application of West Berkshire District Council and Reading Borough Council) v Secretary of State for Communities and Local Government  EWHC 2222 (Admin).”
It is understood that the Secretary of State will seek permission to appeal, however the uncertainty created by the absence of national guidance on the matter is extremely unhelpful in the face of growing pressure to alleviate a lack of housing supply. At least those developers with permission pre-August 2015 know where they stand with their contributions (or lack of) towards affordable housing on smaller sites. Applications being prepared or sitting in the system at present do so without the benefit of guidance on what they are expected to provide and as such, with potentially significant question marks hanging over the viability of their schemes.
Given that the guidance was prepared specifically to incentivise smaller developers to enter back into the system, the absence of guidance is simply not good enough. We have to hope that confirmation of an appeal to the decision is made quickly by the Government or that the introduction of a revised policy learns lessons swiftly from this decision, so that this potentially problematic outcome does not occur again.
MRICS BSc (Hons) RICS Accredited Expert Witness
NextPhase Development Ltd.