This blog provides a concise precis of the judgments and decisions made across the end of 2015/start of 2016 that will influence planning decisions over the course of the short to medium term.
Fuller analysis of the potential implications will be encapsulated within my seminars for the professional industry across the 2016 period, details of which can be found elsewhere on the website.
December 16th 2015
R (Campaign to Protect Rural England) v Dover DC  EWHC 3808 (Admin)
CPRE challenged Dover DC’s decision to grant planning permission for in excess of 600 houses and hotel across two sites in the AONB, the section 106 of which included £5m for the conversion of a scheduled monument on the at risk register into a visitors centre and museum on the second site as part of the benefit of the housing and hotel on the first.
CPRE argued that the heritage contribution was unlawful and as such an immaterial consideration; that the scheme was not “composite development” in the intention regulation 122 of the Community Infrastructure Levy Regulations 2010 and misdirecting delivery of housing towards the AONB.
Mitting J rejected CPRE’s challenge and held that, when applying regulation 122, the ‘development’ is the development for which planning permission is granted, being a composite scheme. Sainsbury’s v Wolverhampton CC makes clear the ability to use composite development and it is up to the decision maker to assess whether the weight of the material consideration against the development plan.
December 16th 2015
Trump International Golf Club Scotland Limited and another (Appellants) v The Scottish Ministers (Respondents) (Scotland)  UKSC 74
Consent was granted under section 36 of the Electricity Act 1989 for the construction of offshore windfarms adjacent to Trumps resorts. Trump challenged the consent on two grounds; 1) lack of power to grant a consent that required either a licence or exemption and 2) a condition of the consent that required an approval of a design statement was void, as it included an implementation clause (condition 14).
Both grounds were dismissed. With regard to the implementation clause, it was found that had the consent been read as a whole, it would have been possible to infer the implementation clause. As such condition 14 could be construed in light of the other conditions.
Planning conditions and consents should be read, to a certain extent, like the implications of terms of a contract. There is no significant reason to avoid implications, so long as the consent is read as a whole.
January 27th 2016
Skelmersdale Ltd Partnership, R (on the application of) v West Lancashire Borough Council & Anor  EWHC 109 (Admin)
The case takes Trump v Scottish Ministers and applies it across the board, rather than just in relation to the Electricity Act. The claimant applied for planning permission, granted by the LPA on condition regarding the first five years of occupation (the LPA set out a policy position for the retail units so as not to harm existing shopping centres) which the claimant subsequently applied for Judicial Review over. The JR considered four grounds, essentially relating to the enforceability of the occupational conditions set by the consent.
The first, requiring the retailer to commit to retaining their presence across the consent period was considered by the claimant to not be legally binding without an implementation clause – bringing Trump into the equation.
The application was refused on all grounds; however most importantly, on the first ground (the lack of implementation clause) it was found unnecessary; as such spreading the issue to realms beyond the Electricity Act.
February 3rd 2016
Smech Properties Limited v Runnymede Borough Council  EWCA Civ 42
This was an appeal against dismissal of a claim by the appellant for judicial review of a planning permission, granted by the first respondent for mixed use development on part of a former Defence Evaluation and Research Agency site. The appellant was the owner of land close to the Site.
There were initially three grounds of challenge to the grant of permission. The judge rejected two of these but found that the remaining one sound: RBC followed some incorrect advice in the Officer Report regarding the impact of the grant of permission on its ability to meet its requirements for additional housing provision in its area. In reference to the principles of Simplex G.E. (Holdings) v Secretary of State for the Environment (1989), however, she assessed that had the correct advice been given the Council would inevitably still have decided to grant planning permission for the development. She exercised her discretion therefore to dismiss the appellant’s claim to quash the permission. Upon oral renewal of the application, permission to appeal was eventually granted by Lewison LJ limited to the ground that the judge had erred in exercising her discretion to dismiss the claim.
This provides very important guidance on the standard of review applicable to the High Court’s decision to exercise its discretion and refuse to quash a defective grant of planning permission.
February 19th 2016
Wealden District Council v Secretary of State for Communities and Local Government and Knight Developments Limited  EWHC 247 (Admin)
An Inspectors decision to grant permission for 103 dwellings on land at Steel Cross, Crowborough was quashed due to the consideration that the Inspector had erred in two respects:
1) When concluding that the proposals would have no significant effect on the Ashdown Forest Special Area of Conservation (“SAC”) in relation to Regulation 61 of the Habitats Regulations; where the Inspector had found that contributions towards a Strategic Access and Management and Monitoring Strategy (“SAMMS”) would mitigate likely significant effects on the SAC arising from nitrogen deposition. The Council contended that this involved an error of fact, because SAMMS related to the mitigation of recreational impacts and not nitrogen deposition; and that the Inspector had failed in any event to have regard to evidence that proposed contributions to heathland management could not effectively mitigate any such effect.
2) The Council contended that the Inspector failed to take into account relevant evidence or acted unreasonably in his consideration of alternatives to development in the Area of Outstanding Natural Beauty as per paragraph 116 of the Framework as he did not taken into consideration alternative sites in the wider area.
Whilst the error of fact in this case offers no applicable precedent; the decision relating to the second count further questions the weight that can be applied to housing contributions as a material benefit against the three parts of para 116 of the NPPF and the amount of information required to prove the “exceptional circumstances” test.
MRICS BSc (Hons) RICS Accredited Expert Witness
NextPhase Development Ltd.