New Cases, Old Law: Verdin, Cumberlege

There have been two interesting judgments already this August, both by well-respected members of the planning bar sitting as deputies. Not everyone is away. Both cases illustrate the political and unpredictable nature of decision-making where neighbourhood plan issues arise. Between them they include a range of traditional, but still interesting and difficult, planning principles:
– When is the decision maker taken to have a closed mind or for his or her decision to be improperly infected by lobbying?
– How should the decision maker determine whether proposed planning conditions may or may not be relevant to the decision?
– The test to be applied when determining when a decision may be invalid when a consideration, that is capable of being material, is not taken into account.
– the extent of the requirement for consistency in decision making. 
– the effect on a decision of a material error of fact in its reasoning
The first two issues are addressed (as well as others) in Verdin and the last three issues are addressed in Cumberlege.
Verdin (t/a the Darnhall Estate) v Secretary of State & Cheshire West and Chester Borough Council  (Robin Purchas QC sitting as a deputy High Court judge, 10 August 2017). 
This proposal for 184 dwellings on the edge of Winsford, Cheshire, had been recovered on appeal for the Secretary of State’s own decision, rather than being left for an inspector to determine, due to the then emerging Winsford neighbourhood plan. (It will be remembered that the Secretary of State’s policy, most recently stated on 12 December 2016, for a further period of six months which ended on 12 June 2017, has been to recover for his own decision making all appeals in relation to “proposals for residential development over 25 dwellings in areas where a qualifying body has submitted a neighbourhood plan proposal to the local planning authority but the relevant plan has not been made“. This has slowed down and added uncertainty in relation to many appeals that frankly should have been left for capable inspectors to determine.)

After a very slow application and appeal process (application July 2013, refusal November 2013, inquiry June 2014, reopened inquiry following representations that material considerations had changed September 2015, decision letter July 2016), the Secretary of State had dismissed the appeal, against his inspector’s recommendations. In so doing he partly relied on a finding that the scheme was in conflict with the Winsford neighbourhood plan. Unlike his inspector, who found that there were “very substantial social benefits from the proposal“, the Secretary of State found that any benefits of the proposal not outweighing a combination of that conflict and “moderate harm to the environmental dimension of sustainable development from the adverse impact of the loss of open fields”. As part of his downgrading of the benefits that the inspector saw as arising from the scheme, the Secretary of State took the view that four proposed conditions put forward by the appellant (requiring self-build housing as part of the development; requiring training and employment measures; requiring local building firms to be used, and requiring local procurement) did not meet the six tests in the NPPF (necessary; relevant to planning and to the development to be permitted; enforceable; precise; reasonable in all other respects) and therefore he did not take them into account.

The deputy judge’s judgment is interesting for the factual references in passing to the lobbying and internal deliberation that is going on behind the scenes. See for instance paragraph 129, referring to lobbying from the local MP seeking to delay the decision until after an inspector had reported on the local plan (presumably with the hope that the report would assist objectors’ case on the five year housing land position) and referring to civil servants’ internal email correspondence which was said by the appellant to demonstrate that the decision was being delayed to give time for the neighbourhood plan to be made. Paragraph 144 also refers to “the existence of a draft submission from one officer in the planning casework division which proposed a recommendation that the appeal be allowed but which was subsequently changed in the submission that was made to ministers”. 

A number of the appellant’s grounds of challenge were rejected, including that the then planning minister Brandon Lewis had a closed mind in deciding not to permit residential schemes on sites not allocated in the neighbourhood plan by virtue of the letter that he had sent in 2016 to the Planning Inspectorate in relation to appeals involving neighbourhood plan issues (“wholly unarguable”); that the Secretary of State had unlawfully delayed his decision (which the deputy judge did not infer into the internal email correspondence) and that he acted unlawfully in allowing himself to be lobbied by local members of Parliament (no basis for that because the letters were made available allowing representations to be made).
However, the deputy judge went on to quash the decision on the basis that the Secretary of State had no basis for rejecting the proposed conditions requiring training and employment measures; requiring local building firms to be used, and requiring local procurement. Whilst the Secretary of State was justified in rejecting the self-build housing as going beyond the advice in the NPPF because it sought to control the values at the plots would be made available, there was no basis for his criticisms of the other conditions. The judgment includes a useful analysis of the legal tests and an examination of the conditions against those tests. 
Whilst no doubt the appellant will be pleased to have another shot at persuading the Secretary of State to arrive at a different conclusion this time round, it is disappointing to be left with the sense that timing is all and the Secretary of State and his civil servants, as well as of course objectors, know it. Who hasn’t sensed from time to time that decisions have been subject to delay whilst at the same time, conveniently for objectors, the housing land supply position has changed or an emerging neighbourhood or local plan has gained traction? And who doesn’t sense that appeals such as this are as much about the politics as the about the evidence?
Baroness Cumberlege of Newick v Secretary of State & DLA Delivery Limited (John Howell QC sitting as a deputy High Court judge, 4 August 2017). 
This related to an appeal against refusal of planning permission for an even smaller scheme, for up to 50 dwellings in Newick, Sussex. Here the appeal had been allowed by the Secretary of State who had recovered it due to the then emerging Newick neighbourhood plan. However the decision was challenged by Baroness Cumberlege and her husband, both local residents and members of the Newick Village Society. The baroness, aside from being a Conservative peer, has, according the judgment “been a parish, district and county councillor representing the village“. She argued that:
– the Secretary of State had wrongly determined that a key policy of the local plan was out of date, without explaining the inconsistency of that conclusion with the reverse conclusion reached by him in another recovered appeal decision. 

– the Secretary of State had made a material error of fact in treating the appeal site as falling outside an area of 7km designated for the purpose of protecting the Ashford Forest SPA and SAC (yes, this is a case to add to those covered in my 8.4.17 blog post, Heffalump Traps: The Ashdown Forest Cases).

Having allowed the appeal, when faced with the challenge the Secretary of State submitted to judgment on the first ground of challenge and did not participate in the hearing in front of John Howell QC – never a good moment for the developer to be left to justify as lawful that which the decision maker himself is now prepared to disown. 
For what would seem to be a limited series of issues, the judgment is a long one at over 50 pages. Helpfully, the deputy judge’s conclusions are summarised from paragraph 148 onwards. To summarise the summary (rarely a good idea):
– Where a matter is not required by legislation to be taken into account, “a decision may be invalid when no reasonable decision maker in the circumstances would have failed to take that matter into account”. 

– “There is a public interest in securing reasonable consistency in the exercise of administrative discretions, which may mean that it is unreasonable for a decision maker not to take into account other decisions that may bear in some respect on the decision to be made

– “Given that one reason why the Secretary of State may “recover” planning appeals in order to determine them himself is to introduce coherence and consistency in development control, however, avoiding apparent and unexplained inconsistencies in the Secretary of State’s own decisions on matters that may have ramifications for decision making in other cases is an important consideration in determining what may be required of him if he is not to act unreasonably”. 

– No reasonable decision maker would have failed to take reasonable steps to ensure that he had not issued any decisions relating to the question as to whether the relevant local plan policy was out of date. “It can only undermine public confidence in the operation of the development control system for there to be two decisions of the Secretary of State himself, issued from the same unit of his department on the same floor of the same building within 10 weeks of each other, reaching an apparently different conclusion on whether a development plan policy is up to date without any reference to, or sufficient explanation in the later one for, the difference”. 

– The Secretary of State made a material error of fact in relation to whether any part of the site was within the Ashdown Forest 7km radius, which led to no consideration as to whether a condition should be imposed to prevent any dwellings from being constructed in that part of the site in breach of the Habitats Regulations. 

The planning permission was quashed, although the deputy judge granted permission to appeal on both grounds.
It is indeed concerning that the DCLG would appear to have no adequate system to prevent the Secretary of State from issuing obviously inconsistent decisions – and indeed concerning that the conflicting conclusions could be reached in the first place, calling into question the extent to which objective determinations, shorn of context and politics, can be reached. Perhaps if the Secretary of State had not recovered so many appeals the problem wouldn’t have arisen. (It is even more difficult for the rest of us to keep track without a public-access searchable database). 
The political obsession with seeking to give neighbourhood plan making a strong role in decision making is coming at great cost: delay, expense, a reduction in the objectivity of decision making (in my personal view) and, most worryingly, is continuing to be a drag on the delivery of new homes. 
Simon Ricketts, 12 August 2017
Personal views, et cetera

The Neighbourhood Planning Bill v Conditions

The Neighbourhood Planning Bill proposes some important changes to the planning conditions regime. DCLG published its Improving the Use of Conditions consultation paper  on 7 September 2016 alongside the Bill  (with a consultation deadline of 2 November 2016). 
There are two main elements to the proposals.
Restriction on pre-commencement conditions
I blogged  back in June when the proposal to clamp down further on pre-commencement conditions was first announced. 
As it happens, in my view what is proposed in clause 7 of the Bill, that pre-commencement conditions should not be imposed without the applicant’s written agreement, is pretty sensible as a cross-check that restrictions are not introduced without discussion. Of course, it is not a panacea and in some cases the applicant may be faced with a gun to the head – accept the condition or the application is will be refused – but in many more cases there will be the opportunity for consensus to be reached and the rigmarole avoided of subsequent 73 or 96A applications to morph conditions into a regime that does not unreasonably impede development. 
Indeed, why shouldn’t all conditions be agreed in draft with the applicant wherever possible?
Power for the Secretary of State to ban conditions of a prescribed description
This is more problematic. Clause 7(2) provides that such a ban must first be consulted upon and must only be for the purposes of ensuring that any condition meets the traditional tests of being
– necessary to make the development acceptable in planning terms;

– relevant to the development and to planning considerations generally;

– sufficiently precise to make it capable of being complied with and enforced; and

– reasonable in all other respects. 

Table 1 in the consultation paper lists various very general categories of conditions that should not be used (as per current planning practice guidance) and seeks views on whether any of them should be expressly prohibited by legislation. One wonders what the point of this is. The list in table 1 is very general eg 
– “conditions which unreasonably impact on the deliverability of a development – eg disproportionate financial burden”

– “conditions which duplicate a requirement for compliance with other regulatory requirements – eg Building Regulations”

What will it add to have these general principles in legislation in addition to policy? Who is going to challenge the imposition of conditions by way of the courts, rather than apply to remove the offending condition by way of section 73, with the ability to appeal to the Planning Inspectorate?

Generally, as with section 106 agreements, the exercise of drafting and negotiating conditions is getting increasingly fraught. Some examples:
The Darnhall appeal
The Secretary of State dismissed an appeal for residential development at Darnhall School Lane, Winsford, Cheshire on 7 July 2016, against his inspector’s recommendations. The decision letter  contains some interesting conclusions on a series of draft conditions offered by the appellant:
– training and employment – “not sufficiently precise and would be difficult to enforce, partly because it would be difficult to detect a breach”

– self-build housing – “not necessary to make the scheme acceptable in planning terms. Moreover…there are still concerns raised by the Council as to the effect on affordability which leads the Secretary of State to find that this condition is not reasonable in all other respects”

– local builders – “not necessary to make the development acceptable in planning terms and would not be strictly relevant to planning policy. Dependent on the builders or companies available through the build-out of the development the condition would be difficult to enforce, neither would it be precise, pr reasonable in all other respects”. 

– local procurement – “would not be necessary to make the development acceptable in planning terms. Neither is it strictly related to planning. The condition would be difficult to enforce, in part because it could prove difficult to detect a breach. The Secretary of State also considers that it is unclear what the position is in relation to the availability of business within the specified area to meet the criteria and therefore whether this condition would be reasonable in all other respects”. 

How does this ultra-rigid, purist, approach, fit with the approach taken by many LPAs? It doesn’t at all, obviously. The decision is under challenge, with Chris Young of No 5 Chambers acting for the appellant/claimant. 
“Tailpiece” conditions

“Tailpiece” conditions, along the lines of “unless otherwise approved by the Council” are pretty irresistible to those drafting conditions, seemingly offering a way to sidestep the need for subsequent formal applications under section 73 or 96A where changes are required, as they often are. However their use has been successfully challenged in a series of cases, for instance R (Butler) v East Dorset District Council  (Deputy Judge Rhodri Price-Lewis QC, 28 June 2016), Hubert v Carmarthenshire County Council  (Cranston J, 5 August 2015) and R (Warley) v Wealden District Council  (Deputy Judge Rabinder Singh QC, 8 July 2011). They should only be used where their scope is is closely defined in terms of the criteria to be applied by the decision maker or in terms of only extending to minor changes. 

Sustainability
Eric Pickles’ ministerial statement  25 March 2015 announced the withdrawal of the Code for Sustainable Homes and that until amendments to the Planning and Energy Act 2008 are introduced (which are still awaited) the Secretary of State would “expect Local Planning Authorities to take this statement of the government’s intention into account in applying existing policies and not set conditions above a Code Level 4 equivalent”. 
The same announcement advised LPAs that they should only set additional standards to those contained in the Building Regulations if they are able to justify why this is required and provide evidence to that effect. 
The planning system’s flexibility can be a great asset in negotiating planning permissions that both protect the public interest and meet the applicant’s requirements. We need to be careful that by ad hoc measures this flexibility is not lost – or that the process of issuing a planning permission becomes more routinely a negotiation between respective legal teams and tiptoe around the elephant traps, as it often already is on large schemes. 
Simon Ricketts 9.9.16

Personal views, et cetera

We Need To Talk About Conditions

Can we scratch beneath the surface in relation to this issue about pre-commencement planning conditions?
We’re told that the Neighbourhood Planning & Infrastructure Bill will contain provisions:
“To ensure that pre-commencement planning conditions are only imposed by local planning authorities where they are absolutely necessary.

Excessive pre-commencement planning conditions can slow down or stop the construction of homes after they have been given planning permission.

The new legislation would tackle the overuse, and in some cases, misuse of certain planning conditions, and thereby ensure that development, including new housing, can get underway without unnecessary delay.”



Odd given that the Planning Practice Guidance already advises:
“Care should be taken when considering using conditions that prevent any development authorised by the planning permission from beginning until the condition has been complied with. This includes conditions stating that ‘no development shall take place until…’ or ‘prior to any works starting on site…’.

Such conditions should only be used where the local planning authority is satisfied that the requirements of the condition (including the timing of compliance) are so fundamental to the development permitted that it would have been otherwise necessary to refuse the whole permission. A condition precedent that does not meet the legal and policy tests may be found to be unlawful by the courts and therefore cannot be enforced by the local planning authority if it is breached.”



What punishment is now planned for an LPA (and, indirectly, the applicant) where an unnecessary pre-commencement condition is imposed? If it includes the remedy of judicial review, putting the permission itself at risk, that is exactly the sort of trip hazard that nobody needs and an early candidate perhaps for the next red tape challenge. 
Setting to one side for a moment whatever the specific issue may be in relation to pre-commencement conditions, there is a lot of noise about the increasing number of conditions attached to planning permissions for all but the most straight-forward of development projects. Richard Harwood QC has written an interesting piece on the issue.

In my view there are various “real world” causes:
– LPAs’ internal computerised lists of template conditions make it easy for them to err on the safe side.
– experience tells us that if matters are left unregulated they will not necessarily be addressed. 
– the much wider scope of issues that are material planning conditions and that therefore are drawn into the LPA process (with wish lists of recommended conditions often chipped into by internal and external consultees). 
– (particularly in relation to EIA development) the need to define what has been permitted and the way in which mitigation, assumed in the assessment, will actually, come forward. 
– a pragmatic deal between applicant and LPA to “park” particular outstanding issues, which might otherwise have been grounds for refusal if not satisfactorily resolved, to be addressed later in the development process. 
– the sheer scale and complexity of many modern development projects. 
Turning specifically to pre-commencement conditions, in my view there are, again, a number of issues:
– all of the above
– LPAs that seek for issues to be resolved earlier than is necessary or practical in the development process. 
– often a failure to consider how a project will be phased and whether a matter should be addressed prior to commencement of each phase rather than upfront in relation to the whole of what may be a longterm development that is to be built out by a variety of parties. 
As well as potentially causing delay to any start on site, unnecessary front loading of costs and premature closing-off of technical and design solutions, the other real pain caused by pre-commencement conditions is that they need to be addressed prior to any early material operation so as to keep the planning permission alive (and risk any actual work being held by the courts not to amount to a valid material operation). Of course, we all get the motivations behind “use it or lose it” but equally:
– permission implementation deadlines are increasingly tight as against what needs to be done ahead of the diggers and cranes. 
– a planning permission is not to be lost lightly, given the huge capital investment it will often represent and the political and legal uncertainties that have been successfully navigated to reach that point. Indeed, if it could be lost lightly, that capital would be unlikely to be invested in the first place. 
All of these motivations, all in my view reasonable, lie behind the continuing drive to reduce pre-commencement conditions to a minimum. 
However, let’s not throw the baby out with the bath water. Can we dare to hope for provisions in the forthcoming Bill that do not give rise to the risk of judicial review and that do not reduce the scope for an LPA to negotiate pragmatic solutions rather than be driven either to refuse permission or achieve its objectives by the backdoor (ie by section 106 agreement)? 
Simon Ricketts 6.6.16
Personal views et cetera