Aberdeen: Supreme Court, Planning Obligations

Requiring developers to enter into planning obligations to make financial contributions to a pooled fund to be spent on infrastructure, including interventions at places where a particular development has only a trivial impact, is unlawful. 
This was the ruling of the Supreme Court this week in Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (25 October 2017). Being a Scottish case, the relevant domestic legislation referred to was section 75 of the Town and Country Planning (Scotland) Act 1997 rather than (for England and Wales) section 106 of the Town and Country Planning Act 1990, but the principles are the same. 

The case related to supplementary planning guidance, part of the statutory development plan, that sought financial contributions by way of planning obligations towards a strategic transport fund which was “to mitigate the cumulative impact of developments at specific “hotspots” in the network”. 
South of the border, CIL of course would be available as a mechanism but the case is still important:
– as a reminder that simply scrapping CIL and not replacing it with another mechanism for securing pooled contributions towards infrastructure is not a straight-forward option
– many English and Welsh authorities still use tariff style policies to secure all manner of section 206 contributions (and if/when the regulation 122 pooling restriction is removed this will only increase)

– what are its implications for the tendency, simply by way of planning policy, to draw in all manner of social requirements as planning obligations to be sought?

The Aberdeen supplementary guidance allowed developers to choose to undertake a bespoke assessment of the cumulative impact of their schemes outwith the fund: 
“Developers can elect to assess and mitigate their cumulative impact outwith the [Fund], although this will require a considerably more comprehensive Transport Assessment and the design and delivery of the mitigation measures shown to be necessary. This will definitely be more time-consuming and almost certainly more expensive, if it can be achieved at all.” 
However the court rejected the argument that this made the contribution voluntary. 
Nor was the court impressed by the authority’s reliance on this assurance in the guidance that the policy was in fact voluntary for developers:
“No contributions from development sites will be used to support projects where the development in question is predicted to gain no mitigation benefit from the infrastructure being provided and therefore is un-related to the development making the contribution...”
This long passage sets out the court’s approach to section 75/106 agreements and also to conditions:
38.              The express words of section 75 require a relationship between the planning obligation and the land to be burdened by the obligation because the obligation must in some way restrict or regulate the development or the use of that land. But those restrictions or regulation do not necessarily relate to a particular permitted development on the burdened land. A planning obligation may prohibit the development of the land in a particular way or the use of the land for particular purposes. A planning obligation may keep the burdened land free from any development and may be entered into in circumstances which are not connected with any planning application.

39.              Restrictions may validly be imposed in the context of the development of another site. Thus, to take an example discussed in Good v Epping Forest District Council, the owner of two farms, A and B, within the area of a planning authority might apply for planning permission to develop and operate an intensive breeding establishment on farm A. The owner of the farms might offer, or the planning authority might require, a section 75 planning obligation preventing the use of farm B for that purpose. The restriction would relate to farm B and would be justified for the planning purpose of preventing an undesirable number of such establishments in the same area.

40.              A planning obligation may also regulate the development or use of the burdened site. An example, in the context of a planning application, is where a planning obligation requires the developer to provide affordable housing as a component of a development on its site or to create specified infrastructure on its land to meet the needs of that development.

41.              Similarly, a planning authority may contract for the payment of financial contributions towards, for example, educational facilities, healthcare facilities, sewerage or waste and re-cycling: requiring a development to contribute to, or meet, its own external costs in terms of infrastructure involves regulating the development of the land which is burdened by the obligation. The financial contribution can be applied towards infrastructure necessitated by the cumulative effects of various developments, so long as the land which is subject to the planning obligation contributes to that cumulative effect and thereby creates a sufficient relationship between the obligation in question and the land so that one can fairly speak of the obligation as regulating the development of the land.

42.              In each of the examples in paras 38-41 above the restriction or regulation serves a purpose in relation to the development or use of the burdened site. In this appeal a question of principle arises: can a restriction or regulation of a site be imposed in the form of a negative suspensive planning obligation, analogous to the negative suspensive planning condition in the Grampian Regional Council case, for a purpose which does not relate to the development or use of the site? In particular, is it lawful by planning obligation to restrict the commencement of the development of a site until the developer undertakes to make a financial contribution towards infrastructure which is unconnected to the development of the site? Alternatively, is it lawful to require contributions towards such infrastructure in a planning obligation which does not restrict the development of the site by means of a negative suspensive obligation?

43.              The answer to each question is no. Dealing first with the latter question, a planning obligation which required a developer to contribute to infrastructure unconnected with its development but did not make the payment of the contribution a pre-condition of development of the site would not fall within section 75 as it would neither restrict nor regulate the development or use of the site….

44. A planning obligation, which required as a pre-condition for commencing development that a developer pay a financial contribution for a purpose which did not relate to the burdened land, could be said to restrict the development of the site, but it would also be unlawful. Were such a restriction lawful, a planning authority could use a planning obligation in the context of an application for planning permission to extract from a developer benefits for the community which were wholly unconnected with the proposed development, thereby undermining the obligation on the planning authority to determine the application on its merits. Similarly, a developer could seek to obtain a planning permission by unilaterally undertaking a planning obligation not to develop its site until it had funded extraneous infrastructure or other community facilities unconnected with its development. This could amount to the buying and selling of a planning permission. Section 75, when interpreted in its statutory context, contains an implicit limitation on the purposes of a negative suspensive planning obligation, namely that the restriction must serve a purpose in relation to the development or use of the burdened site. An ulterior purpose, even if it could be categorised as a planning purpose in a broad sense, will not suffice. It is that implicit restriction which makes it both ultra vires and also unreasonable in the Wednesbury sense for a planning authority to use planning obligations for such an ulterior purpose.”

The court then went on to consider the relevance of planning policies in a local planning authority’s decision as to whether to require a planning obligation. If the policy itself fails the legal tests set out above it cannot be taken into account by the authority:
The inclusion of a policy in the development plan, that the planning authority will seek such a planning obligation from developers, would not make relevant what otherwise would be irrelevant.”
The judgment indicates that “there is much that can be said in favour” of the Aberdeen scheme, but the statutory regime does not allow for it. It ends with a pointed final paragraph:
“If planning authorities in Scotland wish to establish a local development land levy in order to facilitate development, legislation is needed to empower them to do so.
This case is going to cause people to look long and hard at planning obligations policies to ascertain whether there is indeed the necessary causal link between the development in question and the financial contribution or other obligation being sought. 
For instance, this will reinforce the need for policy requirements in relation to provision of contributions towards SANGs (suitable alternative natural greenspace) in the vicinity of SACs and SPAs to be framed with care. Would the decision in R (Smyth) v Secretary of State  (Court of Appeal, 5 March 2015) now be different?
Similarly, the Mayor of London’s policies in relation towards securing climate change mitigation contributions. 
Simply including a standardised wish list in policy is not going to be a sufficient basis for securing contributions. But problems remain. Many matters, for instance the provision of affordable housing, are only relevant planning considerations because the inclusion in planning policy of a requirement for them. When is this a legitimate basis for a planning obligation and when is it not?
Food for thought for the Secretary of State ahead of any announcement in relation to CIL, promised in February to be alongside the Autumn budget which is on 22 November. 
Simon Ricketts, 28.10.17
Personal views, et cetera

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Flawed Drafting: Interpreting Planning Permissions

“What are words worth? Words

Words of nuance, words of skill”

Some of the most difficult cases in every area of law arise from flawed drafting and drafting which does not adequately anticipate future eventualities. 
I will leave for another blog post the issues that arise in relation to the drafting and interpretation of section 106 agreements and undertakings, although the Secretary of State’s 12 September 2017 decision letter dismissing an appeal for planning permission for 705 dwellings at King George’s Gate, Surbiton was a salutary lesson, and essential reading, for every planning lawyer.
In the light of Lang J’s judgment this month in London Borough of Lambeth v Secretary of State, this blog post limits itself to the question as how literally should planning permissions be interpreted? Is the planning permission in fact wider in its scope than the local authority intended when granting it? Have restrictions that were initially imposed fallen away by virtue of not being reapplied to subsequent permissions for the permitted buildings or to a permission for amendments to that initial permission? 

There have been many examples where the courts have determined that the legal effect of a permission was not what the authority may have intended, applying what might be regarded as a classically pure planning law approach:

– where a planning permission is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions imposed upon it and the reasons given for the imposition of those conditions 
– an extreme reluctance to imply extra wording into conditions (Widgery LJ’s statement in Trustees of Walton Charities v. Walton & Weybridge DC (1970): “I have never heard of an implied condition in a planning permission and I believe no such creature exists. Planning permission… is not simply a matter of contract between the parties. There is no place…within the law relating to planning permission for an implied condition. Conditions should be expressed, they should be clear, they should be in the document containing the permission.”)

– applying the judge-made principle of a “new chapter in the planning history” of a site, effectively wiping the slate clean of previous planning condition restrictions where a significant change of use or other development has occurred.

This has led over the years to many outcomes which, whilst logical on a dispassionate reading of the relevant document by a lawyer, were certainly not anticipated by the unfortunate planning officer. For instance:
– in Carpet Décor (Guilford) Limited v Secretary of State (Sir Douglas Frank QC, 17 July 1981) a condition “that no variations from the deposited plans and particulars will be permitted unless previously authorised” by the local planning authority was held not to be sufficiently unequivocal as to exclude the operation of the Use Classes Order. 
– in Dunoon Developments Limited v Secretary of State (Court of Appeal, 18 February 1992) a condition on a planning permission for a car showroom that stated that the use of the premises would be limited to the display, sale and storage of cars was not sufficient to exclude the operation of the General Permitted Development Order.
– in I’m Your Man Limited v Secretary of State (Robin Purchas QC, 4 September 1998) it was held that for a planning permission to be construed as limited to a temporary period, it was not sufficient for the restriction to be set out in the description of development rather than in a condition. 
– in Stevenage Borough Council v Secretary of State (HHJ Waksman QC, 3 June 2010) the owner of a retail park was held to be free of various restrictions on the types of goods which could be sold, by virtue of planning permissions having been granted for subdivision of units and other alterations, which did not reimpose restrictions from the original permission. As with a number of similar cases and CLOPUD appeal decision letters, the ruling partly relied on a liberal application of section 75(3) of the Town and Country Planning Act 1990, which provides that where the proposed use of a building (or part of) a building is not specified in a permission for its erection (or alterations), “the permission shall be construed as including permission to use the building for the purpose for which it is designed“.
– in Prudential Assurance v Sunderland City Council (Wyn Williams J, 15 July 2010) the High Court held that, through the windfall of a local planning authority’s mistake faced with successive planning applications, Peel Holdings had become free of section 106 restrictions on the types of goods that could be sold from its retail park in Washington, Sunderland. 
The tide then started to turn with the Court of Appeal in Peel Land and Property Investments Plc v Hyndburn Borough Council (19 December 2013). Peel, no doubt hoping for an equivalent outcome as achieved in Sunderland, argued that the failure of the local authority, in drafting a permission for works of alteration to retail park units, to reimpose a condition restricting the goods that could be sold, meant that the restriction had been removed. However the court rejected the submissions. The works did not create a new chapter in the planning history of the units and on the facts (with no indication in the application documents that unrestricted retail use was intended) section 75(3) could not be relied upon in the way that was sought. 

The Supreme Court in Trump International Golf Club Scotland Limited v The Scottish Ministers (16 December 2015) then indicated a more nuanced approach to interpretation:

When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference … or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.

Interpretation is not the same as the implication of terms. Interpretation of the words of a document is the precursor of implication. It forms the context in which the law may have to imply terms into a document, where the court concludes from its interpretation of the words used in the document that it must have been intended that the document would have a certain effect, although the words to give it that effect are absent” (Lord Hodge)

Against this background it is therefore interesting to see this month another case in which the owner of a retail investment, in this case a Homebase DIY store, has achieved an outcome which was not intended by the local planning authority, and which could have been avoided by competent drafting of the decision notice. In London Borough of Lambeth v Secretary of State (Lang J, 3 October 2017), a planning permission had been granted varying conditions attached to an earlier permission. The purported effect of the widened conditions was set out in the description of development on the face of the permission:

” For: Variation of condition 1 (Retail Use) of Planning Permission Ref: 10/01143/FUL (Variation of Condition 6 (Permitted retail goods) of planning permission Ref. 83/01916 (Erection of a DIY retail unit for Texas homecare and an industrial building for cow industrial polymers) granted on 17.09.85 to allow for the sale of a wider range of goods to include DIY home and garden improvements, car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) Granted on 30.06.2010.


Original Wording:
 The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order. 


Proposed Wording:
 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.”

However, for some reason, whoever drafted the permission did not bother to go on and include the proposed wording as a condition. Lang J applied I’m Your Man and held that the purported restriction was of no effect. Lambeth Council’s “intended purpose was not given legal effect by the wording of the 2014 permission, because of flawed drafting.
As set out in Landmark Chambers’ helpful summary , Lang J has granted permission for the case now to go to the Court of Appeal:
I do not accept the Claimant’s critique of my judgment, and the application of the current law to the facts of this case. However, I am left with some unease about the result.  The principle established in I’m Your Man Limited v Secretary of State for the Environment 77 P & CR 251, and its application, merits consideration in a higher court which is not bound by precedent in the same way as the High Court. The interpretation and application of the judgments of the Supreme Court in Trump International Golf Club Scotland Ltd & Anor. v The Scottish Ministers [2015] UKSC 74, [2016] 1 WLR 85 is still evolving, and merit consideration by the Court of Appeal in this case.”

It is worth noting two post-Trump cases where the Court of Appeal has rejected submissions that a narrow interpretation should be given to specific conditions.
First, R (XPL Limited) v Harlow Council (Court of Appeal, 13 April 2016), where a condition preventing “repairs or maintenance of vehicles or other industrial or commercial activities (other than the parking of coaches and other vehicles …” outside specified hours at a coach depot was held to extend to a prohibition on the running of engines. 

Secondly, Dunnett Investments Limited v Secretary of State (Court of Appeal, 29 March 2017) where the court had to determine whether the following condition is to be interpreted as excluding the operation of the General Permitted Development Order so as to allow change of use from offices to residential by way of the prior approval process:

“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained“.

Did prior approval from the local planning authority pursuant to the GPDO amount to “express planning consent” for the purposes of the condition?
The Court of Appeal reviewed the case law on interpretation of conditions:
In relation to the interpretation of, specifically, a planning condition which is said to exclude the operation of the GPDO, other authorities are of some assistance. From them, the following themes can be discerned.


i) It is rightly common ground that a planning condition on a planning consent can exclude the application of the GPDO (see Dunoon Developments v Secretary of State for the Environment and Poole Borough Council (1993) 65 P&CR 101 (“Dunoon Developments”)).


ii) Exclusion may be express or implied. However, because a grant of planning permission for a stated use is a grant of permission for only that use, a grant for a particular use cannot in itself exclude the application of the GPDO. To do that, something more is required (see, e.g., Dunoon Developments at [107] per Sir Donald Nicholls VC). 


iii) In Carpet Décor (Guilford) Limited v Secretary of State for the Environment (1981) 261 EG 56, Sir Douglas Frank QC sitting as a Deputy High Court Judge said that, because in the absence of such a condition the GPDO has effect by operation of law, the condition should be in “unequivocal terms”. Although “unequivocal” was used by Mr Katkowski in his written argument, during the course of debate he accepted that that term was now less appropriate, given the modern trend away from myopic focus upon the words without proper reference to their full context. However, he submitted (and I accept) that, to exclude the application of the GPDO, the words used in the relevant condition, taken in their full context, must clearly evince an intention on the part of the local planning authority to make such an exclusion.”

The court did not accept the claimant’s arguments:
The first part of the condition sets out the scope of the permission. I respectfully agree with Patterson J (at [60]), the second part (“…and for no other purpose whatsoever…”) is not, as Mr Katkowski would have it, merely emphatic of the scope of the planning permission, but is rather a clear and specific exclusion of GPDO rights. Whilst, as I have described, each case depends upon its own facts, it is noteworthy that, in Dunoon Developments (at pages 105-6), in finding that the words “limited to” a particular purpose did not exclude GPDO rights, Farquharson LJ compared that phrase with “… and for no other purpose…” as considered in the earlier case of The City of London Corporation v Secretary of State for the Environment (1971) 23 P&CR 169, which he considered was far more emphatic and (he suggested) possibly sufficient to exclude the operation of the GPDO. In this case, we have a more emphatic phrase still, namely “… and for no other purpose whatsoever…”. Further, although we are concerned with rights under the GPDO and not the UCO, the interpretation of that phrase to exclude the operation of the GPDO is at least consistent with R (Royal London Mutual Insurance Society) v Secretary of State for Communities and Local Government[2013] EWHC 3597 (Admin); [2014] JPL 458, in which Patterson J held that a condition which restricted use to “only” particular uses within Use Class A1 excluded the right to use the land for other Class A1 uses, because it effectively evinced an intention to identify acceptable uses within the class whilst prohibiting other unacceptable uses within that class unless and until the merits of such use had been tested by the planning authority upon an application for planning permission (see also The Rugby Football Union v The Secretary of state for Local Government, Transport and the Regions [2001] EWHC Admin 927; [2002] JPL 740, in which Ouseley J, at [56], found that the words “for no other use” had similar effect, on the basis that such words “have no other sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission”). The third part of the condition before this court makes it the more abundantly clear that automatic or direct GPDO rights are excluded, by requiring a planning application if such uses are to be pursued.”
Furthermore, “”express planning consent from the Local Planning Authority” cannot sensibly include planning permission granted by the Secretary of State through the GPDO. It means what it says, i.e. planning permission granted by the local planning authority.”
What are the odds on Lang J’s judgment in Lambeth surviving the Court of Appeal?
In the meantime, and possibly whatever the outcome of that case, there is unpredictability. This is particularly unhelpful given the pressures on local planning authorities to issue permissions without unnecessary delay, and without the resources for a lawyer to check what may often on their face appear to be approvals of minor revisions and alterations. Mistakes happen. The extreme reluctance of authorities to issue revocation or modification orders to put mistakes right, a reluctance born of the liability to pay compensation that thereby arises, is another story – and in my view a large part of the problem. 
Simon Ricketts, 14.10.17
Personal views, et cetera

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