Ten 2016 court rulings you need to know

Prominent lawyers highlight the most significant legal decisions of the year.

Royal Courts of Justice: 2016 saw some major court rulings
Royal Courts of Justice: 2016 saw some major court rulings

Affordable housing exemption restored

Case: West Berkshire District Council vs secretary of state for communities and local government

The courts have had a difficult year reconciling the roles of Parliament and legislation with that of ministers seeking to make quick policy changes. The Court of Appeal determined a wrangle as to whether a written ministerial statement could trump the statutory planning regime, particularly adopted development plans, in favour of the then planning minister, Brandon Lewis. The judgement overturned a previous High Court ruling that struck down Lewis’ introduction by written ministerial statement of the vacant building credit and minimum affordable housing threshold. The victory proved pyrrhic given the court’s reasoning: any policy, even if written in unqualified terms, allows exceptions and so only amounts to a material consideration that could be outweighed by other considerations. This provides an easy get-out for local planning authorities reluctant to implement the two policies that were the subject of the ruling. However, we should be alert against other measures being introduced in a similar manner.

Simon Ricketts is a partner at Town Legal LLP

Air quality requirements boosted

Case: ClientEarth v secretary of state for environment, food and rural affairs

This case is about the government’s obligation to improve air quality. The court held it is not doing this quickly or effectively enough and must produce a new air quality plan by July 2017. The implications for planners are that large developments involving a lot of new car journeys or other sources of pollution could be refused on the ground that they would slow down the meeting of specified local air quality thresholds. Local authorities are equally bound by the obligation to improve air quality in their areas as they are considered part of the state. Additionally, the government’s old air quality plan required compulsory clean air zones like the London low emissions zone in five cities: Birmingham, Cambridge, Derby, Nottingham and Southampton. The new plan is likely to require more of them.

Angus Walker is a partner at Bircham Dyson Bell

Stronger reasoning needed to allow AONB homes

Case: R (CPRE Kent) v Dover District Council and China Gateway

This Appeal Court decision has implications for planning committees who disagree with officers’ recommendations regarding developments that involve Environmental Impact Assessments. The case involved proposals for over 500 homes in an Area of Outstanding Natural Beauty (AONB). Officers recommended refusal, but members granted permission. The court considered a previous case, confirming a local authority’s decision did not require the same level of reasoning as an inspector’s or the secretary of state’s. The court quashed the council’s decision because of the "pressing nature" of the National Planning Policy Framwork (NPPF)’s policy restricting development in AONBs. If members grant permission causing substantial harm to an AONB against an officer’s recommendation, the decision has "to grapple with the issue of harm" and engage with the officer’s reasoning, the court concluded.

Chris Young is a barrister at No5 Chambers

Neighbourhood plan second homes ban upheld

Case: RLT Built Environment v Cornwall Council and St Ives Town Council

The court upheld a policy in the St Ives neighbourhood plan requiring new homes to be occupied as the buyer’s main residence. A developer challenged the policy, arguing that the ban would catastrophically depress the town’s new home building market. It also claimed the restriction on householders’ liberty to do what they wanted with their homes was disproportionate and unjustified.

The court held that Cornwall Council, in progressing the plan to a referendum, was entitled to conclude that the ban would contribute to sustainable development and there was nothing irrational about its belief that "uncontrolled growth" of holiday homes was damaging the town.
This case demonstrates that restricting ownership can legitimately form the basis of planning policy where there is sound evidence that it will contribute to sustainable development. Although questions remain regarding the policy’s enforceability, other councils may be inclined to follow St Ives’ lead.

Claire Dutch is a partner at Hogan Lovells

Housing land supply penalty given broader scope

Case: Secretary of state for communities and local government v Hopkins Homes; Richborough Estates Partnership v Cheshire East Borough Council

These appeals turned on the meaning of NPPF paragraph 49, specifically, ‘relevant policies for the supply of housing’ to be deemed out of date for the purposes of NPPF paragraph 14 where a local planning authority does not have a demonstrable five year supply of housing land.

The Court of Appeal ruled that the words mean ‘relevant policies affecting the supply of housing’, thus including policies protective of landscape, wildlife and Green Belt.

This broad interpretation of ‘relevant policies’ will benefit developers by more frequently engaging the presumption in favour of sustainable development. But there is also comfort for local authorities. The court made it clear that the weight accorded to development plan policies, even when out of date, remains a matter of judgment for the decision-maker. Therefore, unless there was a finding of irrationality, the court would not interfere with such a judgment.

The decisions are subject to appeal to the Supreme Court.

Morag Ellis QC is a barrister at Francis Taylor Building

Green belt openness clarified

Case: Turner v secretary of state for communities and local government

This case is significant because it clarifies that "openness" in the green belt is an "open-textured" concept to which a number of factors apply, including visual impact. The court ruled that a proposed bungalow on a brownfield site did not increase the volume of development, but an inspector had been entitled to find harm to openness due to its visual impact. Volumetric matters were not the only concern, as Lord Justice Sales stated in his judgement: "Greenness is a visual quality."

From one perspective, the decision increases green belt protection by accumulating the concerns relevant to openness. However, it also creates an opening for the argument that development that adds volume does not harm openness due to visual enhancement, or other matters. The Turner case is a useful new reference point on national green belt policy.

Ned Westaway is a barrister at Francis Taylor Building

Ministers warned about dangers of lobbying

Case: Broadview Energy Developments v secretary of state for communities and local government, South Northamptonshire District Council and Helmdon Stuchbury & Greatworth Windfarm Action Group

Big planning decisions are made by the secretary of state. Politicians have the ultimate say on large cases so national interest can be reflected against local priorities and because a politician is accountable to Parliament. But they are capable of being influenced by those around them and can be lobbied by the development industry, MPs and opponents of development. In this case relating to a proposed wind farm, the court reminded decision-makers of the dangers of oral lobbying. It is in principle unfair and unlawful. The decision-maker should require all such oral approaches, however informal, to stop immediately. The court found that the lobbying of then communities minister Kris Hopkins by a constituency MP did not lead to a need to quash the decision. But the clear warning to decision-makers and others will be likely in practice to alter significantly the lobbying landscape for many.

Russell Harris QC is a barrister at Landmark Barristers

Consultation could open window to late reviews

Case: Gerber v Wiltshire Council

The Court of Appeal overturned a High Court decision last year to allow the judicial review of planning permission for a 22-hectare solar farm. The claimant brought the case nearly a year late, by which stage the development had been constructed at a cost of £10.5m. The court found that the claimant had left it too late to bring the legal challenge and reinstated the planning permission.

However, the decision was noticeably amenable to the claimant’s suggestion that a local authority’s commitment to community consultation could lead to nearby residents having a "legitimate expectation" of notification for new developments that gave grounds for a late review. That legitimate expectation did not apply to the claimant in Gerber, but the risk that other late appellants may be able to take advantage of such an approach will be a concern for developers. An application to the Supreme Court for leave to appeal has been refused.

Julian Boswall is a partner at Burges Salmon

Retail need evidence not required for sequential test

Case: Warners Retail (Moreton) Ltd v Cotswold District Council

This Court of Appeal case concerned an application for a foodstore outside the centre of a Cotswold village. The ruling considered the application of the sequential test, which is applied when seeking to site retail development out of town and is outlined in paragraph 24 of the NPPF. The claimant argued that retail need should be demonstrated when considering out of town retail proposals but the court clarified that the need test had disappeared in 2009. Planning guidance when permission was granted did refer to establishing need, but the court said this should not mean resurrecting the need test. That guidance has now been superseded by the Planning Practice Guidance, which has no requirement to demonstrate need. Planners should instead focus on satisfying the sequential test, though that should be applied flexibly. Need is not irrelevant however and is a material consideration in determining applications for out of town retail development.

Karen Cooksley is a partner at Winckworth Sherwood

Neighbourhood plan requirements outlined

Case: Crownhall Estates Limited v Chichester District Council

This case concerned a challenge by a developer to the Loxwood Neighbourhood Plan on the basis that it should have allocated land for housing to meeting locally assessed housing need. The case is important for planners because it provides an exacting assessment of the requirements for the production of a neighbourhood plan. The ruling confirms that there is no need to consider whether the plan is "sound", as there would be for a local plan. Instead, a neighbourhood plan is subject to the more limited requirement that it is "appropriate to make the plan" having regard to "national policies and advice". The judgement also states that the neighbourhood planning body is "not responsible for preparing strategic policies" to meet objectively assessed development needs across a local plan area. Moreover, where a neighbourhood plan is examined before a local plan is adopted, there is no requirement to consider whether it has been based upon a strategy to meet objectively assessed housing needs.

Stuart Andrews is head of planning at Eversheds


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