Legal review 2017 - Ten 2017 court rulings you need to know

Lawyers highlight the legal decisions from the past 12 months that carry the biggest implications for planning.

London's Royal Courts of Justice
London's Royal Courts of Justice

1. Judgment sets out clear limits on scope of obligations

Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Ltd; [2017] UKSC 66

Paul Tucker QC

Can a planning obligation restrict commencement of development pending a financial contribution towards infrastructure unconnected to the development? Alternatively, can an obligation require payment into a pooled fund without stipulating that the development concerned cannot start until off-site works to be paid for by the money are complete? The Supreme Court was clear that such obligations would be unlawful, warning against an approach that might lead to perceptions of developers buying permissions or allowing councils to haggle with developers for "planning gain". The court reaffirmed the "threefold test" for planning conditions and set down straightforward authority against the propositions above. It confirmed that, where an obligation has only a trivial connection to a site, then it is not a material consideration in decision-making, even if a local plan policy says such a contribution would be sought. Finally, the ruling makes clear that decision-makers must have regard to relevant guidance, but can exercise their judgement not to follow it without fear of intervention by the courts.

Paul Tucker QC, Kings Chambers

2. Further clues provided on assessing impact on setting

R (Williams) v Powys County Council; [2017] EWCA Civ 427

Richard Kimblin QC

Under planning law, special regard is to be had to the desirability of preserving a building, its setting or any features of special architectural or historic interest. In this judgment, the Court of Appeal examined how, in identifying setting, planning practitioners look at the nature, scale and siting of the development, its proximity and likely visual relationship to a listed building, its architectural and historic characteristics, local topography and the presence of other natural and man-made features in the surroundings. The court said that there must be a distinct visual relationship between the two that in some way bears on the viewer's experience. But there is neither a planning rule governing setting or a definition of it. As if to prove that non-visual factors may be determinative, the Planning Court said as much in Steer v Secretary of State for Communities and Local Government, handed down shortly after Williams. Heritage remains a real practical challenge in development management.

Richard Kimblin QC, No5 Chambers

3. Sustainable development presumption clarified

Barwood Strategic Land II LLP v East Staffordshire Borough Council and Secretary of State for Communities and Local Government; [2017] EWCA (Civ) 893

Trevor Ivory

This case followed the Supreme Court decision in Suffolk Coastal District Council v Hopkins Homes and is essential reading for anyone seeking to understand its implications. Paragraph 22 sets out five basic principles derived from Suffolk Coastal. It considers how to apply the National Planning Policy Framework (NPPF) presumption in favour of sustainable development, providing clarity after conflicting Planning Court decisions. The judgment quashed an inspector's decision to allow a housing scheme in conflict with a local plan in an area with a five-year land supply. It confirmed that the presumption only exists within the confines of paragraph 14 of the NPPF and that development proposals cannot benefit from a wider presumption in favour, even if they satisfy the three limbs of sustainability and other policies in the framework.

Trevor Ivory, UK head of planning, DLA Piper

4. Judgment clears the air on emission control aspects

Gladman Developments Ltd v Secretary of State for Communities and Local Government and CPRE Kent; [2017] EWHC 2768 (Admin)

Catherine Howard

The High Court dismissed a bid to quash an appeal inspector's decision to refuse permission for 140 homes in Kent due to the developer's failure to mitigate harm to a designated air quality management area. The court held that the inspector was under no obligation to assume air quality would improve in line with measures in the government's air quality plan, while the European air quality directive was not a "parallel consenting regime" for the purposes of paragraph 122 of the NPPF, so the inspector was entitled to take into account the development's impact on nitrogen dioxide emissions. The court held that the developer's proposed financial contribution had not been shown to offer actual measures to reduce pollution. The case demonstrates the emerging importance of air quality in planning decisions and the need for developers to think seriously about the effectiveness of mitigation proposals.

Catherine Howard, partner, Herbert Smith Freehills

5. Definition of deliverable sites for homes is explained

St Modwen Developments v Secretary of State for Communities and Local Government and East Riding of Yorkshire Council; [2017] EWCA (Civ) 1643

Kevin Gibbs

In this case, the Court of Appeal clarified the meaning of the "deliverable" sites that paragraphs 47 and 49 of the NPPF say need to be available to demonstrate a five-year housing land supply. The claimants said the council's previous delivery record had been woeful and there needed to be more than a mere probability of delivery on a site for it to credibly contribute to land supply. The court held that it is not necessary for delivery on a site to be probable or certain for it to be regarded as "deliverable". Rather, it needs to be shown that delivery could happen at the site, based on evidence including local plans. Past shortcomings in land supply are to be addressed in the manner required by the NPPF via application of a 20 per cent buffer. This wide interpretation of "deliverable" has been followed in subsequent appeals.

Kevin Gibbs, senior counsel and head of strategic planning, Womble Bond Dickinson

6. Government told to take steps to apply policy consistently

Cumberlege v Secretary of State for Communities and Local Government and DLA Delivery Ltd; [2017] EWHC 2057 (Admin)

Claire Fallows

Two ministerial appeal decisions issued ten weeks apart came to diametrically opposite views on whether a local plan policy on development boundaries was up to date, leading to different conclusions as to whether the tilted balance in paragraph 14 of the NPPF applied. Despite the absence of a statutory requirement to consider previous decisions, the court held that the second decision was unlawful because no reasonable decision-maker would have failed to take the first into account in these circumstances. While accepting that the secretary of state is not required to be aware of all decisions taken in his name, the court held that in this instance he should have provided reasons for departing from the earlier decision.

Claire Fallows, partner, Charles Russell Speechlys

7. Ruling re-emphasises council duty to cooperate on plan-making

R (St Albans City and District Council) v Secretary of State for Communities and Local Government; [2017] EWHC 1751 (Admin)

Roy Pinnock

Strategic planning has been a mess since regional and structure plans were abolished. This High Court judgment makes clear that councils cannot sidestep the duty to cooperate, which requires them to "engage constructively, actively and on an ongoing basis", on strategic planning matters just because there is disagreement between them. The council refused to participate in a joint strategic housing market assessment with its neighbours, after defining its own housing market area. Its plan did not list any strategic cross-boundary matters or priorities. The court upheld the local plan examiner's finding that the duty had been breached. The judgment confirms that active and ongoing work is required "even when discussions seem to have hit the buffers". It underlines a dysfunctional system in which the government will end up directing joint plan preparation by groups of authorities or by county councils under the Neighbourhood Planning Act 2017.

Roy Pinnock, partner, Dentons

8. Framework wording taken at face value in green belt case

Dartford Borough Council v Secretary of State for Communities and Local Government; [2017] EWCA (Civ) 141

Jeremy Pike

The Court of Appeal ruled that previous government planning policy or ministerial statements could not change the meaning of clear words in the NPPF. It held that the NPPF's public nature is of critical importance; the public is entitled to rely on the document as it stands, without having to investigate the history of its policies. A traveller site had been approved within a residential curtilage in the green belt by an inspector on the basis that the exclusion of "land in built-up areas such as private residential gardens, parks, recreation grounds and allotments" from the NPPF's definition of previously developed land did not apply because the site was not in a built-up area. The court agreed that the words "such as" made it clear that what followed were examples, not an exhaustive list, and that the exclusion could not cover land outside built-up areas, such as countryside.

Jeremy Pike, barrister, Francis Taylor Building

9. Grounds for public challenge to procurement reined back

Wylde v Waverley Borough Council; [2017] EWHC 466 (Admin)

Charles Banner

This High Court case established that development agreements between councils and the private sector for urban regeneration projects cannot be challenged on public procurement grounds by local residents. Mr Justice Dove held that, to bring a procurement challenge, one needs to be an "economic operator", such as a rejected bidder, or have a direct interest in upholding the procurement regime, such as through a significant financial stake in a rejected bidder. A planning objection is not sufficient. Even where the development agreement is arguably non-compliant with procurement law, the range of potential challengers is now considerably narrower. The risk of such agreements and the schemes to which they relate being scuppered by a court challenge, as happened with the Silver Hill development in Winchester in 2015, is therefore reduced.

Charles Banner, barrister, Landmark Chambers

10. And finally... Court takes takes narrow view on relevant supply policies

Suffolk Coastal District Council v Hopkins Homes Ltd and Another; Richborough Estates Partnership LLP and Another v Cheshire East Borough Council; [2017] UKSC 37

Vicky Fowler

Paragraph 49 of the NPPF says that "relevant policies for the supply of housing" should not be considered up to date if the planning authority cannot show a five-year supply of deliverable housing sites. Overturning last year's Court of Appeal ruling on the issue, the Supreme Court held that the term "relevant policies"

should be interpreted narrowly as being only those dealing with numbers and distribution of homes, not policies dealing generally with the disposition or restriction of new development. Nevertheless, the court said that general policies restricting new development can still be given reduced weight in the operation of the tilted balance required by paragraph 14, on the basis that significantly boosting housing supply is a central theme of the NPPF. The court was critical of "inappropriate and unnecessary" legalistic approaches to the categorisation of policies. The decision encourages pragmatism in decision-making to address the housing deficit and emphasises strongly that the weight due to development plan policies, when considered in light of the presumption in favour of sustainable development, is a matter of pure planning judgement. Only where a decision is irrational will the courts intervene.

Vicky Fowler, partner, Gowling WLG

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