Five key messages from court judgments in 2018

UK and European court judgments this year offer some important messages on the application of policy and legal precedents for plan-making and development management. Here are five key rulings from 2018.

1. Full appropriate assessments are needed for plans and projects affecting internationally protected habitats. April’s European Court of Justice ruling in People Over Wind and Sweetman v Coillte Teoranta, further developed in two subsequent cases, made clear that full "appropriate assessment", rather than a less arduous screening process, is required in plan-making and decision-making where plans or projects have a potential impact on internationally protected sites, regardless of proposed mitigation measures. The government has just closed a consultation on a proposed revision of July’s reissued National Planning Policy Framework (NPPF) to clarify the ruling’s impact on the presumption in favour of sustainable development.

2. Wider context is important in assessing whether a site is part of a valued landscape. In July, the High Court upheld an inspector’s decision (DCS Number 200-006-923) to refuse permission for 175 homes in Buckinghamshire. In CEG Land Promotions II Ltd v Secretary of State for Communities and Local Government, it held that the inspector had correctly concluded that the land formed part of a valued landscape for the purposes of paragraph 109 of the 2012 NPPF, given its proximity to nationally designated areas.

3. Ministers should give reasons for decisions on whether to call in planning applications. October’s Court of Appeal  judgment in R (SAVE Britain’s Heritage) v Secretary of State for Communities and Local Government held that, under the terms of a green paper issued in 2001, former communities secretary Sajid Javid should have given reasons for his refusal in 2016 to accede to a conservation group’s request that he explain why he had declined to call in the controversial "Paddington Cube" development in London.

4. Overpaying for a site does not justify developers in reducing their affordable housing offer. This was the headline finding from the High Court’s ruling in April on Parkhurst Road Ltd v Secretary of State for Communities and Local Government, involving a development scheme in north London. Government guidance on viability assessment has since been rewritten and professional institutions are also now revising their advice.

5. The setting of heritage assets is a broader concept than mere visual impact. In its July ruling in Catesby Estates v Steer and Historic England, the Court of Appeal held that the High Court construed the setting of heritage assets too narrowly in upholding objectors’ challenge to an inspector’s decision (DCS Number 200-005-485) to allow up to 400 homes at Kedleston Hall, Derbyshire. The appeal judges found that the inspector had correctly taken "more than visual" elements into account in his consideration of the case.

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