Ten key messages from court judgments in 2019

Click through to view summaries of the key rulings since the turn of the year that have shed light on the courts' interpretation of a range of planning policy and practice issues.

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

1 The secretary of state is under no general duty to exercise his planning powers to ensure that particular developments do not breach European air quality standards. This was the Court of Appeal’s verdict in a ruling handed down in January involving plans to build some 4,000 new homes on the outskirts of Canterbury.

R (Shirley and Another) v Secretary of State for Housing, Communities and Local Government; Date: 25 January 2019; Ref: [2019] EWCA Civ 22

2 The need for consistency in decision-making remains a challenging area for appeal inspectors. In January, the High Court overturned dismissal on appeal of plans to build 135 homes in Bedfordshire, ruling that the inspector had not given "anything like adequate" reasons for taking a different view from one of his colleagues in a previous decision also involving development outside settlement boundaries than a preceding decision.

Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government and Central Bedfordshire Council; Date: 29 January 2019; Ref: [2019] EWHC 127 (Admin)

Legal Viewpoint: Why decision-takers cannot ignore appeal precedents

3 Telephone kiosks installed for advertising may not benefit from permitted development rights. In February, the High Court quashed a planning inspector's consent for a new telephone kiosk in central London after finding that the structure served a dual purpose for communications and advertising and therefore did not benefit from permitted development rights.

Westminster City Council v Secretary of State for Housing, Communities and Local Government and New World Payphones Ltd; Date: 5 February 2019; Ref: [2019] EWHC 176 (Admin)

News analysis: The ruling that could end prior approval consents for phone kiosks

4 Ministers must cover all the corners in issuing revised planning policy guidance. In March, the High Court ruled that consultation on the 2018 revised National Planning Policy Framework (NPPF) had been unfair and unlawful and the government had failed to take into account up-to-date scientific evidence on the climate change impacts of fracking and other forms of onshore oil and gas operations. However, in a separate judgment, the court turned down claims by Friends of the Earth that the revised NPPF should have undergone a strategic environmental assessment.

Stephenson v Secretary of State for Housing, Communities and Local Government; Friends of the Earth Ltd v Secretary of State for Housing, Communities and Local Government; Date: 6 March 2019; Ref: [2019] EWHC 518 (Admin)

Legal Viewpoint: Strategic assessment held inapplicable to framework

5 Previous planning decisions that have been quashed by the courts may remain relevant upon redetemination. In May, a Surrey council’s decision to reissue a permission for a stadium in the green belt, after the original consent was struck down by the High Court, was quashed again following findings that the authority had failed to address inconsistencies in its assessment of the scheme’s impact on openness.

R (Davison) v Elmbridge Borough Council; Date: 2 May 2019; Ref: [2019] EWHC 1409 (Admin)

News analysis: Why decision-makers must now heed overturned consents

Legal Viewpoint: Why quashed decisions can be a material consideration

6 Legal proceedings may still be heard despite long delays if the public interest warrants their consideration. In May, the Court of Appeal upheld a High Court decision to quash a council's mistaken planning consent for indefinite use of wedding marquees at a grade II* listed property in the Merseyside green belt, despite the claimants’ lengthy delay in bringing the challenge.

R (Thornton Hall Hotel Ltd) and Wirral Council v Thornton Holdings Ltd; Date: 13 May 2019; Ref: [2019] EWCA Civ 737

News analysis: The lessons to be learned from the quashing of a mistaken consent

Legal Viewpoint: The exception that proves challenge deadline rule

7 Failure to carry out appropriate assessment under European habitats legislation is not necessarily fatal to development approvals. In May, failure to carry out an appropriate assessment of the impact of 30 proposed homes on protected heathland in Hampshire led to the High Court quashing an appeal inspector’s decision to approve the development. But in a conjoined case which confirmed that proposed mitigation has to be discounted following the European Court of Justice judgment in People Over Wind and Sweetman v Coillte Teoranta [2018], the court declined to strike down the secretary of state’s decision to approve a major housing development in Kent without undertaking an appropriate assessment, deciding that the outcome would have been the same despite this error in law.

Crondall Parish Council v Secretary of State for Communities and Local Government; Canterbury City Council v Secretary of State for Housing, Communities and Local Government; Date: 14 May 2019; Ref: [2019] EWHC 1211 (Admin)

Legal Viewpoint: Testing the wind on need for appropriate assessment

8 Decision-makers are obliged to set out their reasons in deciding whether or not an area can show a sufficient supply of housing land. In June, the secretary of state’s inability to explain how he had arrived at his conclusion that Milton Keynes Council could show a five-year housing land supply, and the tilted balance in favour of sustainable development therefore did not apply, led the High Court to quash outline permission for up to 203 dwellings.

Wavendon Properties Ltd v Secretary of State for Housing, Communities and Local Government; Date: 14 June 2019; Ref: [2019] EWHC 1524 (Admin)

News analysis: Why a court ruling may make it harder for developers to use the NPPF's 'tilted balance' to win consent

Legal Viewpoint: Assessing outdated policies in framework relevance test

9 Previous conditions may continue to bite even when they are not reiterated in updated consents.  Overturning previous High Court and Court of Appeal rulings, the Supreme Court reached this view last month when it decided on the status of the original conditions imposing restrictions on the sale of goods at a DIY store in south London. The dispute followed the council’s approval of applications to vary the terms of the consent under section 73 of the Town and Country Planning Act 1990.

Lambeth Council v Secretary of State for Housing, Communities and Local Government; Date: 3 July 2019; Ref: [2019] UKSC 33

News analysis: Why judgment forces applicants to pay closer attention to old conditions

10 The courts will not intervene in "academic or hypothetical" disputes over subsidiary matters arising from planning decisions. A High Court judge made this clear last month when he declined to consider a Gloucestershire council’s challenge to the secretary of state’s interpretation of its housing land supply position in rejecting plans for 40 houses.

Tewkesbury Borough Council v Secretary of State for Housing. Communities and Local Government; Date: 8 July 2019; Ref: [2019] EWHC 1775 (Admin)

News analysis: How a council's attempt to overturn assessment of its housing land supply foundered


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