Ten significant messages from court judgments in 2019

We summarise the key rulings that have shed light on the courts' interpretation of a range of planning policy and practice issues over the past year.

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

1. Telephone kiosks installed for advertising do 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. The High Court's finding was backed by the Court of Appeal in a judgment in December. 

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

2. Previous planning decisions that have been quashed in court may remain relevant upon redetermination.

In May, the High Court struck down a Surrey council’s decision to reissue consent for a stadium in the green belt. The court, which had already quashed a previous permission for the project, found 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

3. 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 on 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 Housing, 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

4. Decision-makers need to take a balanced approach in assessing whether development plan policies are out of date.

In June, in a ruling that quashed the secretary of state’s decision to approve plans for 203 dwellings in Buckinghamshire, the High Court interpreted the application of the National Planning Policy Framework’s tilted balance in favour of sustainable development in situations where those policies "most important for determining the application are out of date". The judge advised that decision-makers should identify the most important policies, test each for consistency with the framework and then form a view on whether, taken collectively, they are out of date.

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

5. 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 concluded in July that a DIY store in south London remained bound by a condition imposed on the original permission preventing food sales, even though an explicit condition to this effect had been omitted in a later variation to the consent obtained 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

Legal Viewpoint: Keeping track of conditions on updated permissions

6. The courts will not intervene in "academic or hypothetical" disputes over subsidiary matters arising from planning decisions.

In July, a High Court judge 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 on appeal, given that the authority was not seeking to change the actual outcome. The council was concerned that the supply figure cited in the decision letter would set a precedent for future applications and appeals.

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

Legal Viewpoint: Why the courts will stay out of academic challenges

7. Councils are free to amend reserved matters conditions that are not material in nature.

The Court of Appeal took this line in July when it concluded that a Yorkshire authority had been entitled to agree a minor variation to the terms of a bat mitigation strategy imposed under a reserved matters condition on a development of up to 700 homes. As the council had been satisfied that the amendment was not material, the court held that it could vary the approved details under section 96A of the Town and Country Planning Act 1990.

Fulford Parish Council v City of York Council; Date: 30 July 2019; Ref: [2019] EWCA Civ 1359

Legal Viewpoint: Relief and despair in court ruling on scheme revisions

8. Planning policies in time-expired development plan documents will not necessarily be treated as out of date.

Rejecting the claimants’ challenge to ministerial refusal of permission for two housing schemes in Greater Manchester in August, a High Court judge found nothing in the National Planning Policy Framework to back their contention that a green wedge policy in a unitary development plan time-limited to the end of 2016 should be automatically considered out of date.

Peel Investments (North) Ltd v Secretary of State for Housing, Communities and Local Government and Salford City Council; Date: 2 August 2019; Ref: [2019] EWHC 2143 (Admin)

9. An implementable extant permission is the correct basis for assessing Community Infrastructure Levy (CIL) liability.

In a September ruling overturning a previous High Court judgment, the Court of Appeal concluded that no CIL liability arose from a proposal to convert and extend a building in north London to form three flats. The developers had previously secured and implemented permission for six flats before the area’s CIL charging schedule was introduced, and the court concluded that this lawful use was sufficient to absolve them from CIL liability.

R (Giordano Ltd) v London Borough of Camden; Date: 12 September 2019; Ref: [2019] EWCA Civ 1544

Legal Viewpoint: How infrastructure levy can bite on relatively modest developments

10. Decision-makers have no powers to amend the original description of development when agreeing revised plans.

The Court of Appeal reached this view in October when it overturned a High Court ruling backing an inspector’s decision to allow an increase in the height of two turbines in west Wales from 100 to 125 metres, following an application under section 73 of the Town and Country Planning Act 1990. The court held that the inspector, in imposing a new condition, should not have removed a reference in the description of development to the originally approved turbines’ height.

Finney v Welsh Ministers, Carmarthenshire County Council and Energiekontor (UK) Ltd; Date: 29 October 2019; Ref: [2019] EWCA Civ 1868

News analysis: How the courts have curbed developers' scope to alter permissions

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