Twelve more key messages from the courts in 2019

Click through to read our listing of another dozen court rulings issued during 2019 that offer useful practical pointers on the interpretation of planning law and policy.

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

1. 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.
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

2. 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 in that 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 conjoined judgment, the court turned down claims that the revised NPPF should have undergone 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

3. 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

4. Councils do not have the power to extend the determination period for prior approval applications.

In July, the High Court held that, even though a time extension had been agreed with the developer, a Berkshire authority’s decision to refuse prior approval for a barn conversion was invalid because it was issued beyond the 56-day deadline specified in the General Permitted Development Order 2015.

R (Warren Farm (Wokingham) Ltd) v Wokingham Borough Council; Date: 31 July 2019; Ref: [2019] EWHC 2007 (Admin)

News Analysis: How a court ruling on prior approval timescales puts pressure on decision-makers

Legal Viewpoint: Keeping an eye on the time in prior approval applications

5. Councils are not obliged to compare the merits of alternative proposals before determining applications.

In July, the High Court rejected a funeral operator’s claim that, before rejecting its application for a new crematorium and approving a rival operator’s facility, a Cambridgeshire council should have carried out a comparative analysis of both schemes. Its planning committee had been correctly advised to make separate decisions based on each scheme’s merits, the judge held.

Dignity Funerals Ltd v Huntingdonshire District Council; Date: 31 July 2019; Ref: [2019] EWHC 2114 (Admin)

6. Redevelopment potential may be relevant in deciding whether the loss of heritage assets is acceptable.

In August, a High Court judge held that references in the National Planning Policy Framework to securing optimum viable use of a heritage asset encompass its potential to be redeveloped, even where no definitive scheme has been submitted or approved. The case involved a developer’s successful appeal against an enforcement notice requiring reconstruction of three unlisted cottages in an east London conservation area that had been demolished without consent.

London Borough of Tower Hamlets v Secretary of State for Housing, Communities and Local Government and Angelic Interiors Ltd; Date: 27 August 2019; Ref: [2019] EWHC 2219 (Admin)

7. Decision-makers should avoid inferring policy conflicts where plans are silent on material issues.

In October, the Court of Appeal backed an inspector’s decision to allow 34 homes outside a West Sussex village where a neighbourhood plan said nothing, either for or against, about development outside the settlement boundary. His reasoning in establishing the degree of conflict with relevant local and neighbourhood plan policies and then assessing the planning balance had been impeccable, the court found. "It is not necessary to deduce a conflict with the development plan from the absence of support in a specific policy," it observed.

Chichester District Council v Secretary of State for Housing, Communities and Local Government and Beechcroft Land Ltd; Date: 9 October 2019; Ref: [2019] EWCA Civ 1640

Legal Viewpoint: Court tests interface between planning policy layers

8. Decision-makers should not imply a "presumption of continuance" in enforcement cases.

In October, a High Court judge overturned an inspector’s decision to quash an enforcement notice issued against occupation of a basement flat in north London. It held that he had erred in finding that the unauthorised use had continued uninterrupted when the flat was vacant during renovation works and had thereby acquired immunity against enforcement through the passage of time.

Islington Council v Secretary of State for Housing, Communities and Local Government and Maxwell Estates; Date: 17 October 2019; Ref: [2019] EWHC 2691 (Admin)

9. Local plan examiners have wide discretion in assessing housing needs and advising solutions.

Supporting an earlier High Court ruling, the Court of Appeal in October rejected a challenge to an examiner’s recommendation – subsequently followed through in plan modifications – that a Surrey council increase its housing target to accommodate unmet housing need in a  neighbouring borough facing significantly greater constraints on development.

CPRE Surrey v Waverley Borough Council and Secretary of State for Housing, Communities and Local Government; Date: 31 October 2019; Ref: [2019] EWCA Civ 1826

10. Councils cannot extract money or other benefits and developers cannot offer such inducements in return for planning permission.

The long-established principle that planning permission cannot be bought or sold was emphasised again in November when the Supreme Court endorsed pervious rulings striking down planning permission for a wind turbine in Gloucestershire, after the local authority treated the developers’ offer of payments into a community benefits fund as a material consideration.

Wright v Resilient Energy Severndale Ltd and Forest of Dean District Council; Date: 20 November 2019; Ref: [2019] UKSC 53

11. Councils and developers could find it easier to make a case for green belt releases through development plans.

In early December, the High Court dismissed a judicial review challenge to a Surrey council’s adopted local plan which deallocates three large portions of green belt land. The court held that the local plan examiner had been entitled to conclude that exceptional circumstances justified the move, allowing "headroom" against potential future underdelivery.

Compton Parish Council v Guildford Borough Council; Date: 4 December 2019; Ref: [2019] EWHC 3242 (Admin)

News analysis: The court ruling that legal experts say will ease green belt release

12. Decision-makers enjoy considerable latitude in assessing the deliverability of housing sites.

In early December, the Court of Appeal held that a Suffolk district council facing a housing land shortfall had not misapplied the National Planning Policy Framework’s deliverability test in granting permission for three housing schemes not in accordance with the local development plan. The court rejected a parish council’s claim that the district had set the bar too high by only treating sites that were "certain" to be developed, rather than those with reasonable prospects of development, as deliverable.

R (East Bergholt Parish Council) v Babergh District Council; Date: 12 December 2019; Ref: [2019] EWCA Civ 2200

Click here to read our earlier listing of the ten most significant court rulings of 2019


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