Legal News

TV Harrison CIC v Leeds City Council [2022] EWHC 1675 ( Admin) What are the practical implications of this case? First, the ruling underscores the centrality of the development plan, and the obligation to comply with the strict statutory duties to have regard to it under section 70(2) of the Town and Country Planning Act 1990 ( TCPA 1990) and section 38(6) of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004). Allocation of a site for housing does not dispense with the continuing requirement to properly assess all particularly pertinent and applicable development plan policies in the round. Secondly, it confirms that reasons are generally unnecessary separately where members adopt the recommendation contained in an officers’ report, in such circumstances. The judge held there was no duty on the relevant committee to give additional reasons where: a) members accepted the...

What are the practical implications of this case? This was a renewed bid for permission to pursue a judicial review of Manchester City Council’s decision to grant planning permission for replacing a car park with a 55‑storey tower including student accommodation. As with all rulings at the permission stage, the judgment does not create a precedent: the court was simply deciding whether any ground met the arguability threshold for the claim to proceed to a substantive hearing. Even so, it raises notable points on deliverability and consultation. Deliverability: the court held that the presence of private rights that may need to be bought out—such as rights of light, a right of way over the development land or, as here, a right to park in the car park—does not render a scheme undeliverable. These are questions of commercial practicality and do not undermine...

R (on the application of Park Lane Homes ( South East) Ltd) v Rother District Council [2022] EWHC 485 ( Admin) What are the practical implications of this case? First, the judgment confirms there is no duty in statute, national policy, or Secretary of State guidance for a neighbourhood development plan to include housing provision or make housing allocations. However, where a draft neighbourhood plan proposes to exclude such provision, care is needed to ensure it does not conflict with the development plan. Secondly, the judgment clarifies that, while procedural fairness may on occasion necessitate further consultation or additional opportunities to make representations, such situations will be uncommon where a detailed statutory regime is in place, as with neighbourhood plans. In general, where the statutory requirements are fulfilled, it will be challenging to rely on procedural unfairness when contesting a...

R (on the application of Sav Development Ltd) v London Borough of Tower Hamlets [2021] EWHC 3211 ( Admin) What are the practical implications of this case? This judgment illustrates and confirms that: where justified, local policy may diverge from national policy for local authorities, when such a course is contemplated during plan-making, thorough evidence gathering is essential a conflict between policies can only exist where there are two policies there is no inconsistency between a document containing a specific policy on a topic and another that is silent on that topic this approach applies to both section 38(5) of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004) and the Town and Country Planning ( Local Planning) ( England) Regulations 2012, SI 2012/767, reg 8(3) planning policy should be read on its face, unless there is a...

For many, the hallmark of the Localism Act 2011 was its far-reaching neighbourhood planning regime, which for the first time shifted statutory plan-making powers to parish councils and, in areas without parishes, to a new statutory body, the neighbourhood forum. The Neighbourhood Development Plan ( NDP) emerged and took its place within the planning system. The political rationale appeared twofold: to spread responsibility, and some of the financial burdens of plan-making, down to lower tiers of government and, alongside that, to involve local people directly in preparing plans. In this spirit of empowerment, neighbourhood planning was intended to be simple to navigate and unencumbered by undue regulation. The ministerial foreword to the original National Planning Policy Framework ( NPPF), issued six months later in March 2012, observed that planning had tended to exclude rather than include people and communities; it suggested...

R (oao Sheakh) v London Borough of Lambeth [2021] EWHC 1745 ( Admin) What are the practical implications of this case? This judgment has both procedural and substantive consequences for TROs and PSED. The claimant initially moved to contest several orders; some challenges were lodged within the six-week window for a statutory review under RTRA 1984, Sch 9, while others fell outside that period. By the time the matter reached Mr Justice Kerr, there were effectively two distinct proceedings. The first, chronologically, was an application seeking permission to bring judicial review, presented as a standard judicial review permission bid. The second was a valid statutory review of other ETOs filed within time. No permission is required when a statutory review is brought under RTRA 1984, Sch 9. Although RTRA 1984, Sch 9 bars challenges to an order save through its own...

R (on the application of Cross) v Cornwall Council and Wilton [2021] EWHC 1323 ( Admin) What are the practical implications of this case? This decision offers practical direction to planners and practitioners on how to approach the giving of reasons for planning outcomes, notably where approvals run against officer advice, and on the considerations when tackling sometimes knotty alternative resolutions. There is no statutory obligation to provide reasons for granting permission. Yet, in defined situations, as the judgement explains, principles of common law and public law fairness oblige the authority to supply reasons. Existing caselaw—such as Dover DC v Campaign to Protect Rural England ( Kent) [2018] 1 WLR 108—indicates those situations include grants made despite strong public opposition, contrary to the case officer’s recommendation, and/or at odds with local plan policies. Here, the judge held that the duty to give reasons arose, rejecting the...

Choiceplace Properties Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWHC 1070 ( Admin) What are the practical implications of this case? This judgment powerfully underlines the importance of precision in the plans submitted with a planning application, especially where a condition requires the development to be delivered in accordance with the plan. That obligation extends to how the proposal relates to its immediate surroundings. Those seeking planning permission should, therefore, undertake a careful audit of the accuracy of all drawings and plans accompanying the application and satisfy themselves that the stated details are practicable and capable of being complied with. What was the background? Choiceplace Properties secured planning permission for the demolition of two two-storey semi-detached houses and the construction of a three-storey block to provide six self-contained flats, subject to a condition that the development should be carried out in...

R (on the application of Swainsthorpe Parish Council) v Norfolk County Council [2021] EWHC 1014 ( Admin) What are the practical implication of this case? For clarity, it is helpful to identify the parties and their respective roles: Swainsthorpe Parish Council, the Claimant Norfolk County Council ( NCC), the Defendant, Highway Authority South Norfolk District Council ( SNDC), Interested Party, Local Planning Authority ( LPA) The court determined that NCC acted unlawfully by considering economic benefits when replying to the statutory consultation in its capacity as highway authority. Mrs Justice Lang DBE concluded that, under the legislation, the statutory consultation scheme for planning applications required: the LPA ( SNDC) to consult the local highway authority ( NCC) on the relevant categories, and nothing beyond that the NCC, as local highway authority, to provide a substantive reply to the LPA ( SNDC)...

Pearce v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 ( Admin) What are the practical implications of this case? While the facts are specific to this matter, multiple offshore schemes along England’s east coast are moving through consent, and each must robustly account for cumulative effects. The case also underlines mounting pushback from local communities against sizeable onshore infrastructure in the area, coinciding with BEIS’s programme reviewing offshore transmission and different approaches to linking offshore wind schemes and landing renewable power. The court further made clear that, even where a proposal aligns with government policy and helps deliver low‑carbon, renewable generation consistent with legal duties towards ‘net zero’ and tackling climate change, that alignment does not displace the requirement for any application to evaluate every impact properly and in accordance with the law. All such proposals therefore need to...

Clin v Walter Lilly & Co Ltd [2021] EWCA Civ 136 What are the practical implications of this case? The judgment addresses the correct method for assessing if building operations within a conservation area designated under P( LBCA) A 1990, s 69 amount to ‘demolition’, thereby triggering the need for conservation area consent under P( LBCA) A 1990, s 74. The court confirmed that s 74 poses two distinct issues. First, is a building in a conservation area to be ‘demolished’ such that conservation area consent is necessary? Secondly, if the works do constitute demolition, should conservation area consent be granted? As to the first issue, the ruling makes plain that it is a quantitative assessment, answered by the scale of demolition, and excludes any qualitative appraisal of the effect on the character and appearance of the conservation area. The outcome will aid owners (and their...

What are the practical implications of this case? This decision is important for prosecutions about enforcement notices where the charge is that a defendant failed to comply with a notice in circumstances where an Article 4 Direction is in place removing permitted development rights. The court held that a defendant cannot require the prosecution to prove the existence of the relevant Article 4 Direction, because that question concerns the validity of the enforcement notice itself and, under TCPA 1990, s 285, may only be pursued by way of an appeal to the Secretary of State under TCPA 1990, s 174. What was the background? Mr Zahar repainted the outside of his home a dark grey and replaced wooden framed windows with upvc windows. The property was within a conservation area in which permitted development rights for these alterations had been withdrawn by an Article 4...

On 29 April 2020, the Fire Safety Bill received its second reading in the House of Commons and was also referred to a Public Bill Committee. The Bill will amend the Regulatory Reform ( Fire Safety) Order 2005, SI 2005/1541, to provide clearer guidance on the duties of the Responsible Person or duty-holder in multi-occupied, residential premises. Currently, under the Fire Safety Order, fire and rescue authorities hold enforcement powers over the shared parts of blocks of flats, for example entrance halls and landings. They do not possess such powers beyond the front doors of flats to act within individual homes, nor do they also have powers concerning the exterior of buildings. The Fire Safety Bill proposes amendments to the scope of the Fire Safety Order to make clear that the responsible person or duty-holder for multi-occupied residential buildings must manage and reduce fire risk relating to the...

R (on the application of Bond) v Vale of White Horse District Council [2019] EWHC 3080 ( Admin) What are the practical implications of this case? The Planning Court’s ruling is tightly tied to the particular facts. The issue arose because a change to the green belt policy within a local plan—introduced to mirror the recommendations of an inspector undertaking an independent examination—was not translated onto the adopted proposals map. The map failed to reflect the inspector-led modification carried through the plan-making process, leaving a mismatch between policy text and mapping outputs. That said, the judgment usefully reiterates that an adopted policies map is not a development plan document for the purposes of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004). A policies map, once adopted, is a local development document and sits outside the local plan itself. Moreover, a policies map only needs to be...

For much of the UK’s membership of the EU, the interaction between European law and the domestic system has sparked debate. To many observers, it operates as a limitation—practically, if not as a strict matter of doctrine—on the constitutional tenet that Parliament, acting with the Crown, is sovereign. In that context, the European Union ( Withdrawal Agreement) Bill ( WAB) sets out a number of measures with significant consequences for how sovereignty is to be understood in the United Kingdom. Current status of EU law At present, section 2(1) of the European Communities Act 1972 ( ECA 1972) stipulates that all rights, powers, liabilities, obligations and restrictions created by or under the Treaties, together with all remedies and procedures they provide, are to take legal effect in the United Kingdom without further legislation. Those rights must be recognised, available and enforced in UK law, and...

What are the practical implications of this case? As with the rulings at first instance and on appeal, there are likely to be consequences in both the political and legal arenas. Politically, the judgment heaps considerable pressure on the PM and the government. This is an extraordinary ruling by the Supreme Court. The court concluded that the PM acted unlawfully and without adequate justification, preventing Parliament from fulfilling its constitutional roles both as a legislature and as the body tasked with holding the executive to account. It is difficult to characterise this outcome as anything other than an embarrassment for the PM. It amounts to a serious censure and, in the circumstances, it is unsurprising that there are already calls for the PM to ‘consider his position’. Parliament has been......

R (on the application of Wingfield) v Canterbury City Council [2019] EWHC 1975 ( Admin) What are the practical implications of this case? The decision does not establish any new legal principle, but usefully reiterates settled law concerning what is commonly termed ‘salami slicing’. This describes breaking up a single development into smaller elements that fall beneath EIA thresholds, thereby sidestepping the need for an environmental assessment. Salami slicing has been found to be unlawful and should be avoided. The judgment confirms that defining the relevant ‘project’ for EIA purposes is a matter for the competent authority’s judgment, though it remains susceptible to challenge on grounds of Wednesbury rationality or other public law error. Lang J indicated that the following considerations are pertinent when deciding whether two schemes amount to a single project for the EIA regime: common...

Brent London Borough Council v Secretary of State for Housing, Communities and Local Government and another [2019] EWHC 1399 ( Admin) What are the practical implications of this case? The decision confirms there is no duty on an inspector, in all appeals against enforcement notices, to go searching to determine whether some additional or alternative breach of planning control, different from that alleged in the notice, has taken place. Nor is there any rule of statutory interpretation requiring an inspector, when deciding such an appeal, to assess whether the use existing ten years before service of the notice had, within the ten-year period ending on the date of service, altered through intensification to such an extent as to amount to a material change of use. That said, where an enforcement notice asserts, or the local planning authority ( LPA) that issued it...

Gladman Development Ltd v Secretary of State of Housing, Communities and Local Government and another [2019] EWHC 127 ( Admin) What are the practical implications of this case? The ruling introduces no novel principles, but it usefully reinforces the obligation on decision-makers to ensure consistency with prior determinations and to set out clear, adequate reasons for their conclusions. Plainly, whether a local policy is considered out of date, and the weight it attracts, will differ from case to case; however, the essential point is that where a previous appeal decision is directly pertinent or turns on the same policy interpretation, the decision-maker should explain any inconsistency with that earlier outcome and justify any departure from conclusions that diverge from their own. Although coherence between appeal decisions on the same subject matter or policy is clearly important, this does not require identical outcomes in all similar cases;...

Upper Tribunal considers experts acting under success-related fees ( Gardiner & Theobald LLP v Jackson ( VO)) Gardiner & Theobald LLP v Jackson ( VO) [2018] UKUT 253 ( LC) What was the background? The UTLC President characterised the ruling as addressing significant questions of principle about the proper conduct of experts. In essence, it examined the effect of success‑linked remuneration and the circumstances in which such arrangements might be regarded as acceptable. The tribunal adopted a notably broad stance on experts’ obligations where success‑related fees arise, prompting unease among expert witnesses and their employers. Although the dispute was a rating matter, the tribunal made it clear that its observations were equally applicable in compensation cases. The panel presented its guidance as having wider application across comparable proceedings in both forums. Fee arrangements in the case The surveying practice had undertaken all rating work for Gardiner &...