The Top Ten Planning Cases of 2014-2015

1. 39 Essex Street
Manchester Update
Top 10 Planning Cases of 2014-2015
Rose Grogan

2. Top 10 Cases of 2014-2015
• Green Belt
• Housing and the
NPPF
• Neighbourhood
Plans
• Called In Appeals
• Heritage
• Enforcement

3. Green Belt and the NPPF
• Section 9 of the NPPF
• Paragraphs 87, 89 and 90:
– all development is inappropriate (and thus can be permitted only
in very special circumstances) unless it is either
• development falling within one or more of the categories set
out in paragraph 90 or
• is the construction of a new building or buildings that comes,
or potentially comes, within one of the exceptions referred to
in paragraph 89.
• Jury is out on whether simplicity and clarity have been
achieved.

4. Redhill Aerodrome Limited v SSCLG
• Paragraph 88 NPPF
• Does “any other harm” mean only harm to the green belt
(in addition to harm by reason of inappropriateness)?
– River Club v Secretary of State for Communities and Local
Government [2009] EWHC 2674, Frances Patterson QC, held
that the words “any other harm” within paragraph 3.2 of PPG2
included any harm caused by the proposal, whether it was to
the Green Belt or to other interests.
– The issue in this case was whether the approach in the NPPF
means that “any other harm” should be confined to harm to the
green belt.

5. Redhill Aerodrome Limited v SSCLG
• NPPF vs PPG2
– PPG2
“3.2 … Inappropriate development is, by definition, harmful to the
Green Belt. It is for the applicant to show why permission should be
granted. Very special circumstances to justify the inappropriate
development will not exist unless the harm by reason of
inappropriateness, and any other harm, is clearly outweighed by
other considerations…”
– NPPF
“When considering any planning application, local planning
authorities should ensure that substantial weight is given to any
harm to the Green Belt. ‘Very special circumstances’ will not exist
unless the potential harm to the Green Belt by reason of
inappropriateness, and any other harm, is clearly outweighed by
other considerations.”

6. Redhill Aerodrome Limited v SSCLG
• In the High Court, the case came before Mrs Justice
Patterson:
– Held that the NPPF set thresholds for refusal of planning
permission (e.g. noise and “significant impact”).
– If impact of a scheme does not reach that threshold it cannot be
considered as “any other harm”
– NPPF marked a “considerable policy shift”
• In the Court of Appeal:
– No radical departure from PPG2
– Required to consider “other considerations” for VSC, cannot
exclude non-green belt harm from other side of the balance.

7. Moore v SSCLG
• Consistent practice of SSCLG calling-in appeals for caravan pitches
in the green belt.
• Disproportionate effect on enthic group (Romany gypsies and Irish
Travellers)
• Challenge under Equality Act 2010 for indirect discrimination,
breach of the PSED and breach of ECHR.
• Claimant successful
– Discrimination not proportionate
– No “due regard”
– Delay to decisions was a breach of article 6 ECHR

8. Other Cases:
– R (Timmins) v Gedling Borough Council [2015] EWCA Civ 10
Paragraph 89 concerns the construction of new buildings as appropriate
facilities for an existing cemetery, but not a material change of use to a
cemetery.
– Copas v Secretary of State for Communities and Local Government
[2014] EWHC 2634: Written ministerial statement of July 1, 2013 on
development in the Green Belt and unmet housing need.
– Europa Oil and Gas Limited v Secretary of State for Communities
and Local Government [2014] EWCA Civ 825 upholding [2014] J.P.L.
21 at 35. Oil and gas exploration and appraisal is part of mineral
extraction for the purposes of paragraph 90 of the NPPF.
– Lloyd v. Secretary of State for CLG and Dacorum BC [2014] EWCA
Civ 839, “new buildings” in paragraph 89 of the NPPF, do not include a
mobile home.

9. Housing and the NPPF
• Paragraph 47 NPPF:
• Use their evidence base to ensure that their Local Plan meets the
full, objectively assessed needs for market and affordable housing in
the housing market area, as far as is consistent with the policies set
out in this Framework, including identifying key sites which are
critical to the delivery of the housing strategy over the plan period;

10. Gallagher Homes v Solihull MBC
[2014] EWHC 1283 (Admin)
• The NPPF has effected a “radical change”
• Local Plan not supported by a figure of full objectively
assessed housing need (FOAHN)
• Cannot transpose the PPS3 approach
• RS data must be treated with “extreme caution”
• What happens where no FOAN?
– South Northamptonshire Council v Secretary of State for
Communities and Local Government and Barwood Homes
– South Northamptonshire Council v Secretary of State for
Communities and Local Government and Barwood Land.

11. 5 Year Supply and Sustaintable
Development
• Paragarph 14 NPPF
• William Davis v SSCLG
– Preliminary issue whether appeal proposals
“sustainable development”
– Presumption in favour under the NPPF only applies
to “sustainable development”
– “The Lang test” based on her acceptance of the
submissions made by counsel for the SSCLG

12. Dartford BC v SSCLG
• Patterson J:
– No legalistic approach
– If paragraph 14 applies because there is a shortfall,
no need to also consider whether proposed
development is sustainable development until you
carry out the planning balance.
– Sustainable development should be permitted,
unsustainable development refused(para. 54).
• Decision in Pulley Lane, Droitwich
– Rejection of Lang J’s approach to sustainable
development
– Buffer should be applied before shortfall

13. Neighbourhood Plans
• R (Gladman Developments) v Aylesbury Vale
DC
– NDP can include allocations for housing where no
strategic allocations in the Development Plan.
– Consistency can simply mean that future
development might be allocated in the same area as
the NDP
– Later, inconsistent, policies in Development Plan
would prevail.
• Appeals liable to call-in where emerging
Neighbourhood Plan

14. Called-In Appeals
• R (Ecotricity (Next Generation) Ltd) v Secretary of State
for Communities and Local Government
– Onshore wind
– SOS disagreement with inspector
– No requirement for SOS to carry out own site visit
• Wind Prospect Developments Ltd v Secretary of State
for Communities and Local Government
– Rejected argument that duty to consider site visit and
give reasons
– Rejected argument that a higher standard of reasons
applies when SOS disagrees with inspector

15. Heritage
• Barnwell Manor Wind Energy Ltd v. East
Northants DC and others
– S.66(1) “special regard”
– Inspector found “some” but “less than substantial”
harm
– Weight to be attached to harm – must be
“considerable”
– Finding of harm creates a “strong presumption”
against permission
– Not a case of whether benefits outweigh harm, must
sufficiently outweigh to rebut presumption

16. Enforcement
R (Ahmed) v SSCLG [2014] EWCA Civ 566
• Inspector failed to consider “obvious alternative” of
lesser scheme after wrongly concluding he had no power
to grant planning permission for the lesser scheme.
• Inspector does have the power if the lesser scheme is
“part of” the scheme enforced against.
R (Ioannou) v SSCLG [2014] EWCA Civ 1432;
• Ahmed distinguished. Inspector has no power under
ground (f) to bring about deemed permission for scheme
which was not in existence at the time of the EN.

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Planning and
Environmental Law
Update
3 February 2015