Planning update

The status of an objector is capable of making a difference to a planning decision. In (R ) Weir v London Borough of Camden [2005] EWHC 1875 (Admin), Collins J held that the failure to take account of objections from a neighbouring authority was fatal to a decision to grant planning permission. Camden London Borough Council had granted planning permission for a 556 square metre A3 restaurant at basement and ground floor, with associated plant, and 14 self-contained flats at 25 Shelton Street in Covent Garden. The boundary between Westminster City Council and Camden ran along the centre of Shelton Street. Westminster objected inter alia on grounds impact on highways and amenity. Westminster’s representations were lost by officers. Members were told that Westminster had not objected. Collins J rejected the argument that it did not make a difference if it could be shown that all the issues raised by Westminster had been considered by Camden. The judge held that in the circumstances of this case the status of an objector could make a difference and indeed members may have placed weight on the fact that they had been told that the neighbouring planning and highways authority had not objected. Development plan policy In Wycombe District Council v (1) First Secretary of State (2) Bellway Homes (North London) Ltd [2005] EWHC 120 (Admin), the court held that where there had been a misunderstanding by the inspector as to the content of the development plan policy, the fact that he had considered the policy in detail could not alter the fact that he had failed to apply s 54A by giving the policy a reduced weight. The court held that as a matter of principle where an error of law had occurred amounting to a failure to apply s 54A the decision should be regarded as fundamentally flawed, "because it is at the heart of the process which led to his conclusion. To accept the defendant’s submission would be to guess what he might have concluded had he applied the correct test". The court held that to do so would inevitably involve the court in reaching its own planning judgment by applying the balancing exercise under s 54A in order to fill the void created by the inspector’s failure to do so. Planning enforcement The availability of alternative sites for gypsies arose as an issue in two planning enforcement cases. In Wycombe District Council v Jesse Wells [2005] EWHC 1012 (Admin), the local planning authority appealed by way of a case stated against a decision dismissing information it had laid against the respondent. The council had served an enforcement notice that had required the respondent, a gypsy, to cease using the land as a caravan site and to remove all moveable and temporary structures from the land. The respondent advanced the defence under s 179(3) of the Town and Country Planning Act 1990 that he had "done everything that he could reasonably be expected to do to secure compliance with the notice". The magistrates had found that the respondent had done all that he could reasonably have been expected to have done to find suitable alternative accommodation. The question for the opinion of the court was whether, in the light of the evidence, the steps that the respondent had taken to comply with the enforcement notice constituted, in law, a valid statutory defence under s 179(3) of the Act. Applying R v Beard 1997 1 PLR 64, the Divisional Court held that the magistrates had erred in their approach. A defence under s 179 (3) could not be established by demonstrating that the reason for non-compliance with an enforcement notice was that no alternative site had become available where the activity in question could be continued. There could be no defence under s 179 (3) where it was within the power of the owner of land to comply with a notice without the assistance of others. A defence could only arise if the owner showed that compliance was not within his own unaided powers. In this case, the reason the respondent did not comply was not because he was unable to comply with the enforcement notice through lack of capacity or inability. Whether or not he had an alternative site to go to, he was physically able to leave. In Maldon District Council v Hammond [2005] EWCA Civ 1001, (case report p1084), Mr Hammond had failed to comply with a High Court injunction to remove his mobile homes from the land. The court had ordered him to be committed to prison for two months suspended, on the condition that he comply with all the requirements of the injunction within that period of time. He appealed to the Court of Appeal, seeking to extend the period of suspension due to subsequent events, claiming that there was no alternative site available for his mobile home to be sited. The local authority had undertaken to provide immediate temporary accommodation to him upon his vacating the site, but his was not on a mobile home site. Hammond argued that the court below had considered that it would not be a problem to resite the mobile home on an alterative site, but that this was not possible. The court held that the judge had been entitled to make the order he did. There was no obligation to provide accommodation to resite the mobile home. The appellant had not argued the case on the basis that he had gypsy status. The court held that the judge had been fully entitled to make the order he did and that the correct place to make an application to extend time was the High Court, which made the order, and not by way of appeal whether or not liberty to apply had been expressly stated as it was to be implied in the Order: "…The appropriate course, if for any reason an extension of the period of suspension was to be sought, was to make early application to the High Court. That is so even though liberty to apply had not expressly been stated." Fear of crime In Smith v (1) First Secretary Of State (2) Mid-Bedfordshire District Council [2005] EWCA Civ 859, planning permission had been refused by a planning inspector for a gypsy caravan park at a site. The appellant appealed against a decision refusing to quash the inspector’s decision. The Court of Appeal held that the judge had erred in reaching the conclusion that the reasoning set out by the inspector was clear and adequate. The inspector had taken into account as a material consideration fear and concerns about crime in circumstances where those fears were not based on past events, but on an assumption based on the characteristics of the future occupiers, where this assumption was not supported by evidence. The Court of Appeal held that fear and concern had to have some reasonable basis and the object of that fear and concern had to be the use, in planning terms, of the land. Having cited the guidance in the West Midlands Probation Committee v SSE and Walsall MBC [1997] JPL 323, the court held that the following points were established:

fear and concern must be real, that is, the fear and concern must have some reasonable basis, though falling short of requiring the feared outcome to be proved as inevitable or highly likely; and

the object of that fear and concern must be the use, in planning terms, of the land. In West Midlands it was the use of the land as a bail hostel, and not just the behaviour of some of the hostel’s occupants, that grounded the legitimate concern, however much that behaviour was relied on to demonstrate the nature and likely effect of that use. The court held that the inspector’s approach in the case presented two problems. First, not only had the number of incidents diminished, but those reported to the inquiry could not be reliably attributed either to the appeal site or to the applicants. Second, it was necessary in order to take these incidents into account to attribute them not merely to the individuals concerned but also to the use of the land. However, the court considered that a caravan site is not like a polluting factory or bail hostel, likely of its very nature to produce difficulties for its neighbours. Whilst the evidence of recently past events attributable to the site was sparse, or on a strict view non-existent, the court held that fear must be that the concern as to future events was or may have been based in part on the fact that the site was to be a gypsy site. It cannot be right to view land use for that purpose as inherently creating the real concern that attaches to an institution such as a bail hostel. Accordingly, because of this difficulty, and the state of the evidence, the court considered that the issue of fear of crime needed in this case to be very carefully explored. If the concern for the future rested not wholly on extrapolation from past events, but at least partly on assumptions not supported by evidence as to the characteristics of the future occupiers, then in accordance with the guidance contained in West Midlands, it could not be taken into account. Approach to Grampian conditions R (Orchard (Development) Holdings Plc) v First Secretary of State [2005] EWHC 1665 (Admin) confirmed that it was a matter of planning judgement for an inspector to decide that a Grampian condition proposed by the appellant was too imprecise. The local authority had refused planning permission for a residential development that involved the demolition of a football stadium. The main ground of appeal before the inspector concerned the provision of a replacement stadium. The inspector considered that the proposed Grampian condition was too imprecise, as it was not clear how the judgment as to whether the alternative football ground was equivalent or better than the existing football stadium would be reached. The court set out the content of the inspector’s decision letter. The inspector had held that a planning condition must be sufficiently precise and clear for a prospective developer to know what must be done and to be able to ascertain whether or not he has complied with it. In this case, a judgment would have to be made as to whether a future replacement facility was equivalent or better. The inspector considered that such a judgment would be a complex and subjective matter involving a wide range of issues, including the nature, quality and scale of activities to be provided for, and the extent to which such facilities would be accessible to the community. He judged that there would be considerable scope and differences of opinion as to whether or not the test had been met. He was also of the view that circumstances may well arise where a developer and the Council disagree as to whether a facility that has been provided is of equivalent or better standard. This he felt would result in uncertainty and make it difficult for the Council to enforce the condition. Because of this, he considered that the suggested condition would fail the tests of provision and enforceability in Circular 11/95. The inspector also considered amending the condition to require that before the development commences, details of the replacement provision should have been provided to the Council and the Council should have certified that it was equivalent or better. However, he was of the view that in the absence of a clear indication as to what would comprise equivalent facilities, this would still leave too much uncertainty. He also found that it would not be a relatively minor matter like the submission and approval of the landscaping scheme where a developer would have a reasonable understanding of what would be likely to be acceptable. Accordingly, he concluded that the issues involved in deciding whether or not a proposed new facility would be an acceptable replacement are likely to be so complex that a condition along these lines would fail the test of provision in the Circular. The court held that it was an argument on planning merits and it was a matter for the planning judgment of the inspector whether he thought that the condition was sufficiently precise. He expressed his reasons succinctly and clearly at paras 8 and 9 of the decision letter and there was no flaw in his reasoning. The judgment is of interest as it might otherwise be thought that the question was a matter of law rather than planning judgment. Reasons One of the recent reforms was the introduction of a statutory duty for local planning authorities to give a summary of their reasons for granting planning permission. In R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin), the council had granted planning permission for a block of flats on land adjoining Mrs Wall’s house. Mrs Wall had objected to the application on the ground that it would adversely affect her property. The decision notice, however, did not include a summary of the specific reasons for granting permission as required by Art 22(1) of the GDPO. She sought judicial review in respect of the failure to comply with Art 22(1). Some five months after the issue of the original decision notice, the council purported to provide Mrs Wall with a fresh decision notice incorporating reasons that had been obtained from each member of the committee who had voted in favour of granting planning permission. The court drew a distinction between obligations to give reasons that merely informed the public following a decision, and those that imposed requirements for decision-making and were intended to influence the quality of the decision. The Art 22(1) obligations were of the latter kind. A failure to comply with Art 22(1) did not render the decision notice void, but it did give the court the discretion to quash the decision notice subsequently. In this case, the late reasons given were based on the flawed recollections of the committee members. Furthermore, reasons given in private correspondence relating to judicial review would not remedy the breach, given the requirement for publicity. The court held that it was not necessary for Mrs Wall to show that she had suffered prejudice from the Council’s failure.