Planning a new legal landscape

It is rare to see the planning system and other government measures used to attempt to shut down an otherwise thriving industry delivering major investment and many jobs
in a recession, thereby damaging investor confidence in the UK, but that is what we are witnessing in the case of onshore wind farms.

The previous Department for Communities and Local Government (DCLG) secretary of state, Eric Pickles, followed an unprecedented approach in recovering jurisdiction on onshore wind appeals to then refuse as many as possible, almost regardless of the inspector's recommendation. This was a unique example of a minister changing planning policy without proper formulation or consultation and one which left the industry reeling in the crudity of its approach.

This has now been followed by the DCLG issuing a written ministerial statement setting
out revised considerations to be applied to new onshore wind energy developments. Local planning authorities should now only grant planning permission if the development site is
in an area identified as suitable for wind energy development in a local or neighbourhood
plan, and, following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.

Whether a proposal has the backing of the local community is a planning judgement for the local planning authority. Some transitional provisions apply to projects already in the determination process, but local authorities will still have to
be satisfied that this requirement has been met.
It remains to be seen how the second criteria will be interpreted in practice. Never before has a category of development been singled out in this way to demonstrate local community support.

In addition to these changes, onshore wind developments over 50 megawatts are to be removed from the nationally significant infrastructure projects (NSIP) regime under the Planning Act 2008. This effectively removes the presumption in favour of development in the national policy statement for energy approved by the last parliament and looks likely to lead to all such schemes being abandoned in England.

Planning developments in Wales

On 6 July 2015, the Planning (Wales) Act received royal assent and became an Act of the National Assembly for Wales. Of amendments made to the legislation in its final journey onto the statute book, the most significant change is the obligation to follow the 'sustainable development' principle.

The Act now includes an express requirement that authorities with functions relating to development plans and planning permissions act in accordance with the Well-being of Future Generations (Wales) Act 2015.

This Act creates a 'well-being duty' for public bodies, requiring them to foster sustainability by 'improving the economic, social, environmental and cultural well-being of Wales'. Public bodies must adopt an integrated approach to consider how improving one aspect of sustainability will impact others. The Act is still coming into force, so it remains to be seen how the courts will interpret and enforce this duty, particularly in relation to how far economic well-being is prioritised over other aspects.

NSIP projects

To date there has been an absolute bar on any housing being included in NSIP applications, which has limited the use of the regime to some extent,
in particular the optional use of the NSIP regime for business and commercial projects. The proposal to allow an 'element' of housing is likely to lead to the wider use of this option, because it allows a more certain timescale and direct access to compulsory purchase order (CPO) powers.

Some have argued the NSIP regime should be available for garden cities and similar large-scale housing schemes, but the government has not gone that far at this point in time.

Scope of planning permission

In Winchester City Council v Secretary of State for Communities and Local Government and others [2015] EWCA Civ 563, the Court of Appeal recently provided clarification on the application of I'm Your Man Ltd v Secretary of State for the Environment [1999] 77 P &CR 25, which established the principle that when planning permission was granted for a certain use, any limitation on the exercise of that use should be imposed by condition, rather than within the description of development permitted.

The court considered the application of this principle in relation to planning permission for
a 'change of use of agricultural land to travelling showpeople's site'. The site in question was being used for residential caravans and Winchester City Council enforced against what they alleged was
a breach of planning control. On appeal, the inspector agreed with the occupants that use as
a residential caravan site was permitted. He referred to I'm Your Man, stating that as there was no condition restricting occupancy of the site to travelling showpeople and the planning permission was not limited, the enforcement notice should be quashed.

In the Court of Appeal it was held that the change of use permitted by the planning permission was that stated on its face. A change of use to a residential caravan site for people who were not travelling showpeople was not permitted by that permission, and therefore I'm Your Man was not directly engaged - it did not apply where a change of use was alleged. The inspector had therefore misunderstood the effect of I'm Your Man, and his decisions should therefore be quashed.
The correct question to be answered was whether the planning permission had in fact been implemented and whether a material change
of use had then taken place.

The decision serves as a reminder to local authorities to consider carefully both the wording of a planning permission and whether conditions are appropriate to provide certainty on the scope of a permitted use.

Lands Tribunal costs

In the BPP (Farringdon Road) Limited v Crossrail claim [2015] UKUT 0356(LC), the issue related to the costs being claimed on a dispute over compensation for temporary (albeit over eight years) occupation of land authorised under
the Crossrail Bill. Its implications need to be understood by all involved in Lands Tribunal proceedings.

The case threw into sharp focus the power under which orders for costs are now made under the Upper Tribunal (Lands Chamber) Procedure Rules 2010, in particular rule 10. Rather than being stated in wide terms to cover all of the tribunal's jurisdictions, rule 10 is couched in narrow terms, which led to the litigation that considered a seemingly narrow question: does the Upper Tribunal have the power to order payment of costs incurred in a dispute over temporary occupation of land under a CPO?

The bigger issue turning on the case, however, is that if limits to the Upper Tribunal's costs powers are revealed in the judgment, other jurisdictions that have to be heard before the tribunal may also now (since recent amendments to the 2010 regulations took effect) have similar limits on costs recovery.

The conclusion of the judgment definitely
does sound a warning that there could now
be circumstances in which claims for costs of proceedings do not fit within rule 10 (in the BPP case, the claim for temporary occupation was treated as a 'claim for compensation for compulsory purchase of land', under which rule 10 gives the tribunal jurisdiction to make an award for costs). Other jurisdictions of the tribunal could not reasonably be labelled 'compensation for compulsory purchase of land' and so could fall outside rule 10.

There is a fallback provision in section 4 of the Land Compensation Act 1961: a power to award costs which operates independently of rule 10. However, for claimants to fall back on section 4, they need to be aware that since the amendments to the 2010 rules, activating those powers for the tribunal may require a claimant to have made an offer of settlement, which, as pointed out by the tribunal, is not the way that costs jurisdiction in the Upper Tribunal (and the Lands Tribunal before it) usually operates. SJ

Julian Boswall, pictured, is a partner and Alex Minhinick is an associate in the planning law team at Burges Salmon

@BurgesSalmon

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