Update: planning

Gypsy cases continue to provide the courts with new challenges. In Wychavon District Council v Secretary of State and Butler [2008] EWCA Civ 692 the Court of Appeal considered the test of 'very special circumstances' required by PPG 2 for inappropriate development in the green belt. According to Wychavon, provided that he does not err on some other public law ground, a decision-maker will be entitled to form his or her own view as to whether or not the factors advanced in favour of the gypsies amount to 'very special circumstances': they do not have to be extraordinary, and could even be commonplace.

Test rejected

The main significance of the Wychavon decision is that it rejects what might fairly be described as the somewhat legalistic approach to planning policy taken by Sullivan J in R (on the application of Chelmsford BC) v First Secretary of State [2003] EWHC 2978 (Admin). In that case it had been held that, in order to justify inappropriate development in the green belt, (a) there must be circumstances which can reasonably be described not merely as special but as very special and (b) the harm to the green belt by reason of inappropriateness and other harm must clearly be outweighed by other considerations. Wychavon rejects this two stage test, making it much more difficult to argue that a particular circumstance is incapable in law of being regarded as 'very special'. The case also confirms that a combination of circumstances which are not in themselves very special, when taken together, may also legitimately be considered as 'very special' (see further R (Basildon District Council) v First Secretary of State and Temple [2004] EWHC (Admin) 2759).

Environmental impact assessments and cumulative effects

One recent and important case on Environmental Impact Assessment has caused controversy. In R (on the application of Louisa Baker) v Bath & North East Somerset Council [2009] EWHC 595 (Admin) Louisa Baker applied for judicial review of a decision of Bath and North East Somerset Council to grant planning permission to a waste disposal company. The company had formerly been granted planning permission for a waste disposal facility that managed 'green' waste through composting. The local authority latterly granted the company three planning permissions for the further development of the facility, described in the applications as 'changes or extensions' to the existing development. It was common ground that the development, if taken as a whole, would constitute sched.2 development and be subject to EIA (as a waste disposal installation within the meaning of sched.2, para.11(b)). However, the local authority did not subject the latter applications to screening because in no case did the change/extension exceed the relevant threshold which, by dint of sched.2, para.13, column 2 of the 1999 Regulations, has to be 'applied to the change or extension (and not to the development as changed or extended)'.

In a striking judgment, Collins J commented that it would be wrong if regard was only had to the effect of the change of an approved project itself rather than the cumulative effect that change would have. The judge held, accordingly, that column 2 did not properly implement the Directive as it sought to limit the application of the threshold to the further development rather than assess the cumulative effect that that development would have on the development as a whole. Collins J also noted that it was clear from Art.10a of the Directive that there was an obligation on the Secretary of State to make clear to members of the public that they had a right to make an application to the Secretary of State to invite her to require development likely to have significant effects on the environment to be subject to environmental impact assessment. The absence of such a provision in the Regulations was therefore held to be another inadequate implementation.

This is clearly a very important if controversial decision. Plainly it has consequences for any 'change or extension' to development falling within one of the descriptions in sched.1 of the 1999 Regulations, or (as in this case), to development listed in most of sched.2. The effect of the judgment appears to be that where such a 'change or extension' may have significant adverse effects on the environment, screening is required, regardless of the size of the 'change or extension', which could be very small. Therein lies the controversy of the case.

The Secretary of State's power to screen development subject to EIA under reg. 4(8) had previously been considered in Berkeley v Secretary of State for the Environment, Transport and the Regions (No3) [2001] EWCA Civ 1012. Faced with a challenge to reg.4(8) based on inadequate imposition, the court in that case did not find any fault with the domestic provision. Collins J distinguished Berkeley (No 3) on the basis that Art.10(a) of the Directive, upon which he relied, was not in force at the date of that decision. It remains to be seen whether the judge's approach will prevail.

Advance disclosure of officers' reports

In R (on the application of Cathco Properties Holdings Ltd) v Cygnor Gwynedd Council & Finneys Ltd [2008] EWHC 1462 (Admin) [2009] JPL 230 Collins J addressed comments in relation to pre-existing case law on the content of officers' reports. The judge added to the remarks made by Sullivan J in R v Mendip District Council ex parte Fabre (CO/4770/98) that:

''¦it is the practice in all councils, an appropriate practice, that members of the public are entitled to see in advance of a meeting of a planning committee the relevant reports, including of course the relevant officer's reports. The purpose of that is so that they too can know the basis upon which the Council is being invited to approach a particular application and (and this is the most important aspect) they can themselves make representations, either if the policy of the particular planning authority permits it orally at the meeting, alternatively in writing, and if an objector is aware of something which he or she regards as an error in the officer's report or an omission, that is the opportunity to apprise the committee of that error or omission and to make relevant representations about it. The whole purpose of advance disclosure is to enable objectors or those interested to have that opportunity and so, as it seems to me '¦ it is important to remember that there is this further consideration so that the basis upon which relevant advice is given is at least made clear in a sentence or two.'

It seems likely that the cited passage will be used in support of future applications for judicial reviews of committee decisions based on officers' reports.

Service of evidence and grounds of resistance

It is worthy of note, in respect of High Court procedure, that the Court of Appeal overturned the decision of Collins J in Bovale Ltd v SSCLG and Herefordshire DC [2008] EWHC 2143 (Admin). In Bovale Collins J, as lead judge of the Administrative Court, indicated that defendants in claims under ss 287 and 288 of the Town and Country Planning Act 1990 (and also s.113 of the Planning & Compulsory Purchase Act 2004) ought to think in terms of serving both evidence and grounds for resistance, however short, within a period of 10 weeks from service of the claim.

He also stated that where the defendant chose not to put in any grounds for resisting and thus the grounds set out in the claim form represented the way in which the case was to be put by the claimant, it was for the defendant to put in the first skeleton argument. However, the Court of Appeal held that there is no general requirement for grounds of resistance in such claims and evidence continues to be governed by the relevant parts of the CPR Part 8 Practice Direction. The court held specifically that: parties are entitled to start from the position that the relevant rules and practice directions will apply to their case, and that the onus will be on the party seeking a different form of process and indeed on the judge who may of his own motion wish to exercise his case management powers in a particular case to demonstrate that the case is outside the norm.

The Court of Appeal's approach is right. The greatest difficulty with the indication given by Collins J was that it purported to extend the scope of otherwise clearly identifiable procedure for claims following Part 8 of the Civil Procedure Rules. The risk was that judicial comment would detract from those rules as the immediate source of authority on procedural matters.

Planning Act 2008

It is finally worth noting that a number of important changes in the Planning Act 2008 came into force on 6 April 2009. Perhaps most importantly, the Planning Inspectorate will begin to exercise its new power under s.319A of the Town and Country Planning Act 1990 to determine the appeal procedure to be followed in all planning and enforcement cases. There will be a new procedure for so-called 'householder appeals' suitable for written representations, which is hoped to be expeditious. The costs regime will, for the first time, be extended to planning appeals dealt with by way of written representations. There are also changes to the appeal timetable. Firstly, there are amendments to the Hearings and Inquiries Rules to remove the nine-week written comment stage (although parties will still have the opportunity at the hearing or inquiry itself to make comments). Secondly, amendments to the Inquiries Rules now require the submission of Statements of Common Ground six weeks after the appeal's start date, rather than four weeks before the inquiry event itself (as now).