Update: planning

In R (on the application of Arndale Properties Ltd) v Worcester City Council [2008] EWHC 678 (Admin) Sullivan J (as he then was) quashed a decision to designate land as a conservation area (section 69(1) Planning (Listed Buildings and Conservation Areas) Act 1990) on the ground that the impetus for the decision was not the historic or architectural interest of the area, but the desire to prevent the demolition of an unlisted cricket pavilion. Metro Construction v Barnet [2009] EWHC 2956 (Admin) is a recent case on similar facts which has affirmed and extended the principle in Arndale.

The proposed conservation area in Metro was a former Carmelite monastery built a little over 100 years ago. An attempt by the council to protect the building by getting the secretary of state to list it under section 1 of the Act had failed. Collins J's conclusion on reading the internal communications of council members was that the only purpose of designation was to prevent demolition, and it was therefore improper.

Collins J suggested, but did not firmly conclude, that the monastery was incapable of being a conservation area. Therefore, the scope of Metro is wider than Arndale as it states 'even if in the end designation may be supportable, the manner in which it was reached was... unlawful since the purpose of the designation was improper' (39). Interestingly, English Heritage's support of the designation was irrelevant to Collins J's finding on the true purpose of decision; this is an unusual feature of the case as normally one would expect the statutory consultee's independent opinion to show that wider considerations have factored in the designation decision.

Listed buildings and enforcement notices

The protection of listed buildings has been given a purposive interpretation by Cranston J (sitting with Scott Baker LJ) in C & P Reinforcement Ltd v East Hertfordshire DC [2009] EWHC 3128 (Admin). An enforcement notice was served on C & P Reinforcement after it partially demolished a listed building without consent. The notice required the appellant to '[r]etain in a safe and protected manner the remains of the listed building' with compliance between 11 September and 11 October 2006.

C & P Reinforcement argued that on a proper reading the obligations in the notice did not apply beyond the one-month period. Cranston J rejected this interpretation holding that it was 'frankly nonsense to suggest that what happens after 11 October is irrelevant'. The judge considered that the word 'retain' 'has a prospective and continuing quality'. Hence the magistrates were entitled to find that the appellant was obliged to comply with the enforcement notice following the expiration of the period for compliance.

Retention is not the most onerous of obligations, it is arguably covered by the 1990 Act notwithstanding an enforcement notice '“ section 7 forbids the demolition of listed buildings without consent. The concern for owners of listed buildings will be that requirements to take more proactive conservation steps will be extended beyond the time limits stated in enforcement notices. In these circumstances it is arguable that C & P Reinforcement should not apply.

Environmental impact assessment

Directive 85/337 on environmental impact assessment continues to generate case law. In Brown v Carlisle City Council [2009] EWHC 2519 (Admin), the claimant sought permission to challenge the failure to assess the environmental effects of works pursuant to a section 106 agreement. A planning application was made for a freight storage and distribution facility at Carlisle Lake District airport. EIA was carried out for the freight facility and the local authority agreed planning permission with a section 106 planning obligation to carry out 'all those works required to repair/renew the runway and substantially complete the terminal on the land ('the airside works')', but no EIA was undertaken.

Owen J refused permission. He found that the decision to grant planning permission was arguably flawed as the defendant did not consider whether the proposed development was properly to be regarded as an integral part of a larger development. However, he held that no court would grant relief as: (i) the section106 works will require EIA if they are likely to have significant environmental effects; and (ii) an environmental statement had been prepared for the 'airside works' when they were originally proposed and, as this identified no adverse environmental factors, 'a renewed application would inevitably succeed'.

The case also raises some interesting questions about the relationship between the system of planning obligations and EIA. When does a section 106 requirement constitute 'development consent' under the EIA directive? Does the potential need for EIA render a planning obligation too uncertain? The refusal of permission is under consideration for appeal.

Brown may be contrasted with the approach taken by Collins J in R (oao Baker) v Bath & North East Somerset DC and others [2009] EWHC 595 (admin), where the court held that the thresholds in schedule 2 of the EIA regulations did not properly implement the EIA directive because, where there was an application to extend an existing development, the regulations did not require there to be an examination of the likely environmental effects of the resultant development as a whole in order to assess whether the schedule 2 thresholds had been met.

Publication of planning permission

The procedural obligations of the EIA system were robustly revisited in R (on the application of the Friends of Hethel Ltd) v South Norfolk DC [2009] EWHC 2856 (Admin). Although the claimants lost all the other grounds, Cranston J regarded the fact that the local authority inadequately published a planning permission decision as 'an unacceptable failure to comply with an important part of democratic procedures, enshrined very clearly in the European directive and the United Kingdom regulations'. The judge awarded declaratory relief rather than quashing the decision. However, given that the costs implications for defendants who breach regulation 21 of the 1999 regulations could be significant, it is well to remember the extent of the obligation post-decision to:

• publish the decision in a local newspaper and on the council website; and
• make a statement available for public inspection with: (i) the content of the decision; (ii) the main reasons for the decision; and (iii) information on the right to and procedures for challenging the validity of the decision.

Interpretation of planning permission

The decision of Weatherup J on 17 November 2009 in Anderson Haulage Limited (WEA7674) in the High Court of Northern Ireland is of interest for the approach taken to the interpretation of aged planning permissions. Anderson Haulage appealed against the refusal of a pollution prevention and control (PPC) permit for a waste management site. The ground for refusal was that planning permission for the operations had expired (regulation 10(4), Pollution Prevention and Control Regulations (Northern Ireland) 2003). There was considerable disagreement between the parties as to what was the extent of the original 1983 planning permission, and whether it had been taken up within its five-year lifespan.

Weatherup J held first of all that the 1983 planning permission related to the infill of the area corresponding to the clay pit. The judge preferred the planning service's position that the relevant area was represented by a smaller oval shape on the original plan; however, he went on to conclude that this shape was 'clearly meant to be approximate' and that the intention of the parties was that planning permission corresponded with the area of the clay pit and not strictly with the lines on the plan. In relation to the smaller oval area, the commissioner (NI equivalent of inspector) found that there was no evidence that the planning permission had been taken up before 1988. However, given his finding that the planning permission applied to an albeit marginally different area, Weatherup J remitted the matter to allow for evidence to be provided that works had been undertaken in that area.

Anderson Haulage suggests that judges should not be bound by a strict and literal approach when interpreting planning permissions. It is also an example of direct and expedient judicial management in remitting matters to the planning tribunal.

Objective unfairness

R (on the application of Connolly) v Havering LBC [2009] EWCA Civ 1059 adds Court of Appeal weight to procedural unfairness as a ground of planning appeal pursuant to section 288 of the 1990 Act. The claimants appealed against the decision of an inspector to allow a developer's appeal in circumstances where the inspector was not presented with details of a second 'materially identical' application which was opposed and raised important concerns.

Rix LJ, with whom Laws and Mann LJs agreed, held that in circumstances where there has been (i) a mistake as to the previous planning history of the site, (ii) the evidence is uncontentious and objectively verifiable, (iii) the claimants are not responsible for the mistake, and (iv) the mistake played a material part in the inspector's reasoning, it is proper to quash the decision for unfairness arising from the mistake of fact.

It was accepted that the inspector was blameless, so the understandable concern of the secretary of state was how to insulate planning inspectors from the threat of judicial review. It would be inappropriate, it was argued, for the inspector to play a less than impartial or investigatory role in proceedings. However, Connolly sets out a clear, sequential test; it seems that such grounds of review will only rarely apply and no opening of the floodgates should be anticipated.

Alternatives

Derbyshire Dales DC and Peak District National Park v SCLG [2009] EWHC 1729 (Admin) involved a challenge to the grant of planning permission for a wind farm the court drew the distinction between instances where there is an obligation either in law or policy to look at alternatives and instances where such matters may be potentially relevant depending upon the exercise of planning judgment. It is also to be recalled that in In Petition of Skye Windfarm Action Group (SWAG) [2008] CSOH 19, the Scottish Court of Outer Session held that the EIA directive did not enable a planning authority to require a developer to look at alternatives outside of his control.

Marine and Coastal Access Act

The new Marine and Coastal Access Act 2009 came into force on 12 November 2009, and will coordinate and redefine marine planning in the UK. Along the lines of the terrestrial system, marine policy statements (MPSs) will be drawn up by the central governments (section 44). Six marine plan authorities are established (section 50) which will draft marine plans in conformity with the MPSs. Public authorities will have to have regard to marine plans in taking any decision 'which relates to the exercise of any function capable of affecting the whole or any part of the UK marine area' (section 58(3)); the wording is slightly odd, but this will include some planning decisions. The Act also incorporates a central Marine Management Organisation (MMO) (section 1) which will adopt inter alia electricity consent functions for generating and renewable energy installations offshore (section 12).

Another relevant provision in this expansive Act is the power to designate marine conservation zones (MCZs) (section 116ff) which will bring further restrictions on development (sections 125-126). Finally, the coastal access duty (section 296) fixes the objective of public access to the coast on the exercise of certain functions of Natural England and the secretary of state.

As is now usual in modern governance, future legislative orders and policy documents will reveal the full impact of the MCAA 2009; however, it certainly increases the strategic profile of marine concerns within a planning context.