CIL, Village Greens and Green Belt: A Case Law Round- Up
As Parliament appears to have been overtaken by a level of drama, intrigue and scandal usually reserved for an episode of Love Island*, for this post I have decided to retreat to the relatively calm waters of the Administrative Court.
As such, we are going to take a quick tour of three planning related cases which have recently caught my attention. Unsurprisingly, given my wholly unimaginative choice of title, the cases centre on CIL, Village Greens and Green Belt protections.
1. CIL: What implications do Reg 122 and Reg 123 have on a decision to grant planning permission?
The answer to this question can now be found in the Court of Appeal's decision in Oates**. The facts of this case are not entirely straightforward, but in essence, a judicial review challenge was brought against a scheme in Wealden on the basis that the Planning Officer had misled the committee about the impact of Reg 122 and Reg 123 of the CIL Regulations on the decision making process.
The claim alleged that the planning officer had interpreted these provisions to prevent Council from refusing planning permission where the adverse impacts of a development made it unacceptable in planning terms, but the only possible mitigation measures that could make it acceptable were listed on the Council's regulation 123 list and therefore out of the developer's control.
This argument was dismissed by the Court of Appeal on the facts. Quite simply the Planning Officer had not said, or implied, as much in the committee report. However, paragraph 42 of the Judgment does contain a very handy reminder of the scope of these provisions and their implications for the decision making process. Namely:
"Regulations 122(2) and 123(2) prescribe circumstances in which planning obligations made under section 106 of the 1990 Act may or may not "constitute a reason for granting planning permission …". Regulation 123(2A) identifies certain kinds of restriction that may not be imposed on a grant of planning permission by way of conditions. These provisions operate as adjustments to the statutory scheme where it allows and requires local planning authorities, when determining applications for planning permission, to have regard to planning obligations as material considerations and where it provides the power to impose planning conditions. They do not, of course, compel a local planning authority to grant planning permission for a proposed development if, for whatever reason, that development is unacceptable in planning terms, or if it cannot be made acceptable either by a planning obligation, or by the imposition of conditions. ..... Nor do they preclude planning permission being granted subject to a lawful condition specifically preventing the occupation of the development until necessary infrastructure, ... has been provided, even if that is "not within the power of the applicant …"
2. Village Greens: Development Plans and Trigger Event
Cooper Estates *** is a very interesting case which centres on whether or not the Council had missed a trigger event, within s.15C and Schedule 1A of the Commons Act 2006. If they had, then the registration of the land in question was unlawful and should be quashed. If they had not, then it was likely on the facts of the case, that the registration would stand.
The particular trigger event under discussion was whether "a development plan document which identifies the land for potential development" had been "adopted under section 23(2) or (3) of the 2004 Act".
In essence, the case turned on whether two key policies in the Wiltshire Core Strategy (adopted in 2015) could be considered to identify the land, which had been registered as a village green, for potential development or not.
The policies in question (CP1 and CP2) set the settlement strategy and delivery strategy for new development in Wiltshire throughout the plan period and created 'a presumption of sustainable development' in favour of sites within specific settlement boundaries. The policies also includes the notional village green within the settlement boundaries of a settlement which was proposed to accommodate significant additional development.
This was held to be sufficient to meet the requirements of the trigger event, as defined in s.15C and Schedule 1A of the Commons Act 2006, and as a result the registration of the site was quashed.
3. Green Belt: Impact on Openness
Euro Garages Ltd*^ is the latest judgment from the High Court to shed some light on the question of what is meant by ' impact on openness' in paragraph 89 of the NPPF.
The crux of the judgment is that when considering the impact of a development on the openness of the green belt, it is not simply enough to say that because there is a change or increase in built space as a result of the development there will automatically be an increase in openness.
Instead, as is set out in paragraph 31, "the policy requires the decision maker to consider and make an assessment... of whether the openness of the Green Belt is impacted or harmed by the proposals to a greater extent than that openness has already been impacted.... where openness of the Green Belt is in issue, visual impact, as well as spatial impact, requires consideration".
In this particular case, an Inspector's decision refusing planning permission for a scheme was quashed. The reason for this was that she had treated "any change as having a greater impact on the openness of the Green Belt, rather than considering the impact or harm, if any, wrought by the change".
* an assertion based solely my Facebook newsfeed- so far I have managed to avoid watching it...
** R oao Oates v Wealden District Council [2018] EWCA Civ 1304
*** R oao Cooper Estates Strategic Land Limited v Wiltshire Council [2018] EWHC 1704 (Admin)
*^Euro Garages Ltd v the Secretary of State for Communities and Local Government [2018] EWHC 1753 (Admin)
Regulations 122(2) and 123(2) prescribe circumstances in which planning obligations made under section 106 of the 1990 Act may or may not "constitute a reason for granting planning permission …". Regulation 123(2A) identifies certain kinds of restriction that may not be imposed on a grant of planning permission by way of conditions. ..... They do not... compel a local planning authority to grant planning permission for a proposed development if, for whatever reason, that development is unacceptable in planning terms, or if it cannot be made acceptable either by a planning obligation, or by the imposition of conditions. ..... Nor do they preclude planning permission being granted subject to a lawful condition specifically preventing the occupation of the development until necessary infrastructure, ..., has been provided, even if that is "not within the power of the applicant …" ”
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