Tales from the Planning Court: a very quick round-up of some recent case law
Are you sitting comfortably? Good, then I'll begin... After the whirlwind of events that lead to my last blog post, this week I have decided to seek refuge in the law reports. A habit I picked up at university.* Below is a short digest of some recent cases, which you might find interesting. I have tried to focus on the cases with genuine practical implications, as opposed to the most heavily reported, so one or two of them might even be new to you.
1. R oao Warren Farm (Wokingham) Limited v Wokingham Borough Council**
The Judgment in Warren Farm was only handed down on 31 July 2019, so it is the most recent case on this list. The question at the centre of the judgment is a very simple one - can a Council and an applicant agree to extend the time within which a prior approval decision is to be made under the General Permitted Development Order?
The official high-court approved answer: No.
The case centres around an application to convert a barn into a dwelling under Class Q of the GDPO. On 12 November 2018, the applicant submitted a prior approval application to the Council in the form required by paragraph W(2), which the defendant received on 15 November. The 56 days period within which the Council could make a decision about the application expired on 10 January 2019. For reasons that are set out in the Judgment the Council and the applicant agreed an extension of time to determine the application, leading to the Council refusing the application after the 10 January deadline. The applicant judicially reviewed the refusal of the prior approval application and, perhaps surprisingly on the facts, if not on the actual text of the regulations, won. As such, it is now beyond all doubt that you cannot agree extensions of time to determine prior approval applications The 56 day time limit is sacrosanct.
2. London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others*!
Lambeth has been very heavily discussed in the legal press, both because it is a Supreme Court case, but also because it is a surprising judgment on a number of levels. Prior to this decision the general rule of thumb was that if a Council forgot a condition on a s.73 permission then the condition no longer applied, because.... well... it was their own silly fault.
I am not going to go into the facts of the case, as it has been widely reported, but the important take away is that this rule of thumb no longer applies. The Supreme Court held that condition in an original permission, which has not been re-imposed under the section 73 permission, will continue to bind the land unless it is inconsistent with the section 73 permission.
In short, just because a condition is not on the face of a s.73 permission does not mean that it stops being relevant. A decision which, overnight, makes establishing the planning history of a site much more labour intensive.
3. R (oao) Fulford Parish Council v City of York Council and Persimmon Homes*^
This is another recent case which clarifies a matter of practical importance. Again, I am not going to get into the facts*& but the case centres around a Parish Council fundamentally disagreeing with some minor changes to an outline planning permission that were made after the reserved matters application had been granted.
The case confirms that it is possible to make a non-material amendment to a reserved matters approval under section 96A TCPA 1990. Something the vast majority of us planning lawyers had already presumed to be the case, but it is nice to know that the Courts agree with us.
4. Gare, R (On the Application Of) v Babergh District Council *£
This case is an interesting reminder that just because the statutory requirement to give reasons for a planning decision has gone away, it doesn't mean that Councils can get away without explaining themselves.
As is usual in reasons challenges, the case concerns a situation where the Planning Committee granted planning permission against their officer's recommendation to refuse it. The grant of permission was then challenged by a third party, on the basis that they had not given adequate reasons for the decision.
The Council tried to argue that the Council's reasons could be inferred from the officer’s report and the draft committee meeting minutes. The Court found against them because the reasons relied upon were not contained within a single document and the committee minutes and the officer's report were directly contradictory - which is not surprising given that the officer recommended refusal. The judge found that the draft committee minutes did not give the full picture of the committee’s view, how it had arrived at its decision, or the extent to which the planning application complied with the development plan. As such, the permission was quashed.
The lesson to be learned from this one: The common law duty to give reasons still has teeth and if you are going to ignore your planning officer, you have to do so carefully (and leave an adequate paper trail).
*it was the one part of the UCL library where you could usually count on being undisturbed.
**[2019] EWHC 2007 (Admin)
*! [2019] UKSC 33
*^[2019] EWCA Civ 1359
*£[2019] EWHC 2041 (Admin)
*& I am trying to write this post within my daughter's morning nap, so time is at a premium
.......Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority's decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made, and there is therefore scope for agreeing a time within which the authority has to make a decision. Article 7(c) is to be read as an alternative to article 7(b) only, not to article 7 (a).
It follows that the decision under challenge must be quashed as made without jurisdiction. ”
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