The sun is shining and we are on the verge of a Bank Holiday weekend. As I am feeling somewhat festive, we are taking a break from emergency legislation this week. Instead, the Easter Bunny has hopped along to the High Court to bring you a selection of  bite-size case law related treats.*

1. Hook v Secretary of State for Housing, Communities and Local Government**

Our first case is a Court of Appeal decision on retrospective planning permissions, which was handed down last week. The decision does not break any new legal ground, but it does serve as a useful reminder of the principles under-pinning retrospective consents and the type of issues that can be addressed by condition. It is also highly quotable, which helps.

Ms Hook had been trying, and failing, to get planning permission for a dwelling on a small plot of land in the Surrey Heath Green Belt for about 18 years. This process involved four failed planning applications, three failed planning appeals, enforcement action and an application for injunctive relief. Through all of this Ms Hook remained determined to remain on the site, from which she ran a small horticultural business and grazed a couple of horses. 

The last planning application was made in April 2017, refused in July 2017 and then went to Appeal. During the Appeal, Ms Hook had volunteered to include an agricultural occupancy condition on the consent - preventing her house from being occupied by non-agricultural workers. The planning inspector refused consent on the basis that Ms Hook's house:

  • was not an agricultural building; and
  • was inappropriate development in the green belt

The inspector also refused Ms Hook's costs application.

Ms Hook challenged this decision in the high court, and was refused permission on the papers twice. On the third attempt the case made it to the Court of Appeal, where it was given fairly short shrift. 

The claim had been brought on three grounds - whether the inspector had failed to take the proposed agricultural occupancy condition into account when finding the house 'inappropriate green belt development';  whether the costs decision breached the rules of natural justice; and whether he failed to provide lawful reasons for his decision.  All three grounds were rejected. 

The key finding  from the Court was that "that the inspector was entitled, and right, not to take the suggested agricultural occupancy condition into account when determining the appeal. Logically and legally, the condition did not fall to be considered until it was first established that the proposed development was a "[building] for agriculture". Only then could a condition restricting occupancy to an agricultural worker be regarded as consistent with the principle that a planning condition must fairly and reasonably relate to the development permitted..... That question was addressed by the inspector and answered contrary to the case put forward for Ms Hook, without any error of law." 

In short, when dealing with retrospective consents, you have to look at what has actually been built and the use it has been put to, before considering relevant conditions. 

For anyone wondering why I said this case was quotable, please read the two paragraph judgment of Lord Justice Peter Jackson. It is astounding.

2.  Advearse v Dorset Council *^

Advearse is a case that centres on the impact of a large residential development on a conservation area and a grade II listed building in Dorset. The facts will get much shorter shrift than Hook, as they are simply less entertaining. 

The most interesting aspect of the case, and the reason I am reporting it, is that the Court refused to quash the underlying consent even though they found that the officer's report failed to meet the standard of basic coherence and had completely mishandled the NPPF's policy approach to the conservation of heritage assets. 

The only reason that the planning permission survived, is because of s.31(2A) of the Supreme Courts Act 1981. As the judgement states: 

" 30.       By section 31(2A) of the Senior Courts Act 1981 ("the 1981 Act") a court must refuse to grant relief on an application for judicial review "… if it appears … to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred". In this case "the conduct complained of" is the errors in the part of the Officer's Report which deals with the Bridport Conservation Area and the Toll House.   

  1. I am satisfied that it is highly likely that, absent the failure in each part of the Officer's Report to spell out the requirements in Part 12 of the NPPF and the way in which those requirements were met in the circumstances of this case, the councillors would have reached the same conclusion on the application for planning permission for the Vearse Farm Development. The public benefits of the Vearse Farm Development are clearly apparent from the Inspector's Report on the Local Plan.  That explains the reason why it is necessary to allocate the land at Vearse Farm as available for house building.   The material parts of the Inspector's Report are set out at paragraph 10.3 of the Officer's Report.  Both for the Conservation Area and the Toll House the impact was assessed as falling into the less than substantial bracket.  In this case, the information relevant to the proper application of Part 12 of the NPPF is contained in the Officer's Report. There is no need for additional material to be obtained.  If that information is applied to the policy set out in Part 12 of the NPPF, there can be only one realist outcome, namely a conclusion that the public benefits of the proposed development do outweigh the level of harm likely to occur either to the Conservation Area or the Toll House.  In these circumstances, section 31(2A) of the 1981 Act applies in respect of both parts of Ground One.  Although Advearse succeeds on this part of its claim I do not grant any relief in respect of it."   

Whilst this is a highly pragmatic use of s.31(2A) it is a somewhat unusual one. So it will be interesting to see if Advearse decide to appeal the decision....

3.  Packham v the Secretary of State for Transport*!

I am surprised this particular case has not been more widely reported, as it involves a tv presenter trying to take on central government. To be more specific, Chris Packham vs High Speed 2.

Packham had applied to the Court both to judicially review the decision to continue with High Speed 2, and for an interim injunction to prevent clearance works in six woodlands along the route. As the works were due imminently an emergency hearing was held on April 2nd. Judgment issued at the end of that hearing, dismissing both applications, with reasons to follow. The reasons were handed down on April 6th and can be found here.

The judgment is well worth reading in full, but the Court's comments on climate change are particularly interesting. Packham had raised concerns about how the report to the Secretary of State had approached the carbon emissions generated by the scheme, relying in particular on the Plan B Earth decision of the Court of Appeal, which ruled that the plans for expanding Heathrow were unlawful. In Paragraphs 98 and 99 of the Judgment, the court states:

"98. Mr. Wolfe QC places considerable emphasis upon the decision of the Court of Appeal in the Plan B Earth case where it was held (inter alia) that that the Government’s policy commitment to revised climate change targets in the Paris Agreement was an “obviously material” consideration which the Secretary of State had been obliged to take into account when he designated the Airports National Policy Statement.

99. The circumstances of that case were very different to the present dispute. There, the Secretary of State accepted that he has not taken the Paris Agreement into account at all, acting on the basis that it was not considered at that stage to be relevant [186], [228] to [231]. Furthermore, the Policy Statement was designated in June 2018, a year before the Climate Change Act 2008 was amended to reflect the Paris Agreement. Here, the OR was launched and the decision taken after that amendment had been made. Furthermore, the Claimant accepts that both the Report and the decision to proceed with HS2 took into account the Government’s climate change commitments following the Paris Agreement, as expressed in the net zero target for 2050."

Whilst the facts of the two cases are, admittedly, very different. It is none the less interesting that the Court of Appeal in this instance seems to be tying the Plan B Earth judgment back to its facts, rather than drawing out wider points of principle... only time will tell whether future courts decide  to take the same approach

4.   Tower Hamlets v The Secretary of State for Housing Communities and Local Government.....

And finally... according to Planning Resource (link below) Tower Hamlets has sought permission to judicially review the Secretary of State's decision to grant consent for the redevelopment of the Westferry  Printworks, one day before the Council's revised CIL Charging Schedule took effect. The Council appear to be alleging that the decision was made with an improper notice - namely a desire to avoid lumbering the site with a hefty CIL payment. 

CIL Challenges are hard to make, and even harder to win, so I for one will certainly be watching this case with interest. Not least, because if this argument succeeds, then logically permissions granted one day after a Charging Schedule is adopted (with a view to the Council securing a financial advantage) must also be suspect.... which might be a real life example of the law of unintended consequences.....

* yes, chocolate is more traditional - but it is harder to deliver in blog form!

** [2020] EWCA Civ 486

*^ [2020] EWHC 807 (Admin)

*! [2020] EWHC 829 (Admin)