Key points
- Metropolitan Open Land is afforded special status
- Conflicting court authority exists regarding the interpretation of development plans
- An officer’s report will only be considered if it significantly misleads the committee
- In establishing immunity, the burden of proof lies with the appellant
July brought a host of important decisions highlighting the central role of the courts on a wide range of issues.
Before considering just a few of these rulings it is worth flagging that the Court of Appeal’s important decision on the meaning of policies for the supply of housing in para 49 of the National Planning Policy Framework (NPPF) – Hopkins Homes Ltd v Secretary of State for Communities and Local Government; Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 168; [2016] PLSCS 90 (EG 28 May 2016, p101) – is going to the Supreme Court, so we have not heard the last word on this crucial issue. Similarly, the Court of Appeal has granted permission to appeal on the “garden grabbing” case of Dartford Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 635 (Admin). Both cases could affect housing development.
Metropolitan open land
Two cases concerned Metropolitan Open Land (MOL), which enjoys a similar status to green belt land. In Stryjak v Hounslow LBC and others [2016] EWHC 1897, Collins J held that the local planning authority had been entitled to grant planning permission for a school building on MOL as the committee had the information that it required to enable it to reach a proper planning decision. In addition, there had been no breach of the NPPF, which the court recognised was not intended to be rigid. On the other hand, in R (Lensbury Ltd) v Richmond upon Thames London Borough Council [2016] EWCA Civ 814 the Court of Appeal held that an authority had failed to assess whether a planning application for a hydroelectric generating facility on MOL was “inappropriate development” under local policy. Thus, it had failed to consider whether “very special circumstances” existed which justified granting permission.
Interpreting development plan policy
These two decisions illustrate the special status accorded to MOL. Further, Stryjak reveals the difficulty in establishing inadequate reasoning by a decision maker whereas Lensbury shows the consequences of making an error in relation to applications on MOL or in the green belt. Distinguishing between these two is not always easy. In R (Wilkinson) v South Hams District Council and South Devon Rural Housing Association [2016] EWHC 1860 (Admin) Hickinbottom J quashed a grant of planning permission for residential development. The reasoning was that the committee had been misled by an officer’s report that treated the loss of open space as a matter of only limited weight even though this involved a breach of the development plan which the report had failed to identify as such. As a result, the decision was in breach of section 38(6).
Two lines of conflicting reasoning seem to be emerging. The first, as this case shows, holds that a breach of one development plan policy means that a decision is contrary to section 38(6) whereas the second views the development plan “as whole”.
For example, as Patterson J held in Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government and Stockton-on-Tees Borough Council [2015] EWHC 2489 (Admin) at para 33: “I do not accept, lest it be thought to establish the proposition, that the case of Hampton Bishop [R (on the application of Hampton Bishop Parish Council) v Hertfordshire Council [2014] EWCA Civ 878; [2014] PLSCS 198] establishes that a breach of one key policy was sufficient to found conflict with the development plan as a whole.”
Officer’s report
Of course, in many cases the role of the officer’s report is a key factor. The courts have long recognised that criticism of the report would not normally begin to merit its consideration unless the overall effect of the report was to significantly mislead the committee about material matters which went uncorrected before the relevant decision was taken – R (Selby District Council) ex parte Oxton Farms [1997] EG 60 (CS). The decision of the Court of Appeal in R (Loader) v Rother District Council and Churchill Retirement Living [2016] EWCA Civ 795 provides a classic example. The decision to grant permission for a development close to a late Victorian Grade II listed terrace was held to be unlawful because the committee had been seriously misled concerning the position of the Victorian Society which had objected to an earlier proposal. The committee was led to believe that the society had no objections to the revised proposal. The report simply stated under the consultations section that no comments had been received from the Victorian Society when, in fact, it had not been consulted.
Enforcing planning control
Finally, in the context of enforcing planning control, the decision in Ravensdale Ltd v Secretary of State for Communities and Local Government [15 July 2016] is illustrative. David Elvin QC (sitting as a deputy) was faced with an enforcement notice relating to the conversion of a single dwelling into six flats. An appeal against the notice had been dismissed. In rejecting the appellant’s challenge and upholding the inspector’s decision the judgment reinforces the important fact that in establishing immunity the burden of proof lies with the appellant. Thus any lack of detail in the supporting statutory declarations and the tenancy agreements were not conclusive of occupation for a continuous four-year period. This decision highlights the importance of the need to present clear, cogent and convincing evidence in relation to enforcement notice appeals.
Martin Edwards is a barrister at Cornerstone Barristers
