John Martin looks at a catalogue of serious errors on the part of a local planning authority
Key points
- The decision making process was demonstrably flawed
- Should the developer have redress against the local planning authority?
The decision of the High Court in R (on the application of Gerber) v Wiltshire Council [2015] EWHC 524 (Admin); [2015] PLSCS 78, to quash planning permission granted by the local planning authority (“LPA”) for the construction of a £10m solar farm covering 22 hectares well after the development was completed and operating, was reported in the local press. But what those reports did not dwell on was the sad catalogue of errors on the part of the LPA, amounting to serious legal flaws, which led to this result.
English Heritage
The effect of regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 is that an LPA in England is required to consult English Heritage when it receives an application for planning permission for any development of land and the LPA thinks that the development “would affect the setting of a listed building or the character or appearance of a conservation area”.
While the LPA recognised that the development proposals would affect the Grade II* listed building owned by the claimant, it failed to consult English Heritage. The court pointed out that the LPA had erred by seeking to make a planning judgment as to the quality of the effect, rather than simply whether it existed. It is a conclusion that the proposed development would affect the setting of a listed building, and not the quality of the effect, that is the key issue triggering the consultation requirements. This error was to have a further consequence.
Section 66(1) duty
Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that in considering whether to grant planning permission for development which affects a listed building or its setting, the decision maker “shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”.
The claimant also contended that the LPA had failed to discharge its duty under section 66(1) of the 1990 Act. The court had no doubt, given its earlier finding, that the section 66(1) duty was engaged. That being so, in order to have the necessary special regard, the LPA was required in the first place to evaluate the quality of the effect on the listed building and its setting.
The court held that, without the input that the statutory regime requires from the relevant national body with responsibility for such matters, namely English Heritage, it could not be said that the LPA had engaged with and properly discharged the section 66(1) duty. That failure also amounted to a legal error.
Legitimate expectation
Another of the claimant’s grounds of challenge was based on the public law principle of legitimate expectation. The LPA’s statement of community involvement (“SCI”) contained detailed provisions dealing with the notification of the receipt of a planning application that would affect occupiers of neighbouring properties. The claimant contended that this created a legitimate expectation that he would be notified of the planning application, and he had not been.
The court decided that the SCI, read sensibly and as a public document, stated an intention that the LPA would notify owners of neighbouring property affected regardless of whether such properties adjoined the application site. Failure to notify, in accordance with the promise made in the SCI, was in this case a breach of the claimant’s legitimate expectation that he would be notified. This also amounted to a legal flaw.
Negative screening opinion
It was held in R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC Admin 2009; [2002] PLSCS 200 that it was insufficient for an LPA to identify likely effects on the environment, but merely state that those effects would be considered at a later stage on the provision of additional information.
The court concluded that the negative screening opinion adopted in this case focused principally on the future provision of statements, assessments and reports that would be expected in support of the planning application. Furthermore, there was no obvious statement “giving clearly and precisely the full reasons” for the planning officer’s conclusion, as required by regulation 4(7) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. Rejecting the submission made on behalf of the LPA, the judge said that it was impossible to conclude that the screening opinion would in any event be negative were it to be prepared again. Once more, this was a legal flaw.
Major failings
The court held that, despite considerable delay in filing the claim form, the application should be allowed. The judge went on to conclude that the factors weighing in favour of quashing the planning permission outweighed those which opposed that approach. He highlighted in particular the LPA’s failures in protecting a national heritage asset and observing the requirements of EU-derived law.
This case poses the question whether, in such circumstances, redress should be available to a developer against the LPA. Or should the developer have been advised that it may be risky to place reliance on an obviously flawed planning decision even after the time limit for filing a claim for judicial review has long expired?
John Martin is a planning law consultant
