Planning

Significant sections of the Planning and Compulsory Purchase Act 2004 have been brought into force throughout 2004 and 2005. Case law has, inevitably, begun to reach the courts. One of the first important decisions is R (Martin Grant Homes Ltd and Taylor Woodrow Developments Limited) vs Wealdon District Council [2005]. The developers had hoped to persuade a local plan inspector that their site should be allocated for housing in the emerging local plan. The plan had been deposited and the inspector was due to be appointed. However, based on guidance from the Government Office for the South East, the local planning authority decided to abandon the plan and instead produce a local development framework. The judge referred to the transitional provisions within the 2004 act which states that when an emerging local plan has reached such a stage, the process must continue, albeit with necessary changes to the process. Therefore, it was held that transitional provisions should be followed unless there were very good reasons not to do so.

• R (Wall) vs Brighton and Hove City Council [2004] saw the High Court give guidance as to the relatively new requirement within Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 to give summary reasons for the grant of planning permission within a decision notice. The court noted that it was of particular importance to give reasons, if, for example, an officer’s advice is not followed. A failure to provide summary reasons will not necessarily render the notice null and void, if there is a challenge to the courts, but they will have the discretion to quash, depending on facts.
• R (Chelmsford & Commercial Ltd) vs Chelmsford Borough Council [2005] concerned the need to undertake a proper comparison of two competing sites. In the case, two competing housing sites, located opposite each other, were the subject of applications determined at the same committee meeting. One was successful and the other was refused permission. The officer’s report included some comparison between them, but there was not a full comparative assessment of the planning merits of each. It was held that such comparison should be a material consideration when two sites were competing for the same, limited, need.
• R (Weir) vs London Borough of Camden [2005] concerned a challenge to a decision to grant permission where the boundary with the neighbouring authority ran down the middle of the road. The neighbouring authority had objected to the application for a number of reasons. However, this objection was lost and members were told there had been no objection. It was held that the status of an objector (in this case a neighbouring local authority) could affect a decision, and members may have placed importance on the lack of objection from the next-door authority.
• The case of R (Hart Aggregates Ltd ) vs Hartlepool Borough Council [2005] considered the issue of conditions precedent. Among its reasonings the court considered there were two types of conditions precedent: those where there was only a permission in principle because no details had been submitted and therefore permission had not been implemented – leading to any undertaken development being unlawful. And those where failure to obtain approval was limited to one aspect of the development (i.e. only required something to be carried out before commencement) and whereby planning permission could be said to be implemented but there has been a breach of condition.
• In Patel vs Brent LBC [2004], the developer entered into a Section 106 agreement which included an obligation to deposit a sum for highway improvements which the authority could use for certain works, returning the surplus to the developer. The works were only completed on threat of legal action, and beyond the period set out in the agreement during which the authority should use reasonable endeavours to complete the works. The developer sued for the return of all the money, on the basis that the purpose for which it had been deposited had ceased or failed. The Court of Appeal determined that such an application to treat the agreement as terminated by repudiation was inappropriate as there is a statutory scheme in the 1990 act dealing with variation and discharge. However, the court did order an inquiry into the works and any unauthorised or surplus expenditure was to be returned.
• The area of environmental impact assessment remains legally fertile. In R (Noble) vs Thanet District Council [2005] the Court of Appeal confirmed that a local authority could properly adopt a screening opinion at the reserved matters stage, notwithstanding the earlier adoption of an opinion at the outline stage. That process would not in itself reopen the outline process, thereby allowing the underlying permission to be challenged. The court also sounded a “note of dissatisfaction” that the remedy of judicial review was being exploited as a commercial weapon in the absence of any demonstrated concern about potential environmental or other planning harm.
• Conclusion: As we move into 2006, it is likely that the courts will remain busy, not least because of the need to interpret the provisions of the Planning and Compulsory Purchase Act 2004 as they are applied by local authorities up and down the country.