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Permission

This page has cases dealing with:
  • Change in circumstances between resolution and issue of decision notice.
  • Meaning of planning permission in option to purchase agreements
  • Modification or revocation - financial implications - Supreme Court
  • Outline permission - "hybrid" applications
  • Reasons.
  • Very special circumstances - green belt - gypsies.

Change in circumstances

Between resolution and issue of decision notice

R (on the application of Dry) v West Oxfordshire District Council and another
[2010] EWCA Civ 1143

Summary

Despite the apparent presence of new factors, the court decided that it was not necessary for the local planning authority to refer the planning application back to the planning committee

Facts

The claimant argued that the defendant council should have referred a planning application back to the planning committee following a resolution to grant permission on the grounds that there had been a change in circumstances and that new factors had arisen between the date of resolution and the issue of the decision notice. The change in question related to the zoning of the Environmental Agency’s flood maps and the fact that updated information showed that the development fell within an area more likely to risk than previously understood.

The EA were asked for their response on this issue, but stated that they remained content with the earlier analysis and that they were satisfied that no further consultation was necessary.

The claimant relied on the decision in R (on the application of Kides) v South Cambridgeshire DC (2002) EWCA Civ 1370, which provided guidance as to how a local planning authority should deal with any new factors that arose after a planning resolution had been passed but before the final decision was made.

Decision

Court of Appeal held that the guidance in Kides regarding new factors that arose between the making of a resolution and the issuing of the decision notice was only guidance on what was advisable "erring on the side of caution". It was also distinguished in that there had been a gap of five years between the resolution and the issue of the permission in that case. The guidance in Kides had to be applied with common sense, and with regard to the facts of the particular case.

In this case the EA had confirmed that it was satisfied that there was no need for further consultation and the court considered this rendered it pointless to refer to the matter back to committee. At paragraph 16 the court stated:
    “Without seeking to detract from the authority of the guidance in Kides, I would emphasise that it is only guidance as to what is advisable, “erring on the side of caution”.
Comment

This case seems to provide greater latitude to officers when dealing with new information that arises following a resolution to grant permission but before the decision notice is issued. However, the fact that the EA had been asked whether there was any further need for consultation and their response that they remained satisfied with the proposed scheme was significant. In most cases, the decision in Kides is likely to mean that “erring on the side of caution” would require any material change in circumstances to be referred back to committee.


Meaning of planning permission in option to purchase agreements

Castlebay Ltd v Asquith Properties Ltd
[2005] EWCA Civ 1734

Summary

The Court of Appeal considered what constituted a planning application for the purpose of interpreting an option-to-purchase agreement. The appellant appealed the decision of the High Court on the basis that an application for reserved matters approval was a planning application and accordingly it was still entitled to exercise the option to purchase under the agreement. The option had been exercisable at by notice within a defined period during which there had been opportunity to extend if certain circumstances arose, including where a "decision [was] awaited in respect of a planning application".

More detail

The ordinary usage of the term applied:
    "..this is clearly an agreement which has been drawn with the provisions of the planning legislation fully in mind. In those circumstances, I would expect the parties to have intended, by the phrase 'application for planning permission', the meaning which that phrase has long been recognized to bear in the context of planning legislation. If there were a context which required that meaning to be enlarged, the court would give effect to that requirement, as it did in the Hargreaves case. But, absent any context which requires some larger meaning, I am left with an agreement which is intended to strike a balance between the interests of the owner and the interests of the grantee. And I am left with the firm conclusion that, if these parties had intended some meaning to be given to the phrase, 'any application for planning permission' wider than the meaning which that phrase normally bears, they would have made that clear."
Accordingly the Court dismissed the appeal.


Modification or revocation

Financial implications

Health and Safety Executive v Wolverhampton CC
[2012] UKSC 34

Summary

When determining whether to modify or revoke planning permissions local planning authorities are entitled to consider the financial implications of doing so.

Facts

The Council granted planning permission to a developer for the construction of four blocks of student accommodation. They were to be situated around 100 metres away from an LPG storage facility, which was operated by a third party. The Health and Safety Executive suggested that planning permission should be refused on safety grounds. In the event it was not. Such were their concerns that when the developer started building out the site the HSE invited the Council to modify or revoke the planning permission. The Council did not. One reason was the amount of compensation that they would be required to pay the developer under s107 of the of the Town and Country Planning Act 1990 (1990 Act) if they were to modify or revoke the permission under s97 of the 1990 Act.

Decision

Lord Carnwath gave the agreed judgement of the Supreme Court. He held that the starting point was that in deciding whether to exercise a discretionary power to achieve a public objective, a public authority, is entitled to - and usually must - take into account of the cost to the public of so doing, at least to the extent of considering (i) whether the cost is proportionate to the aim to be achieved, and (ii) any more economic ways of achieving the same objective.

LPAs can act under s 97 if they are satisfied that it would be “expedient” to do so. Expedient means that the action should be appropriate in the circumstances. Where one of the circumstances is that a liability to pay compensation is created, that becomes a factor that may be considered. Lord Carnwath intimated that although it was correctly decided on its facts the decision of Richards J. in Alnick DC v SSETR [2000] 79 P & CR 130 is incorrect insofar as it suggests that financial considerations are immaterial under s97.

Lord Carnwath agreed with the proposition that the term “material considerations” must have a consistent meaning across all of the enactments which constitute the planning code. He held at [49] that:
    “Sufficient consistency is given to the expression if the word ‘material considerations’ is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted.”
There was no inconsistency between the exclusion of financial consequences as a material consideration when considering whether to grant planning permission under s70 of the Act and its inclusion when considering whether to revoke a permission under the different statutory context of section 97.

First, under s. 70 the LPA has a duty to act. It must either grant or refuse planning permission. By contrast under s97 the LPA may act but it is entitled to do nothing. Since the LPAs choice is narrower under s70 the range of considerations that are material to that choice is more limited.

Secondly, the determination of planning applications usually has no direct cost consequences for the LPA. By contrast s97 provides a mechanism for LPAs to “buy back” planning permissions. Financial considerations are therefore relevant in the latter but not the former case.

Comment

The decision in Wolverhampton does not alter the position that financial considerations are not material in the context of determining applications for planning permission. The principle that planning permissions cannot be bought and sold remains intact. The Localism Act 2011, insofar as it has amended s70 of the 1990 Act, has not altered this.


Outline permissions

"Hybrid" applications

Elliott v Secretary of State for Communities and Local Government
[2013] EWCA Civ 703

Summary

The Court of Appeal considered and approved the use of “hybrid applications” whereby certain matters contained within a single application are given full planning permission and others outline, and held that outline permissions did not have to relate solely to buildings.

Facts

The Secretary of State granted planning permission for the redevelopment of a building in deteriorating condition. The application for planning permission was a hybrid application for full permission in respect of a proposed sports centre and surrounding area, and outline permission for the rest of the site. There was evidence that bats traversed the park, and that the proposed loss of trees would have a minor adverse effect by way of harm to their flight lines and habitats. Nonetheless, the Inspector granted permission after finding that the scheme would result in a minor beneficial impact to bats, and the scheme would bring forward other substantial benefits that he noted the Secretary of State might consider to constitute Imperative Reasons of Overriding Public Importance (IROPI). The Secretary of State did not refer to IROPI in granting permission. In light of the works proposed, a community association (C) challenged the Secretary of State’s jurisdiction to grant planning permission for such an application. C appealed to the Court of Appeal.

Issues

An issue on appeal concerned the interpretation of provisions in the Town and Country Planning (General Development Procedure) Order 1995 relating to outline planning permissions (which are identical to those in the subsequent Town and Country Planning (Development Management Procedure) Order 2010. Art 1(2) of the GPDO defined “outline planning permission” as “a planning permission for the erection of a building …”. The Applicant contended that the matters covered by the outline part of the application fell outside of the definition of “building” in Art 1(2) of the GPDO, and that those matters could not be reserved matters as they did not fairly and reasonably relate to buildings.

Decision

The Court of Appeal dismissed the appeal. The proposals were for a comprehensive redevelopment scheme, which included buildings, and that parts of the scheme which were not buildings were integral to the whole scheme. In those circumstances, in light of the wide definition of “building” and the scope of “reserved matters” as including matters such as landscaping, the statutory provisions in the GPDO were to be read in such a way as to accommodate such comprehensive schemes. The Court emphasised that it could not be right to require comprehensive schemes either to be fully developed, or to be packaged as a series of separate outline applications for buildings only. Further, it was not necessary for an outline application to also have as “its primary and overriding purpose the construction of a building or buildings”. Instead, outline matters may include broader planning purposes that are “not merely subsidiary details relating strictly to buildings themselves”.


Reasons

R (on the application of Wall) v Brighton and Hove City Council
[2004] EWHC 2582 (Admin)

Facts

The council had granted planning permission for a block of flats on land adjoining Mrs Walls house. (She had objected to the application on the ground that it would adversely affect her property.) The decision notice, however, did not include a summary of the specific reasons for granting permission as required by Article 22(1) of the GDPO. Mrs Wall sought judicial review of the councils decision, her principal ground being failure to comply with Article 22(1). In the meantime (i.e. five months after the issue of the original decision notice) the council provided Mrs Wall with a fresh decision notice incorporating reasons that had been obtained from each member of the committee who had voted in favour of granting planning permission.

Decision

Sullivan J quashed the grant of planning permission. He made a distinction between obligations to give reasons that merely informed the public following a decision, and those that imposed requirements for decision-making and were intended to influence the quality of the decision. The Article 22(1) obligations were of the latter kind. A failure to comply with Article 22(1) did not render the decision notice void, but it did give the court the discretion to quash the decision notice subsequently. In this case, the reasons given were based on the flawed recollections of the committee members. Furthermore, reasons given in private correspondence relating to judicial review would not remedy the breach, given the requirement for publicity. Finally, it was not necessary for Mrs Wall to show that she had suffered prejudice from the councils failure.


R (On the application of Midcounties Co-Operative Ltd) v Forest Of Dean District Council; Santon Group Developments Ltd and others (Interested Parties)
[2007] EWHC 1714 (Admin)

Summary

This is another decision in the line of cases which addresses the requirement of Article 22(1) Town And Country Planning (General Development Procedure) Order 1995 to give reasons for the grant of planning permission. The Court quashed three planning permissions which were granted in respect of proposed developments where the local planning authority had failed to provide summary reasons for granting the planning permissions as required under the Town and Country Planning (General Development Procedure) Order 1995 art.22(1).

More detail

It was held that since local planning authorities were accustomed to suggesting reasons where applications were refused or for the imposition of conditions, there was no reason why they should not routinely do the same in summary form for a grant of planning permission.

The Court considered that the reasons given in the permissions were inadequate. Furthermore, there was not only a failure to refer to relevant policies but a failure to do more than list the supposedly relevant policies. The Court held that Article 22(1) of the 1995 Order required a summary of the policies which should be an indication of what the policy dealt with insofar as it was material to the permission it related to


Very special circumstances - green belt - gypsies

South Bucks DC v Porter
[2004] UKHL 33

A planning inspector was entitled to grant retrospective permission to override green belt policies under PPG 2 in a case where a Romany Gypsy had lived on a plot that she owned in breach of planning control.


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