This document provides a summary of recent planning case law updates covering the following topics: 1. Enforcement cases relating to inspectors' powers and the Welwyn principle. 2. Procedural fairness cases on matters arising during inquiries and notification of hearings. 3. Housing cases on the duty to comply with the development plan, approaches to land supply calculations, determining housing need, and policy compliance. 4. Development plan making cases on the soundness of plans and consideration of housing needs. 5. Decision making cases on planning obligations, education contributions, and design considerations.

1. Planning Topic Paper:
Green Belt
Neighbourhood Plans
Heritage
James Burton
11 February 2015

2. Green Belt
• NPPF – basics of GB dev. man. remain:
- Is proposal inappropriate dev? As:
(a) falls outside any not inapprop. cat; or
(b) though potentially not inapprop. it fails
exception tests (ie NPPF paras.89-90)?
- if so, is harm to GB and any other harm
outweighed by VSC?
• But as case law shows there are changes – not
least loss of PPG2 [3.12].

3. Inappropriate development by
definition
• Europa Oil; Fordent; Timmins
• “Development” in NPPF means TCPA
development (so s.55).
• PPG2 [3.12] approach not carried through.
• Hence material change of use inappropriate
unless within an exception.
• And NPPF 89-90 “closed lists” (but see Mitting J
in Timmins CoA re. interaction 81 and 90).

4. The NPPF 89-90 exceptions: 1
• Para. 89. Concerned with built form only, not
change of use. Purpose is key.
- So an identical building may preserve
openness/not conflict with GP purposes if it
is a sports pavilion not a house.
- PDL turns on current or last use.
• Para. 90. Unless Mitting J’s obiter in Timmins
pursued, also a closed list.

5. The NPPF 89-90 exceptions: 2
• Para. 90:
- “Mineral extraction” includes the
exploration/appraisal stages.
- Mere fact of common paraphernalia for
mineral extraction cannot mean proposal
inappropriate.
• Re. both paras. 89-90, any requirement for
public benefit or public need? Not on face of
NPPF and Cherkley supports that view.

6. Ministerial Statements
2013/2014
• Statement that unmet need along unlikely to
outweigh harm to GP merely a “clarification” of
national policy and not new policy (Copas).
• However, SSCLG’s practice of recovering all
traveller/gypsy site GB appeals:
- a breach of Equality Act 2010; and
- a breach of Art.6 rights due to delay caused
(Moore & Coates).

7. Green Belt planning balance
• No change from PPG2. NPPF 88 “any other
harm” means what it says – Redhill.
• And “sub-threshold” harms that alone would not
justify refusal under the NPPF remain material
considerations and count against a grant.
• But note CoA note there are changes from
PPG2, not all of them acknowledged in the
impact assessment.
• Is NPPF GB policy in fact more restrictive?

8. PPG2 case law
• Still relevant – Redhill
• Newlyn Dean –paintball and livery
• Holder – wind turbine.

9. Neighbourhood Development
Plans
• Finally we have a body of High Court case
law dealing with NDPs:
- BDW Trading (Supperstone J)
- Larkfleet (Collins J)
- Gladman (Lewis J)

10. BDW Trading
• Tattenhall NDP. Had been through SEA (SA
prepared).
• Policy 1 promoted a 30 unit limit in/adjacent to
built up area. Passed examination.
• No breach of SEA Directive as reasonable to
promote only those policies that passed
consultation, and “do nothing” option considered
in SA.
• Not examiner’s role to conduct EiP into Policy 1.

11. Larkfleet
• Uppingham NDP. Provided for 170 homes to
2026. Need for SEA “screened out”.
• LPA’s Site Allocations and Policies DPD noted
Uppingham NDP emerging and so made no
allocation for Uppingham.
• No need for SEA – examiner had considered
Directive/Regs and entitled to conclude NDP for
a “small area at local level”.
• No obstacle to NDP containing housing policies.

12. Gladman
• Winslow NDP. Established a settlement
boundary and allocated sites within it for 455
dwellings. No development outside boundary
other than in exceptional circumstances.
• No DPD yet adopted containing strategic
housing policies.
• Absence of such a DPD no bar to NDP
containing housing policies, including site
allocation policies.

13. Key points
• Marked difference NDP/Local Plan process.
• Basic Conditions against which NPD examined
set bar markedly lower than Local Plan tests (not
least soundness) applied at EiP.
• SEA may be required but may not.
• NDP may include housing policies and may
allocate specific sites, even where no current
Local Plan strategic policy

14. Heritage
• Interrelationship between statutory tests s.66/72
Listed Buildings Act and NPPF.
• Barnwell the standout case. Wind farm that
would affect setting of listed buildings.
• Sections 66 (“special regard”)/72 (“special
attention”) create a “strong presumption” against
grant where harm to setting of listed building/CA
– even where harm less than substantial.
• NPPF does not displace statutory presumption.
• See Forge Field for application of Barnwell.

15. Planning Topic Paper:
Green Belt
Neighbourhood Plans
Heritage
James Burton
11 February 2015
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with its registered
office at 39 Essex Street, London WC2R 3AT Thirty Nine Essex Street's members provide legal and advocacy services as independent, self-employed barristers and no entity
connected with Thirty Nine Essex Street provides any legal services. Thirty Nine Essex Street (Services) Limited manages the administrative, operational and support functions of
Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street, London WC2R 3AT

16. Planning Case Law Update
John Pugh-Smith
11th February 2015

17. Topics
• ENFORCEMENT *
• PROCEDURAL FAIRNESS *
• HOUSING *
• DEVELOPMENT PLAN-MAKING *
• DECISION-MAKING *
• ENVIRONMENTAL IMPACT ASSESSMENT
• STRATEGIC ENVIRONMENTAL ASSESSMENT
• CONSERVATION, BIRDS AND HABITATS

18. Enforcement
Ahmed v SSCLG [2014] EWCA Civ 566
• Inspector failed to consider “obvious alternative” of
lesser scheme after wrongly concluding he had no power
to grant planning permission for the lesser scheme.
• Inspector does have the power if the lesser scheme is
“part of” the scheme enforced against.
Ioannou v SSCLG [2014] EWCA Civ 1432
• Ahmed distinguished. Inspector has no power under
ground (f) to bring about deemed permission for scheme
which was not in existence at the time of the EN.

19. Enforcement
Jackson v SSCLG [2014] EWHC 20 (Admin)
• New regime of planning enforcement orders under
ss.171BA –BC is not an exhaustive replacement of the
Welwyn principle:
(i) positive deception in matters integral to the planning process;
(ii) that deception was directly intended to undermine the planning process;
(iii) it did undermine that process and;
(iv) the wrong-doer would profit directly from the deception if the normal
limitation period were to enable him to resist enforcement.
• No additional requirement to demonstrate
“exceptionality” for case to fall outside s.171B immunity

20. Procedural Fairness
SSCLG v Hopkins Developments [2014] EWCA 470
• Inspector dismissing housing appeal on matters including
sustainability and character & appearance not formally raised by her
as main issues but in contention during inquiry
• A developer should test evidence about, or make submissions on,
emerging issues
SSCLG v Vincente [2014] EWCA 1555
• Procedural conduct at a second hearing where objectors had not
been notified of initial hearing.
• If objectors know the main points in support of the application that
they opposed and have had a reasonable opportunity to put their
own points forward then no procedural unfairness

21. Housing: General considerations
Bloor Homes v SSCLG [2014] EWHC 745 (Admin)
• S.38(6) duty remains following the NPPF
• NPPF para.14 second limb:
These are three distinct concepts. A development plan will be “absent”
if none has been adopted for the relevant area and the relevant period.
If there is such a plan, it may be “silent” because it lacks policy relevant
to the project under consideration. And if the plan does have relevant
policies these may have been overtaken by things that have happened
since it was adopted, either on the ground or in some change in
national policy, or for some other reason, so that they are now “out-of-
date”. Absence will be a matter of fact. Silence will be either a matter of
fact or a matter of construction, or both. And the question of whether
relevant policies are no longer up to date will be either a matter of fact
or perhaps a matter of both fact and judgment (Lindblom J)

22. Housing: Land supply calculations
Ongoing debate over application of “Sedgefield approach”
for s.78 appeals against “Liverpool approach” – NPPG
preference for “Sedgefield”
Bloor Homes v SSCLG (Lindblom J):
Neither approach is prescribed or said to be preferable to the other in
government policy in the NPPF
BUT, here, although the Inspector’s use of “Liverpool” was legitimate
he had failed to include a 10 per cent discount for delivery on larger
sites; and at 5.02 years supply that was critical

23. Housing: NPPF policy
Solihull MBC v Gallagher Estates [2014] EWCA Civ 1610
• Radical change brought about by NPPF, para.47
• Two-step approach: (i) Need for FOAN assessment to be made first;
(ii) To be given effect in Local Plan unless that would be inconsistent
with other NPPF policies
• FOAN applicable both to plan-making and decision-taking (following
Hunston)
• The reality was that neither the local authority, in proposing the plan,
nor the inspector, in recommending its adoption, had undertaken an
objective assessment of needs as a separate and prior exercise to
the consideration of the impact of other policies.

24. Housing: NPPF policy
South Northamptonshire Council v SSCLG & Barwood
Homes [2014] EWHC 570 (Admin); South
Northamptonshire Council v SSCLG & Barwood Land &
Estates [2014] EWHC 573 (Admin): How, as a matter of
planning judgment, FOAN should be determined on appeal
in the absence of an adopted development plan figure
Hopkins Homes v SSCLG & Suffolk Coastal DC [2015]
EWHC 132 (Admin)
• NPPF para. 49 – when is a policy a housing supply policy?
• Does it apply to any policy which has the effect of restricting housing
development?

25. Housing: Sustainable development
Dartford BC v SSCLG [2014] EWHC 2636 (Admin)
– No legalistic approach requiring whether development is
sustainable to be dealt with as a preliminary issue (as in William
Davis)
– If NPPF para. 14 applies because there is a shortfall, no need to
also consider whether proposed development is sustainable
development until you carry out the planning balance.
– Sustainable development should be permitted, unsustainable
development refused.

26. Housing: Other issues
Barrow PC v SSCLG [2014] EWHC 274 (Admin)
• NPPF para. 47 (footnote 11) and 173 – delivery and viability: need to
show realistic prospect of some houses being delivered during life of
permission
• Tension with current policy on use of negative (Grampian) conditions
e.g. upgrading of pumping station to resolve sewage capacity problems
Horsham DC v SSCLG [2015] EWHC 109 (Admin)
• NPPF, para.64 – refusing obviously poor design
• Inspector under no obligation to consider whether a better one might
have been proposed
• Matter of planning judgment (following FSS v Sainsburys [2007])

27. Development Plan-Making: soundness
Grand Union Investments v Dacorum BC
[2014] EWHC 1894 (Admin)
• The concept of the soundness of a development plan document was
not defined in the 2004 Act. The NPPF included four criteria of
soundness, but that guidance was policy and should not be treated
as law
• The question was whether the core strategy, incorporating the
modification, could properly be regarded as having become sound
and a plan that was capable of being lawfully adopted. The
assessment of soundness was essentially a practical one. The
modification was, in the inspector's judgement, a sufficient and
proportionate solution to the problem; so
• LPA’s adoption of a core strategy in relation to housing allocation in
its borough, which committed it to an early review of housing needs,
following the modification to the strategy was not irrational

28. Development Plan-Making: other issues
Gallagher Homes v Solihull MBC
[2014] EWHC 1283 (Admin)/ [2014] EWCA Civ 1610
• Local Plan not supported by a figure of full objectively assessed
housing need (FOAN)
Gladman Development v Wokingham BC [2014] EWHC
2320 (Admin)
• Inspector not required to consider whether there was a FOAHN
before examining the Local Plan to determine whether site
allocations were sound
R (IM Properties) v Lichfield DC [2014] EWHC 2440 (Admin)
• Court has no jurisdiction to quash LPA’s decision to endorse
modifications to a draft Local Plan strategy

29. Development Plan-Making:
Old development plans
R (Cherkley Campaign Ltd) v Mole Valley District
Council [2014] EWCA Civ 567
• Reasoned justification is saved with the policies; but
• Whilst an aid to interpretation It does not have the force of policy
and cannot trump policy

30. Decision-Making
Oxford County Council v SSCLG [2015] EWHC 186 (Admin)
• Regn 122 of CIL Regulations 2010 tests for obligations
• S.106 with contributions towards education, libraries, household
waste management, museums, adult learning, day care, public
transport and an administration/monitoring fee of £3,750
• Inspector’s finding that fee did not meet “necessity” test upheld
• Nothing in the Planning Acts, CILR, NPF or NPPG which suggested
that LPAs could so charge.
• As fee based on standardised table rather than individualised
assessment of special costs.
• Allowed education and library service contributions also payable at
outset
•

31. All for now!
John Pugh-Smith
Barrister & Mediator
39 Essex Chambers
London & Manchester
www.39essex.com
john.pugh-smith@39essex.com
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with its registered
office at 39 Essex Street, London WC2R 3AT Thirty Nine Essex Street's members provide legal and advocacy services as independent, self-employed barristers and no entity
connected with Thirty Nine Essex Street provides any legal services. Thirty Nine Essex Street (Services) Limited manages the administrative, operational and support functions of
Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street, London WC2R 3AT

32. Planning Case Law Update
John Pugh-Smith
11th February 2015