This document provides a summary of recent case law updates related to planning and environment topics. Key cases are summarized under the following topics: enforcement, heritage, green belt, decision-making and fairness, development plan-making, neighbourhood plans, housing, EIA/SEA, habitats, nuisance, air quality, and environmental sentencing. Notable cases provide guidance on interpreting the National Planning Policy Framework and considerations around housing need assessments, green belt development, listed buildings, and procedural fairness in decision-making.

1. Planning and Environment Case
Law Update
Cambridge - 25th June 2015
Stephen Tromans QC,
John Pugh-Smith, Victoria Hutton and Jon Darby

2. Topics
• ENFORCEMENT
• HERITAGE
• GREEN BELT
• DECISION-MAKING AND FAIRNESS
• DEVELOPMENT PLAN-MAKING
• NEIGHBOURHOOD PLANS
• HOUSING
• EIA/SEA
• HABITATS
• NUISANCE
• AIR QUALITY
• ENVIRONMENTAL SENTENCING
• THE NEW GOVERNMENT

3. 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.

4. Enforcement
Jackson v SSCLG [2015] 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

5. Enforcement
R(Wingrove) v Stratford-on-Avon DC [2015] EWHC 287
(Admin)
• Challenge to LPA’s refusal of two applications for retrospective
consent under s.70C.
• No appeal against enforcement notice
• Appropriate for LPA to look at applicant’s actual motives - delay of
enforcement action
• Limited factors against exercise of s.70C e.g.
– Failure to appeal EN but development plainly compliant
– Acceptability with correct planning conditions

6. Heritage
Interrelationship between statutory tests s.66/72 Listed
Buildings Act and NPPF:
• Barnwell [2014] EWCA Civ 137
– The standout case.
– Wind farm that would affect setting of listed buildings.
– s.66 P(LBCAA)A 1990 (“special regard”)/s.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 further e.g. Forge Field [2014] EWHC 1895 (Admin); R (Cecil
Family Trust) v South Kesteven DC [2015] for applications of
Barnwell.

7. Heritage
Conservation Area designations under s.69:
• GRA Acquisition v Oxford City Council [2015] EWHC 76
(Admin) – Oxford Stadium CA.
– Single entity, absence of public access and visibility, mundane
quality and lack of long life-span not sufficient factors to make
decision irrational
• R (Silus Investments) v Hounslow LBC [2015] EWHC 358
(Admin) - Chiswick High Road CA
- Proposal to demolish locally listed public house
– No procedure specified and no statutory obligation to consult;
but
– Lack of meaningful consultation undertaken by LPA
– Developer denied opportunity of being consulted

8. Decision making and 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
Turner v SSCLG [2015] EWCA Civ 582
• An inspector's role has a strong inquisitorial dimension - it was fair and appropriate
for him to a) perform robust case management and b) focus debate through
interventions.

9. Raising points
• Hopkins - No need to warn of issues raised by third parties which parties
have been able to comment on
• R(Halite Energy) v SoSECC - Warn of uncontentious points which
trouble decision maker
• New points arising too late for third party representations have been a
problem: Philips, Ashley
• Carroll v SSCLG
– Appeal for change of use B1 to C3
– At the 6 weeks point the appellant said the use was now B8.
– Later, the appellant provided 2nd application committee report which
agreed B8 and no policy objection.
– Did not mention that the committee had refused that application
because of a policy objection.

10. Carroll: the fallout

11. Green Belt: the NPPF
• Paragraphs 87, 89 and 90:
– all development inappropriate (can be permitted only in very
special circumstances) unless it is either:
• development falling within one or more of the categories set
out in paragraph 90 or
• the construction of a new building or buildings that comes, or
potentially comes, within one of the exceptions referred to in
paragraph 89.

12. Green Belt: Inappropriate by definition
• NPPF stand alone document and not PPG2 ‘carry over’
– PPG2 [3.12] approach not carried through
– Hence material change of use inappropriate unless within an exception.
• Para. 89. Concerned with built form only, not change of use. Purpose is key
(Timmins).
– So an identical building may preserve openness/not conflict with GB
purposes if it is a sports pavilion not a house.
– PDL turns on current or last use (Lee Valley [2015]).
• Para. 90. (unless Mitting J’s obiter in Timmins pursued) is also a closed list.
– “Mineral extraction” includes the exploration/appraisal stages.
– Mere fact of common paraphernalia for mineral extraction cannot mean
proposal inappropriate (Europa).

13. Green Belt: planning balance
• Does “any other harm” mean only harm to the green belt (in addition to
harm by reason of inappropriateness)?
• River Club - “any other harm” within paragraph 3.2 of PPG2 included any
harm caused by the proposal, whether it was to the Green Belt or to other
interests.
• Redhill [2014] EWCA Civ 1386 - no change from PPG2. NPPF 88 “any
other harm” means what it says
– “Other considerations” (non-GB factors) must be included in the
weighing exercise
– “Sub-threshold” harms that alone would not justify refusal under the
NPPF remain material considerations and count against a grant.
• But CoA noted that there have been changes from PPG2, not all of them
acknowledged in the impact assessment.

14. Green Belt: Ministerial Statements
• Copas
– Statement that unmet need alone unlikely to outweigh harm to
Green Belt merely a “clarification” of national policy and not new
policy
• Moore & Coates
– 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

15. NPPF: Interpretation
R (May) v Rother District Council [2015] EWCA Civ 610
 JR of removal of a noise condition limiting hours of a MUGA
 NPPF, para.123 which required RDC to "mitigate and reduce to a minimum
other adverse impacts on health and quality of life arising from noise from
new developments", and that there was a real and substantial difference
between that requirement and Local Plan policy GD 1 (ii)
 Appellant’s approach wrong to treat the NPPF and the local policy as if they
were statutory texts
 Although there were textural differences they were no more than semantic
differences
 NPPF para.123 was to be interpreted as minimising noise as far as
reasonably practicable and, in fact, made clear that noise considerations did
not trump everything
 Once read in the light of a noise policy statement to which it cross-referred,
NPPF para. 123 was not materially different to the local policy

16. 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

17. 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

18. Development Plan-Making:
interpretation of saved policies
R (Cherkley Campaign Ltd) v Mole Valley District
Council [2014] EWCA Civ 567
• Reasoned justification of current LP is saved with the policies; but
• Whilst an aid to interpretation it does not have the force of policy and
cannot trump policy
Fox Land & Property Ltd v SSCLG [2015] EWCA Civ 298
• Proposals Map not policy but identifies the geographical area to
which policies applied; so
• It is relevant to a proper understanding and interpretation of policy in
the same way as the supporting text.

19. Development Plan-Making:
CIL charging schedules and local plan policies
R (Oxted Residential Ltd) v SSCLG [2015] EWHC 793 (Admin)
• Tandridge Core Strategy adopted 2008 based on old SE RSS
• Emerging Local Plan and CIL ChS
• No requirement for a recently adopted to be in place before a CIL
Charge Schedule is in place.
• While a CIL ChS should be consistent with and supported by an up-
to-date plan the Inspector’s departure was lawful
• No reason why an LPA could only produce a CIL ChS if it had
recently produced a local plan
• Alignment of the two might be a high priority but was not essential

20. Neighbourhood Development Plans
 We now have a body of case law dealing specifically with NDPs of
which the recent failed Larkfleet appeal [2015] EWCA Civ 597 is the
most important:
- BDW Trading [2014] EWHC 1470 (Admin)
- Larkfleet [2014] EWHC 4095 (Admin)/ [2015] EWCA Civ 597
- Gladman [2014] EWHC 4323 (Admin)
 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

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:
“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)”
Regrading “Sedgefield” v “Liverpool” approaches
-Note NPPG preference for “Sedgefield”
-BUT Lindblom J - neither approach prescribed or said to be preferable to the
other in government policy in the NPPF
-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

22. Housing: NPPF, para.47
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.

23. Housing: NPPF para.49
When is a policy a housing supply policy?
South Northamptonshire Council v SSCLG & Barwood
Land & Estates [2014] EWHC 573 (Admin): General policies to
restrict development and those designed to protect specific areas or
features?
Hopkins Homes v SSCLG & Suffolk Coastal DC [2015]
EWHC 132 (Admin): example of former - restricting new development
outside physical limits of settlements subject to exceptions
Cheshire East BC v SSCLG & Richborough Estates
[2015] EWHC 410 (Admin): example of the latter – green wedge

24. Housing: NPPF para.49
Weighting and NPPF paras. 49 & 14
Crane v SSCLG & Harborough DC [2015] EWHC 425
(Admin)
• Not a matter of law but of planning judgment.
• Critical question is whether the harm associated with the
development proposed “significantly and demonstrably” outweighs its
benefit, or that there are specific policies in the NPPF which indicate
that development should be restricted.
• Although less than 5-year HLS, conflict with NDP (as part of
development plan) a powerful and decisive factor against granting
planning permission – NPPF, para. 198.

25. Housing: NPPF para.49
When and to what should the presumption apply?
Woodcock Holdings v SSCLG [2015] EWHC 1173 (Admin)
 The Sayers Common appeal and Eric Pickles’ robust pre-election
decision-making in West Sussex
 Refusal by SSCLG on the ground of prematurity on emerging NDP
despite accepting Inspector’s views on planning merits
 The presumption in favour of granting permission for sustainable
development in NPPF para.49 applies to the housing supply policies
in a draft development plan, including a draft neighbourhood plan.
 It does not simply apply to a plan forming part of the statutory
development plan.

26. Housing: NPPF para.49
Changes in supply position – to re-open or not to re-open?
Wiltshire Council v SSCLG [2015] EWHC 1261 (Admin)
• After close of inquiry but before appeal DL issued LPA sends Core
Strategy report to PINS questioning required housing figure and
recommending lower one but not received by Inspector
• Patterson J finds that report is material consideration and that there
was a real possibility that the resolution might affect the outcome so
DL quashed
• There had to be some administrative mechanism for notifying an
inspector and enabling a decision letter to be recalled, supplemented or
amended. The administrative procedures in place were, in the
circumstances, not fit for purpose. Until the DL had been issued, the
responsibility for it remained with the inspector

27. 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.
See also Cheshire East BC v SSCLG [2015] EWHC 410 (Admin) –
matter entirely of planning judgment for Inspector not on other case
examples e.g. William Davis or Bloor

28. 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
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])

29. EIA: screening opinions
R(Mouring) v W Berks Council [2014] EWHC 203 (Admin)
• JR of pp for 800 sq.m warehouse & offices in AONB
• LPA relied on an automated questionnaire for EIA checks.
• Failure to consider whether “urban development project”
• consent quashed 2 yrs after grant even though building erected
R(CBRE Lionbrook) v Rugby BC [2014] EWHC 646 (Admin)
• JR of retail park development
• Proposal altered post screening and no further opinion given
• “Where it appears to the relevant planning authority” (Reg 7 of 2011
Regs) gave LPA discretion to judge whether changes called for a
fresh opinion and its decision not to require one here was “legally
impeccable”
• Lindblom J provides a useful survey of EIA jurisprudence [15]-[22]

30. EIA: screening opinions
R(Gilbert) v SSCLG & Harborough DC [2014] EWHC 1952 (Admin)
• JR of SSCLG’s negative screening direction and LPA’s grant of pp
for Bruntingthorpe Proving Ground removing noise limiting condition
• The precautionary principle must be considered in the light of the
stage of the decision-making process.
• LPA reasonably concluded there would be no significant impact on
the basis of the evidence at a 4-day enforcement inquiry and a 2-
year noise trial (with only 4 breaches of noise conditions).
• Screening opinion made clear that cumulative impacts were
considered and the reasons for it.
• Gilbert makes explicit what for a long time has been implicit in EIA,
namely, that consideration of likely significant effects requires a
precautionary approach (to be considered in light of the stage in the
process [43]). Appeal dismissed 03.03.15

31. SEA: business as usual?
No Adastral New Town v Suffolk Coastal DC [2015] EWCA Civ 88:
• Failure to conduct environmental assessment in first 4 years of plan
process found not to vitiate entire SEA process
• Any prior deficiencies cured by subsequent examination and public
consultation
Performance Retail Partnership v Eastbourne BC [2014] EWHC 102
(Admin): SEA not vitiated by lack of assessment of a minor modification
recommended by Inspector in EiP.
Ashdown Forest Economic Development v SSCLG & Wealden DC
[2014] EWHC 406 (Admin); Zurich Assurance v Winchester CC
[2014] EWHC 758 (Admin) : wide discretion to LPAs in SEA judgments
BUT in Satnam Millenium v Warrington BC [2015] EWHC 370
(Admin) claimant succeeded (in part) where a substantive failure to
comply with Sched.2 of 2004 Regs. on SEA of proposed LP mods.

32. Habitats
• Smyth v Secretary of State for Communities and
Local Government [2015] EWCA Civ 174
• Court of Appeal analysed case-law relating to the precautionary approach required
under the Habitats Directive
• Two important preliminary points:
– “Critical question” for the inspector whether the mitigation measures sufficient to
allow him to be sure that no significant in-combination adverse effects on area if
permission granted.
– The inspector’s art.6(3) inquiry informed by work done for the local authority +
further information (including from ecology expert) – thus, inspector well-placed
to consider screening assessment stage under the first limb of art.6(3). If
information properly enabled him to make screening assessment, not obliged to
require an “appropriate assessment” to be carried out under the second limb of
art.6(3).
• Standard of review in Habitats cases = Wednesbury

33. Nuisance
Lawrence v Fen Tigers [2014] UKSC 13
(1) The fact that a planning authority or other regulator takes the
view that an activity is acceptable should not affect private
property rights and common law nuisance claims should be
available to vindicate those rights.
“The grant of planning permission for a particular development does
not mean that that development is lawful. All it means is that a bar to
the use imposed by planning law, in the public interest, has been
removed.” Lord Neuberger at [89]

34. Nuisance
Lawrence v Fen Tigers [2014] UKSC 13
(1) The fact that a planning authority or other regulator takes the
view that an activity is acceptable should not affect private
property rights and common law nuisance claims should be
available to vindicate those rights.
“There is no principle that the common law should “march with” a
statutory scheme covering similar subject matter. Short of express
or implied statutory authority to commit a nuisance ... there is no
basis, in principle or authority, for using such a statutory scheme to
cut down private law rights.”
Lord Neuberger at [92], citing with approval Carnwath LJ in Barr v Biffa

35. Nuisance
Lawrence v Fen Tigers [2014] UKSC 13
(2) an award of damages in lieu of an injunction might be the
appropriate remedy in cases where the defendant’s nuisance-
generating activity has significant public interest dimensions
Departure from Shelfer:
“a person by committing a wrongful act (whether it be a public company
for public purposes or a private individual) is not thereby entitled to ask
the court to sanction his doing so by purchasing his neighbour’s rights,
by assessing damages in that behalf, leaving his neighbour with the
nuisance, or his lights dimmed, as the case may be.”

36. Air Quality
• In R(ClientEarth) v SSEFRA [2015] UKSC 28 the SC considered HMG’s
admitted failure to secure compliance with the air quality directive since
2010.
• Context: almost 30k premature UK deaths due to air pollution with Oxford
Street, London W1 having the highest NO2 levels in the world.
• CJEU answered questions referred by the SC re Arts. 13 (limit values), 22
(application to EC for compliance postponement) & 23 (air quality plans) on
14.11.14 (C/404/13).
• Compliance with NO2 limits not expected until 2025
• SC unanimously ordered that HMG must submit new air quality plans to the
EC by 31.12.15 and declared a breach of Art 13:
“The new Government, whatever its political complexion, should be left
in no doubt as to the need for immediate action to address this issue.”

37. Environmental Sentencing
• R v Thames, the Water Utilities Ltd [2015] EWCA Crim 960.
the 1st case sentenced under Env Offences Definitive
Guidelines.
• Guilty pleas to Reg 38(1)(a) and 39(1) of EP(E&W)Regs 2010
(re discharge of untreated sewage from pumping station into
an AONB brook for 5 days despite alarm).
• CoA noted that fines were to be calculated according to size
of organisation, culpability and harm caused.
• £250k considered proportionate considering TW’s profits and
“to bring the message home to the directors and shareholders …
sufficient to have a material impact on the finances of the company”

38. The Conservative Government
• Generally “continuity in planning” BUT
• Sir Eric Pickles leaves, Greg Clark returns
• Brandon Lewis stays as Planning Minister
• Other CLG Ministers change – northern
emphasis
• Amber Rudd in Energy and Climate Change
AND …

39. Still more new legislation
• Housing Bill
– Prioritisation of brownfield – register
– Neighbourhood planning changes
• Cities and Local Government Devolution Bill
– City regions
• Energy Bill
– Removal of onshore wind from NSIPs
N.B. See also recent changes to NPPG following Ministerial
Statement (18 June) over LPA determinations and further
Ministerial Statement (23 June) to bring an early end to a key
subsidy for developers of onshore wind farms.

40. And other reforms
• Compulsory purchase – technical consultation
and/or wider reform?
• Travellers policy
• Extension of office to residential?
• Development consent order refinements
• Speeding up planning obligations
• Garden cities

41. Calling time …

42. Stephen Tromans QC John Pugh-Smith
Victoria Hutton and Jon Darby
39 Essex Chambers
London & Manchester
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