12.09.2024

AI at Appeal, The London Legacy Development Corporation, a raft of secondary legislation and some case law....

Well, I knew it would be a busy start to the Autumn, but I wasn't expecting it to be quite this eventful.

From PINs guidance on the use of Artificial Intelligence in Planning Appeals, to changes at the London Legacy Development Corporation, a new set of Supreme Court Rules and a raft of further secondary legislation…. Here is a recap of just a few of the things that have happened in the last seven days.

PINs issue guidance on the use of AI in planning appeals

On 6 September, PINs issued new guidance on the use of AI in preparing and running planning appeals. 

The keys parts of the guidance for practitioners are reproduced below:

"If you use AI to create or alter any part of your documents, information or data, you should tell us that you have done this when you provide the material to us. You should also tell us what systems or tools you have used, the source of the information that the AI system has based its content on, and what information or material the AI has been used to create or alter.    

In addition, if you have used AI, you should do the following:  

• Clearly label where you have used AI in the body of the content that AI has created or altered, and clearly state that AI has been used in that content in any references to it elsewhere in your documentation.  
• Tell us whether any images or video of people, property, objects or places have been created or altered using AI.  
• Tell us whether any images or video using AI has changed, augmented, or removed parts of the original image or video, and identify which parts of the image or video has been changed (such as adding or removing buildings or infrastructure within an image).   
• Tell us the date that you used the AI. 
• Declare your responsibility for the factual accuracy of the content.  
• Declare your use of AI is responsible and lawful.  
• Declare that you have appropriate permissions to disclose and share any personal information and that its use complies with data protection and copyright legislation.     

By following this guidance, you will help us, our Inspectors, and other people involved in the appeal, application or examination to understand the origin, purpose, and accuracy of the information. This will help everyone to interpret it and understand it properly"

The full guidance can be found here

Planning Powers to be removed from London Legacy Development Corporation

On Wednesday, a new statutory instrument was published, winding up the planning functions of the London Legacy Development Corporation (LLDC). The full statutory instrument can be found here.

The London Legacy Development Corporation (Establishment and Planning Functions) (Amendment and Revocation) Order 2024, comes into effect on 1 December 2024 and does two things:

1. It reduces the geographical area of the LLDC significantly. I haven't seen the revised map as yet, but the explanatory memorandum, suggests that it may reflect the boundary of the Queen Elizabeth Olympic Park, for which the LLDC will retain management and oversight responsibilities.
2. It returns all planning powers currently held by the LLDC to the London boroughs of Hackney, Newham, Tower Hamlets and Waltham Forest from 1 December 2024.

As you may expect, there are significant transitional provisions set out in the schedule to the order relating to the transition of planning powers. A very high-level summary of some of the more common scenarios are set out below, but if you are affected by the change, please do look at the source material or seek specific advice:

• Any planning applications being considered by the LLDC, which have not been determined by 1 December 2024, will be automatically transferred to the successor authority for determination. 
• Any planning appeals that have not been determined by the transition date, will also automatically transfer to the successor authority, who becomes the LPA for the purposes of the appeal.
•  Where a right to compensation has arisen from the exercise of planning functions by the LLDC, as a general rule, the requirement to pay that compensation will remain with the LLDC
• Any s.106 Agreements entered into by the LLDC before the transition date will be enforceable by the successor authority.
• There are also transitional provisions relating to the transfer of local plans, neighbourhood plans and other policy documents, which are worth looking at if you are active in the area 

New statutory instruments on CPO changes issued

On Monday, the government also issued two new statutory instruments relating to CPO changes:

• The Land Compensation (Additional Compensation) (England) Regulations 2024 which come into effect on 1 October 2024; and
• The New Towns (Compulsory Purchase of Land) (Amendment) Regulations 2024, which also come into effect on 1 October 2024.

Now, I have not scrutinised these orders in detail, but the explanatory memoranda published alongside them explain them as follows:

The Land Compensation (Additional Compensation) England Regulations 2024 
"4.1 Existing law allows public authorities (known as “acquiring authorities”) to acquire land without the consent of the owner via the making of a compulsory purchase order (CPO) in accordance with statutory procedures and providing there is a compelling case in the public interest. When making a CPO, certain acquiring authorities such as local authorities, Homes England and Development Corporations may include in the order a direction (“a section 14A direction” made in accordance with section 14A of the Land Compensation Act 1961 (“the 1961 Act”)) which restricts the assessment of 
compensation for the value of land taken by not allowing value to be attributed to: 

•  appropriate alternative development as described in section 14 of the 1961 Act, or 
•  the prospect of a planning permission being granted (section 14(2)(b) of the 1961 Act). 

The power to make a section 14A direction was introduced by section 190 of the Levelling-Up and Regeneration Act 2023 (“the 2023 Act”). 

4.2 To be eligible to include a section 14A direction in a CPO, the acquiring authority’s scheme underpinning the CPO must be facilitating either affordable housing, health or educational development. 

4.3 Where a CPO which includes a section 14A direction is confirmed, the acquiring authority may proceed to acquire the land and the assessment of compensation for the land taken will be undertaken in accordance with the section 14A direction. Following acquisition of the land, if the acquiring authority’s use of the land is not materially in accordance with the authority’s stated intentions, the Secretary of State may, on an application made by a person who was entitled to compensation in respect of the acquisition (an “eligible person”), make a direction for additional compensation providing certain conditions have been met. Where a direction for additional compensation is made, the additional compensation which is to be paid will relate to the value of land taken without application of the section 14A direction. 

4.4 This statutory instrument allows eligible persons, when submitting their claims for additional compensation, to include an amount to make good financial losses (“qualifying losses”). Qualifying losses are those losses suffered by an eligible person as a consequence of a CPO being confirmed with a section 14A direction included and not receiving the full market value for their land. This instrument also establishes: 

• the procedure for making applications for directions for additional compensation.
• the procedure for making claims for the payment of additional compensation (including provision about the costs of such applications or claims).
•  the steps to be taken for publicising or giving notice of a direction for additional compensation. 
•  the rate of interest to be applied to amounts of additional compensation which are payable; and 
• how or when additional compensation (and any interest) is to be paid. 

The New Towns (Compulsory Purchase of Land) (Amendment) Regulations 2024

"4.1 As part of the compulsory purchase order (“CPO”) process under the New Towns Act 1981 (“the 1981 Act”), New Town Development Corporations, local highways authorities and the Secretary of State must issue certain documents at different stages of the CPO process. The information which must be included in these documents is set out in secondary legislation (known as prescribed forms). 

4.2 This statutory instrument inserts new prescribed forms in the New Towns 
(Compulsory Purchase of Land) Regulations 1977 (“the 1977 Regulations”) for 
compulsory acquisitions of land in England to give effect to a reform introduced through section 190 of the Levelling-up and Regeneration Act 2023 (“the 2023 Act”) as it relates to England."

New statutory instruments on heritage assets in Wales issued

For those who practice regularly in Wales, we have also seen a string of new statutory instruments addressing a wide range of changes to the legal regime for historic assets.

I am not dealing with these in any detail*, but the links to each are below. Handily, they ALL come into force on 4 November 2024:

• SI 2024/932 - The Applications for Scheduled Monument Consent (Wales) Regulations 2024 
• SI 2024/930 - The Listed Buildings and Conservation Areas (Procedure and Interest Rate) (Wales) Regulations 2024 
• SI 2024/929 - The Scheduled Monuments (Partnership Agreements) (Wales) Regulations 2024  
• SI 2024/927 - The Listed Buildings (Exempt Religious Buildings) (Wales) Regulations 2024 
• SI 2024/926 - The Listed Buildings (Partnership Agreements) (Wales) Regulations 2024 
• SI 2024/924 - The Historic Environment (Wales) Act 2023 (Consequential Provision) (Secondary Legislation) Regulations 2024 

Some interesting case law and other bits and bobs…

And last, but definitely not least, we have had some interesting High Court decisions in the last seven days, as well as a new set of Supreme Court Rules.

As the Supreme Court Rules will only be of interest to other lawyers, I am just going to say that you can find them here and they take effect on 2 December 2024. 

Now, onto the cases:

Friends of the West Oxfordshire Cotswolds, R (On the Application Of) v West Oxfordshire District Council** 

On 6 September 2024, the High Court handed down a decision in the latest Friends of the West Oxfordshire Cotswolds Judicial review. The full judgment can be found here.

It is worth reading in full as the judgment very handily reviews a great deal of caselaw surrounding the Whitely principle and whether pre-commencement conditions go to the heart of a consent or not. 

The key question, however, centred on whether you can use a s.73 application to vary the conditions on a planning permission that had lapsed before the s.73 permission had been granted. 

The Court's answer to this question was “No”.

The key reasoning for this is set out in paragraphs 106 to 113 of the Judgment, which I am not going to repeat, because this is already a very long blog, but I thoroughly recommend taking some time to go through it. It is a fascinating read!

Tesco Stores Ltd, R (On the Application Of) v Reigate and Banstead Borough Council

Our second case of the week is Tesco Stores Ltd, R (On the Application Of) v Reigate and Banstead Borough Council [2024] EWHC 2327, which sees the return of both Store Wars and highlights some of the issues that can arise when an application is not determined in line with the officer's recommendation.

The case concerns an application for a Lidl which was granted by members at committee against the recommendation of the officer.  It is challenged on two grounds, both of which arose out of how the members discussed, and the officers recorded, their reasons for departing from the officer's advice.

Again, I would read it in full, as it is very helpful guide to how these situations should be approached, but if you don't have time to review it all, paragraphs 87, 89 and 90 are particularly illuminating:

"87. Fourth, I do not regard the Claimant's attempt to infer a legal error by members because officers had reached a different overall judgment to be well-founded. In my judgment, members could lawfully reach a different overall view in relation to the harm caused to the setting of the War Memorial (along with the locally listed public house) and whether that harm was requisitely outweighed by benefits whilst at the same applying the correct legal approach that members had been advised to of attaching considerable importance and weight to any harm to the setting of the War Memorial (as well as to the harm to the locally listed public house).

…

89. The error in the Claimant's approach is to assume that the correct application of that legal approach is somehow inconsistent with the members reaching their own judgment as to the nature and extent of harm caused to the setting and the balancing exercise that was conducted. Far from demonstrating any legal error of approach, I consider both the tenor of the debate, as well as the comments relied upon by the Claimant when read in context, to demonstrate members properly engaging with that exercise. So, for example, expressing views as to the effects of the existing busy road on the setting of the War Memorial, or in the case of the locally listed building, considering its condition are consistent with members giving careful consideration to the proposal and its effects, in the context of the clear advice they had been given as to how to go about that exercise. Members were entitled to reach different judgments without there being any necessary inferred departure from the advice to give considerable importance and weight to any harm to a heritage asset like the War Memorial.

90. Sixth, for the reasons I have already foreshadowed above, I consider the Claimant's criticisms of the comments made during the debate to be artificial in light of the caution one should exercise in reading comments made in a debate of this kind. The mere fact that some councillors' contributions were limited to comments about the locally listed pub does not, in my judgment, mean that one can reasonably infer that they have failed to take account of the War Memorial, or indeed any of the other matters that they would have had to consider. ….  I consider that sort of forensic approach to such comments to be contrary to the principles set out in Mid-Counties."

 

*this post is already VERY long…. and will get longer…

**[2024] EWHC 2291 (Admin) 

If you use AI to create or alter any part of your documents, information or data, you should tell us that you have done this when you provide the material to us. You should also tell us what systems or tools you have used, the source of the information that the AI system has based its content on, and what information or material the AI has been used to create or alter.”