T'was the last working day before Christmas: A Festive Case-Law (and CIL) round-up
It is my last working day before Christmas, and the emails are blessedly quiet, so what better way to celebrate the imminent festivities than a case-law* round-up.
Below you will find a cracker's worth of cases that that I found interesting; and which may have got a little lost in the last few weeks' flurry of festive policy announcements.
We start in the Administrative Court, with Mr Justice Mould's decision in Save Our Southbank v Secretary of State for Housing, Communities and Local Government & Ors [2024] EWHC 3326 (Admin).
The case centres on Michael Gove's decision, in February of this year, to grant planning permission for the demolition and redevelopment of the London Television Centre into offices, a culture & innovation hub and retail and restaurant/ cafe uses.
The decision drew attention at the time for a variety of reasons - including how it played into the “beauty” agenda that was very much in vogue under the last administration.
Save our Southbank challenged the decision on four grounds:
- Heritage: in particular, if the First Defendant failed to provide adequate reasons for his conclusions over whether the scheme would preserve the heritage significance of St Paul's Cathedral, Waterloo Bridge and five conservation areas.
- Interpretation of development plan policy: namely, whether the relevant policies of the London Plan and the Local Plan required that a planning application for the site include an element of housing.
- Retention of the existing building: in particular, if the Secretary of State was required to consider whether the existing building on the site could be retained to deliver residential uses as part of the Circular Economy; and
- Tall buildings: namely, whether the Secretary of State's conclusion that the northern part of the site was an appropriate location for a tall building was “irrational, inadequately explained or made without proper regard to his own findings”
The claimant lost on all grounds.
This is a judgment best read in full, but in case you don't have the time; the concluding paragraphs rejecting each ground are set out below:
Ground 1: Heritage
"56. In conclusion, I reject ground one. The Claimant has not established that the First Defendant’s reasons in DL27 were legally inadequate. Read in the context of DL23-DL28 as a whole, DL27 adequately explains the First Defendant’s acceptance of and agreement with the inspector’s conclusions in her report that the scheme would not result in harm to the significance of St Paul’s Cathedral, Waterloo Bridge, or to the Old Barge House Alley, Whitefriars, Waterloo, Temple or Strand Conservation Areas. The fact that the Strand Conservation Area is not named in DL27 does not affect that conclusion, since that heritage asset is one of those considered by the inspector in IR14.50-14.61: specifically, in IR14.53-4.
57. There is no inconsistency in the First Defendant’s reasoning or conclusions in DL23-DL28. In particular, in accordance with both national planning policy and his duties under section 66(1) and 72(1) of the LBA 1990, his purpose in those paragraphs was to identify those designated heritage assets which would be harmed by the scheme and to form a judgment as to the degree of that harm in each case. He summarised his findings on those matters in DL28. The absence of an explicit statement in DL27 of his agreement with the inspector’s conclusions that the scheme would not cause harm to the other heritage assets therein mentioned, does not raise any real doubt as to the fact that the First Defendant did accept and agree with those conclusions. On the contrary, the obvious and natural inference is that he did indeed accept them, leading to his overall conclusions on the main issue of the impact of the scheme on designated heritage assets being those stated in DL28. "
Ground 2: Interpretation of Development Plan
"92. In summary, for the reasons I have given I do not accept that on a proper interpretation of policies H1(B), H1(F) and D3(A) of the London Plan, read in combination with policy H1 and site allocation 9 of the Local Plan, there was a policy requirement that development of the site must include delivery of housing.
93. Those policies are to be understood and applied in the context of policy SD5 of the London Plan which set out clear policy priorities for the development and use of land in the Central Activities Zone (CAZ). In her assessment of the scheme’s performance against those policies in IR14.160-14.163 of her report, it was reasonable for the inspector in the exercise of her planning judgment to follow that approach. In giving greater weight to the policy priorities for the CAZ, the inspector is not to be taken to have misunderstood the policy priorities for optimising housing delivery in policies H1 of the London Plan and the Local Plan. Nor did she misunderstand the policy objective of ensuring that the capacity of the site was optimised by delivering the most appropriate land use. Nor did she fail to give a proper contextual interpretation to the preferred use stated in site allocation 9 of the Local Plan. The presumption that she correctly understood the applicable development plan policy framework is shown to be justified. It follows that the First Defendant did not fall into legal error in founding his decision on the inspector’s conclusions in IR14.160-14.163 of her report."
Ground 3: Retention of Existing Building
"105. In the light of my conclusions on ground two, the premise upon which this ground is founded has not been established. The First Defendant did not misinterpret the policies of the development plan in accepting the inspector’s conclusion that delivery of housing was not required as a necessary element of the mixed-use development proposed by the scheme. For the sake of completeness, I should state that I can find no fault with the inspector’s reasoning and conclusions on the issue of compliance with the circular economy policy set out in policies D3 and SI7 of the London Plan and explained in the hierarchy set out in the Guidance. On the premise that the mix of uses proposed by the scheme was in accordance with the development plan as a whole, the case against retention and re-use of Kent House for office accommodation was properly accepted by the inspector and the First Defendant.
106. Conversely, had I accepted the Claimant’s contentions on ground two and concluded that, on a proper understanding of the policies of the London Plan and the Local Plan, there was a policy requirement that housing must be delivered as part of a mixed use development of the site, I should have accepted the argument that proper consideration must also be given to the case for retention and re-use of Kent House for the delivery of housing as part of such a development. It is clear that in that alternative scenario, such consideration would be needed in order to comply with policies D3 and SI7 of the London Plan and in the light of the Guidance. At the very least, the Claimant’s case on this ground would have reinforced the case for granting relief on ground two and quashing the First Defendant’s decision, had I found ground two to be made out."
Ground 4: Tall Buildings & Irrationality
"144. The First Defendant's conclusion on the scheme's performance against policy Q26 of the local plan is therefore clearly stated and sufficiently explained. Although the location of the north building was appropriate for tall building development, the north building resulted in some conflict with policy Q26 by virtue of its design, visual impact and wider townscape effects. There is no inconsistency in these findings, when they are properly understood as a response to the various considerations raised by policy Q26. How those considerations were best addressed was a matter for the First Defendant. He chose to address them in the same order as the inspector in her report. That was a reasonable approach for him to take.
145. It follows, in my judgment, that the First Defendant's findings in DL 19-22 have not been shown to be irrational or internally inconsistent. Those findings are adequately explained. The First Defendant did not lose sight of his finding in DL21 that there would be some conflict with policy Q26 of the Local Plan. On the contrary, he drew the overall planning balance on the basis that the scheme gave rise to some conflict with that policy. The Claimant does not seek to challenge the First Defendant's judgment in DL34 that there was compliance with the development plan taken as a whole."
Waverley v Secretary of State for Levelling-Up, Housing & Communities
The second High Court case of the day is Waverley Borough Council v Secretary of State for Levelling Up, Housing and Communities & Anor [2024] EWHC 3302 (Admin).
This is a s.288 Appeal against the Planning Inspectorate's decision to grant permission, on appeal, for fifty-three new homes on land located within the setting of the Surrey Hills National Landscape ("SHNL").
The challenge proceeded on a single ground. Namely that the Inspector failed to take into account a material consideration when determining that the development would not have a harmful adverse effect on the setting of the SHNL. In the alternative, it was argued that the Inspector did not give adequate reasons for making this decision. The material consideration in question related to the harmful impact of the development on views from a specific footpath to the east of the site.
The claim failed. The Court found that:
"48. In the present case, the Inspector’s decision is set out with clarity. The Inspector addresses the relationship with the SHNL in paras 15-18. His assessment draws on his site visit and explains the judgments he has reached. He is careful to relate his conclusions to para 182 of the NPPF and the applicable development plan policy (RE3 of Local Plan I).
49. His evaluation of the impact on the character and appearance of the area is, as the First Defendant submits, a distinct exercise. He explains his conclusions as to the harmful impacts in paras 20-22 of DL. In para 23, he drew the threads together stating: “Notwithstanding my conclusions regarding the SHNL and trees as outlined above, the proposed development would have a harmful effect on the character and appearance of the area”. The Claimant’s case that the Inspector has ignored his judgment on the impact of the character and appearance of the area in reaching his judgment on the relationship with the SHNL is inherently implausible and does not survive a fair reading of DL.
50. In my judgment, the Claimant’s reasons challenge adds nothing. It is prefaced on an assertion that there is a gap in the Inspector’s reasoning by failing to explain the discrepancy between his conclusions on the impact of the SHNL via its setting and his conclusions in respect of the character and appearance of the area. However, for the reasons I have given there is no logical gap to fill. He dealt with the relationship with the SHNL distinctly from his assessment of the impact on the character and appearance. The factors identified above (topography, vegetation, distance and the potential design response of the Development secured at the reserved matters stage) explain his approach to the relationship with the SHNL. The Inspector has stated his conclusions on the principal controversial issues and there is no scope for doubt as what he has decided. He has given adequate reasons for his decision applying the relevant principles as encapsulated in para 36 of the speech of Lord Brown in South Buckinghamshire CC v Porter (No 2) [2004] 1 WLR 1953"
Jones v Wrexham Borough Council
Next, we visit the Court of Appeal's decision in Jones v Wrexham County Borough Council & Ors [2024] EWCA Civ 1603.
The case considers whether a Welsh Local Planning Authority is legally bound to adopt a local plan where an Inspector has recommended that they do so.
The Court of Appeal found that they are not. In the final substantive paragraph of the decision, the Court concluded that:
“155. For the reasons set out above, the PCPA 2004 does not impose a duty on a LPA in Wales to adopt a LDP which, following the examination process, the Inspector has recommended for adoption. It follows that the resolutions passed by WCBC on 19 April 2023 and 14 June 2023 were not unlawful. I would therefore allow this appeal and dismiss the third to ninth respondents’ claim for judicial review”
The decision itself is utterly fascinating. I won't quote the relevant paragraphs, as this blog is already long enough, but the judgment contains both a direct comparison between the Planning and Compulsory Purchase Act 2004 as it applies in England, and as it applies in Wales; and a historical analysis of how Welsh and English planning law came to diverge. Whilst the question at the heart of the decision is unlikely to crop up that often in day-to-day practice, for those of us who are just interested in planning as a discipline, the judgment is worth spending some time with.
When is an annex not an annex: When it is not a dwelling
Last, but by no means least, a quick trip to the VOA CIL Appeals archive, for a rather useful anonymised Appeal Decision.
Unlike the Court of Appeal decision, I refer to above, this decision is capable of wide practical application. I promise.
VOA Appeal Ref: 1851887 related to a planning permission that was granted for the “construction of a tennis court, including fencing, outbuilding and swimming pool”.
The charging authority were claiming that the “outbuilding” was capable of being used as a dwelling or a residential annex and therefore should be CIL liable.
The applicant, perhaps unsurprisingly, appealed on the basis that:
- the outbuilding was a sports pavilion, not a dwelling
- Its floor area was under 100 sqm and therefore fell within the “Minor Development Exemption” contained in Reg. 42; and
- that the CIL regulations are concerned with the planning permission that was actually granted, not the theoretical uses to which the development might be put at some future point.
The Appointed Person deciding the appeal sided with the applicant, finding that:
"18. Regulation 9 defines the chargeable development as, “the development for which planning permission is granted.” The development permitted was for the construction of a tennis court, outbuilding and swimming pool. There is no reference to either a dwelling or an annex within the planning permission nor permission for the residential use of the outbuilding. The approved plans describe the outbuilding as a tennis pavilion and it is evident from these plans the building has been designed to complement the sporting facilities also planned as part of this permission.
19. In order for Regulation 42(1) not to apply (as it agreed the area of the chargeable development is well below 100 square meters) the development must be seen to constitute a dwelling under the definition for CIL purposes. That definition is contained in Regulation 2 which states a dwelling “means a building or part of a building occupied or intended to be occupied as a separate dwelling”. Given the above, I do not consider the chargeable development to constitute a dwelling. Many buildings have a sink, toilet and shower, but this does not make them a dwelling/annex nor permit them to be used as such. The Regulations do not make reference to accommodation that could be used as a separate dwelling to be deemed as one.
20. Consequently, CIL Regulation 42 (1) does apply and the development is
considered minor development. As it is my considered view that the outbuilding does not constitute a new dwelling, then Regulation 42 (2) does not apply.
21. The CAs reliance upon Regulation 42A is misplaced as this relates to a separate exemption for residential annexes or extensions that has to be applied for. It does not define what a dwelling is under Regulation 42."
Twas the last working day before Christmas
And finally, a festive poem, to celebrate the official start of the holidays:
Twas the last working day before Christmas, and all through the land
Email traffic was quiet: Yes, even the spam
The out-of-office was on. It was drafted with care,
In hopes that JRs won't be served whilst we are not there.
The HR Team had logged off;
Accounts had more than enough,
and I was dealing with training, case-law updates and stuff
When into my inbox there dropped such a clatter,
That I logged onto MHCLG's website to see what was the matter.
No more announcements I pleaded, with my head on my desk From those darn working papers, I just need a rest!
There is far too much for my brain to absorb,
Let's wait til the New Year - for now please no more!
My festive prayers were answered, Santa granted my wish;
It was just funding announcements, though it was quite the list!
So it just goes to say, ere I dive out of sight
“Happy Christmas to all, and to all a good night!”
*and one handy VOA appeal decision
19. In order for Regulation 42(1) not to apply (as it agreed the area of the chargeable development is well below 100 square meters) the development must be seen to constitute a dwelling under the definition for CIL purposes. That definition is contained in Regulation 2 which states a dwelling “means a building or part of a building occupied or intended to be occupied as a separate dwelling”. Given the above, I do not consider the chargeable development to constitute a dwelling. Many buildings have a sink, toilet and shower, but this does not make them a dwelling/annex nor permit them to be used as such. The Regulations do not make reference to accommodation that could be used as a separate dwelling to be deemed as one.”
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