Annual Planning

ANNUAL PLANNING SEMINAR

Monday 4th March 2024

Eastside Rooms, Woodcock Street, Birmingham, B7 4BL

Annual Planning

Monday 4th March 2024

Eastside Rooms, Birmingham

Contents

Section 1

Members List Page 1

Programme Page 3

Section 2 – Page 25

The Levelling-up and Regeneration Act 2023 and the New National Planning Policy Framework – “Planning for the Future”?

Christopher Young KC, No5 Barristers’ Chambers; James Corbet Burcher, No5 Barristers’ Chambers; Sioned Davies, No5 Barristers’ Chambers

Section 3 – Page 62

Judicial Review Case Law Update: Judicial Review of Planning Decisions: How to Protect Grants of Permission… or Challenge Them

Hugh Richards, No5 Barristers’ Chambers; Howard Leithead, No5 Barristers’ Chambers

Section 4 – Page 85

Climate Change: Renewable Energy, Net Zero and Sustainability

Thea Osmund-Smith, No5 Barristers’ Chambers; Odette Chalaby, No5 Barristers’ Chambers

Section 5 – Page 115

Biodiversity Net Gain

Scott Stemp, No5 Barristers’ Chambers; Jessica Allen, No5 Barristers’ Chambers

Section 6 – Page 142

Employment and Logistics

Peter Goatley KC, No5 Barristers’ Chambers; Daniel Henderson, No5 Barristers’ Chambers; Christian Hawley, No5 Barristers’ Chambers

Section 7 – Page 166

Housing Appeals Update and Section 288 Case Law Update: Key Themes from Recent Cases

Satnam Choongh, No5 Barristers’ Chambers; Leanne Buckley-Thomson, No5 Barristers’ Chambers

MembersList PlanningandEnvironment Group

To view or download members CVs please visit No5.com

PeterGoatleyKC (Silk:2020Call:1992)

CliveNewberryKC (Silk:1993Call:1978)

RichardHumphreysKC (Silk:2006Call:1986)

PaulCairnesKC (Silk:2016Call:1980)

RichardKimblinKC (Silk:2016Call:2016)

ChristopherYoungKC (Silk:2018Call:1997)

PhilipRuleKC (Silk:2023Call:2001)

GordanWignall (1987)

HughRichards (1992)

SatnamChoongh (1994)

TimSheppard (1995)

ScottStemp (2000)

JackSmyth (2007)

RowenaMeager (2007)

LeanneBuckley-Thompson (2009)

TheaOsmund-Smith (2010)

JamesCorbetBurcher (2011)

ChristianHawley (2013)

HowardLeithead (2014)

JessicaAllen (2019)

SionedDavies (2019)

OdetteChalaby (2021)

DanielHenderson (2021)

TimothyJones* (1975)

DouglasArmstrongKC* (1990)

Annual Planning

Monday 4th March 2024

Eastside Rooms, Birmingham

Programme

4 CPD

9:00 – 9:50

9:50 – 10:10

Registration and Refreshments

Welcome address

Peter Goatley KC

10:10 – 11:10

11:10 – 11:40

11:40 – 12:20

The Levelling-up and Regeneration Act 2023 and the New National Planning Policy Framework – “Planning for the Future”?

Christopher Young KC, James Corbet Burcher, Sioned Davies

Refreshment break

Judicial Review Case Law Update: Judicial Review of Planning Decisions: How to Protect Grants of Permission… or Challenge Them

Hugh Richards, Howard Leithead

12:20 – 13:00

Climate Change: Renewable Energy, Net Zero and Sustainability

Thea Osmund-Smith, Odette Chalaby

13:00 – 14:30

Lunch

14:30 – 15:10

Biodiversity Net Gain

Scott Stemp, Jessica Allen

15:10 – 15:50

Employment and Logistics

Peter Goatley KC, Daniel Henderson, Christian Hawley

15:50 – 16:30

Housing Appeals Update and Section 288 Case Law

Update: Key Themes from Recent Cases

Satnam Choongh, Leanne Buckley-Thomson

16:30 – 16:45

Q&A followed by drinks

Peter Goatley KC Planning and Environment

Year of Call: 1992 | Year of Silk: 2020

Email Clerks: planning@no5.com

Peter Goatley KC was called to the Bar in 1992 having previously been a partner in a medium sized commercial solicitors practice.

He acts for a wide range of clients including developers, retailers, construction companies, community groups, house builders, local authorities and government agencies. He specialises in planning and environmental work and has signifcant expertise in both public inquiries and High Court litigation including judicial review and statutory challenges. He is joint head of the Planning Group at No5 Chambers and is a regular contributor to its conference and seminar programme. He also provides in-house training on planning and environmental matters to Planning Consultancies, Solicitors, local authorities and professional bodies.

Public Inquiries

Peter Goatley regularly appears at public inquiries throughout England and Wales. In respect of housing, often this includes the detailed examination of objectively assessed need, housing land supply and affordable housing provision. Peter is also presently promoting three Garden Villages.

Among his recent notable public inquiries are:

-Thorpe Road, Station Road, Earls Barton decision (APP/H2835/A/14/2221102) – successfully persuaded the Secretary of State to grant planning permission (post Woodcock) notwithstanding the advanced stage of a neighbourhood development plan,

-Leonard Stanley decision (APP/C1625/A/13/2207324) resulted in the successful promotion of 150 new dwellings despite an argument that the development would involve a “valued landscape”. This was resolved in the Stroud High Court case (see below),

-The successful promotion of up to 215 dwellings including access at Middlegate Road West, Frampton, Kirton, Boston (PINS Ref: APP/Z2505/W/17/3170198),

-The successful promotion of up to 85 dwellings, associated access, parking, landscaping, public open space and associated works at land north of Ross Road, Newent (PINS Ref: APP/P1615/A/14/2228822). This also satisfactorily resolved the NPPF paragraph 134 issue in the Forest of Dean case (see below),

-The successful promotion of 95 dwellings at Olney Road, Lavendon, Milton Keynes (PINS Ref APP/Y0435/ W/17/3182048),

-The successful promotion of a site at Marlborough Road, Wroughton for 103 dwellings, despite the then very recently issued Written Ministerial Statement on Housing and Neighbourhood Development Plans (PINS Ref: APP/U3935/ W/16/3147902),

-The successful promotion of the land at New Yatt Road, North Leigh, Oxfordshire, for development of up to 76 dwellings (PINS Ref: APP/D3125/W/15/3136376),

-The successful promotion of Marriage Hill Nurseries Bidford on Avon for 75 dwellings (PINS Ref: APP/J3720/ W/15/3010653),

- Successfully persuading the Secretary of State to grant planning permission for 270 dwellings at Burford Road, Witney, West Oxfordshire (PINS Ref: APP/D31225/W/15/3005737),

-The successful promotion of an extension to provide additional class A1 retail foorspace at Waterton Retail Park,

Waterton, Bridgend, CF31 3TN (PINS Ref: APP/F6915/A/17/3167313),

- Crematoria development in Staffordshire and Hertfordshire,

- Renewable energy - including windfarms and turbines (at Coleford, Bottesford, Haversham and Asfordby) biomass (including Barton power station), solar (South Gloucestershire and Tewkesbury) and anaerobic digestion (Atherstone),

- Highways - including A500 Pathfnder Scheme and Temple Sowerby bypass,

- Motorway Service Areas – including those on the M42, M5, M6 and A1/M1,

- Odour and noise impact related developments.

Local Plan Examinations

Peter has been involved in many Local Plan examinations including, recently:

- The West Oxfordshire Local Plan

- North Hertfordshire Local Plan

- Melton Mowbray Local Plan

- Luton Local Plan

Recommendations

“Peter is really detail-orientated and forensic, with an eye for the detail.”

Chambers UK 2023

“Peter is really easy and approachable. He provides pragmatic and sensible advice that the clients can understand easily.”

Legal 500 2023

“Peter has an amazing ability to assimilate information and present his case in a frst-class manner.” “A star performer in terms of commercial ability and advice.”

Chambers UK 2022

“He is very easy to work with, really good with the clients, ‘user friendly’ as well as having a frm grasp of the issues and being a really good advocate. He’s got it all really.”

Legal 500 2022

“He is extremely knowledgeable and commercial in his approach to planning cases.” “An excellent advocate in all situations. He gives great commercial advice and is a reliable tactician.”

Chambers UK 2021

“His communication skills are excellent: he is able to avoid technical jargon, and puts clients at ease. He readily understands complex technical data and arguments.” “He gives very commercial advice and is very aware of clients’ needs: he gives a very balanced and realistic view of the merits of a certain course of action.”

Chambers UK

Receives praise for his impressive range of experience and his track record in large-scale renewable and infrastructure work. Sources highlight his advocacy and his detail-oriented approach. “He’s accessible, user-friendly, quick-thinking and generous with his time.” “I’ve been impressed with him in inquiries. He conducts himself very well and has a very good manner.”

Chambers UK

“His attention to detail and his arguments were completely sound, and in court he was well prepared and well presented.”

Chambers UK

Vastly experienced junior Peter Goatley operates extensively out of all three of No5 Chambers’ offces. He wins extensive client praise, particularly for his appellate work as “he always achieves a good working relationship with the team and provides practical guidance. He is able to assimilate extensive amounts of information and is always thoroughly prepared for the case. In addition to pure legal advice, he is willing to give pragmatic and tactical advice. He has extensive experience and detailed knowledge of the various technical areas connected with planning, such as noise and highways, and he is very effective in cross-examination, having a frm, measured, but non-aggressive approach to cross-

examining witnesses. Planning inspectors greatly appreciate his approach and contributions.” Chambers UK

Peter Goatley is ‘a go-to barrister for planning and judicial review’.

Legal 500

Notable Cases

Stroud DC v SoS [2015] EWHC 488 (Admin)

Leading decision upon what constitutes a “valued landscape” pursuant to paragraph 109 of the NPPF. Peter successfully argued that this required a site to have “demonstrable physical attributes”.

R(Crematorium Management) v Welwyn Hatfeld DC [2018] EWHC 382 (Admin)

Successfully quashed a grant of planning permission for a new crematorium where the offcer’s report signifcantly misled members as to the extent of available crematorium capacity in the locality

Codex Land Promotion Ltd v SoSCLG and Wychavon DC

2016

Successfully argued (on behalf of the LPA) that the Appellant was required to comply with a Grampian condition requiring a link to the adjacent site. This was also the subject of subsequent litigation in CO/6516/2016 in which the Planning Court also upheld the local authority’s argument.

Forest of Dean District Council v SOSCLG and Anor [2016] EWHC 2429 (Admin)

This upheld and followed the Stroud case on valued landscapes.

Forest of Dean District Council v SoSCLG and Anor [2016] EWHC 421 (Admin)

04 March 2016

The frst leading case on the operation of the tilted balance involving designated heritage assets and paragraph 134 of the NPPF. At the subsequent redetermination appeal (see earlier above) successfully demonstrated development complied with that test.

Stroud DC v SoS [2015] EWHC 488 (Admin)

Leading decision upon what constitutes a “valued landscape” pursuant to paragraph 109 of the NPPF. Peter successfully argued that this required a site to have “demonstrable physical attributes”.

Fox Land and Property Ltd v SoSCLG [2015] EWHC Civ 298

03 March 2015

Leading case on the considering the green belt status to land where the principal green belt policy had been revoked.

Trafford Borough Council v SoSCLG and Anor [2014] EWHC 424 (Admin)

Successfully defended the grant of planning permission (following public inquiry) by the Secretary of State for the Barton Power Station Biomass proposal.

Cotswold District Council v SoSCLG and Anor [2013] EWHC 3719 (Admin)

Appeared for successful Appellant who had received permission following an earlier inquiry. The case raised a multiplicity of points including the defnition of “persistent under-delivery of housing”. Peter’s clients prevailed, and the permission was upheld.

Lawson Builders Ltd and Ors v SoSCLG and Anor [2013] EWHC 3368 (Admin)

Leading case on the interrelationship between section 73 and section 73A of the Ton and Country Planning Act 1990 in respect of retrospective applications for permission.

Welcome Break Group Ltd and Ors, R (on the application of) v Stroud District Council and Anor [2012] EWHC 140 (Admin)

Leading case on the operation of CIL regulation 122 and whether the planning obligation provided by the site developer

was necessary, directly related to the development, fairly and reasonably related in scale and kind to the development proposed.

Hinde v Rugby Borough Council and Ors [2011] EWHR 3684 (Admin)

The leading case on the (then) change in the timeframe for bringing a challenge to the adoption of a development plan document. Peter acted for the Interested Party who successfully argued that the claim was one day out of time.

Gavin, R (on the application of) v London Borough of Haringey and Anor [2003] EWHC 2591 (Admin)

Successfully defended the grant of planning permission. which was being challenged for a number of errors made by the local planning authority in processing the application.

R (on the application of Holding and Barnes plc and Alconbury Developments Limited) v SoSETR[2001] UKHL 23; [2003] 2 AC 295; [2001] 2 WLR 1389; [2001] 2 All ER 929

The application of the Human Rights Act 1998 to the planning system.

Varey v United Kingdom (2000) 30 EHRR CD39

Successful pursuit of a claim for compensation against the UK Government for the breach of a gypsy’s human rights by reason of two unwarranted refusals of planning permission made by the Secretary of State.

Staffordshire County Council v Riley and others [2001] EWCA Civ 257; [2002] PLCR 5

Leading case on the irrelevance of intention in respect of the implementation of planning permission.

Stirk and Ors v Bridgnorth District Council [1996] EWCA Civ 701

Important case establishing the need for conscientious examination of an objector’s case to a local plan inquiry particularly where the local authority was both proposer and decision maker and thereby under an enhanced obligation to deal thoroughly, conscientiously and fairly with any objection.

Memberships

Peter is a member of the Planning and Environmental Bar Association (PEBA)

Qualifcations

MA (Oxon)

Christopher Young KC Planning and Environment

Year of Call: 1997 | Year of Silk: 2018

Email Clerks: planning@no5.com

In March 2021, Chris was voted the No1 Planning Barrister in England and Wales by over 200 of the country’s leading planning solicitors and planning consultants (Planning magazine annual survey). Chris won the leading Queen’s Counsel category, as well as the leading barrister for residential work: Respondents to the survey observed “He steps up from last year’s equal second ranking, reaching the summit for the frst time, only three years after taking silk. Young also leads out table of barristers ranked highest for their work in the residential sector, repeating his success last year.” “His track record at appeal is extraordinary. He is also easy to work with and has a keen sense of humour, which can often help to diffuse tensions within a team.” “He wins his cases through a combination of attention to detail, close collaboration with the team and massively effective cross-examination.” “Chris is a high-level thinker who is very well connected with what is going on at a national level”

Chris acts for all of the UK’s leading house builders such as Barratt, Bellway, Bloor, Redrow, Taylor Wimpey and Persimmon and most of the major land promoters such as Peel, St Modwen, Hallam Land, Harrows Estates, Gleeson, UKSL, IM Properties, Welbeck and Richborough Estates. He also acts for regional and local house builders and developers, care operators, logistics frms, MSA operators, schools, universities, the leisure sector, religious organizations, farmers and individuals.

He has an enviable track record at planning appeals, many of which are cases recovered by the Secretary of State.

New Settlements

Advising on some of the largest development proposals in the UK, including 15 new settlements such as Cranbrook in Devon, Cattal near Harrogate, Mayfeld in Sussex, Sibson Garden Village in Huntingdonshire, Silfeld near Norfolk, South Godstone in Surrey, Beadlow in Bedfordshire, and a 19,000 home proposal south of Bedford on the Oxford to Cambridge railway line.

Urban Extensions

Advising on over 30 major urban extensions such as the 5,000 plus dwelling developments at Sherford in Plymouth, Northstowe in Cambridgeshire, Wrexham in Wales for Bloor, East of Tring in Hertfordshire, East of Beaconsfeld in Buckinghamshire, Ladygrove East in Oxfordshire and the expansion of Knebworth Garden Village.

Green Belt, Tall Buildings and Regeneration

Presently advising on over 30 development schemes in the Green Belt, many of which are proceeding by way of speculative applications having advised on and won a series of recent appeals for sites in the Green Belt, including 500 houses at Wheatley in Oxfordshire. He is also involved in numerous tall buildings appeals, including several in London. He is advising on regeneration schemes including advising St Modwen on the redevelopment of the Longbridge car plant and Birmingham City Council on a major proposal in Digbeth.

Care Sector

Acts extensively for the Retirement and Care Sector and is presently involved in over a dozen such schemes, having recently won appeals for the Extra Care operators on numerous greenfeld sites in locations such as in the Green Belt (West Malling, Kent), in Areas of Outstanding Natural Beauty (Sonning Common, Oxfordshire), Conservation Areas and close to a National Park (Albourne, Sussex). He also acts for care homes operators, sheltered housing operators and bungalow builders.

Economic Development

Chris acts for the logistics operators such as Tritax Symmetry and roadside and motorway service operator Eurogarages. He advises numerous employment frms, as well as retailers such as Tesco Stores and Lidl, mineral operators such as

Tarmac, and Universities, colleges and schools on campus development such as Oxford Brookes and the University of Reading. Also acts for various leisure operators including Forest Holidays.

Development Plans

Chris regularly appears at Spatial and Local Plan examinations for the development industry. This includes numerous appearances for Consortia, such as the West of England Local Plan where he acted for a consortium of 10 housebuilders and developers, leading Peels work in the Greater Manchester Spatial Framework and acting for the main objector on Green Belt at the London Plan EIP. He also acted successfully for the three South Worcestershire authorities in respect of their Joint Local Plan, and for Redditch BC and Bromsgrove BC in respect of Joint Local Plan.

Supreme Court, Court of Appeal and High Court

He regularly appears in the Higher Courts including acting successfully for Richborough Estates in the Supreme Court on the seminal case on the operations of the NPPF. Between 2017 and 2021 he appeared in the Court of Appeal fve times in cases concerning residential development. He frequently acts in the High Court, successfully defending planning permissions secured by developer clients. He has also acted successfully to quash several Secretary of State decisions refusing permission for development, including three recent cases involving neighbourhood plans. He also acted for 25 housebuilders and developers in their legal challenge to the Written Ministerial Statement on Neighbourhood Plans, which led to changes in national policy.

Chris is a member of the Planning and Environmental Bar Association (PEBA), the Compulsory Purchase Association (CPA) and National Infrastructure Planning Association (NIPA).

He lectures throughout the UK at RTPI, housing and in- house events on a variety of topics including planning legislation, Green Belt development, neighbourhood planning, housing numbers, fve year supply, ecological and nutrient matters and fnancial viability.

He also represents several groups which directly lobby Government for changes to planning policy.

He is also a panelist on the monthly webinar “Have We Got Planning News For You”.

Recommendations

He has been recommended in directories such as Chambers Directory and the Legal 500 for the last 15 years. "Chris is a game changer, he wants to shake up the system and look at new ways of winning appeals." Chambers UK 2023

“Chris is always on top of a case and fercely determined to fght his client’s corner.” “He’s carved out a strong reputation, particularly on housing land and strategic housing cases. He’s also very commercial and very accessible.”

Chambers UK 2022

“The leading inquiry advocate for large-scale housing inquiries. He’s a legal whirlwind who knows everything about that area.” “Highly experienced and technical in housing matters.”

Chambers UK 2021

“A great all-rounder.” “Utterly superb - brilliant advocate, adviser and team player.” “Chris commands absolute trust from all of his developer clients.”

Chambers UK 2020

“Specialises in residential and retail planning matters.”

Legal 500 2020

Awards

Monroe Debating Prize 1998

Qualifcations

BA (Hons) Double First 1994

LLM (London) 1998

Queen Mother/Fox Scholarship 1997

Diploma in Law 1996

Queen Mother Scholarship 1996

Monroe Debating Prize 1998

James Corbet Burcher

Planning and Environment

Year of Call: 2011

Email Clerks: planning@no5.com

James Corbet Burcher is a leading junior in Planning & Environmental Law. He is rated as a Band 1 Junior in the Midlands by Chambers & Partners.

Advocacy forms the core of his practice, representing private and public sector clients: (1) at Planning Inquiries and Hearings, (2) at Local Plan Examinations and (3) before the High Court and Appellate Courts.

He also has an extensive advisory practice covering (a) strategy; (b) individual planning applications; (c) appeal prospects and preparation; and (d) judicial review and planning-related litigation of all kinds.

In his first decade in practice, he has been closely engaged with a number of major reforms to the planning system. He was instructed/involved in a number of major changes: (i) the NPPF and many cases on its interpretation, (ii) the first cases before the Planning Court; (iii) Neighbourhood Plans, and (iv) Rosewell/Virtual Inquiries. His principal area of interest is Planning Data and Digitisation.

Recent Instructions

In 2023/24, James' practice has included work on the following instructions:

(1) Places for Everyone Examination: Representing Peel Investments (North) Ltd (both sole instruction and as junior to Chris Young KC) at multiple hearings during the 5-month examinationthe largest DPD examination of its kind.

(2)Marshcroft, Tring Inquiry: Representing Harrow Estates (as junior to Chris Young KC), promoting 1400 homes in the Green Belt, as a sustainable urban extension in the Green Belt, one of the largest such inquiries of recent years;

(3)Monkton Lane, Farnham, Waverley: Representing Cove Homes, securing permission for 56 homes on appeal at hearing

(4)Bedford Local Plan Examination: Representing Prologis (as junior to Paul Cairnes KC), promoting land for 85,000 sqm life sciences and industrial floorspace development through the Local Plan;

(5)Acting for Wirral Borough Council, Chesterfield Borough Council, Hinckley & Bosworth Borough Council and Somerset Council in a range of s78 and other statutory inquiries concerning residential development, protective designations, enforcement and highway matters.

Residential Development (including Affordable, Self-Build and Older Persons)

James regularly acts for and advises housebuilders, land promoters and local authorities in respect of applications for residential development of all kinds.

Section 78 appeal work has included:

- Wheatley Campus, South Oxfordshire: Acting for Oxford Brookes University (junior to Chris Young KC), securing permission for 500 homes in a recovered appeal by the Secretary of State

- Land at Pear Tree, Chorley: Acting for Gladman (junior to Chris Young KC), securing permission for 190 homes at one of the first virtual inquiries

- Hartley Wintney, Hart District: Acting for Forest Care, securing permission for a 60-bed care home at a hearing

- Brimington, Chesterfield: Acting for the successful Appellant, securing permission for 150 homes at inquiry

- Hanslope, Milton Keynes: Acting for Davidson Homes, securing permission for 141 homes at inquiry

- Loggerheads, Newcastle-under-Lyme: Acting for the Council, resisting 80 homes at inquiry

- Alford, Waverley: Acting for Cove Homes, securing permission for 23 homes at a hearing

- Doveridge, Derbyshire Dales: Acting for the Council, resisting permission for 165 homes at inquiry

Additional court work in this field has included litigation on the following issues:

(i)The presumption in favour of sustainable development (Peel Investments v SSCHLG [2020] EWCA Civ 1175; Wavendon Properties v SSHCLG [2019] EWHC 1524 (Admin); Cheshire East BC v SSCLG and Renew Land Developments [2016] EWHC 571 (Admin))

(ii)The calculation of housing land supply (Wavendon; St Modwen v SSCLG [2017] EWCA Civ 1643; Kings Lynn [2015] EWHC 2464 (Admin))

(iii)Older Persons Needs (Sonning Common, South Oxfordshire: Successfully defending the permission granted on appeal to Inspired Villages)

Commercial Development

James regularly advises major employers, logistics operators and landowners in respect of commercial development. Much of this work includes Green Belt sites and the application of the Very Special Circumstances test. Inquiry and examination work has included:

- Denby Hall, Amber Valley: Acting for Garner Holdings, securing permission for 60,000 sqm of new floorspace in three new B1/B2/B8 units and associated development, generating in excess of 1000 local jobs for a major Derbyshire employer

- Bedford Local Plan Examination: Acting for Prologis, promoting 85,000 sqm of life sciences / B2/B8/E(g) industrial floorspace

- Pinewood Studios: Acting for Pinewood Studios (junior to Martin Kingston KC), securing 100,000 sqm of core operational facilities, including new studios, stages, workshops, production offices and streetscapes, generating 1300 additional jobs, to secure the future of the British film industry in this historic location.

Local Plans

James has acted at over 10 plan examinations in the past decade, both promoting and challenging allocations. Work in the past 5 years has included:

- Places for Everyone (Greater Manchester Combined Authority): Representing Peel Investments (North) Ltd, in respect of 8 Green Belt allocations (400 to 3000 units in scale)

- Warrington Local Plan: Representing Cheshire Police in respect of s106 contributions

- Mole Valley Local Plan: Representing Thakeham Homes in respect of draft allocation for 200 homes

- St Helens Local Plan: Representing Lovell Partnerships, in respect of safeguarded land allocation

- Harrogate District Local Plan: Representing Oakgate, in respect of broad location for growth of c. 3000 homes

- West of England Joint Spatial Plan: Representing Churchill Residents Action Group, resisting a strategic development location for 2800 homes

Court Work in this field includes a significant number of the s113 challenges of the past decade including:

- Flaxby Park v Harrogate BC [2020] EWHC 3204 (Admin): Acting for the successful Interested Party Oakgate (as junior to Chris Young KC) in the defence of the challenge to the draft broad location for growth. The claim concerned strategic environmental assessment, viability and local authority procedural matters.

- Compton PC v Guildford BC [2019] EWHC 3242 (Admin): Acting for the successful Interested Party, Catesby (as junior to Chris Young KC) defending against the challenge to the Guildford Borough Local Plan. The claim raised a number of issues in respect of Green Belt policy, Housing Numbers, Strategic Environmental Impact Assessment, Habitats and examination procedure.

- IM Properties Development Ltd v Lichfield DC [2015] EWHC 2077 (Admin); IM Properties Development Ltd v Lichfield DC [2015] EWHC 1982 (Admin): Acting for the Interested Party, Persimmon in successive defences of the Lichfield Local Plan, raising issues in relation to Strategic Environmental Assessment and Green Belt policy.

- Zurich Assurance Ltd v Winchester City Council [2014] EWHC 758 (Admin): Acting for the claimant in one of the first cases to explore the duty to cooperate.

Neighbourhood Plans

James has acted in respect of over 70 neighbourhood plans since 2014, including at 10 hearings, including: Winsford (Cheshire West), Backwell (North Somerset), Winslow (Buckinghamshire), Great Horwood (Buckinghamshire), Great Somerford (Wiltshire), Earls Barton (South Northamptonshire), Cheddar (Somerset), Petersfield (South Downs NPA), and Farnham (Waverley).

The majority of his work in this field is for housebuilders and land promoters. He assists them and their consultants with detailed written representations covering the “basic conditions”, site assessment, strategic environmental assessment and procedure, as well as related public law and local government issues.

He has advised local planning authorities on procedure on several occasions.

He also acted for Central Milton Keynes Town Council in a major recovered appeal concerning the CMK Neighbourhood Plan and the redevelopment of an area adjacent to the listing Shopping Centre building and Midsummer Boulevard.

Assets of Community Value

James has appeared in three cases before the First Tier Tribunal (General Regulatory Chamber):

- CR2014/0016 : Idsall School v Shropshire Council – an early challenge to an ACV designation of school playing fields

- CR2016/0014: New Barrow Ridge Ltd v Ribble Valley Borough Council – successful challenge to ACV designation of allotments

- CR2017/0017Hickinbottom v Telford; Wrekin Council: successful defence of ACV designation for public house

He has also advised extensively in this area, and also conducted non-Tribunal advocacy including securing the removal of the designation at the internal review stage, appearing before the Council in person.

Judicial Review and Statutory Challenges

Court work is at the heart of James' practice, having appeared in over 50 cases before the High Court, Court of Appeal and Supreme Court.

In addition to the cases cited above, recent JR and statutory challenge work has included:

- Northstowe, South Cambridgeshire: Acting for Homes England in the successful defence of a judicial review to the permission for 4000 houses, claim withdrawn prior to substantive hearing

- Stuart Partners v SSLHUC: Acting for a commercial operator in s289 proceedings (as junior to Richard Kimblin KC)

Recommendations

James has been consistently ranked in the Top Juniors in Planning Magazine’s Annual Planning Law Survey and was voted the No.1 Junior Under 35 years in 2018.

Sources for Chambers and Partners Bar have described him as:

"All-round brilliant." "James is superb technically, he leaves no stone unturned." "Seamlessly blends laser-focused insight with old-school charm." [2023]

“[He] is clear, precise, relaxed and encouraging. He is very forensic and detailed.” [2022]

“He’s fantastic on the law with an extraordinary level of enthusiasm.” “Very diligent and clientfocused.” [2021]

“Incredibly intelligent and hard-working, and an impressive advocate.” “A sincere and very committed member of the Bar.” [2020]

“A very good junior with an excellent grasp of what’s important. He’s wonderful to work with.” “Highly intelligent.” [2019]

“He has extensive knowledge of the legal system…Extraordinarily detailed and very thorough.” [2018]

“An up-and-coming junior frequently highlighted for his client-friendly approach who is developing a strong reputation in the market…He has a good style and intellectual approach…He is very capable and very keen.” [2017]

Notable Cases

Persimmon Homes (Thames Valley) v Worthing BC [2023] EWCA Civ 762

Flaxby Park v Harrogate BC [2020] EWHC 3204 (Admin)

Peel Investments v SSCHLG [2020] EWCA Civ 1175

Airebourough Neighbourhood Forum v Leeds CC [2020] EWHC 2183 (Admin)

R(Wright) v Resilient Energy Severndale Ltd [2019] UKSC 53

Richborough Estates v SSCLG [2018] EWHC 33 (Admin)

St Modwen v SSCLG [2017] EWCA Civ 1643

Verdin (t/a The Darnhall Estate) v SSCLG [2017] EWHC 2079 (Admin)

Baroness Cumberlege of Newick v SSCLG and DLA Delivery [2017] EWHC 2057 (Admin)

East Staffordshire BC v SSCLG [2017] EWCA Civ 89

DLA Delivery Ltd v Lewes DC [2017] EWCA Civ 58

R(Kebbell Developments Ltd) v Leeds City Council [2016] EWHC 2664 (Admin)

Cheshire East BC v SSCLG and Renew Land Developments [2016] EWHC 571 (Admin)

West Berkshire DC v SSCLG and HDD Burghfield Common Ltd [2016] EWHC 267 (Admin)

IM Properties Development Ltd v Lichfield DC [2015] EWHC 2077 (Admin)

Kings Lynn and West Norfolk BC v SSCLG and Elm Park Holdings [2015] EWHC 2464 (Admin)

IM Properties Development Ltd v Lichfield DC [2015] EWHC 1982 (Admin)

Appointments

Bar Council Legal Services Committee (2019-date)

Bar Council IT Panel (2019-date)

Member of Bar Council (2018-2023)

Member of Planning and Environment Bar Association Committee (2018-2023)

Lincoln's Inn Advocacy Trainer

Awards

University of Oxford:

- Demy (Full College Academic Scholarship)

- Oxford Half-Blue, Modern Pentathlon

Lincoln’s Inn:

- Hardwicke Entrance Award

- Lord Bowen Scholarship

- Lord Mansfield Scholarship

- Sunley Pupillage Award

Other: UKELA Moot:

- Winner of both Senior and Junior Competitions

Memberships

Planning and Environmental Bar Association (PEBA)

UK Environmental Law Association (UKELA)

National Infrastructure Planning Association (NIPA)

Constitutional and Administrative Law Bar Association (ALBA)

International Bar Association (IBA)

American Bar Association (ABA)

American Planning Association (APA)

International Society of City and Regional Planners (ISOCARP)

International Planning History Society (IPHS)

Society for Computers and the Law (SCL)

Planning, Law and Property Rights Association (PLPR)

International Platform of Experts in Planning Law

Qualifications

BA(Hons) Modern History (First Class), Magdalen College, University of Oxford

Mst Modern History, Magdalen College, University of Oxford

CPE (Distinction), City University

LLM (Distinction), University College London

BPTC, BPP (London)

Publications

Routledge Handbook of Comparative Planning Law ( forthcoming) - Chapter on Planning System in England (with Dr Ashley Bowes)

Sioned Davies

Planning and Environment

Year of Call: 2019

Email Clerks: planning@no5.com

Planning

Sioned has gained a broad range of planning and infrastructure experience, including at hearings, inquiries, call-ins and in the High Court, both in a led and unled capacity. This has included acting for and advising a wide range of clients including residential, commercial, energy, minerals and logistics developers, national and local government, the Welsh Ministers, and other interested parties.

Recent highlights have included:

- Acting as sole counsel for Westminster City Council in the two-week inquiry into the Secretary of State’s call-in of the application for the redevelopment of 458 Oxford Street, Marks and Spencers fagship store. Key issues included heritage impact, and whole life carbon assessment.

- Acting as junior counsel a wide range of successful residential appeals including across London, the south east, south west, and midlands and in areas with particular planning constraints including in Green Belt and AONB. Key issues have included housing land supply, heritage, landscape, affordable housing and planning obligations.

- Acting as junior counsel in a 9- day hearing for mixed use development for 216 homes, 1600 square meters of commercial space in London (junior to Christopher Young KC).

- Acting as junior counsel in minerals inquiries including in South Wales and in Dorset AONB (junior to Richard Kimblin KC)

- Acting as junior counsel defending the grant of planning permission in the High Court on behalf of the promoters and developers of a site which was granted planning permission for over 2500 houses in Worcestershire.

- Acting as junior counsel defending the grant of planning permission on behalf of the local planning authority for the over 2200 houses. Challenge relates to the provision of NHS contributions.

- Acting as junior counsel (to Peter Goatley KC) for a developer promoting a logistics haulage site adjacent to the nationally-signifcant Magna Park.

- Advising several major housebuilders, developers, local authorities and interested parties on all parts of the development life-cycle, including site promotion, seeking planning permission, permitted development and s.106 agreements.

- During her pupillage, Sioned shadowed High Court and Court of Appeal proceedings in some of the most important decisions of 2020 relating to NPPF interpretation (Gladman v SSCLG and Peel Investments v SSHCLG)

Sioned’s advisory practice encompasses the following areas:

- Housing land supply, land allocations and regeneration of previously developed land

- Green Belt, Areas of Outstanding Natural Beauty and heritage assets

- Permitted Development and Use Classes Order

- Judicial and Statutory Review

- Injunctive relief

Infrastructure

Sioned has gained broad experience of the infrastructure planning and consenting regimes in both England and Wales. Throughout her pupillage, she gained experience of challenges to major infrastructure projects, including offshore decommissioning projects in the North of England, to HS2, Drax Power Station, and the North London Heat and Power Project.

More recently, she has advised on:

- A Transport and Works Act Order on the development of a commercial tidal energy demonstration zone

- aspects of compulsory purchase and compensation for HS2

- as sole counsel on legal aspects of using Special Development Orders for border infrastructure works in light of the UK’s exit from the European Union

Civil Orders and Injunctive relief

Sioned has a broad range of experience seeking injunctive relief in a variety of courts. Recent highlights have included:

- Acting as junior counsel for High Speed Two (HS2) Limited in seeking an interim injunction to prevent ‘persons unknown’ trespassing and interfering with HS2 which was granted on a ‘route wide’ basis: https://www.no5.com/media/ publications/hs2-route-wide-injunction-granted/

- Acting as sole counsel for the University of Warwick in seeking injunctive relief against protestors on the University campus

Environment

Sioned has a keen interest in developing her environmental law practice and has advised many different stakeholders on the environmental impacts of residential developments, energy and transport infrastructure.

Recent instructions have included advising on habitats and species conservation, environmental permitting, climate change, marine licensing and fooding. She has experience in EIA, SEA and appropriate assessment, nitrates and phosphates.

She has also advised on the environmental assessment aspects of road projects and border infrastructure works, species licensing for an offshore tidal demonstration zone and as part of a team of researchers assessing international obligations of EIA.

She has been frequently instructed in relation to statutory nuisance cases.

Sioned was also recently instructed in a recent case seeking injunctive relief for environmental protest.

Compulsory Purchase and Valuation

Sioned gained experience on a broad range of compulsory purchase and valuation matters during pupillage and has worked, in her own capacity, on a range of matters, including for HS2.

Regulatory

Sioned has gained a broad range of regulatory law experience and of private prosecutions.

Public and EU Law

Sioned has advised on a broad range of public law matters, judicial reviews including on matters which are devolved.

Other information

Prior to coming to the Bar, Sioned was the Chair of a national agricultural youth charity and worked as Head of the Secretariat to the Climate Law and Governance Initiative at COP24 in Katowice, Poland. This event brought together lawyers in the global climate discussion including from states, the World Bank, Green Climate Fund and leading law frms.

Languages

English Welsh (fuent)

Appointments

Government Legal Department Panel of Junior Junior Counsel

Awards

Kate Bertram Prize for academic distinction (University of Cambridge)

Bentham Award for high academic achievement (UCL)

Memberships

Welsh Government Junior Barrister Public Law Scheme

John Frederic Whitehouse Award for highest marked law dissertation (UCL)

UKELA Planning and Environmental Bar Association

Administrative Law Bar Association

Young National Infrastructure Planning Association

Qualifcations

BPP Law School - Bar Professional Training Course – Very Competent (2019)

University College London (UCL) – Law (LLB) – First Class Honours (2017)

Young Compulsory Purchase Association

University of Cambridge – Environmental Law and Policy (MPhil) – First Class Honours (2018)

THE LEVELLING-UP AND REGENERATION ACT 2023 AND THE NATIONAL PLANNING POLICY FRAMEWORK

PLANNING DURING 2024; PREPARING FOR 2025.

Christopher Young KC

James Corbet Burcher

Sioned Davies

INTRODUCTION

1. The final months of 2023 brought two major changes in the legislative and policy spheres: (a) The Levelling-up and Regeneration Act 2023 1 and (b) The National Planning Policy Framework and the accompanying Written Ministerial Statement. 2 Then in January 2024, the 12-month countdown to the next General Election began

2. The Act is slowly coming into force. 3 The NPPF’s provisions are just beginning to be being battled over at inquiry. The Government promises further guidance and secondary legislation, with earlier consultation documents having identified that all legislation and policy for new Local Plans would be in place by “Autumn 2024”. 4

3. Planning is now on the political radar to a greater extent than for many decades. Whilst the Government accepts the need for yet further change, a prospective Government is shaping its own programme. And whoever leads that change, the resources available to deliver it have never been more stretched.

1 Royal Assent: 26 October 2023

2 19 December 2023

3 See notably The Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024

4 https://www.gov.uk/government/consultations/plan-making-reforms-consultation-onimplementation/levelling-up-and-regeneration-bill-consultation-on-implementation-of-plan-making-reforms

4. How should the development sector and local planning authorities address a world marked by such change, whilst keeping one eye on the horizon? Our central message in this paper is simple: planning and preparation.

5. Early 2024 is the best time to prepare and build the foundations for the work to be done in the latter parts of 2024 and 2025. In some ways, there has not been an opportunity this great since 20211/2012 to deliver positive change – whether promoting an allocation / application, or promoting a plan itself.

6. This paper begins by focussing on how certain key changes to the NPPF will impact plan-making and decision-taking in the short to medium-term future, up to December 2024. In doing so, we also look beyond the more unsustainable (in a literal sense) NPPF policy changes, to the potential boomerang arc of a renewed focus on delivering needs.

7. We will then consider the potential impacts of the Levelling-Up and Regeneration Act (the “LURA”), those elements which are in force, and those which will have to be brought into force. Again a central theme of our discussion is that the LURA sets out a framework that is capable of enduring into and beyond 2025, if the underlying national policy content is itself sufficiently clear and robust.

8. The paper is intended to provide practical insights, which will inevitably involve a degree of ‘future gazing’ over an initial 10-12 month period, and then outwards to the 20-24 month range. We consider what the changes will mean for planners during 2024 and what preparations you can make for 2025 (notwithstanding the uncertainty adverted to above).

9. The overarching message is that all participants in the sector must look beyond the immediate obstacles and challenges, towards a future that will become ever more focused on delivery.

10. For those in the development sector, this may entail laying the groundwork for an application or allocation, to build the best strategy and timing for site promotion.

11. Similarly, LPAs this may involve a particular future-proofing approach to the exercise of plan promotion, and a distinct approach to the determination of applications.

12. In this paper, we will therefore focus upon:

1: The presumption in favour of sustainable development; and how arguments ought to be deployed through applications and appeals on this issue;

2: The impacts on the local plan process, including on those plans at Regulation 18 or Regulation 19 stage and what this means for applications at those levels;

3: The changes to Green Belt and the future for promoting allocations and applications;

4: The timelines for submission and appealing applications for promoters and developers – what should we be thinking about in terms of the pipelines for delivery through 2024 and 2025;

5: Strong benefits cases under future national policy

SECTION 1: THE CHANGES TO THE PRESUMPTION AND HOUSING LAND SUPPLY

13. The contents of the new NPPF were a partial relief, particularly for those concerned about the housing crisis. 5 In the consultation document and in subsequent publicity, the Government toyed with removing housing requirements, and this raised questions for the future of housing land supply altogether and the requirement on authorities to properly assess and then meet their needs.

14. At its worst, it was said that this could suppress the rate of net additional homes to just 156,000 per annum. 6 That did not even take account of further factors such as the economic downturn, water and nutrient neutrality; and even in the absence of such

5 See for example the extent of the changes foreboded on the basis of the initial consultation document here: Linchfield Blog Update https://lichfields.uk/content/insights/making-a-bad-situation-worse (dated 27 February 2023, and accessed 4 February 2024)

6 Lichfields Blog Update: https://lichfields.uk/content/insights/making-a-bad-situation-worse dated 27 February 2023, and accessed 4 February 2024)

constraints, it was thought that this could result in some 77,000 fewer homes than recent rates of delivery. It is hoped that the impact on housing delivery will not be as bad as originally predicted.

The impact on the Five-Year Housing Land Supply Test

15. The five-year requirement has become firmly entrenched in contemporary planning for housing. The policy requirement to have a deliverable supply of 5 years’ worth of housing was introduced in the 1980s. In 1989, the Thatcherite government consulted upon a new planning policy, which latterly became known as PPG3. It has remained in place ever since, save for the period 2000 to 2006 when Blair’s Labour Government diluted it somewhat, making it a requirement to show a five-year supply upon adoption of a new local plan.

16. In recent years, the mechanism for assisting in achieving this goal (300,000 homes per year) where LPAs are delivering an insufficient number of houses to meet that requirement has been through the NPPF - importantly, through §11. This operates as a presumption in favour of sustainable development where a five-year supply is not demonstrated. Accordingly, the modifications to this part of the NPPF had (and continue to have) the potential to significantly change the delivery of housing.

Which are the most significant changes?

17. At face value, the new drafting of footnote 8 undertakes a significant qualification to the former §11(d) (with the underlined text being the additions introduced in December):

This includes, for applications involving the provision of housing, situations where: (a) the local planning authority cannot demonstrate a five year supply (or a four year supply, if applicable, as set out in paragraph 226) of deliverable housing sites (with a buffer, if applicable, as set out in paragraph 77) and does not benefit from the provisions of paragraph 76; or (b) where the Housing Delivery Test indicates that the delivery of housing was below 75% of the housing requirement over the previous three years.

18. Paragraph 226 then provides further detail:

226.From the date of publication of this revision of the Framework, for decision-making purposes only, certain local planning authorities will only be required to identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of four years’ worth of housing (with a buffer, if applicable, as set out in paragraph 77) against the housing requirement set out in adopted strategic policies, or against local housing need where the strategic policies are more than five years old (fn80), instead of a minimum of five years as set out in paragraph 77 of this Framework. This policy applies to those authorities which have an emerging local plan that has either been submitted for examination or has reached Regulation 18 or Regulation 19 (Town and Country Planning (Local Planning) (England) Regulations 2012) stage, including both a policies map and proposed allocations towards meeting housing need. This provision does not apply to authorities who are not required to demonstrate a housing land supply, as set out in paragraph 76. These arrangements will apply for a period of two years from the publication date of this revision of the Framework.

19. Therefore, if a LPA has submitted a plan for examination, or if that plan has reached the Regulation 18 or 19 stages, including both a policies map and proposed allocations towards meeting housing need, then the LPA will only be required to identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of four years’ worth of housing.

20. This was clarified by the Government in the first significant post-NPPF update to the PPG, notably paragraphs 68-004, 68-056 and 68-057 7

What does the four-year supply mean?

21. There was some initial debate about whether this means four years’ worth of deliverable supply as against a five-year, or a four-year requirement.

22. Of the 330 or so planning authorities in England, 8 at the moment around 120 cannot demonstrate a 5 year supply of housing land. 9 But, of that sub-5 year cohort, around 40

7 https://www.gov.uk/guidance/housing-supply-and-delivery#demonstrating-a-5-year-housing-land-supply

8 https://www.planning.data.gov.uk/dataset/local-planning-authority

9 https://www.planningresource.co.uk/article/1815149/every-english-councils-latest-housing-land-supplyposition-plus-document-links

- so 1 in 3 - can demonstrate at least 4 years of deliverable sites measured against the normal 5 year target.

23. Some commentators suggested that because there was no reference to the four-year supply being measured against a five-year requirement, that must mean four-year supply against a four-year requirement. As the PPG has made clear (68-056):

“Where the criteria under paragraph 226 are met, an authority will need to demonstrate a 4 year housing land supply with a 20% buffer, if appropriate, against their five year housing land supply requirement.”

24. As the High Court has now confirmed in Mead Realisations Limited v The Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 279 (Admin), [55][71] (heard alongside a similar challenge by Redrow), there is no barrier to the PPG qualifying national policy. Thus whilst certain interpretive debates may persist, the question of four years against five years appears settled for now.

25. For completeness, we note the following points, as these provide a useful framework for analysing any similar interpretive issues as those arise in the early months of the new NPPF:

a. First, start with the NPPF text itself. Footnote 8 when read together with §226, it is “to provide a minimum of four years’ worth of housing…”. Had the intention been to change the requirement too, then one would have expected a change to the NPPF to make that abundantly clear – not least given the widespread ramifications it would bring. The revisions do not do that and instead, we see the commitment to the five-year requirement affirmed in for example, §69(a) and §77.

b. Second, see the Government Response to the NPPF consultation. 10 This focuses on the language of supply, rather than the requirement and explains that when an

10 Question 16, Accessed at https://www.gov.uk/government/consultations/levelling-up-and-regeneration-billreforms-to-national-planning-policy/outcome/government-response-to-the-levelling-up-and-regeneration-billreforms-to-national-planning-policy-consultation where it is said: To help further address concerns about interactions with other supply policies, we have made clear that the policy will apply to local plans at examination, Regulation 18, or Regulation 19 stage with a policies map and proposed allocations towards meeting housing

authority has an emerging plan that meets the requirements, the respective authority need only demonstrate “|a 4-year housing supply for decision making purposes.”

c. Third, a four-year supply as against a four-year requirement would have been inconsistent with the envisaged intention behind the changes to the NPPF; to offer a greater degree of protection for LPAs with local plans at Regulation 18 or Regulation 19 stage. Shifting to a requirement for housing needs to be met over four years would burden rather than assist LPAs. That was not the stated intention of the changes. Whilst intention will not always defeat poor drafting, in our view it is relevant in a case of ambiguity.

d. Fourth, a similar issue has previously been litigated. In R (Richborough Estates) v SSCLG, 25 developers challenged the 2016 Written Ministerial Statement (“WMS”) on Neighbourhood Development Plans (“NDP”). This introduced the 3year supply requirement in NDP areas, protecting them from the 5 year test if "the local planning authority can demonstrate a three-year supply of deliverable sites". As with this new 4-year policy, the wording in the 2016 WMS did not include the phrase "against its five year housing supply requirement." In Richborough Estates in the High Court, Dove J held that he had “no difficulty concluding that this means a three-year supply in terms of the exercise for assessing a five-year supply of housing required by the Framework."(para 41).

26. The PPG clarification on 5 February 2024 therefore closed down the first initial interpretation dispute, but in a manner that could prove instructive for the

27. To what extent will the new 4 year test likely have an impact? Given that many authorities back-load supply during the plan period, then this could mean that it is easier to provide that the requirement has been met in such authorities; as the first four years could involve the expected delivery of fewer houses in the early part of the plan-period, than beyond four years.

need. When an authority has an emerging plan that meets these requirements, the respective authority need only demonstrate a 4-year housing supply for decision making purposes.”

28. It is important to note that the shift to the four-year supply will only come where a number of hurdles have been overcome, including that:

a. the sites must be deliverable (and in our view, must therefore meet all of the requirements of the PPG, which is frequently the subject of challenge at appeals);

b. that the authorities must also have an emerging local plan which has reached Regulation 18 or 19 stage and that they contain policies map and proposed allocations towards meeting housing need. No further definition is given about what is meant by a policies map. 11

c. the need to provide for allocations towards meeting housing need.

29. Accordingly, there are several important hurdles to clear before a LPA can rely upon the four-year supply. We will return to what that means for plan-making in due course.

The Housing Delivery Test

30. §77 of the new NPPF retains the need for 20% buffer but removes the 5% buffer formerly required to ensure choice and competition in the market for land.

31. The former NPPF also required that a 10% buffer be applied where the LPA wishes to demonstrate a five-year supply through an annual position statement or with a recently adopted plan. This was to account for any fluctuations in the market during that year. This also appears to have been abolished.

32. The 20% buffer (which was formerly to assist in remedying “significant under delivery of housing over the previous three years to improve the prospect of achieving planned supply”), will continue to be required, but in a different form. Similarly, this is required

11 We also note that the consultation response indicated that there were calls for clarify on what constitutes a “policies map” and we are yet to see such clarity on this point – see Question 16 https://www.gov.uk/government/consultations/levelling-up-and-regeneration-bill-reforms-to-national-planningpolicy/outcome/government-response-to-the-levelling-up-and-regeneration-bill-reforms-to-national-planningpolicy-consultation

where there has been significant under delivery of housing for the previous three years (below 85% of the housing requirement). The revised NPPF states that the annual position statement will continue to require engagement with developers and others who have an impact on delivery (and this will likely still be tested at appeal). It is important that developers continue to engage in this process.

33. However, interestingly, the 20% buffer is also now stated to be “moved forward from later in the plan period”). That would suggest that the 20% buffer will now in effect be a redistribution exercise, shifting the increased number of houses from later in the plan period, where there has been historic under delivery. 12

34. Finally, the Glossary also contains an update to make abundantly clear that the Secretary of State will produce the HDT results “annually”. This ought to mean that the delay experienced in 2022/2023 with the publication of the results (largely awaiting the outcome of the revised NPPF) ought not be experienced again.

The Cities Uplift

35. The new §62 states that: “The standard method incorporates an uplift which applies to certain cities and urban centres, as set out in national planning guidance. This uplift should be accommodated within those cities and urban centres themselves except where there are voluntary cross boundary redistribution agreements in place, or where it would conflict with the policies in this Framework [fn27]”

36. This is nothing new given that this is already contained in the PPG. 13 This addition merely puts that requirement on a policy footing (rather than it only being guidance). In our view, this does not change a great deal about the status quo save as to reaffirm the Government’s commitment to delivering housing in the major urban centres.

12 See §77 of the new NPPF.

13 PPG, Paragraph: 004 Reference ID: 2a-004-20201216; Revision date: 16 12 2020

37. This has been much criticised, including that it is arbitrary uplift, and brings difficulties, 14 including practical problems associated with accounting for constraints in locations like Brighton, London, Birmingham and Coventry. Each of those locations (as well as others) have demonstrated to Inspectors that they do not have realistic urban capacity to meet previous (even lower) estimates of need, and it has had a significant impact on many authorities’ requirements. 15

Housing Need as a Material Consideration

38. Notwithstanding the above, housing need will remain a very important material consideration in any case. A decision-maker on appeal could still treat such need as a material consideration outweighing development plan conflict, even on a “flat” planning balance (i.e. without the benefit of the “tilted balance”. 16

39. In the Stotford decision (August 2022), Inspector Woodwards identified a wafer-thin shortfall (of 0.03 years undersupply, as the supply was determined to be 4.97 years), the significant weight on the delivery of market housing 17 led him to conclude that:

"The provision of housing is one, if not the, key aim of national planning policy. There is agreement across the industry, and beyond, that we are not building sufficient homes. As set our above, I have found the Council is already falling behind in delivering housing across some of the LP allocated sites..."

40. Therefore, whilst a demonstrable failure as against a five-year supply is plainly helpful (and a four-year supply may reduce the efficacy of that approach somewhat), it is not essential for the grant of planning permission. Material considerations are what you

14 For example, https://lichfields.uk/blog/2021/january/11/your-official-top-20-the-new-standard-method-andthe-citiesurban-centresuplift/#:~:text=The%20practical%20problem%20arises%20because,even%20lower)%20estimates%20of%20ne ed.

15 We were involved in a recent appeal in Coventry where the SoCG recorded that the LPA only had a 1.84 years worth of supply. When applying ‘Step 3 of the formula in the PPG (taking account of baseline, adjustment of the affordability, and then the age of the local plan) the requirement is 2935 dwellings per annum. That is then increased with the 35% uplift to be 3247 dwellings per annum. This has a significant impact on the requirement.

16 Appeal decision: Land South of Arlesey Road, Stotford, SG5 4HD. It was for 181 new homes and a integrated Care Village on an unallocated greenfield site. The council had adopted its new local plan the year before. But it was a very delayed process.

17 See §48 of the decision.

need for planning permission, and in a housing crisis the benefits of delivering housing are abundant.

41. However, a new theme is emerging at appeal – as participants dust off some of the case law from the past 5-6 years following the last major change to the NPPF in 2018. In the case of Wavendon Properties Ltd v SSHCLG [2019] EWHC 1524 (Admin), [56]-[58] 18 the High Court considered how the “most important policies for the determination of the application” [or appeal] may be out of date, irrespective of 5YHLS.

42. Almost a decade ago, the High Court held in Bloor Homes v SSCLG [2014] EWHC 754 (Admin), [45] held that:

“…[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 “outof-date”.”

43. In Wavendon, the High Court emphasised the three part approach – (1) identify those most important policies (the so-called “basket”), (2) assess their individual datedness; (3) assess the datedness of the basket as a whole.

44. A major early appeal decision on this point has been an appeal decision in Basingstoke 19 where a presumption policy within the Local Plan itself was found to be engaged, and thus the proposal was considered to be in accordance with the development plan as a whole – notwithstanding that the Council was able to demonstrate more than 4 years worth of housing land supply:

“140. I consider that the relevant policies are those that I have listed above. The appellant’s evidence was that BDLP Policy SS1 (scale and distribution of new housing); BDLP Policy SS6 (new housing in the countryside) and EWNP Policy HO2 (settlement boundary and building in the countryside) are out-of-date. Even though the EWNP was made relatively recently, it was prepared on the basis of the housing requirement in the BDNP and does not contain any housing allocations. The Council did not challenge the appellant on these matters. I agree that these policies are out-of-

18 Upheld by the Court of Appeal in Peel Investments (North) Ltd v SSHCLG [2020] EWCA Civ 1175

19 APP/H1705/W/23/3326191 Land at Watermill Bridge, Andover Road, Wash Water, Hampshire (29 January 2024)

date. The scale and distribution of new housing, and the settlement boundaries designed to deliver the housing needed, are more than five years old and are being reviewed through the DBLPU. Moreover, it is common ground that housing delivery over the plan period (from 2011 up to March 2022) was 769 dwellings lower than the plan requirement over the same period25. Thus, the spatial strategy is not currently delivering the housing requirement that the plan was intended to deliver.

141. The Council and the appellant agree that all of the other relevant policies listed above are up to date. I share that view. However, although the policies that are agreed to be up to date are more numerous, it does not follow that the relevant policies as a whole should be regarded as up to date. In my view, the policies that are intended to shape the spatial strategy (SS1, SS6 and HO2) are fundamental to what the plan seeks to achieve. As these policies are out-of-date, I consider that the relevant policies as a whole are out-of-date. It follows that the balancing exercise set out in Policy SD1 is engaged.”

45. This provides a very important early reminder of two age-old principles.

46. First, applicants and appellants should continue to run arguments that explore how a development plan has failed to meet its stated needs. This will be a material consideration in any case and in the right circumstances, will be highly relevant to whether a presumption should still be engaged.

47. Second, local planning authorities should not regard the 4 year protection as a drawbridge (or portcullis) if their current plan has failed to deliver, and especially where there has been no review. It will still be necessary to take a positive approach to applications to maintain a rolling supply.

SECTION 2: ENGAGING IN PLAN-MAKING

48. Maintaining a continuous 5-year supply of housing land through granting planning applications is plainly good for delivery. However, the plan-led system is well reported to have been on the cusp of collapse, with 78% of Councils likely to have an out-ofdate local plan by late 2025 (as cited in research from 2023). 20 This issue is said to be

20 Lichfields, ‘A projection of future local plan coverage in 2025 under prevailing policy conditions’ Accessed here: https://lichfields.uk/content/insights/timed-out

particularly acute in certain areas: in the South West only 9% will have an up-to-date local plan, and in the West Midlands, South West, North West and South East, over 40% of local plans will be more than 10 years old.

49. Of course, many of the changes introduced were aimed at resolving a plan-led failure to deliver housing. The Government hopes that the §76 will give a powerful new incentive for LPAs to adopt local plans. If they do, then LPAs can enjoy protection from speculative developments for a period of 5 years after the plan is adopted (§76a). However, crucially, this protection has to be earned (§76b). If LPAs want this protection for 5 years, they will have to demonstrate a five-year supply of sites at the local plan examination. This of course requires there to be sufficient interrogation of the position at the examination stage.

50. In our experience, this is not always the case. Often the supply position is viewed benevolently, no doubt with a view to assisting a LPA in getting a plan adopted. By way of example, in Bromley, the Local Plan was adopted in December 2018 and the Local Plan Inspector concluded that there was a five-year supply. However, six months later, at a planning inquiry in June 2019, Inspector George Baird found that this fell far short. This was unsurprising given that there were so few sites allocated for housing; the criticism of that is at DL7-18. 21 Without proper interrogation, this could be repeated elsewhere.

When are LPAs with newly adopted plans protected?

51. Protection from the five-year supply test for LPAs with a newly adopted plan applies to all applications made from 19 December onwards (see §79). However, the guidance in PPG 68-010 requires LPAs to confirm at the Local Plan Regulation 19 stage that they want this protection. The PPG still refers to §74(a) of the old NPPF. But it addresses the same point that the new §76 does, which is that to enjoy the benefit of this protection, LPAs must be able to demonstrate a five-year supply at the local plan examination.

21 Appeal Ref: App/G5180/W/18/3206569 Land to the rear of the former Dylon International Premises, Station Approach, Lower Sydenham, London, SE26 5BQ where it was ultimately concluded that only 4.25 years of supply was found.

52. From this, three key points arise:

a. In order to benefit from the new §76, LPAs will have to show that they made their position clear back at the Regulation 19 stage; this is because the embargo to the five-year supply test is to apply, then developers ought to be forewarned that this is the LPA’s intention, not least given that it will impact what evidence submit to the examination in public.

b. There is a good argument to suggest that this should not apply to any local plan examined under the previous version of the NPPF; because it is only now that we have been made aware of the consequences of this full five years of protection.

c. This protection ought really only to apply to a five-year supply tested at examination under the 2018 definition of deliverable. 22 That is because “clear evidence” ought to be required. Failure to require this would risk diluting the test in the PPG of such clear evidence.

53. There are doubts about how this will operate effectively in practice. Assessing supply is always dynamic; and how such forecasts can remain accurate as sites face inevitable deliverability challenges remains to be seen. Plainly, LPAs will need to continue to devote resources to proving both the deliverability of sites and also exploring a sensible buffer beyond 5 years.

54. However, this does act as an incentive for those authorities who are at an advanced stage of preparing local plans. As recently as November 2023, as many as 64 LPAs had delayed or withdrawn their local plans. 23 Though this will (potentially significantly) reduce part of the administrative burden upon authorities to demonstrate five-year supply where they have met all of these requirements, it will only be earned where there

22 This is because there was very considerable debate about whether or not the list was an “open” list or a “closed” list. See further analysis on this here: about the definition of deliverable. https://lichfields.uk/blog/2020/june/22/deliverability-expanding-our-horizons-closed-v-open-lists/ 23 House Builder Federation, ‘Delayed Local Plans’, accessed: https://www.hbf.co.uk/policy/planningpolicy/delayed-local-plans/ 4 February 2024.

is a significant amount of work that goes into the preparation of the plan, including on the deliverability of sites.

55. In our view, the changes have the potential to cause considerable issues for developers if the five-year supply goes (relatively) untested at the examination stage. For these reasons, we would urge those involved in the promotion of sites to consider looking carefully at the requirement and supply pipeline, making appropriate representations throughout that process. This too is in the interests of LPAs undergoing local plan examination now in order to prevent this issue from being re-opened further down the line.

The Transitional Provisions

56. The transitional provisions are important. This provides that the policies in the NPPF will apply for the purposes of examining plans, where those plans reach Regulation 19 stage after 19 March 2024. Plans that have reached pre-submission consultation on or before this date will be examined under the relevant previous version of the NPPF in accordance with the above arrangements. 24 For those plans which have been withdrawn or otherwise do not proceed to become a part of the develpoment plan, the policies contained in the NPPF will apply to any subsequent plan or strategy produced for the area concerned.

Neighbourhood Plans

57. There is enhanced protection for those areas where there are neighbourhood plans. The provisions in paragraph 14 have now been strengthened. Formerly a neighbourhood plan became part of the develpoment plan two years or less (and where the scheme conflicted with the neighbourhood plan), then this had the potential to disapply the presumption in favour of sustainable develpoment in §11(d). That protection for neighbourhood planning areas has been increased to five-year period. 25

24 See new §230.

25 Note that there is also a provision that if this is being relied upon, then the neighbourhood plan must contain policies and allocations to meet its identified housing need, but also where that requirement has been identified within five years or less of the date on which the decision is made.

58. Significantly, the former requirement for an LPA to have (i) at least a three-year supply of deliverable housing sites (as against its five-year requirement including the buffer) and (ii) the LPA’s housing delivery being at least 45% of that required over the previous three years has also been removed as part of the revisions. In other words, the LPA does not have to be performing as against these targets, in order for the protection afforded by a neighbourhood plan to apply.

59. We would advise that developers have particular regard to the prospects of a neighbourhood plan being made in any given area, and the impacts that this could have on the disapplication of the tilted balance in §11(d).

SECTION 3: THE GREEN BELT

60. The changes in respect of Green Belt have grabbed the headlines. However, the actual additions require particular scrutiny.

61. Former §140 required that once established, Green Belt boundaries should only be altered in exceptional circumstances which are “fully evidenced and justified”, through the preparation or updating of plans. The current version §145 now adds that:

“there is no requirement for Green Belt boundaries to be reviewed or changed when plans are being prepared or updated. Authorities may choose to review and alter Green Belt boundaries where exceptional circumstances are fully evidenced and justified, in which case proposals for changes should be made only through the plan-making process. Strategic policies should establish the need for any changes to Green Belt boundaries, having regard to their intended permanence in the long term, so they can endure beyond the plan period.”

62. It is important to note there was never any requirement to review Green Belt boundaries. 26 The practical impacts of these changes could therefore be less significant than previously thought.

63. On the face of the policy, there is nothing to stop (and quite a deal to encourage) those seeking Green Belt releases through the Local Plans to make the same arguments that have been made throughout the NPPF era about exceptional circumstances. There is simply no way of meeting the levels of housing need identified, especially in areas of greatest demand, economic growth and existing infrastructure, without releasing Green Belt land.

64. The central question for anyone promoting an existing Green Belt site, or promoting a Plan is how enduring or sustainable the current NPPF position is. For a Plan that is only just at Regulation 18 and 19 stage, examinations may be unlikely to commence much before 2025. In this area, it is therefore to think hard about where policy will go, and not just where it is now.

65. There are strong indications that over the current political horizon the national policy position will therefore change – both for applications and for plans. The Labour Party certainly sees this as one policy-area ripe for reform 27 and the Green Belt as an opportunity to boost housing. Inevitably, the political language is evolving – from “grey belt” towards a more expanded concept of Green Belt: 28

“A Labour government will:

- End the Tory green belt free-for-all.

- Release more low-quality green belt land and ensure development on it helps meet local affordable housing need.

- Protect, enhance and open up high-quality green belt land.”

26 The former requirement relates to when drawing up or reviewing Green Belt boundaries a list of considerations – most recently §142. But that did not in and of itself require that Green Belt review be undertaken.

27 BBC, ‘Labour would build on green belt to boost housing, says Starmer’ Available at : https://www.bbc.com/news/uk-politics-65619675

28 https://twitter.com/mtpennycook/status/1750827100464935262 Matthew Pennycook MP, Shadow Minister for Housing and Planning

66. The timing of how one promotes such an application, including to appeal will therefore be crucial. The early months of this year have been marked by some initial dismissals of Green Belt appeals for conventional housing, 29 following a trend first observed circa mid-2023. Certain specialist forms of housing (e.g. extra care) are still seeing favourable results at appeal before Inspectors. 30 Whilst the precise shape and focus of Green Belt policy under any new Government therefore remains uncertain, the direction of travel is clear: current NPPF §145 is not a sustainable position. Expect a broader approach to exceptional circumstances, mandatory requirement for Green Belt reviews alongside a re-envisioning of the purpose of certain Green Belt land to reflect its historic origins in the promotion of recreational and environmental benefits.

67. All of this should guide application and appeal timescales. Current application timescales for major applications often significantly exceed 13-16 weeks. 31 Current appeal timescales for inquiries are running at 33 (median) to 46 (mean) weeks. 32 Further appeal timescales data can be sourced on an ongoing basis from PINS’s Research and Statistics, 33 which have detailed updates monthly with the last such release on 25 January 2024 34 This shows higher median figures for all inquiries (68 weeks) but “The median time for planning appeals decided by inquiry under the Rosewell Process in November was 29 weeks and over the 12 months to December 2023 was 30 weeks ” These timescales (and increases to them over time, as further appeals are lodged) should be borne carefully in mind when considering the exact point at which a decision-maker will consider whether very special circumstances exist.

68. This is not a historical paper, and records are patchy the further one goes back, but those promoting major sites may wish to consider the early years of the Coalition Government

29 APP/B1930/W/23/3323099 Land to the Rear of 42-100 Tollgate Road & 42 Tollgate Road Colney Heath St Albans AL4 0PY (26 January 2024); APP/N1920/W/23/3320599 Land South of Shenley Hill Radlett WD7 7BD (26 January 2024)

30 APP/V0510/W/23/3324141 Land to the rear of 163 to 187 High Street and east of Rowan Close, Bottisham CB25 9BJ (13 February 2024)

31 https://land.tech/blog/planning-determination-periods-the-data-deep-dive

32 https://www.gov.uk/guidance/appeals-average-timescales-for-arranging-inquiries-and-hearings

33 https://www.gov.uk/search/research-and-statistics?organisations%5B%5D=planninginspectorate&parent=planning-inspectorate

34 https://www.gov.uk/government/statistics/planning-inspectorate-statistical-release-25-january-2024

and the period between circa 2010 and 2013, to reflect on what a more positive approach towards appeals looks like, in the early days of a Government committed to growth.

69. The overwhelming message should be clear: early preparation will be key to being in the right position should the national policy position decisively change.

SECTION 4: NEW LOCAL PLANS

70. Everyone promoting either an allocation or application should familiarise themselves with the provisions of section 93 and 94 and Schedule 7 of the LURA, now that this in force. This represents the direction of travel for both applications and allocations into 2025 and beyond. Given both the political “neutrality” of the legislative provisions and the impossibility of any future Government finding sufficient Parliamentary time to relegislate – the new components of the Local Plan system are likely to provide the context in which all site promotion takes place.

71. Here we offer a short summary, focussing on two aspects:

(1) Local Plans will be (i) singular, (ii) mandatory (iii) with specific content

(2) National Development Management Policies: National Policy will override the Local Plan, in cases of conflict

New Local Plans

72. For Local Plans, the key provisions are set out within Schedule 7 of LURA 2023 and will be brought into force in due course, with the Government’s current target by Autumn 2024. Even if there is any slippage in that timetable, the direction of travel has been firmly set by the Act itself. However, Given the scale of the process to bring the Act into force, any future Government would be likely to start with the Act’s provisions rather than seek to amend them.

73. Focussing on the core provisions:

35

36

37

38

39

40

(1) Every authority must adopt a Local Plan 35

(2) The Local Plan must be prepared in accordance with their published Local Plan Timetable 36

(3) The Local Plan must contain mandatory content in respect of housing development 37

(4) Notably, the Local Plan must set out policies in relation to amount, type and location of, and timetable for development in the LPA’s area. 38

(5) Moreover, the Local Plan “must take account of an assessment of the amount, and type, of housing that is needed in the local planning authority’s area” 39

(6) The Local Plan cannot “be inconsistent with or (in substance) repeat any national development management policy.” 40

74. All of this points to Local Plans that are much more focussed on allocations and protective designations – spatial, with much greater focus on individual site trajectories, and with more expansive/diverse types of allocation – including for affordable housing, older persons housing and self-build housing.

75. Although the current provisions allow LPAs to promote Local Plans under the old system, it seems unlikely that this will be a sustainable position under a new Government – at least without early review provisions to bring them onto the newer Local Plan track.

76. All those promoting Sites should therefore consider how they could input into the new Local Plan process, by carefully considering the July 2023 consultation. 41 Expect Government to release some further draft policy or secondary legislation later in 2024 subject to electoral timescales.

41 https://www.gov.uk/government/consultations/plan-making-reforms-consultation-on-implementation

77. Alongside, the Schedule 7 duties, decision-taking will be governed by the new Section 38(5A)-(5C) of the Planning and Compulsory Purchase Act 2004 (introduced by section 93 LURA). The key sub-section is the third (5C):

"(5A) For the purposes of any area in England, subsections (5B) and (5C) apply if, for the purposes of any determination to be made under the planning Acts, regard is to be had to—

(a) the development plan, and

(b) any national development management policies.

(5B) Subject to subsections (5) and (5C), the determination must be made in accordance with the development plan and any national development management policies, taken together, unless material considerations strongly indicate otherwise.

s38(5C) “If to any extent the development plan conflicts with a national development management policy, the conflict must be resolved in favour of the national development management policy.”

78. Section 94 LURA was brought into force on 31 January 2024, alongside Section 123 LURA. For present purposes, it is sufficient to note that this gives the Secretary of State a very wide power in respect of what NDMPs will cover:

(1) A "national development management policy" is a policy (however expressed) of the Secretary of State in relation to the development or use of land in England, or any part of England, which the Secretary of State by direction designates as a national development management policy.

79. NDMPs have been well-documented in other coverage. In essence, they will form the decision-taking parts of the current NPPF, likely with some additional specification.

80. The overall objective is a system whereby national policy will override where the Local Plan has either not caught up (including where it has not been published in accordance with the Local Plan timetable), or where Government wants to promote certain national objectives (including boosting housing supply within certain types of development).

81. Government must consult on the first set of NDMPs prior to publication, and one should assume a 3 month period for that. However, after this first wave, the requirements for

consultation and substantive requirements (primarily a duty to have regard to climate change matters) are relatively focussed.

82. Subject again to the electoral timetable, Government could publish the first NDMPs for consultation well within 2024. If there is no progress prior to the summer, then delay until 2025 looks likely, but the consultation and publication process could be complete early within that year.

83. Given the centrality of NDMPs – and the way in which they will occupy a significant part of the policy space, overriding even an adopted development plan (irrespective of its date), all participants in the planning process should familiarise themselves with the process and consider how they would shape their strategies accordingly. This directs to our final section on diversity of benefits.

SECTION 5. BUILDING THE BENEFITS CASE

84. The current Government has significantly increased the range of benefits that a given application should provide for, with emphasis on good design, affordable housing, BNG and other environmental and technical matters.

85. Whilst a future Government may be more positive on the general principle of permission, it seems likely that it will also have high expectations upon the development industry to deliver certain kinds and types of benefit.

Affordable Housing and Housing Mix

86. Providing for a diversity of forms of housing need will continue to be an important material consideration throughout 2024, 2025 and beyond.

87. Revised NPPF §60 already adds that in addition “significantly boosting the supply of homes” and that a sufficient amount and variety of land can come forward where it is needed, the revised NPPF also adds that: “The overall aim should be to meet as much of an area’s identified housing need as possible, including with an appropriate mix of housing types for the local community.”

88. We see particular recognition of the needs of those including those who require retirement housing, housing-with-care and care homes being added to the requirements of §63, which formerly 42 (and continues to recognise) affordable housing, families with children; students, people with disabilities, service families, travellers, and those who wish to build their own homes.

89. In addition, we note that there is some additional clarity on how exception sites should be approached where there are First homes. 43

90. The NPPF is just the start of a significant steer towards a focus on affordable housing under a future Labour Government, alongside other specialist forms of development.

91. We would encourage those involved in promoting schemes to instructing specialist evidence on both affordable and older persons to address how acute the needs are in those given areas – mindful in the latter respect of a little covered duty within the LURA 2023:

15LB Guidance

(1) In the exercise of any function conferred by or under this Part a relevant planmaking authority must have regard to any guidance issued by the Secretary of State.

(2) The Secretary of State must issue guidance for local planning authorities on how their local plan and any supplementary plans (taken as a whole) should address housing needs that result from old age or disability.

92. Expect further detailed PPG on older persons housing methodology either under the current Government or in early 2025.

42 Formerly §62.

43 Formerly Footnote 35 explained that entry-level exception sites should not be larger than one hectare in size or exceed 5% of the size of the existing settlement. This has now been replaced with footnotes 36 and 37.

36 This exception site policy does not replace the First Homes exception policy set out in the Affordable Homes Update Written Ministerial Statement, dated 24 May 2021, which remains extant policy.

37 Community-led development exception sites should not be larger than one hectare in size or exceed 5% of the size of the existing settlement.

93. If there is any proposal to call viability evidence to explain under-performance against a given target, instruct this very early indeed. For the template nationally, look to the issues with viability and affordable housing within London itself, under Labour Mayoral leadership since 2016.

Environmental Benefits

94. Wider environmental benefits of schemes are also likely to be important – notably biodiversity. The latest metric introduced by Natural England for its Environmental Benefits from Nature seeks to quantify natural capital benefits, including for flood protection, recreation, and improved water and air quality. 44 Over-provision on BNG is likely to be an important planning benefit during a planning inquiry, unless Government explores the use of exemptions for certain forms of housing where it is demonstrating unacceptable trade-offs, e.g. with affordable housing.

95. However, a significant new emerging area will be climate change, net zero and overall site sustainability. These matters are addressed by other speakers at this conference. However, simply put, every major application and appeal team should consider calling separate evidence on this matter in future appeals – either to positively present the benefits case, or to address any divergence from standards.

Concluding remarks: key lessons

96. The planning system has never taken so long as it does now. That is frustrating but it also requires a particular long-term mindset, identifying not just what the position is now, but where it will be in a given number of months.

97. Identifying the exact policy landscape at the key point of decision thus has a somewhat lunar mission quality. The s78 appeals of early 2025 should now be under preparation, whether in respect of site assessment, monitoring, or political strategy.

98. As we have identified above, the future looks considerably more positive for both the promotion of allocations and for applications (up to appeal). But as the rate of appeals rises and with that timescales to reach inquiry/decision, applicants/appellants will need to reflect carefully on their existing timetables and in a number of cases expedite certain processes, whilst carefully phasing others.

99. Above all, the fundamental need to provide sufficient homes and jobs is not going away – and on that basis, whatever the duration, a positive approach to plan-making and decision-taking will go a long way towards eventual success.

Hugh Richards

Planning and Environment

Year of Call: 1992

Email Clerks: planning@no5.com

Hugh Richards was called to the Bar in 1992 having spent 12 years in the Army and read International Politics at the Universities of Wales (Aberystwyth) and California (Santa Barbara). His practice includes planning, environment and rights of way matters at inquiry and in the courts for developers, landowners, local authorities and government agencies. He has particular experience and expertise in housing, NSIP, energy, waste, development plan making, gypsy and travellers and ‘EIA Regulations’ issues. He talks regularly at seminars on a variety of topics including ‘legal updates’, localism, energy and housing planning policy, development plan making, NSIPs, giving evidence at planning inquiries, planning committee training and gypsy and traveller issues.

He is a multi-academy trust director, charity trustee, military museum trustee, churchwarden and a keen amateur actor and singer. He obtained planning permission to build his own house in the Green Belt.

Local Plan Making:

- Landowners: promoting housing allocations including in Hertfordshire, Cheshire East, Sussex, Lichfeld, Birmingham, Cardiff, Central Bedfordshire, Oxfordshire, Warwickshire, Solihull.

- Developer: resisting allocations in minerals and waste local plan to prevent impact on housing site

- Local Authorities: advised and assisted LA bringing forward local plans and at examination: Worcestershire, Derby, Derbyshire, Leicestershire, Somerset, Shropshire, Staffordshire, Norfolk.

- Local Authorities: Gypsy and Traveller Local Plans in Leicestershire and Solihull.

- Somerset authorities: SPD for new nuclear power station at Hinkley Point

- Developer: promoting new settlement of Northstowe in South Cambridgeshire Core Strategy, Area Action Plan and Development Control policies DPDs

- Minerals and Waste Local Plans: advised LA in Leicestershire, Worcestershire.

Planning Applications / Development Management:

Residential:

- Developer: schemes of up to 500 houses in Northamptonshire, Leicestershire, Staffordshire, Worcestershire, Warwickshire, Gloucestershire, Nottinghamshire, Cheshire, Lancashire, Berkshire, Solihull; small schemes in ‘back gardens’; barn conversions, extensions, agricultural dwellings, holiday caravan parks;

- Local Authority: schemes of up to 5,000 houses in Derbyshire, Worcestershire, Wiltshire, Sussex, ; ‘live-work’ units in Warwickshire; rural/village extensions;

- Issues included: ‘EIA Regulations’, ‘Habitats Regulations’ Appropriate Assessment, ‘5 Year Supply’; affordable housing; highways, contributions in planning obligations; change of use from offces, housing redevelopment of employment land, world heritage site, conservation areas and listed buildings, AONB, National Park.

- Care Homes / Villages: for developer in Gloucestershire, Derbyshire, Shropshire and Worcestershire;

Retail:

- Local Authority: Superstores in Worcestershire, Nottinghamshire, Cornwall; food stores in Leicestershire, Derbyshire. Out-of-town retail park in Northamptonshire, Warwickshire, Motorway Services Areas.

- Developer: road-side PFS and retail

Other:

- Energy from Waste: EfW incinerators for Local Authority in Derbyshire, Shropshire and Leicestershire. For objectors in Hertfordshire (impact on important heritage assets)

- Employment: offces in West Midlands, industrial units in Cheshire, Worcestershire and Staffordshire, multi-modal storage and distribution in Nottinghamshire, Leicestershire, Derbyshire

- Gypsies and Travellers: For Local Authorities in Solihull (Meriden site).Warwickshire, Worcestershire, Staffordshire, Shropshire, Flintshire, Cheshire, Yorkshire, Wiltshire. For Gypsies and Travellers in the South West and South East

- Minerals: Quarries for developers in Staffordshire and Lincolnshire; ROMP applications.

- Education: securing permission for a new school in the green belt; s106 contributions

- Leisure: quarry restoration to leisure park in Staffordshire; golf driving ranges, motocross scrambling.

- Agricultural: poultry houses, barns (including PD), barn conversions to residential, Alpacas.

- 5G phone masts

Nationally Signifcant Infrastructure Projects

- Hinkley Point C nuclear power station – Local authorities

- Wylva nuclear power station – Local authority

- Keuper underground gas storage – Local Authority

- Trunk road alterations – Local authorities.

Enforcement / Lawful use:

- Gypsy and Traveller sites (as above)

- Lawful use by ‘10 year rule’ and commencement of development authorised by planning permission.

- Development in breach of condition (including ‘conditions precedent’)

High Court:

- Judicial Review of grants of planning permission / discharge of conditions on grounds including: inadequate consultation, procedural unfairness, defects in EIA process (screening, scoping, content of ES), failure to identify and apply policies in the development plan, failure to consider material considerations, legality of conditions, defects in planning obligation procedure and content, adequacy of reasons for the grant.

- Judicial review of designation of conservation areas and listing of buildings.

- Injunctions – particularly relating to gypsies and travellers including those in the green belt; non-compliance with enforcement notices; breach of planning conditions.

- Applications under s288 and s289 TCPA to quash appeal decisions relating to development management, lawful use and enforcement.

- Applications under s113 to quash DPDs (or parts thereof).

Compulsory Purchase:

- City centre regeneration in Birmingham – objector

- Urban regeneration in Northampton – objector

- Urban ring road in the Midlands – promoter

- Large regeneration project in the South West – promoter

- Town Centre regeneration in the Midlands – objectors

- Road schemes in Staffordshire - promoter

Other:

- Defnitive Map modifcation

- Town / Village Green registration

- School Governance and Admissions

Recommendations

“He is good on strategy, dependable, offers practical advice and successfully navigates through diffcult issues.” “He is very user-friendly, to the point, and excellent at reading the decision maker.”

Chambers UK 2022

“He has been consistently recommended for Planning work in the Chambers UK Guide to the Legal Profession: “Very user-friendly, to the point and excellent at reading the decision maker.” “Good on strategy, gives dependable and practical advice and successfully navigates through diffcult issues.”

Chambers UK 2021

“Experienced in a wide range of planning and infrastructure matters.”

Chambers UK 2020

“Sound practitioner.” “He works incredibly hard and works well with his clients.”

Legal 500 2020

Notable Cases

NICOLA SQUIRE (Claimant) v SHROPSHIRE COUNCIL (Defendant) and MATTHEW J BOWER (Interested Party) (2018 and 2019)

Planning permission for an intensive poultry-rearing facility was vitiated by a lack of proper assessment in the environmental impact assessment (EIA). The EIA failed to consider the impact on the environment of odour and dust from the storage and spreading of manure from the facility on nearby agricultural land, and the planning offcer reporting to the committee had not remedied that defect by addressing the issue himself. [20190 EWCCA 888 (Admin)

R (on the application of PAUL HOUSIAUX) (Claimant) v STAFFORDSHIRE MOORLANDS DISTRICT COUNCIL (Defendant) and LAVER LEISURE LTD (Interested Party) (2017)

PLANNING - The Court upheld a local authority’s grant of planning permission, rejecting criticisms of the content of the offcers’ report. [2017] EWHC 2157 (Admin)

HOPKINS HOMES LTD v (1) SECRETARY OF STATE FOR COMMUNITIES and LOCAL GOVERNMENT (2) SUFFOLK COASTAL DISTRICT COUNCIL : CHESHIRE EAST BOROUGH COUNCIL v (1) SECRETARY OF STATE FOR COMMUNITIES and LOCAL GOVERNMENT (2) RICHBOROUGH ESTATES PARTNERSHIPS LLP (2017) (2017)

The Supreme Court’s leading judgment on the interpretation and application of the NPPF. [2017] UKSC 37 BDW TRADING LTD (T/A DAVID WILSON HOMES (CENTRAL, MERCIA and WEST MIDLANDS)) v (1) SECRETARY OF STATE FOR COMMUNITIES and LOCAL GOVERNMENT (2) STAFFORD BOROUGH COUNCIL (2016)

2016

When upholding the refusal of planning permission for a housing development, the planning inspector had adhered to her duty under the Planning and Compulsory Purchase Act 2004 s.38(6) to make the decision in accordance with the development plan unless material considerations indicated otherwise. [2016] EWCA Civ 493

WILTSHIRE COUNCIL v (1) SECRETARY OF STATE FOR COMMUNITIES and LOCAL GOVERNMENT (2) HERON LAND DEVELOPMENTS LTD (3) GALLAGHER UK LTD (4) GALLAGHER ESTATES LTD (2015)

2015

The court granted a declaration that a planning inspector had erred in law in failing to consider a material consideration when granting planning permission for residential development. To quash the planning inspector’s decision would be unfair to the property developers, who would be disadvantaged through no fault of their own. [2015] EWHC 1459 (Admin) R (on the application of LUTON BOROUGH COUNCIL) (Claimant) v CENTRAL BEDFORDSHIRE COUNCIL (Defendant) and HOUGHTON REGIS DEVELOPMENT CONSORTIUM and 4 ORS (Interested Parties) (2015)

2015

Paragraph 83 of the National Planning Policy Framework, requiring exceptional circumstances to be shown before a proposal to alter the boundaries of a green belt in a local plan was allowed, did not lay down a presumption or create a requirement that the green belt boundaries had frst to be altered via the process for changing a local plan before development might take place at that site. Paragraphs 87 and 88 of the NPPF plainly contemplated that development might be permitted on land within the green belt, without the need to change its boundaries in the local plan, provided that “very special circumstances” existed. [2015] EWCA Civ 537

WILTSHIRE COUNCIL v (1) SECRETARY OF STATE FOR COMMUNITIES and LOCAL GOVERNMENT (2) HERON LAND DEVELOPMENTS LTD (3) GALLAGHER UK LTD (4) GALLAGHER ESTATES LTD : WILTSHIRE COUNCIL v (1) SECRETARY

OF STATE FOR COMMUNITIES and LOCAL GOVERNMENT (2) S COOPER (2015)

2015

A grant of planning permission was quashed where the planning appeal inspector had failed to take into account a material consideration, namely a report which dealt with the assessment of housing needs. That had been a main issue in the appeal, and the report had cast doubt upon a previously perceived housing supply defcit. [2015] EWHC 1261 (Admin)

BDW TRADING LTD (T/A DAVID WILSON HOMES (CENTRAL, MERCIA and WEST MIDLANDS)) v (1) SECRETARY OF STATE FOR COMMUNITIES and LOCAL GOVERNMENT (2) STAFFORD BOROUGH COUNCIL (2015)

2015

In refusing planning permission for a residential development, a planning inspector erred by failing to consider whether the development accorded with the planning authority’s local development plan as required by the Planning and Compulsory Purchase Act 2004 s.38(6) and R. (on the application of Hampton Bishop PC) v Herefordshire Council [2013] EWHC 3947 (Admin). [2015] EWHC 886 (Admin)

R (on the application of LUTON BOROUGH COUNCIL) (Claimant) v CENTRAL BEDFORDSHIRE COUNCIL (Defendant) and HOUGHTON REGIS DEVELOPMENT CONSORTIUM and 4 ORS (Interested Parties) (2014)

2014

A local authority failed in its challenge to the decision of a neighbouring authority to grant planning permission for a substantial urban extension on 262 hectares of green belt including up to 5,150 dwellings, retail units and other uses. [2014] EWHC 4325 (Admin)

FEENEY v (1) SECRETARY OF STATE FOR TRANSPORT (2) CHILTERN RAILWAY CO LTD (3) NATURAL ENGLAND (2013)

2013

The Secretary of State for Transport had been entitled to take into account a proposed planning condition requiring a scheme of assessment, predictions and monitoring of the effects on air quality of a new railway passing close to a special area of conservation and to conclude that the effect of the condition was that it was not necessary to carry out an “appropriate assessment” under the Conservation of Habitats and Species Regulations 2010 reg.61. [2013] EWHC 1238 (Admin)

R (on the application of TWS) (Claimant) v MANCHESTER CITY COUNCIL (Defendant) and FC UNITED LTD (Interested Party) (2013)

2013

Where, in an application for planning permission for a sports stadium, the applicant had merely indicated in general terms how often it expected the stadium to be used, it was not irrational or unlawful for the local authority to grant permission without adding an express condition as to the maximum number of days and hours of use. [2013] EWHC 55 (Admin)

ESMOND JENKINS (Claimant) v GLOUCESTERSHIRE COUNTY COUNCIL (Defendant) and (1) MORETON C CULLIMORE (GRAVELS) LTD (2) COTSWOLD WATER PARK SOCIETY (3) ENVIRONMENT AGENCY (Interested Parties) (2012)

2012

A local planning authority which had granted planning permission for the extraction of minerals at a quarry in an area prone to fooding had breached the publicity requirements of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 reg.19 in relation to an “Advisory Note” provided by a frm of consultants proposing food-mitigation measures. [2012] EWHC 292 (Admin)

GREYFORT PROPERTIES LTD v (1) SECRETARY OF STATE FOR COMMUNITIES and LOCAL GOVERNMENT (2) TORBAY COUNCIL (2011)

2011

Access works carried out by a company as part of a property development scheme could not constitute a lawful implementation of a planning permission where they had been carried out in breach of a planning condition. They therefore fell squarely within the principle set out in FG Whitley and Sons Co Ltd v Secretary of State for Wales (1992) 64 P. and C.R. 296. [2011] EWCA Civ 908

R (on the application of IAN FRAZER ENGLISH) (Claimant) v EAST STAFFORDSHIRE BOROUGH COUNCIL (Defendant) and NATIONAL FOOTBALL CENTRE LTD (Interested Party) (2010)

2010

There was no procedural irregularity or perversity in a decision of a planning committee granting permission for the erection of 28 houses. The non-disclosure of a fnancial report that was commercially sensitive submitted by the applicant for planning permission and review of that report by the local authority was not procedurally unfair. [2010] EWHC 2744 (Admin)

R (on the application of MIDCOUNTIES CO-OPERATIVE LTD) (Claimant) v (1) WYRE FOREST DISTRICT COUNCIL

(Defendant) (2) TESCO STORES LTD and SANTON GROUP DEVELOPMENTS LTD (Interested Party) (2010) 2010

A condition as to maximum foor space attached to a planning permission for a supermarket development was not uncertain, nor did it result in the applicants being granted more than they had sought. [2010] EWCA Civ 841 R (on the application of MIDCOUNTIES CO-OPERATIVE LTD) (Claimant) v (1) WYRE FOREST DISTRICT COUNCIL (Defendant) (2) TESCO STORES LTD and SANTON GROUP DEVELOPMENTS LTD (Interested Party) (2009) 2009

A planning condition setting out the maximum foor space of a supermarket was not uncertain. [2009] EWHC 964 (Admin)

Memberships

Planning and Environment Bar Association.

Howard Leithead Planning and Environment

Year of Call: 2014

Email Clerks: planning@no5.com

Howard is a specialist planning and environmental law barrister. He is experienced in dealing with appeals to the Secretary of State (drafting written representations and appearing in hearings and inquiries) and in representing clients in cases in courts and tribunals from the magistrates’ court to the Court of Appeal.

He acts for and advises clients of all types, including developers, local authorities, the Government, campaign groups, local residents, and private individuals.

Howard accepts instructions both from professional clients and on a public access basis across England and Wales. He is appointed to the Attorney General’s C Panel of Counsel in London.

Developments

Howard is involved in a variety of development work. Much of his work is focused on helping clients to obtain or oppose grants of planning permission, including at the planning application stage, in appeals to the Secretary of State, and in challenges in the High Court and the Court of Appeal.

He is experienced in dealing with all the main issues that arise in this context, including heritage impact, Green Belt, interpretation of policy, character and appearance, appropriateness of location and sustainable travel, housing land supply, highways, air quality, ecology, viability, affordable housing, and the public sector equality duty.

Other development issues that he deals with include disputes over the interpretation of planning permissions and listed building consents, s.106 agreements, lawful development certificates, applicability of permitted development rights (such as in relation to domestic projects, agricultural buildings and barn conversions), use class disputes, implications of the granting of planning permissions by mistake, and issues that arise in the context of mineral permissions.

Howard is also interested in compulsory purchase disputes and represented the Secretary of State for Transport in valuation references to the Upper Tribunal concerning properties compulsorily purchased to facilitate the development of the new HS2 Euston Station.

Recent appeals:

- Land at Buckingham Hotel, 1-2 Burlington Road, Buxton, APP/H1033/W/22/3302879, 15 August 2023, represented the local planning authority in an appeal concerning an appeal to redevelop a historic hotel (heritage and economic viability, character and appearance)

- Land at (OS 8579 4905) Post Office Lane, Kempsey, Worcestershire, APP/J1860/W/22/3313440, 14 August 2023, represented the local planning authority in an appeal involving a proposal for 30 dwellings (character and appearance, spatial development strategy, housing land supply, affordable housing, infrastructure)

- Land at Loughborough Road, Burton on the Wolds, Leicestershire, PP/X2410/W/22/3310932, 26 July 2023, represented the local planning authority in an appeal concerning a proposal including the development of 56 dwellings (character and appearance, heritage, appropriateness of location and accessibility)

- Land at Broadway Lane, Fladbury, Pershore, Worcestershire, APP/H1840/W/22/3313745, 22 June 2023, represented the local planning authority in an appeal involving a proposal to develop 34 affordable dwellings (scale and type of development, accessibility to services and facilities)

- Land off Leconfield Road, Nanpantan, APP/X2410/W/22/3304644, 5 May 2023, represented the local planning authority in an appeal concerning the proposed development of up to 30 dwellings (character and appearance, biodiversity)

- Land at 8-10 Station Road, Shirehampton, Bristol, APP/Z0116/W/22/3305852, 5 April 2023, represented the developer in an appeal involving the proposed development of 21 dwellings (character and appearance, heritage, green infrastructure, biodiversity, living conditions, affordable housing)

- Land North of Barking Road, Needham Market, APP/W3520/W/22/3308189, 31 March 2023, represented the developer in an appeal involving a proposal for up to 279 dwellings (character and appearance, flood risk, highway, accessibility, residential amenity (noise and light), ecology, air quality, heritage, minerals, agricultural land)

- Land at Rush Lane, Dosthill, Tamworth, APP/R3705/W/22/3290788, 25 January 2023 (costs decision following appellant withdrawing the appeal), represented the Rule 6 major construction suppliers in opposing the proposed development of up to 189 dwellings (noise)

- Land at Steart Bushes, Wedmore Road, Cheddar, Somerset, APP/V3310/W/21/3286963, 9 December 2022, represented the developer in an appeal against the decision of the local planning authority to refuse planning permission for the development of 19 dwellings (viability and affordable housing, ecology, highway and parking)

- Land at Easthorpe Lodge, Manor Road, Easthorpe, APP/Y2430/W/22/3295437, 2 December 2022, represented the local planning authority in an appeal concerning 36 dwellings (character and appearance, acceptable housing mix)

- Land at (OS 8349 4918), Old Hills, Callow End, Worcestershire, APP/J1860/W/22/3295623, 15 November 2022, represented the local planning authority in an appeal involving the proposed development of 30 dwellings (character and appearance, location and accessibility)

- Land at and adjacent to No. 1 and The Neuk No. 3 Bretforton Road, Badsey, Worcestershire, APP/H1840/W/21/3266573, 20 September 2022, represented the local planning authority in an appeal concerning the proposed development of up to 100 dwellings (principle of development, character and appearance, affordable housing and infrastructure)

- Land at Park Field, New Road Hill, Bonnington, Ashford, Kent, APP/E2205/W/22/3297749, 24 August 2022, represented developer in an appeal concerning the development of an agricultural site (need for residential development, viability, character and appearance)

Notable cases:

- R (Whitley Parish Council) v North Yorkshire County Council [2023] EWCA Civ 92, led by Richard Kimblin KC, represented the claimant parish council in its judicial review challenge of a decision to grant planning permission to a developer to extract pulverised fuel ash

- R (Curran) v London Borough of Lewisham Council and Network Rail Infrastructure Limited (High Court, 2022), represented the claimant who challenged the defendant local planning authority’s decision to grant prior approval for the significant development of Hither Green Railway Station under permitted development rights

- Miah v Secretary of State for Transport; Diamond and Diamond v Secretary of State for Transport (Upper Tribunal (Lands Chamber), 2020), represented the Secretary of State in valuation references relating to properties compulsorily purchased as part of the HS2 project

- R (Besser) v Brighton and Hove County Council (Court of Appeal, 2020), led by Christopher Young KC, represented the developers of a proposed development that included a new synagogue in opposing a judicial review claim in the High Court (unled) and the Court of Appeal

- Retirement Villages Development Ltd v Oxfordshire County Council (High Court, 2020), led by Christopher Young KC, judicial review claim linked to a s.78 appeal regarding the speed limit on a stretch of road adjacent to the appeal site, which was discontinued after the Secretary of State granted planning permission

- Lucy Developments Ltd v Secretary of State for Housing, Communities and Local Government (High Court, 2019), led by Richard Kimblin KC, represented the claimant in challenging an appeal decision in a s 288 review concerning a residential development

Enforcement

The enforcement work in which Howard is engaged broadly falls into three main areas: (1) appeals to the Secretary of State against enforcement notices and other enforcement actions; (2) High Court work, such as s.289 appeals, applications for injunctions, and contempt proceedings; and (3) criminal proceedings in the Crown Court and the magistrates’ court (such as for breach of an enforcement notice, or for harm to a heritage asset) and other court work (such as s.215 notices and advertising control).

Howard is skilled at providing clear advice and advocacy and is focused particularly on helping clients to find practical solutions in an area where the law can be particularly complex.

Recent appeals:

- Land at Brindwood House, Millthorpe Lane, Holmesfield, Derbyshire, APP/R1038/C/21/3288613 and 771, 4 January 2023, represented the local planning authority in appeals against enforcement notices involving development in the Green Belt

- Land at 13-15 Walm Lane, Willesden Green, London, APP/T5150/C/18/3209760 and 1506, 19 April 2022, represented the developer in appeals against enforcement notices concerning the development of a restaurant

Notable cases:

- R v Algul and N.R. Algul Limited (Crown Court, 2023), represented the defendants in a complex prosecution concerning multiple enforcement notices

- R (Dhanji) v Secretary of State for Levelling Up, Housing and Communities and Harrow Council (High Court, 2023), represented the claimant in conjoined s.288 and 289 appeals involving developments at his residential property

- HHM 20 Ltd v Manchester City Council (Magistrates’ Court, 2023), represented the appellant owner of a Grade II listed theatre challenging a s.215 notice that required extensive works

Environmental

Howard accepts instructions on a range of environmental work, both within the context of planning disputes and separately. This includes: appeals to the Secretary of State, statutory nuisance, judicial review claims, and criminal prosecutions (including those relating to waste disposal).

Notable case:

- Environment Agency v Himley Environmental Limited (High Court, 2023), represented the defendant in injunctive proceedings concerning two enforcement notices

Other

- Involved in appeals and hearings concerning footpaths, rights of way, and highways issues

- Represented local planning authority in opposing application to discharge extended civil restraint order in the High Court in Bozeat v Hannington Parish Council [2019] EWHC 2894

Further Experience

Howard regularly writes articles and speaks about planning and environmental issues. He provides expert analysis articles for LexisPSL, appears on No5 Planning Podcasts, takes part in webinars, and gives papers at seminars and conferences. He has also contributed to several specialist publications, including the NAPE Planning Enforcement Handbook.

He is committed to education and training and is involved in training professional witnesses for planning inquiries, coaching law students at Inner Temple and elsewhere, and judging mooting competitions. Since 2021, he has organised the United Kingdom Environmental Law Association Moot (UKELA).

Recommendations

“Howard has the ability to get to the nub of the main issues quickly and gives sensible and pragmatic advice which is easy to understand and explains in clear language his advice so that the client can readily understand and comprehend complex issues and risks.”

Legal 500 2023

Awards

Major Scholarship, Inner Temple

Exhibition Award, Inner Temple

Lightfoot Prize, University of Cambridge

Senior Scholarship and Tripos Prize, Trinity College, Cambridge

Memberships

Planning and Environment Bar Association (PEBA)

United Kingdom Environmental Law Association (UKELA)

Inner Temple

Qualifications

GDL and BPTC, City University, London

MPhil, Trinity College, Cambridge (Distinction)

BA (Hons), Trinity College, Cambridge (First Class)

Judicial Review of LPA Planning Decisions: How to Protect Grants of Permission… or Challenge Them 2

HUGH RICHARDS and HOWARD LEITHEAD

1. There can be few things more frustrating for a successful applicant than to face a claim for judicial review of their hard-won grant of planning permission. The same often applies to the local planning authority. Most of these claims fail –many are filtered out at the ‘permission’ stage; very few succeed at a substantive hearing. But the mere fact that a claim is threatened or issued can result in weeks or months of delay to much needed development. This paper identifies some ‘grounds’ on which these claims have been brought in the last year. Its purpose is to identify ‘pitfalls’ for applicants and LPAs alike to avoid, if they can, and offers what we hope is some practical advice by way of ‘take-outs’. We have divided the paper into topics.

The case officer’s report

2. The officer’s report (“OR”) is an important document. Unless there is evidence to the contrary, the Court will assume the decision followed the reasoning in it 3. But in order to give grounds for an error of law, the OR must be “seriously misleading” in some material respect 4 Examples of “seriously misleading” advice came up in Watton v Cornwall Council [2023] EWHC 2436 (4 October 2023).

3. The case concerned the grant of planning permission for a large crematorium in the open countryside. The grant was quashed because of a number of errors in the OR which recommended granting permission.

1 This paper looks at Planning Court cases from 1/4/2023.

2 We are grateful to the authors of many planning ‘blogs’ and ‘updates’ for identifying cases of interest as they are decided and commenting on them. A very good weekly update is provided by Town Legal planning solicitors which can be subscribed to at https://www.townlegal.com/news-andresources/

3 See the judgment of Lewison L.J. in Palmer v Herefordshire Council [2016] EWCA Civ 1061, at paragraph 7

4 R (Mansell) v Tonbridge & Malling BC [2019] PTSR 1452, per Lindblom LJ, at [42]

a. Viability. The Judge held that the viability of the proposed development was material in this case. Viability was considered in the OR at some length, but it did not explain the potential planning risks arising from permitting unviable development (for example causing harm without delivering the supposed benefits or creating a precedent for development at the site which would otherwise be considered unsuitable). Rather the report stated that viability was ultimately a matter of commercial interest, which was wrong and misleading. Overall, the way the report dealt with viability involved sufficiently significant omission or error as to make the OR significantly misleading and so the decision was unlawful.

Take out: be balanced. Acknowledge there is ‘another side of the coin’.

b. Condition 11 required the approval by the council of an external lighting scheme which was to “reflect” the recommendations of various ecological reports. One such report advised that Lux level of no more than 0.5 was the acceptable maximum to prevent light spill on hedgerows which would adversely affect protected species. A maximum light level was not specified in the condition. The Judge found that by failing to specify a maximum level, the condition did not achieve what the officer’s report said would be the case with respect to protected species. Having failed to specify a maximum level in the condition the council could not subsequently insist on it prior to approval of the lighting scheme and might lose an appeal fought on such an issue. As such the decision to grant permission was made in ignorance of the true effect of the condition, which was a further ground to quash the permission

Take out: beware trying to incorporate requirements from another document. Any error / lack of clarity / internal inconsistency will then infect the permission. Put what controls are needed in the condition if they need to be specified for a future ‘scheme to be agreed’.

c. Policy 5 – scale and location. Policy 5 in the local plan stated that proposals for new employment land in the countryside should be of a scale appropriate to its location. But the OR considered the scale of the

development in relation to its purpose, not its location as required by the policy. It balanced the implied harm of the large scale against mitigating factors and scheme benefits, when what the policy required was an assessment of whether there was in fact no harm due to the scale being appropriate to the location. There were significant errors of interpretation and advice on this key policy and important controversial issue.

Take out: always check you have understood policy correctly.

d. Travel distances and emissions benefits. The OR was seriously misleading as it identified emissions benefits arising from reduced travel by those who would use the development as the nearest crematorium, but was silent about emissions disadvantages because of other users who would divert to the development despite having nearer alternatives.

Take out: another ‘other side of the coin’ point.

e. The case is also interesting because of the Judge’s comments on the standard of reasoning in the OR. He found that the OR was required to give some express consideration to the principal points raised by the objector and supported by expert reports and to explain why they were rejected. Fairness required that there should be a discernible answer to the question: why did the Officer, and the Council reject my or my experts' points on the principal, important issues in controversy? The facts of the case were important. The Judge warned:

“[31] Of course, the nature of an objector's important point and the way in which it was dealt with may be apparent from the nature of the debate and conclusions reached. The depth of reasoning may also depend on the nature of the opposing case put forward. Short or general objector comments are very different from opposing expert reports, equivalent in expertise, reasoning and detail to those which are preferred. The reasons required are not reasons for reasons either, but reasons why the report concluded as it did, in the light of the evidence, on the principal controversial issues. Nor is it necessary for each objector's response to be separately

responded to; it is the discernment and addressing of the principal points in issue which matters. This is a long way from requiring a reason for how each material consideration has been dealt with, which no duty to give reasons requires.”

Take out: if a third party produces an expert report it needs to be dealt with (applicants should help the LPA if needed).

The decision-maker must act fairly

4. In Enterprise Hangars Ltd v Fareham Borough Council [2023] EWHC 2060 (Admin) (10 August 2023) the Claimant’s proposed development at Solent Airport (located on land owned by the LPA) consisted of nine mixed-use live/work hangar buildings for the aviation sector. The LPA carried out its own inspection and concluded that the presence of badgers was reasonably likely. It was, therefore, common ground that the Claimant needed to provide with its planning application a habitat assessment concerning badgers. However, the Council had refused to provide the Claimant access to the site in order to undertake the assessment on the basis that it would not sell the land required for the Claimant’s proposed residential development which would not accord with the Council’s vision for the land in the future.

5. The lack of a proper habitat assessment concerning badgers was one of the reasons why the Council refused the Claimant’s planning application in November 2022. The Claimant applied to the court for both an order quashing the Council’s decision to refuse permission and a mandatory order requiring the Council to give it access in order to carry out the required habitat assessment.

6. The Court agreed with the Claimant that the Council was a planning authority which had been entrusted by Parliament to discharge its functions as such in accordance with the principles of public law. The Council could not exercise the rights that it would otherwise have as a landowner if this would inhibit its ability to decide applications for planning permission according to law.

Take out: The Council as landowner must have regard to its duties and responsibilities as local planning authority.

7. R (Simmonds) v Venture Properties Group & Ors [2023] EWHC 2217 (KB) (15 September 2023) was a judicial review of the grant of planning permission and listed building consent for demolition of a listed building (old milking shed) and construction of 13 dwellings. The Court found the decision was procedurally unfair:

a. A member of the planning committee, Councillor Moitt, was wrongly told by a planning officer that he could not attend the Planning Committee meeting given a purported predisposition as a member of the Town Council who had voted to oppose it. To determine this ground, the Judge exceptionally allowed cross-examination of witnesses given the disputed factual background.

b. With hindsight, the Councillor should have taken his concerns to the chair of the committee meeting or looked at the minutes of the Town Council meeting once he received the call from the officer. However, the Judge found this placed an unrealistic duty on a Councillor.

c. The condition of a listed building was raised and debated at the committee meeting and it was suggested that it had been ‘neglected’. In such circumstances officers should have advised councillors about NPPF paragraph 196 (deliberate neglect of listed buildings).

Take out: (1) be very careful to have the correct facts before ‘disqualifying’ a member of a committee; (2) be alert to new matters coming up in committee that members might need advice on.

8. R (The Spitalfields Historic Building Trust) v London Borough Of Tower Hamlets [2023] EWCA Civ 917 (28 July 2023)

a. The Council’s constitution contained a rule restricting voting by members on deferred applications for planning permission to those who had been present at the meeting(s) at which the application had previously been considered.

b. Para 42 of the LGA 1972 refence to “regulation of their proceedings and business” does not relate merely to procedural matters but also to substantive matters. The Local Authority was acting within its powers when adopting the rule, via a standing order, which restricts voting rights of Councillors in this instance.

Take out: meetings should be conducted in line with the constitution. Each LPA may be different!

Disagreeing with / challenging a statutory consultee

9. In R (Christine Pratt and Another) v Exeter City Council and Others [2024] EWHC 185 (Admin) (2 February 2024), the developer applied for outline consent (except access) for 350 dwellings a site that was part of a wider allocation for 3500 dwellings. The Claimants objected to the proposed access arrangements on amenity grounds including the impact the proposal would have on access to Ms Pratt’s home.

10. The Claimants argued that the County Council, as highway authority, did not consider their concerns in its consultation response, in which it did not object to the proposal. Lang J held that the Defendants had indeed failed to assess the impacts of the proposed access scheme on the existing residents of the street on which Ms Pratt lived. The Judge said that, knowing that Mrs Pratt and other residents were concerned about the impacts of the access scheme, the Council was obliged to have regard to the matters under the development plan and because they were a material consideration. She further said that in not asking for further information from the County Council, the Council had failed in their Tameside duty to investigate these matters.

11. The Tameside duty comes from the case of SSES v Tameside MBC [1977] AC 1014, where Lord Diplock said (at page 1065B): “The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”. Reasonable steps are those which no reasonable decision maker would omit.

12. In deciding another ground, the Judge held that the Council had failed in its Tameside duty in another respect. Mrs Pratt had suggested an alternative access to the application site which would overcome the amenity issues and which would have been consistent with the masterplan for the allocation. The Judge held that the Council should have followed up on this.

Take outs:

1) There was no need for the Claimants to bring proceedings against the County Council to quash the consultation response, or for them to join the County Council in the judicial review proceedings. While it was open to them to challenge the consultation response before the decision was made, they did not have to do this (R (Swainsthorpe PC) v Norfolk CC [2021] EWHC 1014 (Admin). The more sensible approach was to bring the matter to the Council’s attention and this did not prevent them from raising it later.

2) A local planning authority cannot assume that a consultee has complied fully with their legal obligations. They must take steps that are reasonably necessary to inform themselves properly on the facts of the case (the Tameside duty). If an authority fails to do this there is no bar to the point being raised in a judicial review of the subsequent grant of planning permission. Thus, the authority should take steps such that it is reasonably satisfied with the adequacy of the advice received. If considering a challenge to a planning permission based on consideration of a consultee response, it is necessary to consider whether the consultee has really grappled with the important issues raised.

3) Both those considering bringing a claim and those defending one based on a potential failure to comply with the Tameside duty should bear in mind that the bat is set quite high. The question is whether any reasonable decision-maker would have omitted the steps.

Conditions

13. Tottenham Hotspur Ltd, R (On the Application Of) v London Borough of Haringey [2023] EWHC 2569 (Admin) (18 October 2023).

a. This case involved a claim by Spurs against the decision of the London Borough of Haringey to grant planning permission for the redevelopment of land west of High Road, Tottenham. The OR recommended approval of the scheme which included 2,929 homes, public realm improvements and commercial/community infrastructure

b. Ground 2 was divided into two sub-grounds both relating to implications of access and crowd control at the Tottenham Hotspur Stadium. The Claimant argued: (i) that the Council unlawfully relied upon a section 106 Agreement and planning conditions to determine that crowd control matters for the stadium would be addressed; and (ii) the Council failed to lawfully apply the Agent of Change Principle.

c. The Claimant argued that members were misled as the s106 agreement and planning conditions failed to secure access and crowd control arrangements as proposed in the OR. The Agreement provided that the developer was to use all reasonable endeavours to enter into a licence agreement with the Claimant. This would allow the Claimant access to the developer’s land during and post-construction to allow crowd management control for those seeking to go to the Stadium. In addition, Condition 64 was a detailed pre-commencement crowd control condition. This required the submission of crowd flow management plans to the Council for approval prior to the commencement of the relevant phases of the development for the reason of ensuring the interim and detailed crowd flow scenarios were workable.

d. The Judge found that this ground amounted to a hypercritical approach (as discussed in Mansell) and the Council acted lawfully in putting in place mechanisms which encouraged cooperation in relation to access and crowd control. The Council was lawfully satisfied that the planning permission created a framework where access to the stadium would be satisfactorily achieved without unreasonable impact on the Claimant, and in finding this, the combination of the Agreement and various conditions

would safeguard the interests of the Claimant to make the application compatible with the Agent of Change Principle.

Take out: a good example of the court disapproving of Claimants trying to be too picky.

s106 obligations

14. R (Worcestershire Acute Hospitals NHS Trust) v Malvern Hills District Council & Ors [2023] EWHC 1995 (Admin) (31 July 2023) is the latest case on plugging ‘funding gaps’ in NHS budgets through s106 contributions. Once again the main issue was whether the claimed contribution had been shown to be

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development.

15. The Court confirmed that this is matter of planning judgment for the decisiontaker who had to be satisfied in respect not just of the need for “a” contribution, but also the size of it. It was for the NHS to adduce sufficient evidence to satisfy the decision-taker

16. In a case where all contributions which met the s106 tests could not be satisfied on viability grounds, then it was a matter of planning judgment for the decisiontaker as to which s106 obligations should be prioritised.

Take out: LPA will not always be satisfied with a claim for s106 contributions from a ‘worthy’ infrastructure provider. Especially where viability issues my cause it to deflect available funds from higher priority issues.

Green Belt

17. Royal Borough of Kingston Upon Thames v Secretary of State for Levelling Up, Housing and Communities & Anor [2023] EWHC 2055 (Admin) (07 August 2023). NPPF 150(e) lists what is not inappropriate development: “(e)

material changes in the use of land (such as changes of use for outdoor sport or recreation, or for cemeteries and burial grounds);”.

18. The Inspector found that the stationing a caravan was not inappropriate. The Court held that while para 150(e) was not a closed list on account of the words “such as”, there must be commonality in respect of another use with the listed uses.

19. Moreover, the caravan use was part of a gypsy and traveller site. The Inspector missed that NPPF para 4 requires the NPPF to be read in conjunction with the Government’s Planning Policy for Traveller Sites which states that “traveller sites (temporary or permanent) in the green belt are inappropriate development.”

Interpretation of policy

20. In Moore v Somerset Council [2023] EWHC 2544 (KB) (there was a dispute as to the meaning of particular policy revolving around the use of punctuation, and the combination of two separate matters in the same policy indent, which the Judge considered had been “poorly drafted”.

21. Punctuation is important to meaning:

a. A woman without her man is nothing

b. A woman: without her, man is nothing.

Take out - don’t ignore the practical application of emerging local plan polices. Get involved and point out development management issues that will / might arise.

Sequential test in flood risk cases.

22. Although a DCO case, R (Substation Action Save East Suffolk Ltd) v Secretary of State for Energy Security and Net Zero & Ors [2024] EWCA Civ 12 (17 January 2024) has importance for development management generally

Lewis LJ stated that it is clear from the relevant policies that the application of the sequential test is concerned with risks of flooding from fluvial flooding (i.e. from rivers). The Flood Risk Zones 1, 2 and 3 relevant to the sequential test are concerned with areas at risk from fluvial flooding (as appears, for example, from Table 1 to the PPG) and do not identify zones by reference to flooding from surface water.

23. On this basis, Lewis LJ (with Davis LJ and Coulson LJ agreeing) found that the relevant policies regarding the sequential test do not require an applicant for development consent to demonstrate that whenever there is a risk of flooding from surface water, there are no other sites reasonably available with a lower risk of surface water flooding. Whilst the risks of flooding from surface water is to be taken into account when deciding whether to grant development consent, the way in which account is to be taken of that risk raises issues of planning judgment in the application of the relevant provisions of the policies.

Take out: surface water flooding is still a material consideration – but not one which requires a sequential test under the NPPF.

Discharging Conditions

24. R (Laing) v Cornwall Council [2024] EWHC 120 (Admin) (26 January 2024)

This was a successful application for judicial review of the Council’s decision to discharge a condition. The condition required the submission and approval of a landscape and ecological management plan (“LEMP”). The condition included the following wording: “For the avoidance of doubt the LEMP shall comply with the recommendations, mitigation and enhancement measures contained within the Preliminary Ecological Appraisal Report”. The Council had, contrary to its usual practice on applications of this type, prepared a full officer’s report. This was apparently due to the contentious history of the site, with both the outline planning permission and reserved matters approval being granted at appeal. OR said that the proper test for discharging a condition is whether the application is satisfactory, which is to be distinguished from ideal, and further that a condition

should not be read in such a way that it would impose unreasonable requirements. OR ignored the wording of the condition!

Take out. No need for an OR / reasons for discharging the condition. But if you give reasons / produce an OR, then vulnerable to JR if an error of law is revealed.

25. R (Whiteside) v London Borough of Croydon & Anor [2023] EWHC 3289 (Admin) (22 December 2023) Two conditions were attached to a permission for the demolition and replacement of residential units. C14 required 10% of the dwellings to be wheelchair accessible or adaptable C18 required details to be submitted and approved of finished levels of the dwellings and amenity spaces.

26. An application was made to discharge C18. But approving the submitted details would make complying with C14 impossible. The LPA held it could only have regard to C18 and reasons for imposing it. The Court held it was irrational at least not to investigate the concerns expressed about the consequences for C14.

Take out: planning can sometimes be common sense!

Discretion

27. Outcome the same? There are some interesting comments on the application of the “highly likely” test under s.31(2A) of the Senior Courts Act 1981 R (Whiteside) v London Borough of Croydon & Anor [2023] EWHC 3289 (Admin). The case about the two conditions and wheelchair access (above). Relief was in fact refused by the Court pursuant to section 31(2A) of the Senior Courts Act 1981. The Court found that, had proper consideration been given to the Claimant’s concerns, the Approval would still have been granted. The available evidence showed that, within the ambit of the Permission, there were no alternative set of levels which could have met the Claimant’s concerns. On this basis, relief was refused, and the claim failed.

And finally…

28. A niche point for coastal development. R (Parkes) v Secretary of State for the Home Department [2023] EWHC 2580 (Admin) (11 October 2023). The Bibby Stockholm barge for asylum seekers. Where do a LPA’s development control powers run?

a. Planning permission is needed for the development of “land” (s57(1)).

Where is the boundary between the land and the sea? s.72 of the Local Government Act 1972 which, in essence, states that every accretion from the sea, whether natural or artificial, and any part of the sea-shore to the low water-mark, shall be annexed to and incorporated with the parish or parishes which the accretion or part of the sea-shore adjoins and to the district(s) in which that parish is situated within. If the whole or part of any such accretion from the sea or part of the sea-shore does not adjoin a parish, it shall be annexed to and incorporated with the district(s) which it adjoins.

b. First, dealing with the phrase “any part of the sea-shore to the low water mark”, Mr Justice Holgate applied the definition provided by Bridge LJ in Loose v Castleton (1978) 41 P & CR 19, which stated that the seaward extent of the foreshore extends to “the whole of the shore that is from time to time exposed by the receding tide”. Counsel for the Claimant accepted that the site of Bibby Stockholm is never exposed by the receding tide and so it was not within the jurisdiction of the LPA.

Thea Osmund-Smith

Planning and Environment

Year of Call: 2010

Email Clerks: planning@no5.com

Thea is a specialist planning and environmental law practitioner and regularly advises a wide range of clients including land promoters, developers, commercial clients, local planning authorities and other interested parties. Thea is consistently rated by Planning Magazine as one of the top planning juniors, and has appeared on ‘The Planner’s’ Women of Infuence annual list.

Chambers and Partners comment that Thea is:

“Really good with clients, really good on her feet and exceptional with detail. Her work ethic is brilliant.” “Incredibly thorough, incredibly focused and also a very engaging person. A great advocate.” “Thea's advocacy is frankly brilliant, she is a pleasure to watch." Thea is ranked in Band 1 for Planning.

Thea has a strong Inquiry practice and is regularly instructed to appear in High Court matters on behalf of Claimants and Defendants and has extensive experience of advising, drafting and advocacy in judicial review and section 288 and 289 claims.

Thea is familiar with the procedural requirements of High Court litigation, and the relevant costs provisions. In 2018, Thea was appointed to the Attorney General’s C Panel of Counsel (London) and regularly appears in the High Court. In 2023, Thea was successful at defending an appeal to the Court of Appeal in Cab Housing Ltd v SSLUHC, on behalf of the Secretary of State.

Planning Hearings, Inquiries and Examinations

Thea is an experienced Inquiry practitioner, often appearing at multi-week Inquiries on behalf of land promoters, and developers with specialisms in major housing development and renewable / low carbon energy schemes. Thea advises on a broad spectrum of planning related matters including appeal strategy and site promotion through local plan examinations.

Local Plans

Thea has extensive experience in local plan examinations.

Thea regularly advises land promoters and developers on the promotion of sites through the local plan process, as well as on issues such as green belt review. Thea was involved in the Coventry Core Strategy and appeared at the Warwick Local Plan Examination. Thea represented a land promoter at the Examination into the soundness of North Somerset’s Consequential Changes to Policies following a successful Judicial Review, and at the Huntingdonshire Local Plan Examination on behalf of Larkfeet Homes.

Thea appeared at the Examination of the Kingswood Neighbourhood Development Plan and has drafted representations for the King’s Lynn and West Norfolk Local Plan. Thea has advised in relation to the Cornwall Site Allocations DPD, and was involved in the Rushcliffe Local Plan Part 2, the North Warwickshire Local Plan, and the South Staffordshire Local Plan Review.

Thea represented Persimmon Homes at the West of England Joint Spatial Plan Examination to make submissions on the Sustainability Appraisal of the Plan’s preferred strategy. Thea has also promoted housing developments through examination of the Wrexham Local Plan, the Shropshire Local Plan, the Stroud Local Plan, and the Babergh and Mid Suffolk Joint Local Plan.

Inquiries and Hearings

Thea has vast experience of section 78 appeals and has appeared at well over 100 planning Inquiries and hearings in

England and Wales. Thea deals with a wide range of issues including heritage, landscape and character, transport, drainage, ecology, locational sustainability and environmental impact. Thea regularly advises on the promotion of Green Belt sites for development including, renewable and low carbon energy, housing including specialist accommodation through local plans and the planning application / appeal processes.

Among her successes, Thea has secured permission for sites including 76 dwellings in Arun District in a green gap, 50 dwellings in Melksham despite an up-to-date neighbourhood plan, 380 dwellings in Pocklington and 150 in Swanland following a joint Inquiry in the East Riding of Yorkshire, 830 dwellings in Maghull, Sefton, 110 dwellings in Holt, North Norfolk, over 300 dwellings in Wrexham, and hundreds of dwellings in Hinckley & Bosworth Borough.

Thea has also been heavily involved in the promotion of large solar schemes for the past two years, achieving consent for a number of 45+MW and battery storage developments.

Thea has a particular interest in heritage issues and believes that early advice is crucial to ensure that impacts are properly considered within the statutory and policy framework.

Renewable Energy

Thea has a signifcant solar energy practice and has been involved in promoting a number of schemes of up to 49.9MW in the last 18 months including, all of which have secure consent following appeal:

• Bramley, Hampshire APP/H1705/W/22/3304561- 45MW solar farm and battery storage

• Langford, Devon APP/Y1138/W/22/3293104 (“Langford”) - Secretary of State decision 49.9MW solar farm and battery storage

• Bishop’s Itchington, Warwickshire APP/J3720/W/22/3292579 - 49.9MW solar farm

• Halloughton, Nottinghamshire APP/B3030/W/21/3279533 - 49.9MW solar farm and battery stations

Section 106 contributions, development viability and the application of the CIL Regulations

Thea has advised a range of clients on the applicability of the Regulations to specifc contributions, and on the wording of 106 Agreements / Unilateral undertakings. Thea appeared in front of the CIL Review Panel chaired by Liz Peace, on behalf of the National Police Chief’s Council to discuss how the CIL regime has impacted and was likely to impact the delivery of infrastructure in future. The Report of the Panel was published alongside the Housing White Paper and recommended that the Community Infrastructure Levy (CIL) should be replaced with a ‘hybrid system’ of a low-level tariff for all developments and section 106 for larger developments.

Thea spoke at the National Conference of the Planning and Environmental Bar Association Annual event on the topic of CIL Reform.

Compulsory Purchase (CPO)

Thea has advised objectors on a range of CPO issues. Recently Thea has acted on behalf of landowners affected by the M54 to M6 Link Road, advising extensively on the compulsory acquisition of land required for the project and ecological mitigation, and in respect of the terms of the draft Development Consent Order. Thea has also advised Coventry City Council in respect of the Spon End CPO.

Further Experience

Thea writes and regularly presents papers at seminars and conferences both on behalf of the planning group and when invited by clients to do so. Recently, Thea has delivered training to MHCLG and also the Planning Inspectorate at the annual conference.

Thea is involved in training professional witnesses on behalf of a number of clients and together with other members of Chambers, has carried out mock Inquiries to offer the experience to those who have not given evidence before. Please contact planning@no5.com for more information.

In 2018, Thea was invited to speak at the PEBA National Conference on the top of CIL and section 106 Contributions. Thea has been a committee member of Women in Planning West Midlands since its inception.

Recommendations

“Thea's advocacy is frankly brilliant, she is a pleasure to watch. Thea is a star of the junior Bar. A very strong advocate who is thorough in her preparation. A thoroughly modern barrister. She is brilliant and completely grounded.” Chambers 2023 - Ranked Tier 1

“Thea is able to get to the crux of complex matters very quickly. She is extremely approachable, has excellent interpersonal skills and fosters an enjoyable and productive team atmosphere. She is impressive during cross-

examination and quickly adapts to changing situations.”

Legal 500 2023

“She offers detailed and commercially focused advice delivered with empathy and fair.” “She clearly understands her subject and the case in hand such that she is able to expertly guide a judge through the papers with concise elegance.”

Chambers UK 2022

“Thea works to a very high standard of professionalism – she is extremely approachable, down to earth, friendly and easy to deal with. The advice given is clear, considered, incisive and expert.”

Legal 500 2022

“An exceptional junior and easy to deal with.”

Chambers UK 2021

“Methodical, very sharp and quick to resolve or see a way around issues.” “Extremely bright, effcient and proactive.”

Chambers UK 2020

Notable Cases

CAB Housing Ltd v Secretary of State for Levelling Up, Housing and Communities [2023] EWCA Civ 194

East Riding of Yorkshire Council v Secretary of State for Levelling Up, Housing and Communities [2021] EWHC 3721 (Admin)

Gladman Developments Ltd v Secretary of State for Housing Communities and Local Government [2021] EWCA Civ 104

R (Fraser) v Shropshire Council [2021] EWHC 31 (Admin)

Bhandal v Secretary of State for Housing Communities and Local Government [202] EWHC 2724 (Admin)

DLA Delivery Ltd v Baroness Cumberlege of Newick [2018] EWCA Civ 1305

West Oxfordshire District Council v Secretary of State for Communities and Local Government [2018] EWHC 3065 (Admin)

Jelson Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 24

Nottingham City Council v Secretary of State for Communities and Local Government [2017] EWHC 2243 (Admin)

R. (on the application of Save Britain’s Heritage) v Liverpool City Council [2016] EWCA Civ 806

Save our Green Hills Community Ground v Secretary of State for Communities and Local Government [2016] EWHC 1929 (Admin)

Jelson Ltd v Secretary of State for Communities and Local Government [2016] EWHC 2979 (Admin)

Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin)

Pertemps Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2308 (Admin)

R(on the application of Hayes) v Wychavon DC [2014] EWHC 1987 (Admin)

R (on the application of Leicestershire Police and Crime Commissioner) v Blaby DC [2014] EWHC 1719 (Admin)

In addition, Thea has been involved in a number of challenges that have resolved prior to substantive hearings, and is happy to advise on seeking early and effective resolutions in such matters. Examples include:

Malvern Hills District Council v Secretary of State for Communities and Local Government (2017)

Secured consent Order quashing permission on behalf of the Council on the basis that the Inspector misinterpreted a recently adopted Local Plan policy.

Amott v Secretary of State for Communities and Local Government (2017)

Resisted permission on behalf of developer client who secured planning permission for residential development following a section 78 appeal.

Bennett v Derbyshire Dales District Council (2018)

Successfully resisted a challenge to the grant of planning permission by the LPA for a mixed commercial / housing development.

Awards

The Lord Slynn of Hadley UK Environmental Law Moot 2011, Winner Major Scholarship, Inner Temple (2009)

Duke of Edinburgh Entrance Award, Inner Temple (2009)University of Warwick Law School Prize for Best Overall Performance (2008, 2009)

Memberships

UKELA

Inner Temple

Qualifcations

PEBA

LLB, First Class, University of Warwick BVC College of Law

Publications

The law and policy of Solar Energy Development

Odette Chalaby Planning & Environment

Year of Call: 2021

Email Clerks: planning@no5.com

Odette is a specialist planning, environmental, and public law barrister. In her first year of practice, she was recognised in Planning Magazine’s Guide to Planning Lawyers as one of the 20 top-rated planning juniors under 35, the most recently qualified entrant on the list.

Odette represents developers, public authorities, and interested parties at all stages of the planning process. She is particularly interested in matters at the intersection of planning and environmental law, including renewable energy, biodiversity net gain, habitats, and EIA.

She has been instructed in cases before the Privy Council, High Court, Crown Court, magistrates court, and at numerous s.78 TCPA appeals. She regularly appears as junior counsel on significant multi-week planning inquiries, including solar farms, minerals development and large housing schemes.

Odette is an elected trustee of the UK Environmental Law Association (UKELA), where she has responsibility for coordinating regional groups, editing the e-law publication and organising junior seminars. She is also a member of the Attorney General’s “Junior Junior” scheme.

Before coming to the Bar, Odette was a policy journalist at Apolitical.

Renewables and Minerals

Odette has been instructed on a variety of energy / infrastructure schemes, including on sites in the AONB, in the Green Belt, and on best and most versatile agricultural land.

Recent instructions include:

• currently representing the Appellant at a called-in inquiry for a solar farm in the AONB (led by Thea Osmund-Smith)

• currently representing the Appellant at an inquiry for a solar farm in the Green Belt (led by Thea Osmund-Smith)

• currently representing the Appellant at an inquiry for a 50MW standalone battery storage scheme (led by Thea Osmund-Smith)

• represented the Appellant in the High Court (Bramley Solar Farm Residents Group v SoS [2023] EWHC 2842 (Admin)) and at inquiry, securing permission for a 45MW solar farm and battery storage in Bramley, Hampshire (led by Thea Osmund-Smith)

• represented the Appellant at a two-week minerals inquiry, securing permission for a sand and gravel quarry in Devon APP/J1155/W/22/3299799 & 3299802 (led by Richard Kimblin KC)

• represented the Appellant at inquiry, securing permission for a 49.9MW solar farm and battery storage in Langford, Devon APP/Y1138/W/22/3293104 (led by Thea Osmund-Smith)

• represented the Appellant at inquiry, securing permission for a 49.9 MW solar farm and battery storage in Greatworth, Northamptonshire APP/W2845/W/23/3315771 (led by Thea Osmund-Smith)

Odette is an active member of the National Infrastructure Planning Association’s (NIPA) early years practitioners’ group.

Residential and Commercial

Odette frequently represents developers, local authorities, and interested parties at all stages of the planning process.

Recent instructions include:

• currently representing the LPA at an inquiry re: 195 homes (unled)

• represented the Appellant at a hearing re: 40 homes in Hallow, Worcestershire (secured permission and costs) APP/J1860/W/23/3323076 (unled)

• represented the Appellant at a hearing re: 25 holiday lodges in Tenbury Wells, Worcestershire (secured permission and costs) APP/J1860/W/21/3273533 (unled)

• represented the Appellant at a successful hearing re: storage of 1,000 cars and 40 HGVs in Lichfield, Staffordshire APP/K3415/W/22/331352 (unled)

• represented the LPA at a hearing re: pub-resi conversion in Devon (permission refused and costs awarded against the Appellant) APP/W1145/W/22/3312735 (unled)

• represented the Appellant at an inquiry securing permission for 233 dwellings in Saffron Walden, Uttlesford APP/C1570/W/22/3296426 (led by Chris Young KC)

• represented the LPA at an inquiry re: 481 units of asylum seeker accommodation in Staffordshire (APP/Y3425/W/23/3315258) (led by Hugh Richards)

• represented the Appellant at an inquiry securing permission for 80 dwellings, local centre, and associated infrastructure in Cotford St Luke, Somerset APP/W3330/W/22/3304839 (led by Chris Young KC)

• represented a Parish Council at an inquiry re: 120 homes in Desford, Leicestershire (APP/K2420/W/23/3320601) (unled)

• represented the Appellant at a successful hearing re: 6 homes in Lichfield, Staffordshire APP/K3415/W/22/3305895 (unled)

• represented the Appellant at an inquiry securing permission for 76 dwellings in Angmering, West Sussex APP/C3810/W/22/3295115 (led by Thea Osmund-Smith)

• represented the Appellant at an inquiry securing permission for: 48 dwellings in Walberton, West

Sussex APP/C3810/W/22/3309365 (led by Thea Osmund-Smith)

• represented the Appellant at an inquiry securing permission for 90 dwellings in Glastonbury, Mendip APP/Q3305/W/22/3311900 (led by Thea Osmund-Smith)

• represented the LPA at an inquiry re: 45 dwellings in Leigh Sinton, Malvern APP/J1860/W/21/3289643 (led by Richard Kimblin KC)

• represented the Appellant at an inquiry re: 95 homes and sports facilities on Metropolitan Open Land in London APP/G5180/W/23/3315293 (led by Chris Young KC)

Odette also has experience in advising in relation to residential/commercial permitted development matters, including office-resi conversions. During pupillage, Odette assisted Thea Osmund-Smith in an important Court of Appeal case around interpretation of the GPDO (Cab Housing v SoS LUHC [2023] EWCA Civ 194). On behalf of the Secretary of State, they successfully resisted an application for permission to appeal to the Supreme Court.

Environment

In addition to her renewable energy work, Odette has experience of, and interest in, a wide range of net zero and climate change matters.

Current instructions include:

• Drafting submissions to the Inter-American Court of Human Rights regarding the Chile / Colombia request for an Advisory Opinion on States’ obligations to respond to the climate emergency within the framework of international human rights law

• Assisting an NGO in an EU law climate change matter

• Advising on electric vehicle charging policy in the UK

• During pupillage, Odette assisted her supervisor Nina Pindham on two landmark climate change cases: the successful judicial review of the Government’s Net Zero Strategy (R (Friends of the Earth et al.) v SoS [2022] EWHC 1841 (Admin)); and the Court of Appeal case on EIA assessment and downstream greenhouse gas emissions R (Finch) v Surrey County Council [2022] EWCA Civ 187 (which is subject to an appeal to the Supreme Court).

• Before coming to the Bar, Odette volunteered for the Environmental Law Foundation researching local authorities’ climate change emergency declarations. As a law student volunteer, she also assisted Plan B Earth in drafting its human rights submissions in R(Friends of the Earth Ltd et al.) v Heathrow Airport Ltd [2020] UKSC 52.

• Odette has advised clients in the public and private sectors on nature conservation law, including on the implementation of biodiversity net gain under the Environment Act 2021. Together with Nina Pindham, she was instructed by the Planning Advisory Service to provide legal advice on the implications of the Habitats Regulations for all local authorities affected by Natural England’s “nutrient neutrality” guidance. She has also been junior counsel at planning inquiries raising issues of phosphate mitigation.

• Odette has a particular interest in EU environmental law matters. She has provided expert legal commentary for LexisNexis on the implications of the Retained EU Law Bill for domestic environmental law. She is part of the Planning and Environmental Bar Association’s (PEBA) retained EU law working party and part of UKELA’s Environmental Assessment Working Party. In 2022, Odette was awarded a Sir John and Sophie Laws Scholarship by the Bar European Group.

Odette also has growing experience in water law Led by Richard Kimblin KC, she has advised statutory undertakers on interpretation of the Water Industry Act 1991 and the suite of retained EU law, including the Urban Waste Water Treatment Regulations.

Prosecutions and Enforcement

Odette has experience representing and advising clients in relation to planning enforcement matters, including immunity from enforcement, lawful development certificates, enforcement notices and planning injunctions. Recent instructions include:

• currently representing the LPA at a lawful development certificate inquiry

• represented the LPA at an enforcement inquiry in Thorncliffe, Staffordshire

• represented the LPA at an interim hearing in the High Court in relation to proceedings against 28 defendants and alleged breaches of a s.187B planning injunction (North Kesteven District Council v Price QB-2022-000178).

Odette has also successfully conducted a number of waste prosecutions under the Environmental Protection Act 1990. She has appeared unled in the Crown Court for sentencing of such offences, with one of her prosecutions resulting in significant custodial sentences for two defendants. Her cases include:

• Solihull Council v Biddle and Edwards

• Herefordshire Council v Turley

• Herefordshire Council v Biddle, Biddle and Mellings

• Wyre Forest District Council v Harris

Public Law

Odette’s experience of public law and judicial review extends beyond planning and environment As part of the “Junior Junior” Panel, she has been instructed on an immigration and asylum matter for the Government. As a law student, she volunteered for the School Exclusion Project, representing parents of children excluded from school at various appeals.

As to public international law, Odette was part of the Counsel team that represented the Appellant pro bono in the Privy Council case Caryn Moss v The King (Bahamas) [2023] UKPC 28, relating to a conviction for conspiracy to murder in the Bahamas. The Privy Council quashed the 35-year sentence, on the basis that the woman had been pressured by gang members.

Languages

• French

Appointments and Memberships

• Elected Trustee of the UK Environmental Law Association (UKELA)

• Attorney General’s “Junior Junior” scheme

• Member of PEBA (Planning and Environmental Bar Association)

• Member of NIPA (National Infrastructure Planning Association)

Awards

• Sir John and Sophie Laws Scholarship (Bar European Group)

• Queen Mother Scholarship (Middle Temple)

• BVS and GDL Scholarships (City University)

• 11KBW Prize for Public Law (City University)

• Major Postgraduate Scholarship (HEFCE/SOAS)

• Lady Wilson Prize (University College, Oxford)

• Academic Exhibition (University College, Oxford)

• Roger Short Scholarship (University College, Oxford)

Qualifications

• Oxford University, BA Philosophy Politics & Economics, First Class

• SOAS University of London, MA, Distinction

• City Law School, GDL, Distinction

• City Law School, BVS, Outstanding

Climate Change: Renewable Energy, Net Zero and Recent Trends in Appeal Decisions

Contents

A. The evolving policy framework in 2023-2024

B. Appeals and consents in 2023-2024

C. Deep dive – Green Belt appeals

D. Low carbon in the Courts – some points of wider application

E. A look to 2025 – reform to the grid

A. The evolving policy framework in 2023-2024

1. In last year’s seminar, we set out the strong national-level policy support for renewable and low carbon energy infrastructure – with one critical exception being onshore wind. To summarise:

a. Under the Climate Change Act 2008 as amended in 2019, the UK has a world-leading legislative commitment to achieve net zero by 2050.

b. In 2021, with the publication of the Net Zero Strategy, the Government established the ambition that the UK should be entirely powered by clean energy by 2035 subject to security of supply, a challenge the National Audit Office has described as “colossal”. 1

c. To meet these targets, low carbon energy infrastructure will need to be deployed, in the Government’s words, at an “unprecedented” scale and pace. 2

d. The urgency of the climate crisis is why the NPPF at §163 is clear that decision-makers should not require applicants to demonstrate the overall need for renewable and low carbon projects, recognising that even small-scale projects provide a valuable contribution to significantly cutting emissions.

1 December 2020, ‘Achieving net zero’, National Audit Office Report

2 Net Zero Strategy, pp. 19, 98 and 102

e. The Energy Security Plan from March 2023 affirms that low-cost renewable generation will be “the foundation” of the future electricity system. 3

2. In 2023, notwithstanding a number of generally regressive announcements from the Government in relation to climate change and environmental policy –including ongoing legal controversies over licensing of new oil and gas fields –its support for renewables continued largely unabated. Indeed, the last year has seen the publication of important new national policy and guidance promoting low carbon development.

3. First, one fundamental change has been that in January 2024, following their publication in draft in November 2023, the Government designated new National Policy Statements (“NPS”) for Energy EN-1 and Renewable Energy EN-3 – a long-awaited update to the previous versions which were designated as far back as 2011.

4. The NPS set out national policy for nationally significant energy infrastructure project (“NSIP”) applications under the Planning Act 2008. The Planning Act requires that, where an NPS has effect, the Secretary of State must in most circumstances decide an application for energy infrastructure in accordance with the relevant NPS.

5. However, the NPS are also important for s.78 appeals. As set out in EN-1 at §1.2.1, the NPS may be a material consideration in decision making on applications that fall under the Town and Country Planning Act 1990 (“TCPA”). Whether the policies in the NPS are material and to what extent is judged on a case-by-case basis and will depend upon the extent to which the matters are already covered by applicable planning policy.

6. In our experience, the NPS (which generally run to more than 100 pages) play an important role in TCPA appeals for low carbon and renewable energy

projects. That is because they provide much more specific and detailed policy than the NPPF, which only addresses these matters in a few short paragraphs.

7. We highlight two major changes from the 2011 to the new 2023 NPS. The first is the advent of the new category of Critical National Priority (“CNP”) infrastructure. In the first half of 2023, offshore wind NSIPs were given a new CNP infrastructure status in a draft update to the NPS for Energy EN-1. In the revised draft EN-1 in November 2023, which has now been designated, the Government extended the scope of the CNP infrastructure classification to cover (see §4.2.5):

a. for electricity generation, all onshore and offshore generation that does not involve fossil fuel combustion, as well as natural gas fired generation which is carbon capture ready;

b. for electricity grid infrastructure, all power lines in scope of EN-5, and associated infrastructure such as substations;

c. for other energy infrastructure, fuels, pipelines and storage infrastructure, which fits within the normal definition of “low carbon” (although battery energy storage system are not included);

d. energy infrastructure under section 35 of the Planning Act 2008 that fits within the normal definition of “low carbon”, such as interconnectors; and

e. lifetime extensions and repowering of existing CNP infrastructure projects

8. So, what does it mean to be classed as CNP? In essence, the NPS sets out that the Secretary of State will take as a starting point that a CNP scheme should be granted permission even if there are substantial adverse impacts, including to the Green Belt, nationally designated landscapes, and to the highest-grade heritage assets. The key paragraphs are at §§4.2.15-4.2.17 of EN-1:

“

4.2.15 Where residual non-HRA [Habitats Regulations Assessment] or non-MCZ [Marine Conservation Zone] impacts remain after the mitigation hierarchy has been applied, these residual impacts are unlikely to outweigh the urgent need for this type of infrastructure. Therefore, in all but the most exceptional circumstances, it is unlikely that consent will be refused on the basis of these residual impacts

4.2.16 As a result, the Secretary of State will take as the starting point for decision-making that such infrastructure is to be treated as if it has met any tests which are set out within the NPSs, or any other planning policy, which requires a clear outweighing of harm, exceptionality or very special circumstances.

4.2.17 This means that the Secretary of State will take as a starting point that CNP Infrastructure will meet the following, nonexhaustive, list of tests:

• where development within a Green Belt requires very special circumstances to justify development;

• where development within or outside a Site of Special Scientific Interest (SSSI) requires the benefits (including need) of the development in the location proposed to clearly outweigh both the likely impact on features of the site that make it a SSSI, and any broader impacts on the national network of SSSIs.

• where development in nationally designated landscapes requires exceptional circumstances to be demonstrated; and

• where substantial harm to or loss of significance to heritage assets should be exceptional or wholly exceptional.”

9. In other words, the Secretary of State will take as a starting point that substantial harm to, for example, a Grade 1 heritage asset or to a nationally designated landscape is not a reason for refusing such development – it is presumed the exceptional circumstances test is passed In our view, this is unprecedented shift in policy, indicating the importance Government has placed on the deployment of CNP energy schemes.

10. The second key change from the 2011 to the 2023 NPS that we identify for the purposes of this paper is the inclusion of solar in the NPS for Renewable Energy EN-3, when the previous NPS was silent on this type of technology. Within EN3, solar is now described as “a key part” of the Government’s strategy for lowcost decarbonisation of the energy sector (§2.10.9). EN-3 also reaffirms the Government’s expectation of a five-fold increase in combined ground and rooftop solar development by 2035 (up to 70GW) (§2.10.10). This will require the energisation of an average of approximately 83MW of solar each week – a clear step change in deployment (keeping in mind that the threshold for a large solar farm to be considered an NSIP is 50MW).

11. In addition to these fairly fundamental changes, the new NPS make a number of more general high-level statements as to the importance the Government places on low carbon and renewable energy as a key pillar of its net zero strategy:

a. EN-1 highlights that demand for electricity could more than double by 2050 as large parts of transport, heating and industry decarbonise (see §2.3.7, §3.3.3). This means that we could need a fourfold increase in low carbon generation, with all electricity coming from low carbon sources by 2035 (see §3.3.16).

b. As to the type of energy required, EN-1 states that wind and solar are the lowest cost ways of generating electricity and that a secure, reliable, affordable, net zero consistent system in 2050 is likely to be composed “predominantly” of wind and solar (see §3.3.20).

c. EN-1 identifies that storage has key role to play in achieving net zero and providing flexibility to the energy system (§3.3.25). EN-1 further notes the various services that electricity storage in particular can provide, including maximising the usable output from intermittent sources like solar, reducing the amount of generation capacity needed on the system, providing a range of balancing services, and reducing constraints on the networks (§3.3.27).

12. However, one form of infrastructure is notably missing from the new NPS –onshore wind. We understand that Good Law Project and Leigh Day have recently launched a legal challenge against the Government over the exclusion of that technology from the scope of EN-3.

13. Second, in August 2023, the Government updated the Planning Practice Guidance (“PPG”) on Renewable and Low Carbon Energy to refer – for the first time – to planning considerations for battery energy storage systems (“BESS”).

14. All BESS schemes are decided under the TCPA regime. As regards the determination of such applications, the PPG now relevantly states:

a. Electricity storage can enable us to use energy more flexibly and decarbonise our energy system cost-effectively – for example, by helping

to balance the system at lower cost, maximising the usable output from intermittent low carbon generation (e.g. solar and wind), and deferring or avoiding the need for costly network upgrades and new generation capacity (§032).

b. Where planning permission is being sought for development of BESS of 1MWh or greater, applicants are encouraged to engage with the local fire and rescue service in relation to matters such as siting and location. Applicants are also encouraged to consider guidance produced by the National Fire Chiefs Council (§034). The local planning authority are encouraged to consult with their local fire and rescue service (§035).

15. This update to the PPG is an important step in the Government’s support for such technology through the planning system. It follows a renewed emphasis on storage of all sorts in the March 2023 Energy Security Plan, in which Government made clear the importance of low-carbon flexible technologies such as storage in reducing reliance on gas and explained its ambition to accelerate deployment of electricity storage (see p.40).

16. We also note that in July 2023, National Grid published “Future Energy Scenarios”, which states that electricity storage needs to “increase significantly” as we transition to net zero from 2.8GW of operational storage today to 47GW. 4 We have already seen this increasingly positive new policy support for BESS translate into an uptick in s.78 appeals for large standalone battery schemes

17. Third, in the September 2023 update to the NPPF, the Government changed the wording of national policy as regards onshore wind. There has been an effective moratorium on this type of development in England since the Eric Pickles written ministerial statement in 2013, and as above it does not even feature in the NPS for Renewable Energy EN-3. The previous version of the NPPF read at footnote 54 (emphasis added):

“Except for applications for the repowering of existing wind turbines, a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified

4 See p. 10 and p.126 cf. p.193

as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing”.

18. Over the last year, the Government made a series of statements indicating that it was exploring a significant change in approach to resurrect the onshore wind sector. But the September update will not achieve that goal. The relevant footnote is now footnote 59 in the December 2023 NPPF and reads as follows

(emphasis added):

“

Except for applications for the repowering and life-extension of existing wind turbines, a planning application for wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan or a supplementary planning document; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been appropriately addressed and the proposal has community support.”

19. In our view, this wording – which now requires community support rather than community backing – is not going to make a difference. It has not led to a sudden rush of new wind farm applications, and without more significant change in wording it will not revitalise the sector. Community support remains a very high hurdle.

B. Appeals and consents in 2023-2024

20. In light of this ongoing and growing positive policy context for renewable and low carbon infrastructure, applications and appeals are on the rise and appellants are often finding favour with Inspectors, even for schemes on sensitive sites.

21. The vast majority of these appeals over the last few years related to solar or battery storage have been consented. The trend from last year continues.

22. There has also been a significant uptick in even larger solar farms moving through the national infrastructure planning system seeking development consent orders (“DCO”).

23. So far three solar projects have been consented totalling over 1GW of electricity generation: Cleve Hill (2020); Little Crow (2022); and Longfield (2023).

24. A further eight projects have submitted applications to the planning inspectorate and are going through the various stages before a decision is made, with an estimated 3.2GW of electricity generation There are a further 20 projects at pre-submission stages of the DCO process.

25. Offshore wind DCOs have not seen a similar steep increase, but some further consents have been granted. Since 2022, the Secretary of State has granted three offshore wind DCOs in England. The latest of these is Hornsea Project Four offshore wind farm in July 2023, which will have a generating capacity of 2,600MW or 2.6GW.

26. Recent important DCO decisions in relation to other forms of renewable and low carbon energy are noted for those with a wider interest in this topic:

a. Drax EN010120

i. 16th January 2024, bioenergy with carbon capture and storage

b. Hornsea Project Four EN010098

i. 12th July 2023, 2,600MW offshore windfarm

c. Boston Alternative Energy

i. 6th July 2023, 102MW of renewable energy from waste

d. East Anglia ONE NORTH and TWO EN010077 & EN010078

i. 31st March 2022, combined 1,700MW offshore windfarms

e. Norfolk Vanguard EN010079

i. 11th February 2022, 1,800MW offshore windfarm

f. Sizewell C EN010012

i. 20th July 2022, nuclear power station

C. Deep Dive – Green Belt appeals

27. There has since last summer been a sense among some that it is becoming harder to secure permission in the Green Belt at appeal. In January of this year, three planning appeals that would have seen nearly 500 homes built on Green Belt land in the east of England were dismissed within a few days of each other. That despite the authorities all falling significantly short of their housing land supply targets.

28. However, renewable and low carbon seems to be bucking that trend A notable proportion of the solar and battery appeals in recent years have been Green Belt schemes (almost a third of all of the appeals since the start of 2022). We know of a number of other schemes that are awaiting a decision from either an Inspector or the Secretary of State, with one call-in appeal still waiting for a decision a year and half after the inquiry was heard.

29. As set out at §156 of the NPPF, many renewable energy projects will comprise inappropriate development in the Green Belt. Applying §153, substantial weight should apply to any harm to the Green Belt in such cases, and consent will not be granted unless there are very special circumstances (“VSC”), such that all harm is “clearly outweighed” by other considerations

30. However, §156 of the NPPF also provides expressly that VSC may include the wider environmental benefits associated with increased production of energy from renewable sources. No other paragraph in the NPPF articulates in this way what considerations may amount to VSC. That must be important.

31. The support of §156 NPPF has been consolidated in the recently designated NPS, which, as set out above, state that the Secretary of State will take as a starting point that CNP renewable infrastructure schemes pass the Green Belt test of VSC (§§4.2.16-4.2.17).

32. While the appeals have not all been successful, the majority have been. Remember, that typically only 30% of all appeals are successful. With solar and

battery storage combined, a remarkable 9/13 or 70% of Green Belt appeals since 2022 have been successful.

a. Land at Barton in Fabis, Nottingham, APP/P3040/W/23/3324608

i. 22nd January 2024, decision of Inspector Wilkinson (written reps)

ii. Dismissed 100MW battery energy storage facility

iii. Other constraints – no

b. Land West of Battlesbridge, Wickford APP/W1525/W/22/3306710 (“Wickford”)

i. 23rd January 2024, decision of Inspector Sylvester (written reps)

ii. Allowed battery energy storage system, 78 battery containers and transformers and a new substation compound

iii. Other constraints – no

c. Land South of Banner Hill Farm, Kenilworth APP/T3725/W/23/3319320

i. 8th December 2023, decision of Inspector Parker (written reps)

ii. Dismissed battery energy storage facility

iii. Other constraints – some BMV 3a.

d. Little Heath Lane, Dacorum APP/A1910/W/23/3317818

i. 14th November 2023, decision of Inspector Ware (public inquiry)

ii. Dismissed 25MW solar farm

iii. Other constraints –setting of AONB.

e. Elm Farm, South Gloucestershire APP/P0199/W/22/3294810

i. 13th November 2023, decision of Inspector Thompson (written reps)

ii. Dismissed 24MW solar farm and battery storage

iii. Other constraints – heritage and archaeology

f. Land west of the A46, Sherbourne APP/T3725/W/23/3317247 (“Sherbourne”)

i. 25th September 2023, decision of Inspector Bore (written reps)

ii. Allowed 20MW solar farm

iii. Other constraints – some of the site (not where infrastructure is) Flood Zone 2 & 3

g. Crays Hall Farm, Basildon APP/V1505/W/23/3318171 (“Crays Hall”)

i. 30th August 2023, decision of Inspector Jackson (hearing)

ii. Allowed 25.6MW solar farm

iii. Other constraints – no.

h. Park Farm, Essex APP/V1505/W/22/3301454

i. 5th April 2023, Secretary of State

ii. Allowed 2.4MW solar farm (cross boundary – part of a 30MW solar farm)

iii. Other constraints – no

i. National Grid Mill Hill Substation APP/N5090/W/22/3298962 (“Mill Hill”)

i. 13th March 2023, decision of Inspector Plenty (written reps)

ii. Allowed 50MW battery storage facility

iii. Other constraints – no.

j. Chelmsford, Essex APP/W1525/W/22/3300222 (“Chelmsford”)

i. 6th February 2023, decision of Inspector Plenty (hearing)

ii. Allowed 49.9MW solar farm and battery storage

iii. Other constraints – small section in Flood Zone 3a.

k. Rawfield Lane, Fairburn, Selby APP/N2739/W/22/3300623 (“Selby”)

i. 1st December 2022, decision of Inspector Raygen (hearing)

ii. Allowed 320MW battery storage facility

iii. Other constraints – no

l. Land West of Wolverhampton West Primary Substation, APP/C3430/W/22/3292837 (“Wolverhampton West”)

i. 16th August 2022, decision of Inspector Law (written reps)

ii. Allowed 50MW battery storage facility

iii. Other constraints – no

m. Land South of Monk Fryston Substation Appeal Ref: APP/N2739/W/22/3290256 (“Monk Fryston”)

i. 1st August 2022, decision of Inspector Cooper (written reps)

ii. Allowed battery storage facility

iii. Other constraints – no

33. The key factor that has driven all of these Green Belt grants of permission is the importance placed by the decision-maker on the need for renewable energy and low carbon infrastructure to tackle climate change and help the country reach net zero. This benefit has been considered to be or to attract:

a. A very significant environmental benefit (Sherbourne at §34);

b. Very significant weight (Crays Hall at §24);

c. Substantial benefits (Chelmsford at §91);

d. Substantial public benefits (Mill Hill at §54);

e. Very substantial benefits (Selby at §44);

f. Substantial weight (Wolverhampton West at §16);

g. Significant weight (Monk Fryston at §26);

h. Very substantial weight and “urgent” need (Wickford at §30, §34).

34. In the vast majority of these Green Belt successes at appeal, the Inspector has found that a further key factor has been the importance of a nearby grid

connection in justifying the Green Belt location – see e.g. Sherbourne at §31, Crays Hall at §24, Chelmsford at §92, Mill Hill at §55, Wickford at §§28-30 and Selby at §36 Indeed, due to the significant constraints on the grid, which we will discuss below, that has tended to be an important factor in justifying location for schemes on all kinds of sensitive sites.

35. It has been a positive story for those promoting battery schemes in the Green Belt. But a note of caution. As set out above, 70% of solar and battery Green Belt schemes have been successful since the start of 2022. The four that were refused – those are all decisions since November 2023. It is too soon to tell whether this amounts to a toughening trend or just a blip. As set out above, another Green Belt battery scheme was allowed in January 2024. A number of others are waiting on decisions in the coming months

D. Low Carbon Energy in the Courts – some points of wider application

36. Unsurprisingly, given the increase in consents, solar and wind schemes are increasingly reaching the Courts. In 2023-2024, a number of High Court cases arising out of solar and wind planning had important wider ramifications and so will also be of interest to those working primarily on, for example, residential or commercial development. We will briefly address five wind/solar High Court cases from the lat year:

a. R (Bramley Solar Farm Residents Group) v Secretary of State [2023]

EWHC 2842 (“Bramley”) – Wheatcroft, PPG, alternatives.

b. R (Fiske) v Test Valley Borough Council [2023] EWCA Civ 1495 (“Fiske CA”) – incompatible permissions.

c. R (Fiske) v Test Valley Borough Council [2023] EWHC 2221 (Admin) (“Fiske HC”) – s.73 permissions.

d. R (Substation Action Save East Suffolk Ltd) v Secretary of State [2024]

EWCA Civ 12 (“Substation Action”) – surface water and the sequential test.

e. R (Durham County Council) v Secretary of State [2023] EWHC 1394 (“Durham”) – solar farm extensions.

37. First, Bramley was an unsuccessful challenge by local residents to a grant of permission at appeal for a 49.9MW solar farm and battery storage scheme on 85ha of agricultural land in Hampshire. The High Court made a number of important findings, including on topics that repeatedly rear their heads at appeals of this sort: amendments at appeal stage, landscape harm under the NPPF, and whether the PPG requires an alternatives assessment for use of best and most versatile agricultural land. We have published a longer article on the case, 5 and so here we only summarise the decision as regards a key point of wider application, what are known by many as “Wheatcroft” amendments at appeal stage.

38. The amendments in this case included removing a proposed forest school that no one appeared to want, removing panels from some areas of the site, and enhancing the landscaping. The appellant considered those changes were minor and consulted on them. The local planning authority declined to assist in that exercise, but letters were sent, site notices were posted and there was an advertisement in the local newspaper. Copies of the relevant documentation were also available on the council’s website and at their offices. The claimant complained that the consultation had been unfair, particularly because it was carried out by the appellant. It said that amendments at appeal stage were exceptional. It also did not agree that the changes were minor and said that the inspector should have arrived at a decision on whether to accept the amendments prior to the inquiry itself.

39. The High Court upheld the inspector’s conclusions that, in light of the consultation being carried out and the fact that the changes were “minor”, the appeal could properly be pursued on the basis of the revised scheme. The Judge held the following:

5 https://www.linkedin.com/posts/planning-and-environment-group-at-no5-barristerschambers_wheatcroft-then-holborn-now-bramley-high-activity-7130593844491927553_b8d?utm_source=share&utm_medium=member_desktop

a. In practice, consultations are sometimes carried out on appeal amendments, as acknowledged by the PINS procedural guidance 6 (§43).

b. While such amendments are still referred to by many as “Wheatcroft amendments”, the case law has moved on through the case of Holborn Studios, 7 which identifies that there are both substantive constraints (e.g. is the change substantial) and procedural constraints (e.g. does fairness require re-consultation) on amendments at appeal. The two are not to be conflated.

c. There is no legal obligation to comply with the requirements of the Development Management Procedure Order (“DMPO”) (which apply to application-stage) when amending a scheme at an appeal (§86). At appeal stage, there is no statutory obligation to consult on proposed amendments, but consultation may be required in the interests of fairness.

d. While the appellant’s consultation did not comply strictly with the DMPO, in this case reasonable steps were taken to notify the public, who had a fair opportunity to air their views (§87)

e. There is no requirement that a consultation on a proposed amendment should be conducted by a public body. It was appropriate in this case for the developer to carry out the consultation (§90)

f. The inspector was entitled to consider both schemes at the inquiry, and to wait to decide on whether to accept the amendments in his final decision letter (§§103-106).

40. Second, in Fiske CA, the Court of Appeal dismissed a claim that an inconsistency between original and revised plans for a solar farm in Hampshire represented an “obviously material” planning consideration that should have been properly considered by elected members in granting the revised permission. In 2017, planning permission was granted for the development, including a 33kV substation. In 2021, a further permission was granted, which

6 Latest PINS procedural guidance is at https://www.gov.uk/government/publications/planningappeals-procedural-guide

7 R (Holborn Studios Ltd) v Hackney LBC [2020] EWHC 1509 (Admin).

included provision for a 132kV substation and other development on land within the site of the 2017 permission. It was common ground that the permissions were incompatible. The Court held that the planning system does not preclude the possibility of a number of applications being made and granted for different developments on the same site. It accepts the granting and co-existence of mutually incompatible permissions, one or more of which may prove incapable of lawful implementation. It is for the developer, not the local authority, to identify and tackle any inconsistencies between permissions.

41. Third, Fiske HC relates to the same solar farm as Fiske CA but to a different legal question – the scope of s.73 TCPA permissions. The question for the High Court was whether a s.73 permission that varied the planning permission for the solar farm by removing an electricity substation from the plans was unlawful. The Judge found that the s.73 permission conflicted with the operative part of the original permission, and accordingly upheld the claim. In obiter remarks, the Judge also addressed the much-vexed question of the scope of s.73 – namely whether under s.73 a permission can be granted that amounts to a “fundamental alteration” of the original permission, so long as the description of development remains unchanged. At §126, Morris J held that there is such a restriction on s.73, such that there can be no fundamental alteration to the permission as a whole (even absent a conflict with the operative wording). That decision conflicts with the earlier 2023 High Court decision of Armstrong v Secretary of State [2023] EWHC 176 (Admin). This conflict needs to be resolved decisively by the courts to avoid continued disputes on this point.

42. Fourth, Substation Action related to a failed attempt in the High Court by a local group to quash a DCO for the East Anglia ONE North and TWO Offshore Wind Farms. The key question in the Court of Appeal related to flood risk, surface water, and the sequential test. The Court of Appeal ruled that it was lawful for an applicant for a proposed development in an area with risk of flooding from surface water to not have demonstrated that there were no other sites reasonably available. In other words, while national policy requires a sequential test for development in fluvial Flood Zones, it does not require it for sites that are at risk only of surface water flooding.

43. The final case we consider is Durham. The local planning authorities sought to challenge the jurisdiction of an Inspector to determine solar farm appeals which they contended comprised an NSIP rather than a TCPA application. The allegation was that a second solar farm was in reality an extension to an existing solar farm, and that taken together the generating station would exceed the 50MW limit for non-NSIP TCPA permissions. The Court examined the appeals and determined that the underlying development did not constitute an NSIP (§§39-48). The sharing of cabling and a common substation between two solar farms, which were one mile apart, were insufficient to mean that they constituted a single generating station. The Court also considered the more general question of whether the inspector was entitled to determine the appeals, even if they did constitute an NSIP It held that the inspector did have jurisdiction to determine the planning appeals, even if planning permission under the TCPA was not required or relevant (§§49-55).

E. A look to 2025 – reform to the grid

44. Our final topic is a look to 2025, in particular at a critical energy planning consideration for the Government, local authorities, and developers alike: the constraints of the grid.

45. As set out above, a key factor in many appeals on sensitive sites, including sites in the Green Belt, has been the lack of available grid connections and the consequent need to site schemes within a reasonable distance of any point of connection available. What a reasonable distance is, largely depends upon the size of the scheme, the nature and cost of the connection, and the obstacles to the cable route.

46. The March 2023 Energy Security Plan notes that connection timelines are a very significant issue, with over 250GW of generation in the transmission queue

(c.f. 80GW currently connected). Many renewable and low carbon schemes applying now have to wait until the late 2030s to connect to the grid. 8

47. In the Government’s own words:

“Projects crucial to achieving net zero, currently seeking grid connections, are facing serious connection delays. Many are facing delays which cause them real difficulty; equally many projects with connection agreements will never connect. It is clear that the current connection process is not fit for purpose and requires fundamental reform. There is currently around 500GW of capacity across transmission and distribution holding connection agreements and this is increasing rapidly as an unprecedented number of renewable/low carbon generation and storage projects accept connection offers. The current pipeline of generation and storage projects seeking connection goes substantially beyond what is required to meet our decarbonisation targets, but is blocked by surmountable regulatory, technical, procedural and commercial barriers.”

48. Because of these significant constraints for new projects, inspectors in their decision letters have repeatedly given weight to the fact that an applicant has secured a nearby and near-term grid connection

49. However, the Government has recently taken some notable steps to tackle the problem of delayed grid connections and lack of capacity. In November 2023, it published two key documents: the Transmission Acceleration Action Plan and the Connections Action Plan.

50. First, network capacity is one significant factor in delayed connections. So, the Transmission Action Plan aims for rapid acceleration of build time for new transmission network infrastructure. It is the Government’s response to the report from Electricity Networks Commissioner Nick Winser CBE, published in August 2023. It responds to 43 recommendations across 8 themes: strategic spatial planning; design standards; regulatory approval; planning approval; supply chain and skills; communities and engagement; outage planning; and end-to-end process. While it is hoped that this Transmission Action Plan will speed up projects to increase grid capacity, it is not a short-term fix with

8 See Connections action plan: speeding up connections to the electricity network across Great Britain (November 2023) Executive Summary.

immediate impact on planning appeals but a longer-term solution Indeed, the Plan seeks to halve the end-to-end build time of electricity transmission network infrastructure from 14 down to 7 years.

51. Second, likely of greater relevance for current planning applications and appeals, the November 2023 Connections Action Plan aims to reform the connections process immediately, so that viable projects are able to connect in a timely and cost-effective manner This Plan explains that ensuring customers can connect to the electricity network where and when they need to is crucial to achieving net zero, as well as to delivering affordability for consumers and maintaining security of supply.

52. The aims of the Plan are high: for transmission connection dates to be offered on average no more than six months beyond the date requested by the customer, whereas this number currently stands at five years. The Government also expects to see a significant majority of projects receive the connection date they requested, up from only 14% of projects currently. The Plan states that substantial progress on these actions is needed as soon as possible, and at the latest by 2025. It is thought by the Government that this Plan can release over 100GW of capacity from the grid connections queue, equivalent to around a quarter of the electricity needed to power our economy in 2050.

53. While the Plan includes several actions that together the Government hopes will achieve these ambitious targets, three are of particular importance for planning:

a. First, removing stalled projects from the queue. The Government and National Grid are starting to require termination clauses in transmission connection contracts and to enforce existing connection milestones at distribution level. This will free up connections but will also put pressure on those involved in renewables planning to secure consents rapidly.

b. Secondly, changing allocation of available network capacity, by moving away from the first come, first serve approach to one that prioritises projects that are readier to progress and able to quickly make use of capacity.

c. Thirdly, raising requirements to increase the quality of projects applying for transmission connections and to deter speculative connection applications. This may include requiring a landowner Letter of Authority to evidence permission from a landowner for a transmission network connection.

54. We understand that the Connections Action Plan is already having an impact in reducing waiting times for some projects trying to connect to the grid. Following the publication of the Plan, from 27th November 2023 the Electricity System Operator (“ESO”) National Grid has been issuing all customers who hold live construction agreements with a completion date post-November 2025 with a notice with two options; either to have queue management milestones applied to their current completion date or to submit a modified application for a new completion date where queue management milestones will be applied.

55. The reform to the grid is good news for all parties. What remains to be seen is whether, if effective, that will have a wider impact on planning appeals. In particular, if there is no longer a shortage of near-term grid connections, will it be harder for renewable and low carbon energy schemes to justify a sensitive location? Does the recent glut of Green Belt appeals represent the start of a long-term trend, or a short-term response to the grid issue that will not persist if and when that is resolved? That is a critical question as we move through the rest of 2024 and into 2025 – a critical year as it is just ten years away from the Government’s target date for a fully decarbonised energy system.

Law correct as of February 2024

This paper is presented for information only and does not constitute legal advice

Thea Osmund-Smith & Odette Chalaby theaos@no5.com, oc@no5.com

No5 Barristers’ Chambers +44 (0) 845 210 5555

Scott Stemp Planning and Environment

Year of Call: 2000

Email Clerks: planning@no5.com

A specialist planning, environment and regulatory practitioner, Scott is rated as one of Planning Magazine’s Top Rated Planning Juniors. His practice covers large and complex multidisciplinary planning, environmental and regulatory matters spanning both civil and criminal law, regularly advising and representing developers, commercial clients and planning authorities on a broad range of planning, environmental and regulatory matters and at all stages from preapplication advice through appeal and before the High Court and Court of Appeal where he is instructed alone or leading others.

In his planning work Scott regularly advises and represents developers, commercial clients and planning authorities on all manner of proposals, including those concerning heritage assets (listed buildings and conservation areas), Green Belt, protected species and habitats (including SPAs and SACs), 5yr housing land supply, landscape impacts, gypsy and traveller issues and waste and minerals planning.

Scott has a wealth of experience in enforcement-related matters, frequently advising on and acting in substantial and complex enforcement Inquiry work, High Court injunctions, committal proceedings, Magistrates’ Court and Crown Court prosecutions under the Town and Country Planning Act, the Environmental Protection Act and associated Regulations and with a special interest in confscation under the Proceeds of Crime Act (POCA). He also acts in enforcement of s106 agreements.

His wider practice includes advising on and appearing in reviews of Assets of Community Value (ACVs), Town and Village Green (TVG) applications and highways/Rights of Way matters.

Scott regularly presents seminars across all of his practice areas to other professionals, who consistently rate him very highly as a speaker.

s78 Inquiry work

Recent examples of Scott’s s78 Inquiry work include:

[2019] Langaller Lane – outline application for 200 dwellings, issues include green wedge, highway safety and accessibility.

[2018] North Street – outline application for 95 dwellings, issues include 5yr housing land supply and landscape/visual impact.

[2018] Bagley Road – outline application for 205 dwellings and 60 apartments with care, issues include impact on schools and accessibility.

[2018] Wisborough Green – outline application for 30 extra care (C2) units, doctor’s surgery (D1) and community uses (D2), issues include impact on heritage assets (conservation area and listed buildings), local green space, landscape and visual impact.

[2018] Brambley Hedge – gypsy and traveller accommodation in a National Park, issues include general housing need, specifc circumstances of the applicant and his family, medical expert evidence and human rights.

[2017] Browns Field – hybrid application for 258 dwellings and a secondary school (outline) and 37 dwellings (full), issues include green belt, impact on education infrastructure, protected species and habitats (SPA), heritage assets (conservation area and listed buildings), highways and loss of community facilities

Enforcement Inquiry work

Recent examples of Scott’s enforcement Inquiry work include:

[2018] Swift Lane – enforcement notice appeals concerning importation of circa 43,000m3 waste material, stationing of caravans, unauthorised businesses and operational development, grounds (d), (a) and (f). This matter also involved injunction proceedings and multiple prosecutions (see below)

[2018] Westcotes Drive – enforcement notice appeal concerning historic uses and the interpretation/application of historic Use Classes Orders

[2017] Birdham Farm – enforcement notice appeal concerning unauthorised stationing of thirteen gypsy caravans in the Area of Outstanding Natural Beauty (AONB) of Chichester Harbour

Planning injunctions

Recent examples of Scott’s injunctive work include:

[2017] WBC v Scott and others – defending the lead defendants in a multi-handed (ten-defendant) High Court claim for an injunction, involving a substantial volume of evidence and complex disclosure issues

[2017] SHBC v Lee – obtaining interim injunctive relief as part of a multi-jurisdictional and multidisciplinary approach to matters at Swift Lane

[2017] PCC v Miller – High Court injunction to support previously issued enforcement notice

[2017] GBC v Cooper – interim injunction relating to unauthorised gypsy site within the Green Belt and an Area of Outstanding Natural Beauty (AONB)

Planning prosecutions

Recent examples of Scott’s prosecution work include:

[2018] SCC v Hill – Crown Court prosecution on breach of an enforcement notice (waste importation) with POCA proceedings following

[2018] SHBC v Lee, PNM Skip Hire, Hudec, Kuna and others – multiple prosecutions of multi-defendant matters variously for breach of a Stop Notice and matters under the Environmental Protection Act 1990 and Environmental Permitting Regulations 2016 with POCA proceedings following (these matters are connected to Swift Lane, above)

[2018] NWLDC v Evans – Crown Court prosecution on breach of an enforcement notice (unlawful storage) with POCA proceedings following

[2018] WBC v Scott and others – defending nine (of eleven) defendants in the Crown Court prosecution on breach of an enforcement notice, successfully stayed as an abuse of process and successfully upheld at the Court of Appeal (Criminal Division)

[2018] GBC v Fortune and Bonage – defending joint defendants in the Crown Court prosecution for unauthorised works to a listed building

[2018] WBC v Warren Farm – defending in the Crown Court prosecution on breach of an enforcement notice with POCA proceedings following

[2018] EBC v Nadeem – Crown Court prosecution on breach of an enforcement notice with POCA proceedings following [2018] EBC v Awad – Crown Court prosecution on breach of an enforcement notice with POCA proceedings following [2018] EBC v Malik – defending in the Crown Court prosecution of a solicitor on breach of an enforcement notice with POCA proceedings following

First Tier Tribunal

Examples of Scott’s work before the First Tier Tribunal include:

[2017] Akhtar v SBC – contested application to amend Land Registry title for purported mistake against a background of criminal prosecutions and Proceeds of Crime applications

Notable Cases

Wokingham Borough Council v. Scott and others [2019] EWCA Crim 205

Scott acted for nine (of eleven) successful defendants in staying a prosecution for breach of an enforcement notice. The prosecution was stayed as an abuse of process after the 1st defendant was improperly induced to withdraw his appeal against an enforcement notice by the Local Authority, causing prejudice to him and occupiers of the land when that Local Authority then resolved to pursue prosecution for breach of the same enforcement notice. The Authority had improper

fnancial motivations for the prosecution which was commenced in contemplation of confscation under the Proceeds of Crime Act (POCA) proceedings

Provectus Remediation Ltd v. Derbyshire County Council [2018] EWHC 1412 (Admin)

Mr Stemp acted for the Applicant in this High Court authority establishing the circumstances in which an applicant can require the return of application fees under the Town and Country Planning (Fees for Applications, Requests and Site Visits) (England) Regulations 2012

Wokingham Borough Council v. Scott and others [2017] EWHC 294 (QB)

Scott represented the lead defendants in this multi-handed (ten defendant) High Court planning injunction matter concerning the operation of a garden centre and related businesses from a site in the Green Belt in breach of planning controls

Fiaz Akhtar v. Slough Borough Council [2017] EWLandRA 2016_0207

Mr Stemp acted for the successful Council in this application to rectify the register because of a purported mistake arising from a claimed forged signature on transfer documentation, set against a background of criminal fraud prosecutions and Proceeds of Crime Act proceedings

Kestrel Hydro v. Secretary of State for Communities and Local Government and Spelthorne Borough Council [2016] EWCA Civ 784

Mr Stemp acted for the successful Council in this Court of Appeal authority on when an enforcement notice issued against an unlawful change of use may require the removal of structures connected with the unlawful use which (but for the unlawful use) could have been erected lawfully, addressing the proper interpretation and application of the previous cases of Murftt (1980) Somak Travel (1988) and Bowring (2013) and the human rights compliance of the approach thereby adopted to the ground (f) appeal

Elmbridge Borough Council v. Secretary of State for Communities and Local Government and another [2015] EWHC 1367 (Admin)

Mr Stemp acted for the successful Applicant in this authority on the limits of a ground (f) appeal against an enforcement notice and the interaction between appeals made under grounds (f) and (a)

Whitcher v. Secretary of State for Communities and Local Government and the New Forest National Park Authority [2015] EWHC 3001 (Admin)

Scott acted for the successful National Park Authority in this matter concerning the proper interpretation and application of Development Plan policies concerning provision of Gypsy and Traveller accommodation and evidence of need.

Wellington Pub Company v. Royal Borough of Kensington and Chelsea and The Norland Conservation Society CR/2015/0007

Authority on the defnition of a ‘building’ and the applicability of the concept of the ‘planning unit’ to listings of Assets of Community Value (ACVs). Mr Stemp appeared at the First Tier Tribunal (General Regulatory Chamber) for the successful Conservation Society.

Memberships

Planning and Environment Bar Association Criminal Bar Association Western Circuit

Qualifcations

LLB Hons (First Class) Southampton

Contributor

Contributor to Butterworths Planning Law Service

Scott was responsible for a comprehensive review of the chapters on (1) rural constraints (2) green belts and (3) advertising controls

Jessica Allen

Planning & Environment

Year of Call: 2019

Email Clerks: planning@no5.com

Jessica accepts instructions across all areas of environmental law, planning law, and public law She has acted for individuals, developers, local authorities, central government, and NGOs.

Planning

Jessica has experience of a range of planning matters and welcomes instructions in all areas of planning law. She is particularly interested in matters arising at the intersection of planning law and environmental law.

Her recent instructions include:

- Drafting opening submissions and cross-examination notes in an inquiry into a 300-home residential scheme in the Green Belt (led);

- Drafting opening submissions and cross-examination notes in an inquiry into a 289-home residential scheme on brownfield land in a Garden City (led);

- Petitioning the HS2 (Crewe – Manchester) Bill Select Committee for a four-platform underground through station at Manchester Piccadilly (led);

- Advising a local authority on a proposed application for an order under section 77 of the Building Act 1985 in relation to a Grade II Listed Building;

- Advising a local authority on potential options to resolve an incompatibility between a Class Q approval and a Section 52 Agreement;

- Advising central government on potential options to amend planning policy and legislation in a British Crown dependency (led);

- Advising a developer on the grounds for terminating an agreement for lease in light of draft section 106 obligations (led);

- Advising a developer on the viability of section 73 application seeking variation of an approved plans condition as a means of consolidating a series of applications in respect of the same land (led);

- Advising a developer on whether the conversion of an agricultural building into a residential building constituted class Q permitted development (led);

- Advising a business on an alleged breach of the permitted use clause in a commercial lease (led);

- Advising central government on the validity of a general vesting declaration and its amenability to legal challenge (led); and

- Providing a conference note on the steps necessary to fulfil obligations to obtain a satisfactory planning permission under an agreement for sale of land (led).

Jessica has also been a marshal to the Supervising Lord Justice for Planning, Lord Justice Lindblom, in a planning matter before the Court of Appeal, and to Mr Justice Holgate in a planning judicial review hearing in the High Court

Environment

Jessica is a specialist environmental lawyer and welcomes instructions in all areas of environmental law, including environmental torts and property law

Her recent work includes:

- Drafting a case for the Respondent counsel team in Manchester Ship Canal Ltd v United Utilities Ltd UKSC 2022/0121, which concerned the lawfulness of outfalls of untreated sewage into a canal (led);

- Acting for the claimant community group in a judicial review of a council’s decision to grant planning permission in circumstances where a supplementary planning document on development in an area of outstanding natural beauty had not been taken into account;

- Advising an individual claimant on the merits of a judicial review of a council’s decision to grant planning permission in circumstances where the comments of a wildlife officer had been misquoted and reasons were not given for departing from the views of a statutory consultee;

- Advising central government on the lawfulness of an inspector’s finding that woodland was not ancient and did not benefit from additional protection under national policy (led); Advising a developer on whether section 73 applications proposing changes to EIA development would need to be accompanied by an environmental statement (led);

- Advising a developer on the lawfulness of a local planning authority’s approach to EIA screening of connected developments (led); and

- Advising residents on an application for registration based on adverse possession of an unadopted road and area of woodland (led).

Prior to coming to the Bar, Jessica held legal and policy roles at WWF, the Environmental Law Foundation, and ClientEarth. In those roles she regularly produced reports, briefings, and consultation responses on a range of environmental law matters – from nature conservation and biodiversity to pollution and climate change.

Jessica frequently publishes articles and delivers presentations on environmental law matters and is currently a convenor of the UK Environmental Law Association (UKELA) Environmental Litigation Working Group.

Public law

Jessica is an experienced public lawyer who welcomes instructions in all areas of public law. She is currently a member of the Advocate General’s Junior Junior scheme.

Her recent instructions include:

- Acting for the claimant community group in a judicial review of a council’s decision to grant planning permission in circumstances where a supplementary planning document on development in an area of outstanding natural beauty had not been taken into account;

- Advising an individual on the merits of a claim for judicial review of a council’s decision to grant planning permission in circumstances where the comments of a wildlife officer had been misquoted and reasons were not given for departing from the views of a statutory consultee;

- Preparing draft pleadings for the claimant action group in a judicial review of a grant of planning permission for development on a playing field contrary to national and local policy (led);

- Preparing draft pleadings for the claimant developer in a judicial review of a decision to publish a local plan review without lawful consultation (led);

- Preparing draft pleadings for the interested party in a judicial review of a grant of planning permission where an NHS Trust’s request for a financial contribution had been refused (led);

- Preparing draft pleadings for the claimant developer in a judicial review of a refusal of planning permission for 108 extra care units in the Green Belt (led);

- Preparing draft pleadings for central government in an application for review of a decision of a panel of the Environment and Traffic Adjudicators on the ground that the panel erroneously engaged in a judicial drafting exercise (led);

- Providing a research note on concurrent bail applications made under the Immigration Act 2016; and

- Providing a research note on the lawfulness of detention under the National, Immigration and Asylum Act 2002.

Before coming to the Bar, Jessica was a judicial assistant to the former Vice President of the Court of Protection, Mr Justice Hayden, and assisted with the drafting of judgments in medical treatment and welfare cases

European law

Jessica has a particular interest in European law and policy, particularly in an environmental law context. She has a diploma in European Union (EU) law studies from l’Université Toulouse 1 Capitole, France, and completed the European Environmental Law programme of the ERA Academy of Environmental Law.

After the European Commission referred Greece to the Court of Justice in 2019 over its failure to protect biodiversity, Jessica was asked to produce a comparative law report for WWF Greece on the

legal and institutional frameworks for protected areas in four other European countries that had implemented the Birds Directive (Directive 2009/147/EC) and the Habitats Directive (Directive 92/43/EEC). She presented her report to the organisation in September 2020.

In her role at ClientEarth, Jessica drafted and presented briefings on a range of topics including national emission reduction commitments, vehicle type approval and market surveillance, ecodesign standards, and energy labelling. She has also advised on environmental impact assessment, strategic environmental assessment, and urban waste-water treatment.

International law

As a postgraduate, Jessica specialised in comparative and international law. She has a keen interest in international environmental law and the international law of the sea, having researched coordinated approaches to marine pollution, the conservation of living resources, and biodiversity beyond national jurisdiction. She received the Law Faculty Prize for Comparative & Global Environmental Law for her cohort.

Jessica is also interested in the sustainability of trade measures and subsidies. In 2019, she participated in the John H. Jackson Moot Court Competition organised by the World Trade Organization, which concerned certain measures related to electric vehicles charging points and infrastructure. Her team received the prize for Best Complainant Memorandum at the European round in Vienna, Austria.

Human rights

Jessica is familiar with the procedures of the European Court of Human Rights, having completed a traineeship at the Court in 2020. As a trainee, Jessica drafted of a comparative law report for the Grand Chamber presiding over the Albert and Ors v Hungary case on the standing of bank shareholders to challenge administrative law measures. She also conducted legal research into the activities of State parties to the Convention and the intersection between human rights and the environment. Jessica is currently a reporter for the European Human Rights Reports and well-placed to advise on matters with a human rights dimension.

Inquiries

In autumn 2023, Jessica was instructed as a junior to the Post Office counsel team reviewing documents for disclosure to the Horizon IT Inquiry

Pro Bono

Jessica is committed to access to justice and has provided pro bono advice on several claims for judicial review on an urgent and non-urgent basis. She is happy to accept instructions pro bono in appropriate cases.

Other information

Jessica was raised in a single-parent household and attended local state comprehensive schools in the North of England. She is the first in her family to be called to the Bar. In her free time, she enjoys rock climbing, hiking, and playing the piano.

Appointments

- Convenor of the Environmental Litigation Working Party (UK Environmental Law Association)

- Reporter (European Human Rights Reports)

Awards

Sir John and Lady Sophie Laws Scholarship (Bar European Group, 2023)

Fox Scholarship (Harold G. Fox Education Fund, 2021)

Human Rights Law Bursary (Human Rights Lawyers’ Association, 2019)

David Karmel European Scholarship (Gray’s Inn, 2019)

Kingsland Cup (Francis Taylor Building, 2019)

Wildlife Law Bursary Award (UK Environmental Law Association, 2018)

Dean’s Scholarship for Academic Excellence (City Law School, 2018)

Wilfred Watson BPTC Scholarship (Gray’s Inn, 2018)

Law Faculty Prize for Comparative & Global Environmental Law (University of Oxford, 2018)

Mansfield Graduate Award (Mansfield College, 2018)

Student Essay Prize (UK Centre for Animal Law, 2018)

Punch Coomaraswamy Prize (University of Nottingham, 2017)

Andrew Lees Essay Prize (UK Environmental Law Association, 2014)

Memberships

UKELA (UK Environmental Law Association)

PEBA (Planning and Environmental Bar Association)

Gray’s Inn

Qualifications

Bachelor of Civil Law – Distinction (University of Oxford, 2018)

BA (Hons) Law with French and French Law – First Class (University of Nottingham, 2017)

Diplôme d’Études du Droit de l'Union Européenne (Université Toulouse 1 Capitole, 2016)

Publications

J. Allen and E. Montlake, Response to the OEP Call for Evidence on Protected Sites for Nature (Environmental Law Foundation, 2023)

H. Narulla, J. Allen et al., Office for Environmental Protection Draft Strategy and Enforcement Policy Consultation (Oxford Sustainable Law Programme, 2022)

J. Allen, Legal and institutional frameworks for protected areas: France, Spain, Sweden and the United Kingdom (WWF Greece, 2020)

J. Allen et al., ‘De-extinction, environmental regulation and nature conservation’ (2020) 32(2) JEL 309 [Link]

J. Allen, ‘The human dimension of nature conservation’ (2019) 114 UKELA e-law Journal 17

BIODIVERISTY NET GAIN – AT THE PRECIPICE

INTRODUCTION

1. The most recent State of Nature Report 1 (published September 2023) indicates that UK species are continuing to decline. Over the past 50 years, terrestrial and freshwater species have declined by around 19%. Nearly 1 in 6 species are now threatened with extinction.

2. It was in this context that the UK Government signed up to the Kinming-Montreal Global Biodiversity Framework 2 and committed, among other things, to restore 30% of degraded ecosystems by 2030 3 The target for the restoration or creation of wildlife-rich habitat set out in domestic legislation is 500,000 ha of a range of habitats by 31 December 2042 4

3. Biodiversity net gain (‘BNG’) is an approach to land management that seeks to deliver measurable improvements for biodiversity by enhancing or creating habitats. Though BNG has been part of the planning policy landscape for some time, it becomes a legal requirement in England with the entry into force of section 90A and Schedule 7A of the Town and Country Planning Act 1990 (‘the Act’). 5

4. Because of the date of drafting this paper, it addresses the following regulations in the form they were published in January 2024 as intended to come into effect on 12 February 2024:

a. Environment Act 2021 (Commencement No. 8 and Transitional Provisions) Regulations 2024;

1 See: <https://stateofnature.org.uk/wp-content/uploads/2023/09/TP25999-State-of-Nature-mainreport_2023_FULL-DOC-v12.pdf>.

2 See: <https://www.cbd.int/doc/decisions/cop-15/cop-15-dec-04-en.pdf>.

3 Target 2.

4 Environmental Targets (Biodiversity) (England) Regulations 2023, reg. 7.

5 As amended by the Environment Act 2021, ss. 98 and 99; the Levelling Up and Regeneration Act 2023, sch. 14; and the Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024.

b. Biodiversity Gain Site Register Regulations 2024;

c. Biodiversity Gan Site Register (Financial Penalties and Fees) Regulations 2024

d. Biodiversity Gain Requirements (Exemptions) Regulations 2024;

e. Biodiversity Gain (Town and Country Planning) (Modi�ications and Amendments) (England) Regulations 2024; and

f. Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024.

WHAT DEVELOPMENTS ARE AFFECTED?

5. The BNG requirement will apply to:

a. Major development, 6 where applications are made on or after 12 February 2024; 7

b. Small sites (i.e. not major development), where applications are made on or after 2 April 2024; 8 and

c. Nationally signi�icant infrastructure project (expected from November 2025 9).

6. Applications in respect of brown�ield sites, temporary permissions, and sites in areas of outstanding natural beauty (‘AONBs’) or national parks all fall (in principle) within the BNG regime. Applications under section 73 of the Act to vary conditions are also caught, but only where the earlier permission was made after the relevant dates set out above.

7. There is currently no requirement for BNG in respect of retrospective permissions granted under section 73A of the Act, for which provisions have not yet been brought into effect, 10 or permissions granted on any enforcement appeal, although the Secretary of State is empowered to introduce regulations to that effect. 11

6 At least 10 housing units if it is residential or half a hectare if the number of units is not known or at least 1,000m2 �loorspace if it is not residential or a hectare if the square metres are not known.

7 Environment Act 2021 (Commencement No. 8 and Transitional Provisions) Regulations 2024, reg. 2.

8 Biodiversity Gain Requirements (Exemptions) Regulations 2024, reg. 3(1)-(2).

9 The Government has indicated its intention to commence the relevant provisions no later than November 2025: <https://www.gov.uk/government/consultations/consultation-on-biodiversity-netgain-regulations-and-implementation/outcome/government-response-and-summary-of-responses>.

10 See: Environment Act 2021 (Commencement No. 8 and Transitional Provisions) Regulations 2024, reg. 2(2).

11 Town and Country Planning Act 1990, sch. 7A, para. 21.

8. Expressly exempt from BNG is any form of permitted development 12 or urgent Crown development under section 239A of the Act.

9. The Biodiversity Gain Requirements (Exemptions) Regulations 2024 also provide for the following exemptions:

a. De minimis development: where the development meets both of the following conditions:

i. It does not decrease the biodiversity value of an onsite priority habitat; 13 and

ii. Less than 25sqm of onsite habitat that has a value greater than zero and less than 5m in length of onsite linear habitat (i.e. hedgerow or watercourse habitats). 14

b. Householder development: where the development relates to an existing dwellinghouse, is within the curtilage of an existing dwellinghouse for any purpose incidental to its enjoyment, or is the subject of an application for consent, agreement or approval required by or under a planning permission, development order or local development order. 15

c. High speed railway transport network 16: where the development forms part of, or is ancillary to, the high-speed railway transport network comprising connections between all or any of the places or parts of the network. 17

d. Biodiversity gain sites: where the development is undertaken solely or

12 Town and Country Planning Act 1990, sch. 7A, para. 17(a)(i).

13 Listed under the Natural Environment and Rural Communities Act 2006, s. 41. For a comprehensive list, see: <https://www.gov.uk/government/publications/habitats-and-species-of-principal-importance-inengland>.

14 Biodiversity Gain Requirements (Exemptions) Regulations 2024 reg. 4.

15 The same de�inition that is set out in the Town and Country (Development Management Procedure) (England) Order 2015, art. 2(1). See: Biodiversity Gain Requirements (Exemptions) Regulations 2024, reg. 5.

16 As speci�ied in the High Speed Rail (Preparation) Act 2013, s. 1(2).

17 Biodiversity Gain Requirements (Exemptions) Regulations 2024 reg. 6.

mainly for the purpose of ful�illing, in whole or in part, the biodiversity gain planning condition which applies in relation to another development. 18

e. Self-build and custom build development 19: where the development consists of no more than 9 dwellings, is carried out on a site which has an area no larger than 0.5ha and consists exclusively of dwellings which are self-build or custom housebuilding. 20

DETERMINING THE BNG REQUIREMENT

10. The minimum BNG requirement is set in the Act at the (now widely-known) 10% gain, 21 although there is provision for the Secretary of State to change that percentage by subsequent regulations 22

11. To measure whether BNG will meet the 10% gain requirement, the land affected by development and the land allocated for BNG will be given scores in biodiversity units for its biodiversity value using the statutory metric produced by Natural England 23 There is a simpli�ied metric for small sites.

12. The inputs into the biodiversity metric include size (ha or km), distinctiveness (very low to very high), condition (poor to good), and strategic signi�icance (see �ig. 1) 24

Strategic signi�icance category Strategic signi�icance score

Description

18 Biodiversity Gain Requirements (Exemptions) Regulations 2024 reg. 7.

19 The building or completion of houses by individuals, associations of individuals, or persons working with or for individuals or associations of individuals to be occupied as homes by those individuals

20 The same de�inition that is set out in the Self-Build and Custom Housebuilding Act 2015, s. 1(A1). See: Biodiversity Gain Requirements (Exemptions) Regulations 2024, reg. 8.

21 Town and Country Planning Act 1990, sch. 7A, para. 2(2).

22 Town and Country Planning Act 1990, sch. 7A, para. 2(3).

23 See: <https://www.gov.uk/government/publications/statutory-biodiversity-metric-tools-and-guides>.

24 Defra, ‘The Statutory Biodiversity Metric: User Guide (draft)’ (November 2023), p. 22: <https://assets.publishing.service.gov.uk/media/65673fee750074000d1dee31/The_Statutory_Biodiversi ty_Metric_-_Draft_User_Guide.pdf>.

25 Statutory Biodiversity Metric User Guide, Table 7.

Fig. 1 25

High

1.15

Medium

1.10

Low

1

Where there is a published local nature recovery strategy (‘LNRS’),

• the location of the habitat parcel has been mapped in the Local Habitat Map as an area where a potential measure has been proposed to help deliver the priorities of that LNRS; and

• the intervention is consistent with the potential measure proposed for that location.

Where there is no published LNRS and the habitat type is mapped and described as locally ecologically important within a speci�ic location, within documents speci�ied by the relevant planning authority.

Where a habitat type is judged to be ecologically important within a speci�ic location and demonstrated to be important in providing ecological linkage to other strategically signi�icant locations is.

Where the de�initions for high and medium strategic signi�icance are not met.

13. Distinctiveness is a new measure based on the type of habitat and its distinguishing features, including species richness and rarity and any environmental designations. 26 While habitats do not necessarily have to be replaced like for like, they must be

replaced with habitats of equal or higher distinctiveness 27

14. The pre-development biodiversity value of a site of the onsite habitat will normally be that as at the date of the application for planning permission unless some earlier date is agreed with the Local planning authority (‘LPA’). 28 Where onsite habitat has been cleared, destroyed, or degraded after 30 January 2020 and otherwise than in accordance with a permission, the pre-development biodiversity value is to be taken to be its biodiversity value before those activities were carried out. 29 It is therefore unlikely that applicants will be able to take steps to try and lower the biodiversity value of onsite habitat in anticipation of an application for planning permission.

15. The metric also applies the following multipliers to the score for post-development habitat creation and enhancement: 30

a. Delivery risk multiplier: which re�lects the uncertainty in the effectiveness of different techniques to create or enhance that habitat

b. Temporal risk multiplier: which represents the average time lag (in years) between the start of habitat creation or enhancement works and the target outcome.

c. Spatial risk multiplier: which re�lects the relationship between the location of onsite biodiversity loss and the location of habitat compensation.

16. The spatial risk multiplier is a particularly important consideration for applicants because more intervention is needed where BNG is planned to be provided further away from the application site That is because onsite BNG has a multiplier of 1, whereas off-site BNG has a multiplier of 0.75 (neighbouring authority) or 0.5 (nonneighbouring authority) 31 The result is that an intervention which scores 4, for

27 Statutory Biodiversity Metric User Guide, Table 3.

28 Although this date cannot be a date before Schedule 7A came into effect. See: Town and Country Planning Act 1990, sch. 7A, para. 5.

29 Town and Country Planning Act 1990, sch. 7A, para. 6.

30 Statutory Biodiversity Metric User Guide, p. 31.

31 Statutory Biodiversity Metric User Guide, Table 8.

example, will achieve the same score onsite but only 3 or 2 off-site (not accounting for other inputs and multipliers).

17. It should be noted that Defra has provided speci�ic guidance on ‘trading’ habitats, compensation for loss of any watercourses, the high distinctiveness of woodlands, and woodland creation. 32

ACHIEVING BNG

18. BNG may be achieved through the implementation of onsite measures or off-site measures, or through a combination of onsite and off-site measures. However, applicants for planning permission will be expected to follow the biodiversity gain hierarchy (‘BGH’) unless the habitat to be lost is an irreplaceable habitat 33

19. The BGH 34 indicates that where the onsite habitat distinctiveness score is equal to or higher than 4, action should be taken to avoid adverse effects or, where those adverse effects cannot be avoided, to mitigate those effects.

20. Otherwise, the BGH permits compensation to be provided in the following order of priority:

a. Onsite habitat enhancement;

b. Onsite habitat creation;

c. Off-site habitat enhancement or creation: Under the Biodiversity Gain Site Register Regulations 2024 a register of biodiversity gain sites will be established and maintained by Natural England 35 Landowners will be able to

32 See: <https://www.gov.uk/government/publications/statutory-biodiversity-metric-tools-and-guides>.

33 Which require bespoke compensation to be agreed with the LPA. See: Town and Country Planning (Development Management Procedure) (England) Order 2015, art. 37C; Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024 reg. 3(4).

34 Town and Country Planning (Development Management Procedure) (England) Order 2015, art. 37A.

35 Biodiversity Gain Site Register Regulations 2024, reg. 3

apply 36 to register eligible land 37 for a fee 38 which is currently £639. Applicants will then be able to �ind suitable sites by consulting the register, which will be publicly accessible. 39 Off-site compensation will not be appropriate where the habitat to be lost is an irreplaceable habitat. 40

d. Purchase of biodiversity credits: The cost of credits varies between £42,000 and £650,000 per credit according to the type of habitat affected. 41 Prices are subject to review every 6 months with at least 10 weeks’ notice of any change in price being given. Biodiversity credits cannot be purchased where the habitat to be lost is an irreplaceable habitat 42 .

21. In general, it will likely be most cost effective for applicants to make provision onsite as there will be no additional cost associated with land acquisition. It will also avoid the application of the spatial risk multiplier to biodiversity gain sites as explained above. There is the potential for ‘selling on’ any surplus gain to other developers, or applying it to bene�it other developments, as off-site mitigation for those other developments.

22. Ultimately other sites will be eligible for allocation for BNG even where they are already managed for other environmental purposes, such as green infrastructure, EIA compensation, river basin management plan mitigation and enhancement, sustainable drainage, or nutrient mitigation. 43 At least 10% of the post-development biodiversity score of such sites must nevertheless be attributable to measures undertaken to achieve BNG.

36 Biodiversity Gain Site Register Regulations 2024, reg. 7.

37 Biodiversity Gain Site Register Regulations 2024, reg. 6.

38 See: Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024, reg. 12 and sch. 1.

39 Biodiversity Gain Site Register Regulations 2024, reg. 4.

40 See: Town and Country Planning Act 1990, sch. 7A, para. 14(2); Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024 reg. 3(2)(b).

41 Defra, ‘Guidance: Statutory biodiversity credit prices’ (29 November 2023): <https://www.gov.uk/guidance/statutory-biodiversity-credit-prices>.

42 See: Town and Country Planning Act 1990, sch. 7A, para. 14(2); Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024 reg. 3(2)(b).

43 Defra, ‘What you can count towards a development’s biodiversity net gain (BNG)’ (May 2023): <https://www.gov.uk/guidance/what-you-can-count-towards-a-developments-biodiversity-net-gainbng>.

SECURING BNG

23. The principal mechanism for securing BNG will be a section 106 agreement made between an applicant and an LPA. The section 106 agreement will need to detail the planned biodiversity enhancement or creation works, speci�ic actions that will be taken to implement those works, who will be responsible for taking those actions, and how the enhancements will be allocated to development(s).

24. An alternative mechanism for securing BNG will be a conservation covenant agreement made between a landowner and a responsible body 44 which makes provision for what each party must or must not do to conserve the natural environment of land for the public good. 45 Conserving land includes protecting, restoring, or enhancing it. 46

25. It is important to note that the obligation under a conservation covenant has effect for the duration of the qualifying estate unless a shorter period is proscribed in the agreement. 47 Landowners with a freehold estate, for which the duration is inde�inite, may therefore want to consider limiting the effect of the covenant to the 30-year period required by statute.

26. Section 106 agreements 48 and conservation covenants 49 are automatically registrable as local land charges, meaning that they are overriding interests which run with the land and bind subsequent owners. Those seeking to acquire land for BNG will therefore need to take care to determine whether or not the land has already been registered and/or allocated to development on the register of biodiversity gain sites.

MONITORING BNG

27. Every grant of planning permission to which the BNG requirement applies will be

44 A local authority, public body or charity with conservation functions or a private sector organisation with conservation activities may apply to Defra to be a responsible body. So far, the list includes Natural England only: <https://www.gov.uk/government/publications/conservation-covenant-agreementsdesignated-responsible-bodies/conservation-covenants-list-of-designated-responsible-bodies>.

45 Environment Act, s. 117(1)-(3).

46 Environment Act, s. 117(4).

47 Environment Act, s. 121.

48 Town and Country Planning Act 1990, s. 106(11).

49 Environment Act, s. 120.

deemed to have been granted subject to a condition which requires the submission and approval of a biodiversity gain plan (‘BGP’) before the commencement of development. 50

28. For most developments, 51 a BGP must include: 52

a. The name and address of the person(s) completing and submitting the BGP;

b. The reference number of the planning application to which it relates;

c. A description of the development to which it relates;

d. The pre-development biodiversity value of onsite habitat and a plan showing its location;

e. The post-development biodiversity value of onsite habitat and a plan showing its location;

f. Any registered offsite biodiversity gain allocated to the development and the biodiversity value of that gain in relation to the development;

g. Any biodiversity credits purchased for the development;

h. Information about the steps taken or to be taken to minimise the adverse effect of the development on the biodiversity of the onsite habitat and other habitat;

i. A description of the arrangements for maintaining and monitoring the habitat enhancement;

j. A description of the actions to be taken for the purpose of applying the biodiversity gain hierarchy; and

k. A description of any irreplaceable habitat.

29. LPAs will only be able to approve a BGP where it is satis�ied that a BNG of at least 10% will be met. 53 LPAs will expose themselves to a risk of legal challenge if they approve

50 Town and Country Planning Act 1990, sch. 7A, para. 13 In the case of phased development, the condition is amended by the Biodiversity Gain (Town and Country Planning) (Modi�ications and Amendments) (England) Regulations 2024, reg. 4.

51 Where development is to proceed in phases, the contents of a BGP and phases plan are different. See: Biodiversity Gain (Town and Country Planning) (Modi�ications and Amendments) (England) Regulations 2024, regs. 5-6; Town and Country Planning (Development Management Procedure) (England) Order 2015, art. 37C(5)

52 See: Town and Country Planning Act 1990, sch. 7A, para. 13(2); Town and Country Planning (Development Management Procedure) (England) Order 2015, art. 37C.

53 Town and Country Planning Act 1990, sch. 7A, para. 15(2)(e).

a BGP without satisfying themselves as to the level of BNG or do so without the necessary evidence that the BNG will be achieved.

30. LPAs will not be able to approve a BGP which contemplates the loss of onsite irreplaceable habitat unless it is satis�ied that the adverse effect of the development on the biodiversity of the onsite habitat is minimised and that appropriate arrangements have been made for the purpose of compensating for any impact. 54 BGPs will be kept on the LPA’s planning register.

MAINTAINING BNG

31. Statute will require habitats to be maintained for at least 30 years after development has been completed (in the case of onsite BNG) 55 or the habitat enhancement has been completed (in the case of off-site BNG) How the land may be used thereafter will turn on whether there are any subsisting legal obligations to manage the land in connection with other environmental purposes

32. Conservation covenants, for example, may have effect for inde�inite duration (as above). In those circumstances, it would be necessary to agree the discharge or modi�ication of the covenant with the responsible body or make an application to the Upper Tribunal. The Tribunal would consider, among other things, whether the obligation continues to serve a conservation purpose or the public good 56 and whether the conservation purpose can be served equally well by an obligation relating to different land in respect of which the applicant has a qualifying estate. 57

33. Where there are subsisting legal obligations, the landowner may bene�it from keeping the site in BNG and selling new units into the off-site BNG market that is expected to develop However, the baseline condition of the land will need to be recalculated to re�lect the BNG that has been achieved

34. Land which is not the subject of other legal agreements, or any accrued environmental

54 Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024, reg. 3(3)-(4)

55 Town and Country Planning Act 1990, sch. 7A, para. 9(3).

56 Environment Act 2021, sch. 8, para. 3(2).

57 Environment Act 2021, sch. 8, para. 3(3).

protections, may be used for purposes other than biodiversity subject to development and other controls. An illustrative example is where the BNG resulted from the creation of woodland. Any development on the land would be subject to the legislation relating to EIA or environmental outcome reports. A landowner who wishes to fell trees would also likely be required apply to the Forestry Commission for a felling licence. 58 Such licences are often issued subject to conditions of restocking of trees, and typically at a density of 1,100 trees per hectare. 59

REGISTRATION OF SITES

35. As outlined above, Natural England must establish and maintain a publicly accessible register of biodiversity gain sites (‘Site Register’). Land is eligible to be registered if it satis�ies the following six conditions: 60

a. One or more persons are required under the covenant or agreement to carry out works on the land for habitat enhancement;

b. One or more persons are required under the covenant or agreement to maintain the habitat enhancement for at least 30 years after completion of those works;

c. One or more persons is required under the covenant or agreement to monitor habitats to ensure the enhancement required is maintained for the relevant period;

d. The habitat enhancement is made available to be allocated to one or more developments for which planning permission is granted;

e. The land is in England; and

f. The covenant or obligation is registered as a local land charge.

36. Land may only be entered once in connection with a conservation covenant or section 106 agreement, 61 meaning that separate and discrete covenants and agreements will be required if the same parcels of land are intended to be registered more than once.

58 Forestry Act 1967, s. 9.

59 Forestry Commission, ‘Tree Felling: Getting permission’ (2023), s. 6.5: <https://assets.publishing.service.gov.uk/media/64b54e2d0ea2cb000d15e3e5/FC_Tree_Felling_4_July_2 3_WEB.pdf>.

60 Biodiversity Gain Site Register Regulations 2024, reg. 6(2)-(7).

61 Biodiversity Gain Site Register Regulations 2024, reg. 5(2).

37. There are requirements for the content of an application to register a site. 62 Those requirements are extensive and require not just certi�ication of various matters but also the provision of evidence to support the same. For example, evidence is required that the applicant is entitled to make the application. 63

38. Applicants are also required to provide copies of a number of documents pertaining to the conservation covenant or section 106 agreement, including: 64

a. Every agreement discharging an obligation;

b. Every agreement modifying an obligation;

c. Every agreement appointing a person to replace a responsible body;

d. Every order of the Upper Tribunal modifying or discharging an obligation;

e. Every other decision of a court or tribunal about its effect;

f. Every other document which describes any of the required enhancement works on the land and has been produced in accordance with its terms;

g. A copy of every agreement or other document which has been entered into or produced pursuant thereto and which describes things to be done in relation to the land for the purpose of maintaining habitat enhancement or monitoring the same; and

h. Copies of of�icial search certi�icates showing its registration as a land charge.

39. Unlike in other areas, applicants to register a site must provide an email address for correspondence and the service of notices; 65 a postal address alone is insuf�icient.

40. An application to register land in the Site Register can be withdrawn in the course of the application, but only if written noti�ication is received by Natural England before it has decided whether to accept or reject the application. 66

62 Biodiversity Gain Site Register Regulations 2024, reg. 8.

63 Biodiversity Gain Site Register Regulations 2024, reg. 8(1)(a).

64 Biodiversity Gain Site Register Regulations 2024, reg. 8(4).

65 Biodiversity Gain Site Register Regulations 2024, reg. 8(1)(c).

66 Biodiversity Gain Site Register Regulations 2024, reg. 7(5).

41. A fee is payable for registration (currently set at £639). If a relevant fee is not paid, Natural England must reject the application. 67 Applications must also be rejected where the land is already registered (even in part) or where Natural England is not satis�ied that the application contains the required information. 68 Natural England may reject an application where further information has been requested but has not been supplied within 3 months of a request being made. 69

42. If Natural England considers that any information provided in connection with an application is false or misleading, and decides to conduct an investigation into the same, it must give notice to the applicant of its decision as soon as practicable and give further notice as soon as practicable after completing the investigation. 70

43. If Natural England determine that an application for registration does contains false or misleading information, a �ixed �inancial penalty of £5,000 may be imposed on the individual that supplied the information. 71 Such determination is made on the balance of probabilities; it is not a criminal penalty and so the lower burden of proof applies.

44. Before imposing a penalty, Natural England must issue a notice of intent, specifying matters including the information that is said to be false or misleading, and allow 28 days for the individual to object. 72 Objections must be made in writing and include any evidence relied upon. 73 Natural England then has 56 days from the date of an objection or the expiry of the objection period to determine whether to impose the penalty and send a �inal penalty notice. 74 Any penalty so imposed is recoverable as a civil debt and is payable to HM Treasury. 75 There is a right of appeal to the First-Tier Tribunal against any penalty notice, which will be suspended pending the outcome. 76

45. Once a site has been registered, applications can later be made to amend an entry in the Site Register on the basis that the habitat enhancement has ceased to be allocated to a development (in whole or in part) or the information recorded in that entry is no longer complete or accurate as a result of a modi�ication to a conservation covenant or section 106 agreement or for any other reason. 77

46. Natural England is also empowered to amend an entry on the Site Register on the basis that the information recorded in the entry is incomplete or inaccurate 78 and to remove an entry in its entirety in certain circumstances. 79 However, in either instance, 28 days’ notice must be given to a ‘required recipient’ 80 before doing so. 81 Recipients then have a right to make representations as to why the Site Register should not be amended within 28 days of receiving the notice. 82 There is also a right of appeal to the First-Tier Tribunal. 83

47. Appeals to the First-Tier Tribunal may be made only on certain grounds, principally where Natural England has made an error of fact or error of law. 84 That said, appeals against a rejection of an application 85 or an amendment/removal of entries on the Site Register 86 may be appealed on the basis that the decision was unfair or unreasonable for any other reason.

ENFORCEMENT

48. Enforcement of section 106 agreements will fall within the remit of the existing powers of LPAs. As paragraph 006 of the draft BNG planning practice guidance (unhelpfully) observes: ‘Appropriately worded planning conditions and planning obligations would also help achieve effective monitoring and enforcement of biodiversity net gain, particularly in relation to the maintenance and monitoring of signi�icant onsite

habitat enhancements.’ 87

49. One can foresee issues arising where off-site mitigation is provided at some distance from the application site, possibly within another authority area. The availability of BGPs on planning registers, and the public accessibility of Natural England’s Site Register, may assist in third-party involvement in enforcement (for example reporting of breaches by Wildlife Trusts or members of the public). However, wider reporting will not assist with the resourcing and pursuit of enforcement action.

50. The costs of effective monitoring of BNG will need to be factored into the monitoring fee provisions in section 106 agreements, provided that they fairly and reasonably relate in scale and kind to the development and do not exceed the LPA’s estimated cost of monitoring the development over the 30-year period provided for in legislation 88

51. Where a conservation covenant is used, the responsible body for the conservation covenant will have enforcement responsibilities.

12 FEBRUARY 2024

87 See: <https://www.gov.uk/guidance/draft-biodiversity-net-gain-planning-practice-guidance>. 88 See: Community Infrastructure Levy Regulations 2010, reg. 122(2A).

SCOTT STEMP JESSICA ALLEN





Exemptions, omissions…

 De minimis development

 Householder applications

 High speed rail transport

 Biodiversity gain sites

 Self-build/custom-build

TCPA Schedule 7A paragraph 13

NOT PHASED

Exists at TCPA Sch7A para 13

PHASED

Exists at Reg.4 of Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024

Pre-and Post-development Biodiversity values

 Date of application

 Unless earlier date agreed with LPA

 On-site habitat destruction/degradation

 Self-build/custom-build

 Delivery risk multiplier

 Temporal risk multiplier

 Spatial risk multiplier

Achieving BNG –Biodiversity Gain Hierarchy

1) On-site enhancement

2) On-site creation

3) Off-site creation/ enhancement

Achieving BNG –Biodiversity Gain Hierarchy

4) Biodiversity credits

£42,000 to £650,000

Securing BNG

Daniel Henderson Planning and Environment

Year of Call: 2021

Email Clerks: planning@no5.com

Daniel joined No5 as a Probationary Tenant in September 2023, and is building a broad and varied practice as part of the Planning and Environment team

Prior to joining No5, Daniel served as the Judicial Assistant to Lord Justice Lewis and Lord Justice Holroyde at the Court of Appeal (Civil Division). In that role, he worked on a number of significant planning cases. These included Secretary of State for Levelling Up, Housing and the Communities v Smith [2023] EWCA Civ 514 on the role of Appeal Planning Officers; East Quayside 12 LLP v Newcastle upon Tyne City Council [2023] EWCA Civ 359 on the heavily contested redevelopment of Newcastle quayside; and various other appeals on the interpretation of the NPPF, local and regional planning policies, and the GPDO. He also worked on a number of applications for permission to appeal from the Planning Court.

Daniel completed pupillage at a highly-ranked criminal set in London. He appeared daily in the Magistrates’ and Crown Court, both prosecuting and defending in criminal trials, applications for civil behaviour orders, and environmental and education prosecutions. He also appeared unled in the Court of Appeal.

Prior to commencing pupillage, Daniel studied for undergraduate and postgraduate degrees in Law and Public Law, obtaining several academic prizes. Daniel also spent time volunteering at Advocate (formerly the Bar Pro Bono Unit), assisting as the first point of contact for vulnerable individuals seeking pro bono representation. He also worked as a Legal Analyst for litigation analytics company Solomonic, and spent a number of months as a private tutor for undergraduate and postgraduate students.

Outside of the law, Daniel is a keen musician, and has spent many years singing in choirs all over the world, including as a Choral Scholar in the Choir of King’s College, Cambridge.

Awards

• Scarman Prize (City University)

• Oxford University Press Prize (City University)

• Asbury Scholarship (Middle Temple)

• Lawyers’ Alumni Prize (London School of Economics)

• Anniversary Scholarship (London School of Economics)

Memberships

• Administrative Law Bar Association

Qualifications

• Bar Vocational Studies (2021) (City University) (Distinction, 2nd in year)

• LLM Public Law (2020) (London School of Economics) (Distinction, 1st in year)

• MA (Hons) Law (2019) (University of Cambridge) (2.i)

Christian Hawley Planning and Environment

Year of Call: 2013

Email Clerks: planning@no5.com

Christian joined Chambers in 2015. He is also a Chartered Surveyor (Planning and Development) and prior to his change of career to the Bar was a Property Director at Lidl UK. His 13 years of industry experience has provided Christian with a rich knowledge of property development and planning allied with a keen sense of commercial realism.

Experience

Christian regularly acts for developers, promoters, local authorities and interested parties across a wide range of planning and environmental matters both at Inquiry and in the higher courts. He also enjoys a busy advisory practice.

Residential

Christian regularly advises and acts for residential developers (both led and un-led) on a wide range of sites ranging from proposals for small developments through to schemes of 900 and 1,000 dwellings. Christian also advises regularly on ‘post-permission’ issues such as the interpretation and discharge of planning conditions, the interpretation and effect of s106 agreements, drainage and highways matters.

Retail

Having worked in the retail sector of the property development industry for 13 years prior to coming to the Bar Christian has a great deal of experience in dealing with retail matters. He has acted on small and large schemes and regularly advises upon the correct application of the sequential test and consideration of the NPPF where in confict with older development plans. He also regularly deals with retail impact issues and other issues typically arising from retail schemes such as highways matters.

Environmental

Advice on EIA matters including reviewing draft Environmental Impact Assessments. Most recently he has acted in the High Court in a matter considering the proper scope of Environmental Permits under the Environmental Permitting Regulations (see cases below).

Enforcement

Acting for both Local Authorities and those subject to Enforcement Action. Examples include unauthorised Gypsy and Traveller pitches, unauthorised works to listed buildings, unauthorised development and changes of use.

Local Plans

Advising on the promotion of development proposals through the Local plan process and appearing at Local Plan Examinations (Vale of Aylesbury Local Plan, North Hertfordshire Local Plan, East Cambs Local Plan, Chester and Cheshire West Local Plan Part 2) for clients such as Gladman Developments and Barratt Homes.

Compulsory Purchase

Advising on compulsory purchase matters both for Local Authorities and for those affected. Examples include promoting a CPO for an individual residential property to secure its redevelopment and that it be put back into benefcial use through to a proposal for the compulsory purchase of land for redevelopment as a Gypsy and Traveller Transit Site.

Assets of Community Value

Advising in relation to ACV applications both for Local Authorities and those affected by such applications. Such advice has included in particular the correct statutory process which must be followed, appeals and compensation.

Accommodation for the elderly

Christian advises regularly for scheme promoters on applications for a range of schemes (both with and without care homes) for the accommodation of the elderly and in particular whether the specifc proposal at hand triggers (or not) the usual range of contributions required by mainstream residential developments.

Community Infrastructure Levy

Both advising Local Authorities upon the implementation and application of the Community Infrastructure Levy and advising scheme promoters / developers on what contribution requests can be justifed along with the interaction between the CIL regime and any proposed (or sought) s106 obligations.

Viability

Having worked in property development and being a Chartered Surveyor Christian is well versed in the operation of viability appraisals. Christian has provided advice, seminars and training on this topic particularly in light of the recent revisions as regards viability in the NPPF and the Practice Guidance. It has also been a key feature of a number of the Inquiries that Christian has been involved in.

Notable Cases

R (oao Danning) v Sedgemoor District Council [2021] EWHC 1649 (Admin)

Successful challenge to the LPA’s failure to: (1) discharge its duty under s149(1) Equalities Act 2010 when determining a planning application which would involve the ‘loss’ of a public house, (2) properly interpret its own development plan policies for consideration of the loss of community facilities.

R (oao Squire) v Shropshire Council and Matthew Bower [2019] EWCA Civ 888

The case concerned the scope of Environment Agency Permits issued under the Environmental Permitting (England and Wales) Regulations 2016 and whether the LPA had properly considered the direct and indirect environmental impacts of the proposal in terms of manure spreading as required by Environmental Impact Assessment Regulations 2011.

South Gloucestershire Council v SSHCLG and Barratt Homes (Bristol Division) (2018)

Advised Barratt Homes (led by Jeremy Cahill QC) in defending the claim brought by the LPA against the grant of permission following a public inquiry for up to 121 dwellings and a retail unit in Charfeld, Glos. Christian appeared as sole counsel in the High Court oral permission hearing, permission was refused to bring the claim. The claim was brought on the basis that the planning inspector had incorrectly interpreted the provisions of the NPPF (2012 Annex 1) and NPPG on the issue of prematurity (the LPA’s position at the Inquiry being that the proposal was premature to the West of England Joint Spatial Strategy).

R (oao John Williams and Others) v Forest of Dean District Council [2018] EWHC 2409 (Admin)

Successful advised and acted for the Defendant Council in judicial review proceedings brought by the Claimant seeking to challenge the lawfulness of a Breach of Condition Notice issued by the Council requiring the demolition and removal of a building on the Claimant’s land. The claim was brought on three grounds: (1) that the condition in question was manifestly unreasonable and so uncertain in meaning such that it was void, (2) that the Council has misdirected itself when considering whether the building was still ‘needed’ for the purposes of agriculture, (3) that the remedy sought exceeded that which was required to remedy the breach and fell outside the terms of the 1990 Act and so was unreasonable. The claim was dismissed on all three grounds and the subsequent application to the Court of Appeal for permission to appeal was refused.

Inquiries/Hearings

Hearing – Land of Anchor Road, Coleford, Somerset (2021)

Secured planning permission for up to 63 dwellings. Issues: (1) scale of development, (2) outside settlement boundary (greenfeld), (3) effects upon landscape and appearance.

Inquiry – Land at Omega Zone 8, St Helens (2021)

Led by Peter Goatley QC – secured detailed permission for B8 logistics warehouse (81,570 sqm) for occupation by T J Morris along with outline permission for B2 and B8 units (123,930 sqm). Main Issue: Green Belt / Very Special Circumstances

Inquiry – Land to south of White Rock, adj Brixham Road, Torbay (2021)

Led by Peter Goatley QC – secured permission for up to 400 dwellings. Issues: location (outside of established built up areas / not allocated), effects upon landscape character (in particular South Devon AONB).

Hearing – Land off Broad Street, Clifton (2019)

Secured planning permission for up to 80 dwellings, Issues: effect of proposed development on the character and appearance of the area and on the setting and identity of Clifton.

Inquiry – Former North Worcestershire Golf Club, Hanging Lane, Birmingham (2019)

Led by Christopher Young QC – secured permission for Bloor Homes for up to 800 dwellings, a primary school and associated development. Issues: 5YHLS, ‘deliverability’, meaning of ‘windfall’ sites.

Inquiry – Wooton Road, Charfeld, Glos (2018)

Led by Jeremy Cahill QC – secured permission following a two-week public inquiry for Barratt Homes for up to 121

dwellings and a retail unit. The Main Issues were: (1) Prematurity (the Council contending that the proposal was premature in the context of the emerging West of England Joint Spatial Strategy), (2) Highways and connectivity, (3) Railway safety. The Council’s subsequent challenge to that permission was refused permission.

Inquiry – Land at Harker, Carlisle (2018)

Advised and acted successfully for Carlisle County Council as Education Authority in seeking appropriate fnancial contributions to be made toward the provision of primary and secondary education arising from a proposal for 300 new dwellings.

Inquiry – Land North of Ashby Road, Tamworth (2018)

Led by Jeremy Cahill QC – secured permission for up to 1,000 dwellings. The application was called in for determination by the SoS. The Main Issues were: (1) Highways mitigation, (2) Education contributions, (3) Affordable Housing provision and (4) whether or not the proposal was required to make fnancial contributions towards leisure provision in the adjoining local authority area given its proximity to it.

Inquiry – Land at Earl Road and Epsom Avenue, Handforth Dean, Cheshire (2018)

Advised and acted for St Modwen Developments as a Rule 6 Party objecting to the co-joined called in inquiries for (1) up to 23,000m2 Open A1 retail space with 2,274m2 A3/A5 foorspace and (2) for fve units of up to 5,130m2 for A1, A3 and A5 use. The Main Issues were: (1) Retail Impact Assessment, (2) Transport / Highways, (3) Trade Diversion and (4) Impact on investment. Decision awaited.

Neighbourhood Plan Examination – Storrington and Sullington and Washington NP 2018-2031 (2018)

Advised and prepared written representations (led by Christopher Young QC) on behalf of Clarion Housing seeking to remove the designation of a site of interest to them as a Local Green Space in the draft NDP. Christian subsequently appeared as sole counsel at the NDP Examination and secured the recommendation of the Examiner that the site be deleted from the NDP and not be designated as a LGS.

Inquiry – Land adj to Sainsbury’s Supermarket, Old Smithfeld, Bridgnorth (2017)

Advised and acted successfully for Shropshire Council in the called in inquiry into an application for 5 No retail units of up to 2,573m2. The Council supported the scheme, local traders and residents were a Rule 6 party opposing the scheme. The Main Issues were: (1) Retail Impact Assessment, (2) Loss of car parking / adequacy of car parking, (3) Trade Diversion, (4) Trade leakage and ‘clawback’, (5) Impact upon heritage assets / conservation area.

Hearing / s288 Challenge – Land off Stonepath Drive, Hatfeld Peverel (2017)

Acted for Gladman Developments at a Hearing in relation to a refused application to up to 80 dwellings. The appeal was dismissed and Christian continued to act for Gladman (led by Richard Kimblin QC) in bringing a successful challenge to that dismissal. The SoS consented to judgment.

Inquiry – Sandyway Nurseries, Newent, Glos (2017)

Advised and acted successfully for Forest of Dean District Council at public inquiry into the Council’s refusal of permission for the stationing of 23 caravans for occupation by agricultural workers. The Main Issues were: (1) Need, (2) Agricultural Worker Occupancy, (3) Permitted Development.

Inquiry – Land at Leeds Road, Collingham and Breary Lane East, Bramhope (2016)

Led by Jeremy Cahill QC – acted successfully at a 3-week public inquiry for Miller Homes in relation to proposals for 150 and 380 dwellings respectively. The Main Issues were: (1) Five-year housing land supply, (2) Landscape impact, (3) Highways, (4) Flood Risk, (5) Ecology and (6) Drainage.

Inquiry – Land at New Yatt Road, North Leigh, West Oxon (2016)

Led by Peter Goatley – acted successfully for Gladman Developments at public inquiry securing permission for up to 76 dwellings.

Inquiry – Land at Burford Road, Witney, West Oxon (2016)

Led by Peter Goatley – acted successfully for Gladman Developments at public inquiry securing permission for up to 270 dwellings.

Footpath Deletion and Modifcation Inquiry – Cleobury Mortimer, Shropshire (2018)

Advised and acted successfully at Inquiry for Shropshire Council in relation to a proposed Footpath deletion and proposed Footpath modifcation. The Order was opposed by the landowner affected. The two Orders were confrmed.

Inquiry – The Mill Manager’s House, Cromford Mill, Cromford (2017)

Advised and acted successfully for Derbyshire Dales District Council at Inquiry in relation to an appeal against the Council’s issuing of a Listed Building Enforcement Notice requiring that unauthorised works to the listed Mill Manager’s House (part of the Cromford Mill complex within the Cromford Conservation Area and Derwent Valley Mills World Heritage Site) be reversed and the building reinstated to its original condition. Christian further advised, following the

dismissal of the appeal, in relation to proceedings brought in order to secure compliance with the upheld notice.

Village Green Inquiry – Somerford, Congleton (2017)

Advised and acted successfully at Inquiry for Cheshire East Highways Department in objecting to an application to register an area of land as a village green.

Awards

BPP / Broadway House Chambers Public Law Prize 2013

Memberships

Member of the Royal Institute of Chartered Surveyors

College of Law / Freeth Cartwright Environmental Law Prize 2011

Member of the Honourable Society of the Inner Temple Qualifcations

BPTC – Very Competent, BPP Leeds 2011-2013

Postgraduate Diploma in Surveying – Distinction, University of Reading 2009-2011

Previous Experience

2002-2015

GDL – Commendation, College of Law Chester 2009-2011

BA (Hons) History and Politics – 2.1, University of York 1996-1999

As a Property Director at Lidl UK Christian was responsible for the Runcorn Property Department (comprising the Acquisitions, Construction and Facilities Management teams) covering the North West and North Wales reporting directly to the Regional Director and Board of Directors. Christian was responsible for the property strategy for the area including (1) Acquisition of new sites, (2) Planning, (3) Legal Process, (4) Construction and ft-out of new supermarkets, (5) Management of the existing property portfolio.

Employment and Logistics: Where we are and where we are going

Introduction and Context

1. 2024 is an election year (for those who have been living under a rock). Indeed, looking more globally, it is a double election year, with major election campaigns to be fought in the UK and (likely with even more ferocity) in the USA. That is a significant milestone in itself – 2024 is the first calendar year in which both UK and US elections have taken place since 1992, which heralded a further period of Conservative government for the UK, headed by John Major, and a new period of ‘blue’ governance in the US too, under Bill Clinton.

2. In election years more than any other, it is with unerring regularity that the minds and rhetoric of governments turn to the economy, to jobs, and to the prospect of financial prosperity. No doubt 2024 will be no different. Indeed, we have already heard much from the leaders of the major parties about their plans to boost jobs, and boost local and national economies, across a wide variety of sectors. The natural inference from that rhetoric must be that, in the coming months and years, the employment and logistics sectors are going to have a central role to play in effecting whichever administration’s policy aims come to the fore post-election. It is quite hard to create jobs without building places for people to work, and equally hard to boost an economy without providing places from which people can do that boosting.

3. The inevitable question for planners, particularly for those with a focus in employment and logistics, therefore becomes: what difference will any of this make? We will hear much in the coming months about the commitment of the major political parties on both sides of the pond to providing more jobs and more money, but what difference will that rhetoric make, in practical and policy terms, to the planning system and the way in which it handles applications and appeals for employment and logistics schemes?

4. This paper seeks to shed some light on those questions, by looking at where we currently are with the employment and logistics sectors, where we are in terms of

planning policy at a national and local level, what impact we can expect recent legislative reform to have, and identifying some lessons and ‘top tips’ from recent appeal decisions.

(1) Employment and Logistics Markets

5. It is worth bearing in mind, before delving too deeply into the detail of the current state of the employment and logistics markets, that we are still feeling some of the ripple effect of two seismic events in recent years – Brexit, and the COVID-19 pandemic. If recent years have taught us anything about the employment and logistics sectors, it is that the real-world market consequences of these two events (particularly the pandemic) are not easy to predict, particularly in relation to the speed of recovery of local and national markets. Nonetheless, it is as ever possible to identify a number of important trends.

Industrial and Logistics Market

6. A particularly clear trend in recent years has been a considerable uptick in the industrial and logistics market as a whole, a trend that has been evidenced nationwide. That has been driven very heavily by considerably increased demand for larger industrial and logistics units – the much-fabled ‘big sheds’, generally defined as being those with floorspace in excess of 100,000ft2. Demand for these ‘big sheds’ has been driven by a range of factors, chief amongst which is the astronomic growth in online retailing seen in recent years.

7. The overall picture in 2023 and into the start of 2024 has been a slight stabilising in that trend. That is in no small part down to a variety of other macroeconomic factors, including rapidly rising interest rates and more general economic uncertainty globally, as well as glacially slow growth rates 1 . A measure of plateauing might also be thought inevitable given the remarkably strong performance of the industrial and logistics market in recent years. There is devil in the detail, however, on which it is worth dwelling.

8. Through 2023 and into 2024, we have seen enormous rises in supply, as developers seek to meet the demand that has been growing so much in recent years. That too is a nationwide pattern. Data gathered by Savills, accurate up to 12th January 2024, demonstrates vast increases in supply across the country across the last twelve months. In London and the South East, the last twelve months has seen supply increase by some 78% 2. In the East Midlands, the figure is at 62% 3 Elsewhere, the figures are even larger, with increases of 83% in the North West 4, and an enormous increase of some 186% in the East of England 5. Not all of that, of course, is down to increased development (some is also down to second-hand supply returning to the market), but these figures are nonetheless noteworthy.

9. What is also noteworthy, however, is that when one looks at those supply figures measured against five-year average take-up, there is still scope for considerably greater supply, particularly in the north. In the North West, for example, while supply has increased by 83% in the last twelve months, the supply figure against five-year average take-up is just 1.13 years 6. In Yorkshire and the North East, similarly, despite considerable increases in supply in the last year, the modulated supply figure is just 0.77 years 7. So, while supply has increased, and while there is evidence of a plateauing, this remains a hungry market with plenty of capacity. What’s more, given the ‘big shed’ market is driven so heavily by online retailing, a sector which nobody predicts is going away anytime soon, there is no reason to think that is not still going to continue.

10. It is also important to be cognisant of exactly what types of industrial and logistics properties are proving popular. Post-COVID, a common trend which can be seen across a number of different sectors is that occupiers are continuing to look in particular for good-quality, modern stock. In London and the South East, for example,

2 Savills, ‘The logistics market in London and the South East’ (12 January 2024) (https://www.savills.co.uk/ research_articles/229130/355809-0)

3 Savills, ‘The logistics market in the East Midlands’ (12 January 2024) (https://www.savills.co.uk/research_ articles/ 229130/355810-0

4 Savills, ‘The logistics market in the North West’ (12 January 2024) (https://www.savills.co.uk/research_ articles/229130/355812-0)

5 Savills, ‘The logistics market in the East of England’ (12 January 2024) (https://www.savills.co.uk/research_ articles/229130/355815-0)

6 Supra, footnote 4

7 Savills, ‘The logistics market in Yorkshire and the North East’ (12 January 2024) (https://www.savills.co.uk/ research_articles/229130/355813-0)

45% of the space transacted in 2023 was ‘BTS’ (built-to-suit) space, 30% new speculatively developed space, and 15% Grade A second-hand space. Grade B and C space together accounted for just 10% 8 . A similar picture can be seen in the East Midlands, where in 2023, 54% of space transacted was BTS, and 28% speculatively developed Grade A space 9. So it is clear that what occupiers are seeking is modern, newly-developed, high quality warehouse space.

11. Overall, it is possible to discern something of a plateauing in 2023 in comparison to previous years in the industrial and logistics markets. But the markets are still in an extremely healthy position overall, driven by very high levels of supply, but also by very high levels of demand (particularly for good-quality, newly-built space). Into 2024, with interest rates expected to fall in the second half of the year, the picture continues to look relatively bright.

Office Market

12. It is no secret that it has not been an entirely straightforward few years in the office market. Working practices have changed in the most dramatic fashion in decades since the pandemic, indeed perhaps in the most concerted dramatic fashion we have ever seen. The rise of full-time homeworking and of flexible working has meant that demand for office space has become much more nuanced and focused on particular types of office space. Everywhere you look, there are statistics demonstrating the scale of the difference. A door-to-door ONS survey in 2023 found that 40% of respondents had worked from home at some point in the last seven days, compared with just 12% in 2019, directly before the pandemic 10. That does, at least, make doorto-door surveys rather more productive. A survey from Savills in 2021 also found that only just over half of respondents (around 55%) went into the office for more than half of their working week 11

8 Supra, footnote 2

9 Supra, footnote 3

10 Office for National Statistics, ‘Characteristics of homeworkers, Great Britain: September 2022 to January 2023’ (13 February 2023) (https://www.ons.gov.uk/releases/whoishomeworkingingreatbritainjuneto september2022)

11 Savills, ‘Office FiT’ (January 2022) (https://pdf.savills.com/documents/savills-office-fit-2021-surveyresults.pdf)

13. The office market is a complicated picture, which we cannot hope to capture adequately within the confines of this paper. But a number of important general trends are worth noting. There has been a clear shift in demand towards office space in particular locations. There has also been a clear shift towards higher-quality office space. That is reflected in the data for 2023; in London and the South East, take-up of office space grew throughout the year, with 69% of that take-up being Grade A space 12. That is also reflected in the supply chain; 41% of space scheduled to complete construction in 2023-2024 in London and the South East is Grade A space. It is also reflected in higher rents – six different major towns in the South East recorded their ‘record rent’ on particular deals in 2023.

14. What has become increasingly clear in the office market in 2023 and into 2024 is that occupiers appear to have a much better grip on their flexi-working requirements than they have done in previous years. That is no great surprise; the seismic shock to working practices that was the pandemic inevitably took some time to level out. But now that it has, the market seems to have a far better idea of what it wants and needs, which is positive news for all concerned.

(2) The Policy Position

15. The recent update to the NPPF did not provide us with any radical new changes in the worlds of employment or logistics, save for providing some new paragraph numbers to have at the forefront of one’s mind. What was previously paragraphs 81-83 NPPF, covering the central elements of national policy pertinent to pro-economic developments of this kind, are now paragraphs 85-87, but are otherwise unchanged in their terms.

16. Paragraph 85 (previously paragraph 81) sets out clearly, at a broad level, the role that plan-making and decision making are to play in supporting the objective of economic growth (and, importantly, productivity):

“Planning policies and decisions should help create the conditions in which businesses can invest, expand and adapt. Significant weight should be placed on the need to support economic growth and productivity, taking into account

12 Savills, ‘Market in Minutes: Greater London & South East Offices – January 2024’ (31 January 2024) (https://www.savills.co.uk/research_articles/229130/356466-0)

both local business needs and wider opportunities for development. The approach taken should allow each area to build on its strengths, counter any weaknesses and address the challenges of the future. This is particularly important where Britain can be a global leader in driving innovation, and in areas with high levels of productivity, which should be able to capitalise on their performance and potential.”

17. Paragraph 86 (previously paragraph 82) provides the familiar set of four goals which planning policies should seek to achieve in that context:

“a) set out a clear economic vision and strategy which positively and proactively encourages sustainable economic growth, having regard to Local Industrial Strategies and other local policies for economic development and regeneration;

b) set criteria, or identify strategic sites, for local and inward investment to match the strategy and to meet anticipated needs over the plan period;

c) seek to address potential barriers to investment, such as inadequate infrastructure, services or housing, or a poor environment; and

d) be flexible enough to accommodate needs not anticipated in the plan, allow for new and flexible working practices (such as live-work accommodation), and to enable a rapid response to changes in economic circumstances.”

18. Paragraph 87 (previously paragraph 83) then goes on to emphasise the importance of sector-based locational flexibility:

“Planning policies and decisions should recognise and address the specific locational requirements of different sectors. This includes making provision for clusters or networks of knowledge and data-driven, creative or high technology industries; and for storage and distribution operations at a variety of scales and in suitably accessible locations.”

19. The reality as ever, however, is that the vast majority of the leg-work in policy terms in an employment and logistics context is done at local plan level. We still see a consistent general picture on the ground of local plans lagging behind local

employment and logistics needs. That compounds the other well-rehearsed maladies with the local plan system.

Levelling Up and Regeneration Act 2023

20. That being so, however, it is worth dwelling for a moment on the changes to spatial planning which will be wrought by the Levelling Up and Regeneration Act 2023 (‘LURA’). While we are yet to see the full force (and detail) of many of the central reforms heralded by LURA, it seems inevitable that we will see some significant changes brought to bear in the coming months and years, as that detail is fleshed out. There are two real areas of change to spatial planning of which it is necessary to be cognisant.

21. The first is the huge set of provisions contained in Schedule 7 to the Act, designed to tighten up local plan-making processes. The detail of the reforms are beyond the scope of this paper, in part because they are so numerous, and in part because much of the detail has yet to be announced by the Government, pending the introduction of secondary legislation. Safe to say, however, the clear purpose of the reforms is to pull the local plan system up by its bootstraps. How achievable that is as a goal remains to be seen, but if progress can be made in ensuring that local plans are more up to date, and more regularly and thoroughly reviewed, that should be a positive step for employment and logistics developers.

22. The second is the introduction of a whole new tier of spatial planning, National Development Management Policies (‘NDMPs’) (by virtue of section 94 of the Act). The definitional provisions relating to NDMPs came into force last week, on 31st January 2024. That does not have any immediate impact (save to create in law, formally, the concept of an NDMP), but it does trigger the ability of the Secretary of State to bring into effect policy and secondary legislation surrounding NDMPs, which we can likely expect at some point this year.

23. The extent to which NDMPs will have an impact on the economic aspects of planning policy, from an employment and logistics perspective, remains to be seen. On the one hand, the types of issues generally cited by Government spokespeople as being likely to be covered by NDMPs are matters of more generic, nationally widespread coverage, such as heritage or green belt protection. On the other hand, one clear stated

purpose of NDMPs is to attempt to effect a simplification and unification of approach at a local plan level. It is for that reason that the updated version of section 38 of the Planning and Compulsory Purchase Act 2004 expressly provides that, where there is conflict between an NDMP and a local plan, the NDMP will win out. Given that one of the many frustrations for employment and logistics developers can be inconsistent approaches across local plans to the need and demand for employment land, it might be that NDMPs are used to wade in, to a certain extent, to unify or simplify that process. We shall see.

Post-election Policy

24. While looking at questions of policy, it is also worth pausing for a moment to examine, with the help of some crystal-ball gazing, what may eventuate in terms of significant planning policy changes for the employment and logistics sectors following the next election. Given opinion polls give such a strong lead to the Labour Party, it is sensible to note the announcements that we have heard for their part as to their focus, if elected. While we are not yet at manifesto stage, a certain amount can (as usual) be gleaned from party conference speeches and related announcements. A number of interesting points emerge.

25. One phrase that has caught particular attention is “grey belt” 13. Precisely what this means in practice is yet to be seen, but the underlying idea appears to be greater encouragement for development on sites which are formally designated as Green Belt, but which are relatively low-quality. If effected, that may well mean that further sites for development are able to come forward on Green Belt sites. That could be of enormous benefit to the logistics and employment sectors; low-quality green belt land tends to be at the fringes of urban settlements, and so the release of extra, previously undeveloped land in sustainable locations close to urban infrastructure could prove attractive options. Linked to that is the suggestion that, in the course of local plan making, local authorities could be mandatorily required to review green belt boundaries at every opportunity 14. That may well have a similar effect.

13 Property Wire, ‘Starmer vows to up housebuilding via ‘grey belt’’ (11 October 2023) (https://www.propertywire.com/adviser-news/government-and-policy/starmer-vows-to-up-housebuilding-viagrey-belt/)

14 Pinsent Masons, ‘How Labour’s promised ‘blitz’ of English planning reform might work’ (17 November 2023) (https://www.pinsentmasons.com/out-law/analysis/labour-promised-blitz-of-english-planning-reform)

26. Labour has also indicated its own suite of reforms that seek to introduce a bit more grit to the local plan system 15. As with the reforms introduced as part of LURA highlighted above, the proof of the effectiveness of these kinds of proposals will very much be in the pudding. Nonetheless, any greater formality and drive to the formulation of local plans is likely to be welcomed by employment and logistics developers, if only because of the introduction of a greater level of certainty.

27. More inchoately, the logistics sector in particular may see benefit from what appears to be a relatively firm commitment to update all national policy statements relating to Nationally Significant Infrastructure Projects (NSIPs) within six months of coming to power 16. The ostensible purpose of so doing has been to accelerate the building of infrastructure to support investment in energy, life sciences, and 5G infrastructure in particular. We have also heard numerous more general commitments to build and to ‘build big’. That may seem a little far removed, but as logistics developers will know, questions of access and infrastructure are often central to assessments of viability, both at application and appeal stage, and so any significant ‘bump’ in Britain’s road, rail and transport networks is to be welcomed.

(3) Lessons from Recent Appeals

28. In matters more concrete, a ‘where we are’ review of the employment and logistics sector at this stage in the year affords a useful opportunity to review some recent appeal decisions of interest in these, and adjacent, areas, to try and identify some areas of learning and some ‘top tips’ to take home. It has been another busy 12 months or so in employment and logistics appeals, so what follows is by no means an attempt comprehensively to summarise all current trends. Rather, we focus on two particular lessons that can be learned from a crop of recent appeals. They are, in turn:

a. In certain cases, no matter how significant the demand, and how pressing the need for investment, locational issues causing conflict with significant national issues like Green Belt designations can continue to win out. ‘Twas ever thus, but it is important to remain cognisant of the weight that Inspectors still place

15 Ibid

16 The Labour Party, ‘JUST ANNOUNCED: Labour will “get Britain building again” in major boost to critical infrastructure projects’ (9 October 2023) (https://labour.org.uk/updates/stories/just-announced-labour-will-getbritain-building-again-in-major-boost-to-critical-infrastructure-projects/)

on these kinds of considerations, even when an appeal scheme provides overtly significant benefits, and appears something of a ‘slam dunk’.

b. Employment and logistics remains an intensely local-plan-led area, with the consequence that it is essential to pay very close attention to the specific way in which local development plan policies protect and designate employment land. Variances in the approaches which local plans take to employment and logistics planning can cut both ways; they can be frustratingly protective, but can be used to the advantage of the developer too.

Designations and locational issues

Woodlands Park Landfill Site, Land South of Slough Road, Iver, Buckinghamshire 17

29. This was an appeal relating to a proposed scheme for outline permission to redevelop a 52-hectare former landfill site in Buckinghamshire into a large 163,000m2 data centre, delivered across three buildings, with associated offices, parking, landscaping, and fencing, and for the delivery of street landscaping and parkland. While not, strictly speaking, an employment or logistics development, many of the considerations discernible through the course of this appeal translate very neatly into an employment and logistics context.

30. The site fell within the Green Belt, but on the urban edges. To the east was the West London Industrial Park, and beyond it, the start of suburban London, heading centrally from Uxbridge. To the west past the M25, however, was open countryside, and the villages of Iver and Iver Heath. In light of all of that, the Secretary of State took the decision to recover the appeal about two months before the inquiry commenced. The decision was ultimately issued at the end of October 2023.

31. It was agreed between the parties that there was a need for extra data centre capacity which was “both overwhelming and urgent”. The Inspector observed at paragraph 117 that, “in terms of critical infrastructure of national importance, the imperative of meeting that need cannot be over-stated”. The Inspector also concluded that there was no appropriate alternative site within the relevant economic area (paragraph 123). Economically, the benefits of the scheme were, again, of considerable significance.

The Inspector noted that the scheme would result in “a very substantial inward investment into the UK economy from a foreign owned company of around £2.5 billion” (paragraph 124). He noted that, “the appellant’s witness was not aware of another wholly private current proposal that would generate a greater level of investment within the UK”. There would also be the creation of a significant number of well-paid permanent jobs in the local area (paragraph 128). The Housing Minister, on behalf of the Secretary of State, did not demur from any of this. So far, so good.

32. Indeed, the Inspector and Minister further agreed that, despite the fact that, as the Minister put it, the proposal would “significantly alter the character and appearance of the area from that of open land with characteristics of a rural/countryside location to that of an area dominated by 3 large buildings surrounded by ancillary structures (fencing, gates, lighting columns) and other areas (car and cycle parking and landscaping)” (paragraph 13), there was no overall conflict with development plan policy CP9 which sought to restrict development harming landscape character, “unless the importance of the development outweighs the harm caused”. Both the Inspector and Minister took the view that the importance of the development did outweigh that harm (paragraph 17). There was, however, clear and unavoidable conflict with other development plan policies in relation to landscape, and character and appearance.

33. The real difficulty for the scheme was that it was common ground between the parties that it represented inappropriate development in the Green Belt. Not only that, but the Minister agreed with the Inspector that the Site “performed strongly” in meeting the purposes of the Green Belt, as set out in what was then paragraph 138 NPPF (now paragraph 143). Given the proximity of the Site to the urban edge of London, the Inspector and Minister were particularly concerned about the risk of urban sprawl, and of the merging of neighbouring towns (here, Uxbridge and Iver) (paragraph 19).

34. In the planning balance, then, the Minister and Inspector were agreed. Despite very significant weight being afforded to the need for additional data centre capacity, the level of investment into the UK economy, and the creation of permanent operational jobs, the harm to openness and to the Green Belt was such that the proposal did not amount to the ‘very special circumstances’ necessary (paragraph 39).

35. This is a salutary tale; a clearer case for an economy-boosting, job-creating, nationally significant scheme you could not find. Yet, in the wrong place (particularly where that ‘wrong place’ is the Green Belt), even the most apparently worthy of economyboosting proposals will hit difficulties

Local Plans

Land at Kettering North, Weekley Wood Lane, Kettering, Northamptonshire 18

36. This was an application for the erection of 5 B8 warehouse buildings and one B2 general industry building, of a combined total of 40,215m2, with associated service yards, parking, and other accoutrements.

37. On the face of it, the proposal seemed to have a great deal going for it. The site itself carried no designations. More importantly, it formed the western edge of a 75-hectare chunk of land allocated in the North Northamptonshire Joint Core Strategy 2011-2031 (‘JCS’) as a strategic employment site. Policy 36 (which governed the allocation) specifically identified B1, B2, and B8 development at particular levels, to which the proposed development contributed significantly. Furthermore, as the Inspector identified, “the units are of a type and size that would meet unmet demand” (paragraph 34), which attracted significant weight as an economic benefit. Perhaps most significantly, the Inspector noted that the end of the JCS plan period was “not far off”, and that progress in achieving the job creation target set by the JCS “appears to have stalled” (paragraph 35). Once more, so far so good.

38. The devil, however, lay in the detail of Policy 36. Although it had been specifically allocated as employment land, the site was not without its difficulties in terms of development. Directly abutting the site was a large area of woodland, and a walking track, both of which were popular with local walkers, and were well-used. Furthermore, from a biodiversity perspective, the Site included a number of designated Local Wildlife Sites (‘LWS’s), the primary value of which was their botanical importance. For that reason, as the Inspector found, Policy 36 required that applications for permission to take advantage of the employment designation on the Site would be required to agree with the local planning authority a “comprehensive

masterplan”, making provision for nine specific matters including landscaping, biodiversity, heritage, and access and infrastructure (paragraph 12).

39. This proposal did not come with an agreed masterplan. Instead, it included a Design Development Brief containing an unagreed Illustrative Masterplan. The Inspector took the view that, “given the sensitivity of the allocation in landscape, heritage and ecological terms, here, an agreed masterplan is essential” (paragraph 24). The Inspector rejected an argument from the Appellant that these issues were “an inevitable consequence of the JCS allocation”. He took the view that an agreed masterplan was a requirement in the development plan precisely so that employment development could come forward on the site without causing undue damage to the particular sensitivities of the site (paragraph 25). He also took a fairly dim view of some of the elements of the proposal in terms of the harm caused to landscape, biodiversity, and appearance as general matters. That all being so, despite assigning significant weight to the economic benefit of the land, and to the BNG proposed, the conflict with Policy 36 was not outweighed, and permission refused (paragraph 34).

40. This is a neat encapsulation of the significance of the specifics of local development plan policies in individual local areas. Here, despite the site being specifically designated as employment land in an in-date development plan, and despite the proposal meeting those requirements carefully, the failure to comply with the particular constrictions of the development plan meant that the appeal was fairly peremptorily dismissed.

41. However, the lesson here is not that local development plan policies always put paid to developments of this kind. Rather, the lesson is that local development plan policies have to be considered very carefully, and examined for their precise detail and method of operation, because it may well be that they can be used to the advantage of developers. Just such an example is provided by this appeal.

Plot 9000, Land off Western Approach Distribution Park, Severn Beach, South Gloucestershire 19

42. The appeal concerned an outline application for the proposed redevelopment of the site into flexible industrial B2 space, and flexible warehouse/distribution B8 space, with associated car-parking, landscaping, and other development. Immediately to the south of the site was the Severnside area, specifically designated in the South Gloucestershire Local Plan as employment land. However, the site itself was not within that area. The Inspector identified “considerable and significant benefits” from an economic perspective arising from the site (paragraph 51), and did not consider (with appropriate mitigation) that there would be any harm to the integrity of adjacent SSSIs, or to the character and appearance of the (largely open countryside) area (paragraph 51).

43.Much of the Inspector’s focus was on a suite of local plan policies pertaining to the Severnside employment area. By and large, the Inspector was satisfied that the proposal, despite being outside the Severnside designated area, would not detract from that area (paragraph 51). However, he identified specific conflict with the development plan in the form of two policies, one a general spatial hierarchy policy, and one the specific policy guiding the appropriateness of employment development in and around Severnside. Accordingly, the Inspector found that the proposal was contrary to the development plan (paragraph 19).

44.That was not, however, the end of the story. Having paid very careful attention to the way in which the local plan protected designated employment sites, the Inspector was not especially enamoured with the drafting of the two conflicting policies. At paragraph 54, he observed that the policies “do not recognise or provide any flexibility for other land closely associated with the allocation to be brought forward where it meets an identified need and accords with the development plan overall, which only unnecessarily constrains development that is otherwise acceptable”. For that reason, he reduced the weight to be afforded to the conflict down to ‘moderate’, and ultimately, in the planning balance, took the view that the conflict was outweighed by other material considerations. The appeal was therefore allowed.

45.Thus, from this appeal, one can see that the intensely fact-specific way in which different local plans protect and designate employment areas can cut both ways. The Appellant in this case took care to draw the Inspector’s attention to the somewhat ‘all

or nothing’ approach to designation that the local plan took, and the Inspector ultimately found it to “unnecessarily constrain development”. A clear lesson, therefore, that paying very careful attention to the precise mechanism by which local plans protect and designate employment sites can bear real fruit.

Conclusion

46. Overall then, it is clear that the employment and logistics sectors remain dominated, in planning policy terms, by local plans. For good reason, such documents are often much maligned. But they can be used well, and can be used to advance employment development proposals; the highly localised nature of different employment needs mean that local plans take a huge variety of different approaches to protecting and designating employment land, and making provision for employment-related development. It is always necessary to scrutinise those plans under a particularly powerful microscope. Going forward, it may well be that we are able to put a bit more trust in local plans. It may also be that we get a whole new tier of spatial planning which, driven by the electoral agenda of whichever party is elected in the second half of 2024, has a significant impact on employment and logistics. For now, though, the focus is local.

Peter Goatley KC

Christian Hawley

Daniel Henderson

11th February 2024

Satnam Choongh Planning and Environment

Year of Call: 1994

Email Clerks: planning@no5.com

Satnam Choongh was called to the Bar in 1994 and is a member of Lincoln’s Inn, where he was a Hardwicke Scholar and held the Sir Thomas More Bursary. He specialises in planning and environmental law, acting for developers, local authorities and government agencies. He has worked as in-house counsel, and has a thorough knowledge of all aspects of the planning process, as well as experience of advising upon the commercial aspects of land development (to include negotiating and drafting s.106 agreements, option and promotion agreements, overage agreements and allied contracts).

Satnam holds a First Class Honours degree, a D.Phil from Trinity College, Oxford and has held Professorial posts at Birmingham University and the Chinese University of Hong Kong.

Satnam features regularly in the Chambers UK Directory, which has described him as “very sharp”, “extraordinarily bright” and someone “who gets the answers he needs from cross-examination”. Planning Magazine has placed him amongst the top planning juniors in the country.

Satnam has considerable depth and breadth of experience, acting for both appellants and planning authorities in applications for judicial review and statutory challenges in the High Court and Court of Appeal. He has appeared in many of the most important recent cases interpreting key provisions of the NPPF, as well as cases relevant to other important concepts in the administration of the planning system.

Satnam has been appearing at planning inquiries for upwards of 25 years, and has during that time dealt with the whole range of issues that arise in the feld of planning and environmental law, including matters related to listed buildings, Conservation Areas, Green Belt, Sites of Special Scientifc Interest, major infrastructure projects under the Transport and Works Act 2000, out of and edge of centre retail stores, Enforcement, Stop, Breach of Condition and Completion Notices, Compulsory Purchase Orders, Advertisement Control, minerals, and matters related to waste disposal and management.

Satnam has appeared in a host of large scale, complex and varied planning cases, including promoting a 3.5 million square feet rail-freight interchange in the Green Belt; successfully securing planning permission for a waste incinerator; opposing an application for a 58 hectare resource recovery park and 95MW RDF Incinerator under the Electricity Act; opposing the expansion of Coventry Airport in a 6 month enforcement inquiry followed by a 3 month s.76 Inquiry; appearing at Waste Local Plan inquiries; opposing open cast coal-mining in Derbyshire and Windfarms in Warwickshire; representing the Highways Agency at a six month multi-party planning inquiry for MSA development; representing Extra at MSA inquiries for development on the M25, M42 and M62; representing the HSE in an inquiry into de-commissioning a nuclear power station in the Snowdonia National Park, and drafting and seeing through to public inquiry a Side Roads Order and CPO to provide a town centre ring road.

Satnam’s list of clients include Persimmon Homes, Extra MSAs, KFC, ASDA, Sainsbury, Gallagher Developments, Richborough Estates, the Rosconn Group, St. Modwen Developments, Halsbury Homes and Gladman Developments.

Satnam represented Lichfeld DC at the frst ever new style plan examination, and has since then regularly appeared at Examinations in Public on behalf of private sector clients, most recently at the South Oxfordshire, South West and Greater Norfok EiPs, often promoting large scale or new settlement type developments. Examples include the Mayfeld New Settlement in the Mid-Sussex Local plan, a sustainable urban extension (including circa. 3,000 homes) in the Chelmsford Local Plan, a 2,500 home SUE at Bristol in the South West Joint Spatial Plan and 4,000 home settlement in Norfolk.

Further Experience

- Legal Research Fellow Warwick University

- In-house advocate, Eversheds Solicitors, Birmingham

- Professor at the Chinese University of Hong Kong

- Professor and Director of the Centre for Professional Legal Education at Birmingham University

Recommendations

Ranked Tier 1

Legal 500 2023 - Planning and Environment

“The best ever senior junior.” “He provides uncomplicated and unpretentious advice, and his advocacy is always strong.”

Chambers UK 2023 - Planning

“Satnam is extremely personable and has an approachable and calm manner. Great judgement and is not afraid to try innovative ways of solving problems to great effect.”

Legal 500 2022 - Planning and Environment

“A pleasure to work with. He is sharp, measured, quick to get to the heart of the matter and direct in cross-examination.”

Chambers UK 2022 - Planning

“He has an encyclopaedic knowledge of the law and a thorough understanding of its practical application.” “He is very good with clients.”

Chambers UK 2021

“Incisive in cross-examination, thorough and persuasive when making closing submissions at planning inquiries.”

Legal 500 2021

“He has a frm grasp of the key issues and cross-examines decisively.” “Provides excellent advice and is very accessible.”

Chambers UK 2020

“A safe pair of hands who fghts the client’s corner.”

Legal 500 2020

“Approachable, considered and exceptionally clever.” “Extremely bright, responsive and a pleasure to work with.”

Chambers UK 2019

“His keen eye sees right through to the heart of a matter.”

Legal 500 2019

Notable Cases

R (on the application of Heathrow Hub Ltd) v Secretary of State for Transport [2019] WHC 1070 (Admin) and [2020] EWCA Civ 213-27

(role of legitimate expectation in designating national planning policy statement; parliamentary privilege)

R (on the application of Finnegan) v Southampton City Council [2020] EWHC 286 (Admin) (extent of LPA’s powers to decline to determine a planning application under s.70C TCPA 1990)

South Gloucestershire Council v Burge and Burge [2017] EWCA 1313 (extent of compensatory regime for losses arising from refusal of TPO consent)

East Staffs BC v SSCLG and Barwood Strategic Land Ltd [2017] EWCA Civ 893 (ambit of the NPPF presumption in favour of sustainable development)

Woodfeld v JJ Gallagher Ltd [2016] EWCA Civ 1007

(irrationality in adoption of local plan and extent of court’s powers to order adoption of a particular policy)

IMI Properties v Lichfeld DC [2015] EWHC 2077 (Admin) (and see [2014] EWHC 240 (Admin)) (correct procedure for challenging development plans, releasing GB through the plan process)

Mackman v SoSE [2015] EWCA Civ 716 (EIA and screening opinions)

Bloor Homes v SoSCLG [2014] EWHC 754 (Admin)

(correct approach to 5 year housing land supply, meaning of plans being silent or absent etc)

Hopkins v SoSE [2014] EWCA Civ 470 (procedural fairness at planning inquiries)

JB Trustees v SoSCLG [2013] EWHC 3555 (Admin) (locus in statutory challenges)

William Davis v SoSCLG [2013] EWHC 3058 (Admin) (how to apply the NPPF para.14 presumption)

Telford and Wrekin v SoSCLG [2013] EWHC 1638 (Admin) and [2014] EWCA Civ 507 (application of the retail sequential test and correct interpretation of CIL)

R (on the application of Telford Trustee No.1 /No.2) v Telford and Wreakin Council and Asda Stores Ltd [2011] EWCA Civ 896 (the duty to give reasons for planning permission)

R (on the application of Welcome group Limited and others) v Stroud District Council and another (2012) EWHCA 140 (admin)

(meaning of the CIL regulations)

Herefordshire District Council v White (a Lands Tribunal case that helped clarify the Purchase Notice provisions of the 1990 Act)

Norris v SOSE and Stoke on Trent City Council [2006] EWCA Civ.12 (developed the law on the important subject of development in breach of condition precedent)

Attorney- General’s Ref. No.5 of 2000 ([2002] Env.LR 5 at 139) (Court of Appeal case on the complex matter of defning “waste” in European Union Law)

Memberships

Planning and Environmental Bar Association

Qualifcations

LLB (Hons) (First Class) Warwick D.Phil (Oxon) 1994

Publications

The Element of Planning Discretion in the Context of an Up to Date Plan: the implications of the Barwood case (2018) Journal of Planning Law

Planning units, New Chapters in Planning History and Inconsistent Permissions (2009) Journal of Planning Law Development in Breach of Conditions Precedent (2007) Journal of Planning Law

The Meaning of Waste in EU Law (2006) Journal of Planning Law

Leanne Buckley-Thomson Planning and Environment

Year of Call: 2009

Email Clerks: planning@no5.com

Leanne is a specialist Planning and Housing practitioner. She has been previously recognised in Planning Magazine’s Guide to Planning Lawyers and Law Survey as one of the top planning juniors under 35. She was also included in the Women of Infuence 2018 list in the RTPI’s The Planner magazine.

Leanne regularly advises and represents developers, Local Planning Authorities and Rule 6 Parties at all stages of the process on a broad range of planning matters including large residential developments, changes of use, stationing of mobile homes and caravans, development within residential curtilages and “granny annexes”, the interpretation and application of the Use Classes Order, Lawful Development Certifcates, Assets of Community Value (ACVs), highways and Rights of Way. She has also advised on planning policy making and interpretation of policy.

Leanne’s dual expertise as both a planning and housing barrister, and her previous broad general civil litigation background, gives her a strong understanding of the litigation process which is particularly helpful in the context of injunctive proceedings in the County and High Court.

Planning Inquiries and Hearings

Leanne is regularly instructed to act for developers, Local Planning Authorities and Rule 6 Parties at inquiry and hearing covering a wide range of planning issues. She is an experienced advocate having appeared at more than 30 inquiries and hearings, both led and in her own right, since she started practising in planning law.

Residential

The main focus of Leanne’s work is on residential development projects, large and small. Recent work has included:

Land North West of Goring Station, Goring-by-Sea, Worthing [APP/A5270/W/21/3275781]

Outline application for a mixed-use development including up to 475 residential dwellings, station parking and a local centre. 2-week inquiry with issues including landscape, highways, heritage, prematurity and housing need. Represented the Appellant, led by Paul Cairnes Q.C.

54-58 Stanley Gardens, Acton, London [APP/A5270/W/21/3275781]

Demolition and redevelopment to provide 72 residential units and commercial (class E) uses 1,116m2. 2-week inquiry with issues including vacant building credit, viability, employment land use and housing need. Represented the Appellant, led by Charles Banner Q.C.

Land at Little Sparrows, Sonning Common, Oxfordshire [APP/Q3115/W/20/3265861]

Hybrid application for full planning permission in respect of 73 assisted living units within a village core building with ancillary facilities together with outline permission for up to 60 assisted living units with ancillary community space. 2week inquiry with issues including need and policy on extra care, AONB (exceptional circumstances), landscape, design and 5YHLS. Represented the Appellant, led by Christopher Young Q.C.

Footzie Social Club, Station Approach, Lower Sydenham [APP/G5180/W/20/3257010]

Demolition and redevelopment for four to eleven storey development comprising 254 residential units. 2-week called-in inquiry with issues including Metropolitan Open Land (VSC), character and appearance, living conditions and affordable housing. Represented the Appellant, led by Christopher Young Q.C.

Land North of Viaduct, Ledbury [APP/W1850/W/20/3244410]

Outline application for a mixed-use development including up to 625 residential dwellings, up to 2.9ha of B1 employment

land, and a canal corridor. 2-week called-in inquiry with issues including highways, infrastructure, AONB, heritage and fooding. Represented the Appellant, led by Christopher Young Q.C.

Site of the former Hazeldens Nursery, London Road, Albourne, West Sussex [APP/D3830/W/19/3241644]

Outline application for an extra care development of up to 84 units including associated communal facilities. 2-week called-in inquiry with issues including the need for extra care, landscape, BMV land, Heritage and accessibility.

Represented the Appellant, led by Christopher Young Q.C.

Land to the rear of the former Dylon International Premises, Station Approach, Lower Sydenham, London [APP/G5180/ W/18/3206569]

Demolition and redevelopment for four to eight storey development comprising 151 residential units and an estate road. 2-week called-in inquiry with issues including Metropolitan Open Land (VSC), character and appearance, living conditions and 5YHLS. Represented the Appellant, led by Christopher Young Q.C.

Infrastructure

Leanne has acted, both led and in her own right, at inquiries relating to motorway service area development and public rights of way. Recent work has included:

Land between Junctions 16 and 17 of the M25, near Chalfont St Peter [APP/X0415/W/21/3272171]

Outline application for the erection of a motorway service area including a facilities building, fuel flling station and up to 100-bedroom hotel. 2-week inquiry with issues including metropolitan Green Belt (VSC), landscape, BMV land, veteran trees and ancient woodland, biodiversity, and aviation safety. Represented the Appellant, led by Satnam Choongh.

Gloucestershire County Council Public Footpath CHL 6, Parish of Leckhampton [ROW/3249302]

2-day inquiry in respect of the proposed stopping up of public right of way.

Enforcement

Leanne is regularly instructed to act in respect of matters relating to planning enforcement.

In addition to representing parties at enforcement inquiries, Leanne also has experience advising and providing representation at Court for local authorities and Defendants in respect of:

- Injunctive action pursuant to section 187B of the Town and Country Planning Act 1990 and section 222 of the Local Government Act 1972.

- Advising with regard to Direct Action and Stop Notices.

- Committals following breach of injunctions.

Given the importance of early action, Leanne is frequently instructed to advise in writing and in conference.

Statutory appeals and Judicial Review

Leanne has experience acting and advising on both judicial review and statutory appeals to the High Court and above. Early advice can be invaluable and Leanne’s advice is comprehensive and accessible.

Other

Leanne regularly delivers seminars and training across a broad range of planning topics. As a qualifed trainer, she is able to produce more bespoke packages for local authorities, businesses and other organisations.

In addition to her instructions, as past Chair of the South Coast Young Planners Network Leanne remains an active member of the RTPI. She has been invited to speak at seminars and to judge awards.

Encouraging access to the profession is extremely important to Leanne and she frequently speaks at schools as well as to students. She has previously flmed a segment for the RTPI’s project with Fun Kidz Radio “Agent Plan-IT” to encourage school aged children to engage with planning. Leanne is also an active mentor.

Recommendations

“Her cross-examination gets results.” “She is thorough and meticulous, shows good attention to detail and is a good advocate.”

Chambers UK 2020

Notable Cases

R. (on the application of Hollings) v Bath and North East Somerset Council [2018] 5 WLUK 375

Successfully represented the Claimant in judicial review proceedings challenging a controversial grant of planning permission and listed building consent for development within the Bath World Heritage Site on heritage and other grounds.

Kestrel Hydro v. Secretary of State CLG and Spelthorne Borough Council [2016] EWCA Civ 784

Successful defence on appeal of the Local Planning Authority’s pursuit of enforcement action; the juridical basis for Murftt and Somak Travel; the extent of Bowring and also compliance of ground (F) appeals with Article 1 Protocol 1. Led by Scott Stemp.

Appointments

Past Chair of the RTPI South Coast Young Planners Network Steering Group

Memberships

RTPI NAPE PEBA

Qualifcations

LLB (Hons) Bristol

MSc FPC (Open)

BVC, Bristol Institute of Legal Practice Civil and Commercial Mediator, ADR Group

Section 288 Case Law Update: Administrative Issues and Disclosure

Introduction

1.I have reflected upon the past 6 months 1 of judgments concerning claims pursuant to s.288 of the Town and Country Planning Act 1990 for statutory review and drawn three which I consider particularly helpful focusing upon administrative issues and disclosure.

Administrative Issues

2. Considering whether or not to make a claim for statutory review can be stressful for any client. The time period for filing a claim is very short and a lot needs to be done in that time. The issues can be complex and serious. One never wants to go to all of that effort and hard work only to be told that the claim is out of time. That is exactly what happened to Telford and Wrekin Council in the case of Telford and Wrekin Council v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2439 (Admin) 2

3. Planning permission had been granted by the Secretary of State in respect of a solar farm in the Council’s area on 27th March 2023, contrary to the recommendation of the Inspector. The Council filed a claim form for statutory review on 4th May 2023. As the 8th May 2023 was a bank holiday due to the King’s Coronation, the parties agreed at the hearing that filing and service of the claim form on 9th May 2023 would have complied with both section 288 of the 1990 Act and Practice Direction 54D of the Civil Procedure Rules 3

4. However, the claim form was not issued until 15th May 2023. The First Defendant emailed that same day noting that though they had received unsealed copies of the claim form, there had not been service of the claim. The sealed claim was not sent until 16th May 2023 at 5:37pm and even then, not to the address which the First Defendant’s website states as the correct address for service by email. This was pointed out by the First Defendant on 18th May 2023 following which an email was sent at 7:22pm serving them at the correct address.

5. The First Defendant acknowledged service on 19th May 2023 and then made an application on 9th June 2023 for a declaration that the court had no jurisdiction because service of was out of time. In the alternative, an extension was sought for filing Summary Grounds of Resistance. A hearing was listed to consider the issue with a witness statement from the

1 Up to the beginning of February 2024

2 Judgment 12th September 2023

3 The parties’ concession was based on the approach in Mucelli v Albania [2009] UKHL 2 – see paragraph 84

Claimant setting out a full account of the filing and service of the claim, together with submissions. The Claimant applied for an extension of time on 26th July 2023.

6. At the hearing, the Claimant argued that there is a lacuna where a party files a claim form under s.288 in the six-week period but the court does not issue in the same period preventing service in time It was suggested that this was a novel point with no previous direct authority, and the court should give a purposive reading to CPR Part 54 and its Practice Direction so that in circumstances like this, service within seven days of issue was effective. The First Defendant argued that no such lacuna exists, Practice Direction 54D provides a complete code, and both filing and service must be within six weeks. With regard to the application for an extension of time, the Claimant’s position was that CPR r.7.6(3) 4 should lead to a grant whereas the First Defendant argued the pre-conditions had not been met and the court did not get to the stage of having a discretion to exercise.

7. The Judgment provides a helpful overview of the applicable provisions at paragraphs 20 –42, which it is suggested is read in full. It is a very useful summary of the relevant civil procedure rules and related case law on this issue.

8. The question of whether or not the application was served in time is dealt with at paragraphs 43 – 58 of the Judgment with the court ultimately concluding that the claim was out of time. The basis for this can be summarised as follows:

i) The effect of paragraph 4.11 of Practice Direction 54 5 is unglossed.

ii) Practice Direction 54 is clearly intended as a complete code.

iii) The proper interpretation is to be undertaken having regard to the great importance of urgency and to the short time limits in statutory review cases.

iv) Parliament and the Rules Committee are to be regarded as having taken account of that public interest.

v) Delays of challenges to planning decisions effect not just good public administration but also those who have been given permission, have been refused permission and/or wish to arrange their affairs.

4 CPR r.7.6(3) states that: (3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –

(a) the court has failed to serve the claim form; or

(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and

(c) in either case, the claimant has acted promptly in making the application.

5 which states that the claim form must be served within the time limited by the relevant enactment for making a claim for planning statutory review set out in paragraph 1.2.

“in

vi) A Claimant must proceed on the basis that they need to act sufficiently quickly so as to both file and serve within the six-week period.

vii) The consequences are potentially harsh 6 but they are not by any means unworkable.

viii) The situation is not one of absurdity.

ix) That the Claimant is a public body takes things no further; many of the persons or bodies bringing applications under s.288 will be public bodies.

x) The Claimant’s approach would generate uncertainty.

xi) People are entitled to proceed on the basis that if no claim has been served within six weeks that is the end of the matter unless strict requirements for an extension are met.

xii) It is unrealistic to say that the court should have a system for moving an application to the top of the pile and treating it as urgent to ensure issuing where there has been no notification to the court of the particular urgency.

xiii) It is not clear why the adverse consequences of what is said to have been a delay on the part of the court should fall on the Defendants rather than on the Claimant particularly as the Claimant can avoid the adverse consequences by filing at an earlier point.

xiv) It is open to a claimant to flag the urgency of the application when the claim form is filed and chase the court for a claim form to be issued. There is no obligation to – but a claimant who does not is failing to do so deliberately having chosen to file the claim form late in the six-week period, deliberately leaving matters in the hands of the court.

xv) A claimant which has filed a claim form in good time and/or has acted energetically to alert the court to the urgency of the matter and need for urgent treatment is very likely to have taken all reasonable steps and have a good prospect of an extension of time.

9. It should come as no surprise that the Claimant’s application for an extension of time also failed. Paragraphs 59 – 65 of the Judgment deal with this issue. The court agreed that the only steps relevant to CPR r.7.6(3)(b) are the steps taken within the six-week period. The court found that the Claimant did not take all reasonable steps, the filing being on 4th May 2023 right at the end of the period in circumstances where 6th and 7th May were the weekend and 8th May was a bank holiday. The Claimant “must have known” that for the claim form to be issued in time it would have to be issued by close of business on Friday 5th May. There was no evidence that anything was done at the time of filing to alert the court to the need for urgent action, nor any chasing, which were steps which could have easily been taken and which were reasonable steps to take. The court was also of the view that the Claimant

6

the sense of being firm and causing severe consequences for a party who does not comply”

had not acted promptly in making the application for an extension; Lang J had set out directions but that did not mean that making an application within that time period would necessarily amount to having acted promptly for the purposes of CPR r.7.6(3)(c). What Lang J was doing was saying that if the Claimant was to make such an application it had to do it in 28-days and a failure to do so would have meant that, at least potentially, there would be need to seek relief from sanction and an extension of that time.

10. Another case providing a sharp reminder of the practicalities of serving within the tight sixweek window is Home Farm Land Ltd v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2566 (Admin) 7. The case concerned an Inspector’s decision on 22nd September 2022 to dismiss an appeal against the refusal of outline planning permission for the development of up to 197 dwellings on land at Warfield in Bracknell.

11. The final day for filing and serving the claim was 3rd November 2022 at which time the Claimant was not legally represented though had the assistance of their planning director. On 2nd November 2022 he unsuccessfully attempted to open a claim on CE-file and paid the incorrect court fee. The same day, he emailed the administrative courts office (ACO) stating that the six-week period expired the following day and seeking advice as to filing. He was informed of the correct fee and told he could file by email or by posting the papers in the ACO drop box. The ACO sent a further email advising that the claim had to be both served and issued within the six-week period. The Claimant’s planning director telephoned a lawyer at the GLD for guidance and was provided with the email address for the document upload centre at the court and the email address for the new proceedings team at the GLD.

12. The following day, the Claimant paid the correct fee and, in the afternoon, instructed an experienced courier. The courier telephoned the Claimant’s planning director to confirm that the papers had been deposited at the ACO drop box at 15:45 and did not mention being advised that, if the matter was urgent, it was necessary to contact the ACO as the drop box was only emptied twice per day The unsealed claim form and bundle was emailed to the GLD lawyer and the ‘new proceedings’ email address at 7:04pm. The Claimant’s planning director claimed in evidence that he also filed electronically to the document upload centre (DUC) before midnight on 3rd November 2022, though no confirmation was provided.

13. On 4th November 2022 the ACO emailed the Claimant’s planning director confirming receipt of the claim form and bundle via the drop box but that the claim couldn’t be issued as the correct fee had not been paid (though it had) and that the claim form needed to be amended as the parties’ names were incorrect. This was rectified and the sealed claim form sent to the Claimant’s planning director via email stating the dates of filing and issuing as 4th November 2022. The GLD lawyer emailed on the same date noting that the documents received by him did not include the sealed claim form which is essential and must also be sent to the new proceedings inbox. The Claimant sent this to the lawyer but mistyped the email address for the new proceedings inbox only resending this after the Secretary of State applied for an order under Part 11 on 25th November 2022 declaring that the court had no jurisdiction to determine the claim.

14. The parties’ submissions are summarized at paragraphs 22 – 30 of the Judgment. In short, the Secretary of State submitted that the claim form was not filed in time because claim forms can now only be filed electronically. In the alternative, it was contended that CPR 2.3(1) provides that "filing" means "delivering a document or information, by post or otherwise, to the court office", and delivery to the drop box was not the court office. Reliance was placed on the Administrative Court Guide (2022 ed.) referred to in Practice Direction 54A which, at paragraph 7.8.1, explains that the London ACO counters remain closed, at paragraphs 7.8.2 – 7.8.8 details how hard copy documents may be filed and at paragraph 7.2.1 states that the date of filing is when the claim form is received by the ACO (to be distinguished from the date of issue, which may be later). Annex 7 to the Guide, the "Administrative Court: Information For Court Users", does not refer to the drop box. The Claimant submitted that they were entitled to file the claim in hard copy and the only means of so doing was by depositing it in the drop box. The effect of this change in practice is that claim forms in hard copy are now filed at the ACO at the point at which they are deposited into the drop box. CPR r.2.3(1) had to be read with Practice Direction 2A, which sets out the dates and hours when the offices of the Senior Courts will be open for business, and specifically open for the public, namely 10am to 4.30pm. The use of the drop box and the advice in the Guide cannot alter the operation of the CPR.

15. The court’s conclusions can be read at paragraphs 31 – 58 of the Judgment but can be summarised as follows:

i) Litigants have not been deprived of the right to file hard copy claims– the Claimant was expressly advised that he could file the claim by means of the drop box.

ii) Paragraph 7.8.2 of the Guide refers to filing of hard copy documents using the drop box and cannot properly be read as excluding hard copy claim forms. In practice, the drop box is used for this. Some litigants may need to file hard copies only.

iii) The "Administrative Court: Information For Court Users" omits reference to the drop box but confirms that litigants may file hard copy documents by post or by DX instead of electronically. On a proper reading, this must include claim forms.

iv) The counter service has not reopened in the ACO in London. If a litigant does not wish to file electronically, or by post or DX, the only option is to deposit the claim form and bundle in the drop box.

v) The date of filing, for the purposes of time limits, is the date when the claimant files the claim form at the ACO, not when the claim is issued by the court.

vi) Parliament has provided a strict time limit of six weeks for the making of an application under s.288. Subsection (4B) does not, in its own terms, admit any exception to the absolute time limit it lays down

vii) The claim form in this case was not filed within the meaning of the definition in CPR r.2.3(1) when it was deposited in the drop box.

viii) The drop box is in the main reception area not in "the court office"; essentially a dedicated post-box. The mere fact of posting the claim form in the drop box is not sufficient to constitute filing, just as posting at the Post Office would not.

ix) Applying the approach taken in the cases of Calverton Parish Council and Kaur, filing the claim is not a unilateral act by the litigant. Action by the court is required

x) When documents are deposited in the drop box, there is no procedure for recording the name of the case and the time and date on which delivery took place. It would be highly unsatisfactory for such a significant procedural step as filing to take effect without any record of it.

xi) The ACO is generally open to the public (remotely) until 16:30. The ACO is entitled to manage its workload by imposing deadlines if same day processing is required. The Guide provides that documents filed by email or fax after 16:00 will be treated as filed on the next day. The drop box is routinely emptied only at 9.30 and 2.30. The ACO was open on 3rd November 2022 so could have acted upon notification from the Claimant that a claim form had been deposited after 14.30 which needed to be filed and issued on that day, before the time limit expired.

xii) The court's discretion to extend the statutory time limit for filing a claim under s.288 TCPA 1990 is very limited and will only be exercised in exceptional cases.

xiii) This claim is not exceptional. The Claimant's predicament is a result of not preparing and filing his claim in time. By not filing the claim at court until the afternoon of the final day, he inevitably ran the risk that there would be insufficient time for the claim to be issued by the court on the same day.

xiv) The court further emphasised that, per Ideal Shopping Direct Limited v Mastercard Incorporated [2022] EWCA Civ 14, at [137], service of an unsealed claim form is not valid service and a claimant cannot rely on CPR r.3.10 to rectify the defect.

xv) Further, that per R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, at [59],[62] and [63], a new claim must be served on the "new proceedings" email address and service on an individual Government lawyer is not valid service.

16. The court also considered whether or not to extend the time for service but chose not to do so. The Claimant had not taken all reasonable steps to effect valid service on time. They left it far too late to find out how to file the claim properly, to complete their preparation of the claim and then to file it at court. They did not successfully pursue the options of filing by email or via the DUC. The late filing led to late service. No good reason had been provided for the delay; being busy is not a sufficient explanation for delay. Per Good Law, the loss of a limitation defence is palpable prejudice therefore the Secretary of State would suffer prejudice. The Claimant did not act promptly in making the application.

Points to take away:

17. The two Judgments provide a stark reminder as to the importance not only of considering when the six-week time period expires but also the practicalities of filing and serving within that period. It is vital that those tasked with filing and serving carefully consider how service needs to be effected (do the Defendants accept service via email and what are the details; if not, how long will it take to post and by what means will that be done) and how long is required for that task then, working back from that, consider when the claim form will need to be filed. They should contact the court prior to filing to ensure that they are clear as to the process, any relevant office timescales and also that the urgency of any claim is emphasised. It would be wise to keep a written record of communications with correspondence in writing should it be required later to evidence efforts made. If filing up against the time limit is unavoidable, it would be sensible to consider making an application for an extension of time when filing the application or very soon thereafter.

Disclosure

18. Allied to the theme of making sure you are hot on your civil procedure when considering issuing a claim for statutory review is understanding the rules relating to disclosure. The recent case of Friends of the Earth Ltd v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 3255 (KB) 8 provides a short point on specific disclosure in the context of a s.288 review.

19. The case concerned planning permission for the mining of coking coal at Whitehaven in Cumbria. The application was called in by the Secretary of State who granted planning permission, accepting the Inspector’s conclusions after an inquiry. Friends of the Earth challenged the decision and it was due to be heard at a rolled-up hearing. However, for the purposes of that challenge, they sought specific disclosure of a submission made by the Planning Casework Unit of the Department for Levelling Up to the Secretary of State. This was a Ministerial Submission not referred to in the decision letter but, in Friends of the Earth’s submission, they had come to understand that policy advice had been given to the Secretary of State within it which he had relied upon in reaching his decision.

20. The Secretary of State refused to disclose the submission stating that his reasons for his decision were fully set out in the Decision Letter and in the passages of the Inspector’s Report which were adopted within it. There was no specific or detailed advice from policy advisers or specific written policy advice. The Secretary of State refuted Friends of the Earth’s claim that the duty of candour gave them a right to see the submission.

21. At the hearing to consider Friends of the Earth’s application, to which this Judgment relates, the Judge was provided with a copy of the submission in confidence. At paragraph 5, there are some general observations made by the Court which provide a helpful reminder as to the extent to which disclosure is provided for in the context of statutory reviews. In brief:

i) The disclosure provisions of CPR 31 play a limited role in conventional judicial review claims.

ii) They have been explicitly disapplied in relation to statutory planning review by CPR Part 54 in the Practice Direction, Annex D 4.42.

iii) This provides that disclosure is not required unless ordered by the court.

iv) There is no statutory provision, nor any general procedural rule or guidance in the Practice Direction, for the disclosure of any Ministerial Submission.

v) The CPR and Practice Direction set out no principles as to when such disclosure should be ordered; though there is little point if the generally applicable disclosure tests are to be applied to an application for its specific disclosure.

22. The court then assessed the application at paragraphs 6 to 38 ultimately concluding that the application should be dismissed. Some key points arising are as follows:

i) One obvious reason for the specific approach in relation to planning statutory review is that the Decision Letter, or Inspector's Report and Decision Letter, should provide the complete reasoning on the significant controversial issues.

vi) The related but separate duty of candour is not about disclosure nor necessarily requires any particular level of disclosure, save perhaps where a purportedly accurate summary of a document is furnished instead of the document itself.

vii) The duty of candour is not even primarily directed to the disclosure of documents.

viii) The planning statutory duty to provide reasons, developed by judicial authority, encompasses and embodies the duty of candour.

ix) The Secretary of State's defence stands or falls by what the Decision Letter says, and by the reasons it gives for the conclusions reached.

x) If he agrees with the Inspector's Report, and adopts its reasons, it is hard to see how disclosure of the Ministerial Submission could even be useful, let alone necessary.

xi) If the Ministerial Submission disagrees with the Inspector's Report but the Secretary of State agrees or has some view which differs from both, it is again difficult to see how the Ministerial Submission could be of relevance.

xii) If the Planning Casework Unit thought the Inspector's Report was wrong but the Secretary of State disagreed, any argument that his conclusion was irrational or that a factor had been wrongly ignored or allowed for, or that the reasoning was legally inadequate, would be available on the combined Report and Decision Letter.

xiii) There is a real risk that the unnecessary deployment of Ministerial Submissions would lead to an irrelevant and costly time-consuming collateral debate.

xiv) The Secretary of State should be able to receive advice in confidence.

xv) There is no blanket bar on the disclosure of Ministerial Submissions, just as there is no general rule that they should be disclosed.

xvi) Applications for disclosure must be based on the facts and issues in the case.

xvii) The appropriate test is that in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 9

xviii) It seems wrong to say that because the Ministerial Submission has something to say about the issues, which is likely to be the case, it is therefore disclosable in a s.288 case. Where there is a Decision Letter dealing with the issues as far as or in the way the Secretary of State has chosen to deal with them, or a Decision Letter and Inspector's Report, that is far too broad an approach.

xix) The prospect that something may have illuminated the mind of the Secretary of State provides no basis for its disclosure. If the illumination were important, it would be in the Decision Letter; if not, the omission of a relevant factor or reasons for a conclusion on a principal issue in controversy would be apparent.

xx) The mind of the Secretary of State, which is what matters, is shown by what he says in his Decision Letter, not by what the PCU says to him in its Ministerial Submission. If they do differ, what the PCU said cannot not illuminate what Secretary of State then said. It involves no error of law, of itself, to adopt an approach commended by the PCU, or to reject it.

Points to take away:

23. This case is a helpful reminder of the rules more broadly relating to disclosure in s.288 matters and the principles in respect of a Decision Letter representing the complete reasons for a decision when considering bringing a challenge. Insofar as Ministerial Submissions, it is not that disclosure is impossible – the case provides guidance as to the appropriate tests to apply. However, it is important to properly consider the facts and issues in the case and to be clear as to why disclosure is necessary to resolve the matter fairly and justly. That is a test which in Tweed was acknowledged to be ‘rarely satisfied’ in the context of ministerial submissions. It will therefore be an uphill battle for anyone making an application for such disclosure and very careful thought will need to be given to why it is truly necessary.

Leanne Buckley-Thomson

No5 Chambers, London

8th February 2024

9 at [3]: disclosure should be "necessary to resolve the matter fairly and justly." In my judgment that test will rarely be satisfied. I emphasise "necessary". A cautious rather than a broad approach to ordering disclosure in these circumstances is called for.