Annual Planning Seminar 2022

PLANNING AND ENVIRONMENT GROUP 09:15am - 4:30pm Eastside Rooms, Birmingham 4 Learning Hours

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Annual Planning Seminar

Monday 14th March 2022 Eastside Rooms, Birmingham Contents Section 1 Members List Programme

Page 3 Page 4

Section 2 Page 11 The Long Game: How to prepare a planning application which can succeed on appeal Christopher Young QC & Sioned Davies Section 3 Page 30 Biodiversity Net Gain: What to do right now and how to prepare for 2023 Scott Stemp & Nina Pindham Section 4 Page 58 Housing Land Supply: Lessons from recent Appeal Decisions and Judgments Thea Osmund-Smith & Howard Leithead Section 5 Page 84 Local Plans: How to write Local Plan Submissions/Hearing Statements which will get the Inspector to ask the right questions Satnam Choongh & Jack Smyth Section 6 Page 106 Green Belt: How to build a very special circumstances case now Peter Goatley QC & Odette Chalaby Section 7 Page 134 Older Persons Need: How to measure need and build a strong combined benefits case Hashi Mohamed & Christian Hawley Section 8 Page 156 Officers Reports: How to write a Report to Committee that will withstand legal challenge Hugh Richards & Oliver Lawrence Section 9 Page 177 Legal Update - (1) Private Rights vs Development (2) Planning Court and Appellate Judgments from the Past 15 Months Rowena Meager & James Corbet Burcher

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Members list Planning & Environment Group To view or download members CVs please visit No5.com

Richard Kimblin QC Joint Head of Group (Silk: 2016 Call: 1998)

Jack Smyth (2007)

Peter Goatley QC Joint Head of Group (Silk: 2020 Call: 1992)

Leanne Buckley-Thomson (2009)

Clive Newberry QC (Silk: 1993 Call: 1978)

Hashi Mohamed (2010)

Richard Humphreys QC (Silk: 2006 Call: 1986)

Thea Osmund-Smith (2010)

Paul Cairnes QC (Silk 2016 Call: 1980)

James Corbet Burcher (2011)

Christopher Young QC (Silk: 2018 Call: 1997)

Nina Pindham (2012)

Timothy Jones (1975)

Christian Hawley (2013)

Hugh Richards (1992)

Howard Leithead (2014)

Satnam Choongh (1994)

Oliver Lawrence (2016)

Tim Sheppard (1995)

Sioned Davies (2019)

Scott Stemp (2000)

Douglas Armstrong QC* (Silk: 2005 Call: 1990)

Rowena Meager (2007) Associate Tenant *

Chief Executive & Director of Clerking Tony McDaid Practice Director Andrew Bisbey Practice Group Clerks Marc Forrest-Thomas Kayley Mason Tel: +44 (0) 121 6066195 Email: planning@no5.com No5 Barristers' Chambers provides services on an equal opportunity basis and encourages attendance by those with disabilities.

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Annual Planning Seminar Programme Monday 14th March 2022 Eastside Rooms, Birmingham

Time

Speakers

9.15 – 9.50

Registration and refreshments

9.50 – 10.10

Richard Kimblin QC

Welcome and A Focus on Practice: Practical Skills for the 2020s

10.10 – 10.40

Chris Young QC & Sioned Davies

The Long Game: How to prepare a planning application which can succeed on appeal

10.40 – 11.00

Richard Humphreys QC

How appeals may be won or lost

11.00 – 11.30

Refreshment break

11.30 – 12.00

Scott Stemp & Nina Pindham

Biodiversity Net Gain: What to do right now and how to prepare for 2023

12.00 – 12.30

Thea Osmund-Smith & Howard Leithead

Housing Land Supply: Lessons from recent Appeal Decisions and Judgments

12.30 – 13.00

Satnam Choongh & Jack Smyth

Local Plans: How to write Local Plan Submissions/Hearing Statements which will get the Inspector to ask the right questions

13.00 – 14.10

Lunch

14.10 – 14.40

Peter Goatley QC & Odette Chalaby

Green Belt: How to build a very special circumstances case now

14.40 – 15.10

Hashi Mohamed & Christian Hawley

Older Persons Need: How to measure need and build a strong combined benefits case

15.10 – 15.40

Hugh Richards & Oliver Lawrence

Officers Reports: How to write a Report to Committee that will withstand legal challenge

15.40 - 16.10

Rowena Maeger & James Corbet Burcher

Legal Update - (1) Private Rights vs Development (2) Planning Court and Appellate Judgments from the Past 15 Months

16.10 - 16:30

Topic

Q & A and Close

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Richard Kimblin QC Welcome and a Focus on Practice: Practical Skills for the 2020s

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Richard Kimblin QC Planning and Environment

Year of Call: 1998 | Year of Silk: 2016 Email Clerks: planning@no5.com

Richard Kimblin QC is described in the Legal 500 as a ‘Tier 1’ silk: “An exceptional talent with a formidable intellect.”

His skill set is in: - Vigorously and forensically testing and clarifying technically and legally complex issues and resolving them in order to advance the client’s objectives; - Assimilating and marshalling large amounts of material for inquiries and trials, leading the project team to deliver value; - Exchanging experience between areas of work: inquiry to court; court to inquiry; one jurisdiction to another, having a very wide range of experience of cases of the most substantial kind and wider significance He believes very strongly in truly independent advice and fearless advocacy for any client, no matter what their role or interest.

Richard’s environmental and minerals/waste experience and expertise is well known, and is separately summarised in his Enviromental CV. STRATEGIC SCALE RESIDENTIAL DEVELOPMENT During 2020 and early 2021 he has advised and appeared at examination in respect of many strategic sites in the bracket of 2,000 to 10,000 homes, in the urban area, the open countryside and the Green Belt. He has advised and appeared for promoters and local authorities in a wide variety of planning circumstances throughout England, eg: South Oxfordshire, Brentwood, Stockton, Gloucestershire, Guildford, Solihull.

PUBLIC INQUIRIES and HEARINGS Richard thrives on working with and guiding teams through the strategic, evidential, practical and presentational stages of planning appeals, call-in inquiries and determination of objections to highways and CPO orders. That is why he wrote “Planning Appeals – Practice and Materials” (Bloomsbury 2020) which is an essential practical text for those engaged in planning appeals, hearings and inquiries.

He has accumulated years of inquiry experience ranging from the frequently debated issues in respect of residential schemes to the highly technical and specialist. His work has given rise to many of the key cases on applying s38(6) of the 2004 Act and the presumption in favour of sustainable development (11 NPPF, formerly 14) eg: Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 104; R (oao) Watermead Parish Council v Aylesbury Vale DC [2017]; BDW v Secretary of State for Communities and Local Government [2016] Many cases have included important heritage issues. He is particularly adept at handling noise, environmental and habitats issues. His Habitats Regulations experience includes much of the Wealden litigation and extensive work on phosphates/SAC impacts.

In Green Belt cases he leads inquiries having regard to his appearances in many of the leading Green Belt cases: Redhill Aerodrome, Turner, Timmins, Compton PC. Current interesting residential appeals and call-ins include redevelopment of heritage assets in the open countryside in Oxfordshire and in the Metropolitan Green Belt and issues arising from hazardous substance consent consultation zones on the Wirral.

HIGH COURT Before taking silk, he was appointed Junior Counsel to the Crown (London C, B and A Panels), appearing in many issues

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and in cases which are now leading cases in their area. Over thirty of his appearances have been in the Court of Appeal.

He is presently instructed: on behalf of an interested party on housing requirement issues; on behalf of HS2 in the Court of Appeal’s consideration of injunctive relief against persons unknown; nutrient/SAC issues; Water Framework Regulations issues.

INFRASTRUCTURE, HIGHWAYS AND ENERGY Richard has long experience of infrastructure schemes promoted through planning applications, specific statutory schemes such as the Electricity and Highways Acts and DCOs, including appearing in the year-long Mid-Wales windfarm inquiries: M42 Jnc 14; Mynydd y Gwynt DCO; Lancaster/Heysham – the first JR of a DCO; Dudgeon offshore grid connection; Ordsall Chord – light rail scheme for Manchester with associated heritage issues; the East-West Rail public inquiry; and a couple of canals.

Minerals and Waste Richard’s minerals work is predominantly in advising and appearing at inquiry for contentious schemes. This is accompanied by complex advisory work on ROMPs, highways, EIA, and Mines Working Facilities and Support Act cases (MWFSA). Many of his cases have been concerned with National Parks. He has advised and appeared at public inquiry in respect of EfW and landfill cases where the issues have been Green Belt impacts, odour, air quality and need.

His work has included the full spectrum of minerals proposals: hard rock; sand and gravel; chalk; cement; high PSV sites; solution mining; precious metal; polyhalite; energy minerals including coal, fracking, onshore oil and gas, offshore gas; gas storage.

He is presently instructed in public inquiries in England and Wales where the issues include highways impacts, blasting, noise and air quality.

In the High Court, he has brought and defended judicial reviews in minerals cases and in presently instructed to challenge a minerals decision of North Yorkshire County Council, for which permission to proceed has been granted. He was instructed to obtain a rare order under the MWFSA: Re York Potash Ltd [2018] EWHC 3114 (Ch) and has advised over many years in this particular niche of minerals work.

Recommendations “He’s absolutely top-class and is one of the best planning silks, not just in terms of his advocacy but also case management and strategy.” “He is a very clear thinker, gives sound advice and is a fantastic advocate.”

Chambers UK 2022 - Planning “He is an exceptional talent and he is in a league of his own. He always gets to the heart of a matter quickly and delivers concise reasoned opinions and advice.” “In terms of a QC who I would want for any knotty areas of law, I would think of him immediately to unpick and explain them succinctly.”

Chambers UK 2022 - Environment Ranked as a Tier 1 Silk in Planning and Environment.

Legal 500 2021 - Planning and Environment “He is a very focused advocate and very committed to his clients.” “He is approachable and he really looks after the client and he takes time to understand them.”

Chambers UK 2021 - Planning and Environment “A well-rounded and commercially astute barrister.”

Legal 500 2021 - Planning and Environment “A clear and thoughtful advocate. He is tactically astute and has an outstanding knowledge of the law.” “Absolutely brilliant. He has a great rapport with judges.”

Chambers UK 2019 - Planning “Richard’s style of advocacy is cool and calm. He is technically very good and homes in on the important details very quickly.” “He has an encyclopaedic knowledge of planning and environmental law, and his advice is always very commercial.”

Chambers UK 2019 - Environment “An enigmatic silk, whose technical knowledge and stealthy delivery make him perfect for complex cases.”

Legal 500 2019

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“A consummate professional, as well as a clear and thoughtful advocate. He has the commerciality that clients require.

He is tactically astute and has an outstanding knowledge of this area of law.” “Exceedingly thoughtful. He takes a very academic, careful and considered approach to matters.”

Chambers UK 2018 “A perfect blend of knowledge and pragmatism. Richard is excellent both in his advice and on his feet.” “He is knowledgeable in both planning and environmental law. He has a real attention to detail and leaves no stone unturned.”

Chambers UK 2017

Notable Cases Planning Policy and Decision Making He has appeared in many of the leading cases which clarify and define important planning policy areas, and indeed the principal decision making framework. Some of those are: Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 104 Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2001 Appropriate assessment; People over Wind; meaning of policy in the Framework cf policy intention Friends of the Earth Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 518 Strategic environmental assessment; National Planning Policy Framework Central Bedfordshire Council v Secretary of State for Housing, Communities and Local Government [2018] EWHC 2077 Maximum Networks Ltd v Secretary of State for Communities and Local Government [2018] EWHC 1933 What is a valid application and appeal, and what is the discretion which PINS enjoys in determining validity?

R (Holder) Gedling BC [2018] EWCA Civ 214 Onshore wind - the meaning of national policy on acceptability.

R (oao) Watermead Parish Council v Aylesbury Vale DC [2017] In which he appeared for the Claimant in a case dealing with flood risk policy and the presumption in favour of sustainable development.

Save Britain’s Heritage v Liverpool CC and Neptune Developments [2016] EWCA Civ 806 World Heritage Sites; National Planning Practice Guidance; successfully appearing for the interested party, the developer.

BDW v Secretary of State for Communities and Local Government [2016] An important Court of Appeal summary and explanation of the practical application of s38(6) Planning and Compulsory Purchase Act 2004 Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386; [2015] JPL 416 A key Court of Appeal judgment on Green Belt policy, particularly as to very special circumstances Turner v Secretary of State for Communities and Local Government [2016] Another key Court of Appeal judgment on Green Belt policy, particularly as to the definition and assessment of ‘openness’ Timmins v Gedling BC [2015] EWCA Civ 10; [2015] 2 P and CR 12 A further key Court of Appeal judgment on the scope of exceptions to inappropriate development; a judgment which has now been acknowledged by amendment to the NPPF to add material changes of use of land to the list at s.146.

Daventry District Council v Secretary of State for Communities and Local Government and Gladman Developments [2016] In which he appeared for the interested party in a case on the weight to be given to policies for the supply of housing land; para 215 NPPF; paras 47 and 49 NPPF.

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R(oao) Hampton Bishop Parish Council v Herefordshire Council and Bloor Homes Limited [2014] EWCA Civ 878 A leading case in the Court of Appeal on the application of Section 38(6) of the 2004 Act in which he appeared for the local authority.

Vicente v Secretary of State for Communities and Local Government [2014] EWCA Civ 1555 Local planning authorities; Local plans; Planning inspectors; Planning permission; Procedural irregularity; Unfair conduct San Vicente v Secretary of State for Communities and Local Government [2012] EWHC 3585; [2013] EWHC 2713; [2013] EWCA Civ 817 Procedure in appeals by hearing; amendment of statements of case; civil procedure rules Distinctive Properties v Secretary of State for Communities and Local Government [2016] Tree Replacement Notices, meaning of ‘tree’ – in which he appeared for the Secretary of State at first instance and in the Court of Appeal Infrastructure/DCOs A recent and novel case is: Re York Potash Ltd [2018] EWHC 3114 (Ch) Application under the Mines Working Facilities and Support Act 1966 - a novel application, securing subsurface rights in connection with the winning of potash In terms of CPO Compensation; JS Bloor (Wilmslow) Ltd v Homes and Communities Agency [2017] UKSC 12; [2018] 1 All ER 817 Richard Kimblin has long experience of major infrastructure schemes from canals to motorways, including significant DCO work and Parliamentary drafting: Power stations; Wind farms and related infrastructure (onshore and offshore); Gas storage; Minerals schemes including ROMPS, extensions. Eg: Whitby v Secretary of State for Transport [2016] EWCA Civ 444 – Northern Hub, Transport and Works Act Orders; Ordsall Chord between Manchester Stations; heritage effects; MidWales - a 27 turbine scheme in the context of conjoined s36 Electricity Act inquiries in respect of 5 sites and related grid connection works. This was the largest and longest such inquiry for many years; R (oao) Gate v Secretary of State for Transport [2013] EWHC 2973 – the first JR re an NSIP consent; the M6-Heysham link road: development consent orders; highways; nationally significant infrastructure; habitats; protected species; alternatives; MYG – a DCO in Wales, with a positive recommendation from the Inspector, refusal from the Secretary of State and subsequent judicial review on habitats regulations issues; Hemswell - the first scheme dismissed on the basis of the WMS on onshore wind; Dorset wind farm (Silton) - 4 turbines in the setting of an AONB; 4 week inquiry covering significant landscape, cultural heritage, noise and socio-economic evidence (APP/N1215/A/11/2160839); Dugeon grid connection - onshore 45 km cable route and substation inquiries for 560 MW of renewable energy(APP/Y2620/A/12/2170245) – see also Dudgeon Offshore Wind v Secretary of State for Energy and Climate Change and Secretary of State for Communities and Local Government (infrastructure; wind energy; alternatives) [2012] EWHC 861; FCC Environment v Secretary of State for Communities and Local Government [2014] EWHC 2035 (Admin) Error of fact; Local authorities; Planning inspectors; Planning permission; Wind turbines; R (oao) Holder v Gedling Borough Council [2014] EWCA Civ 599 - material considerations in energy proposals;Jarrett v Secretary of State for Communities and Local Government [2012] EWHC 3642 - onshore wind energy; development plan policies for renewable energy; R (oao) Webb v Herefordshire Council [2013] EWHC 1850 - onshore wind energy; protected species; EIA Environmental Litigation Richard has been instructed in more than 100 environmental and planning prosecutions. He advises on all aspects of litigation in planning, environmental and regulatory contexts. He is also called upon to advise in several niche areas: mines working facilities and support act matters; Part IIA EPA; WIA 1991 infrastructure issues for developers and undertakers. Prior to his call to the bar, Richard researched the use of groundwater storage for London (which is now an operational scheme and the basis of his PhD thesis), undertook EIA work on schemes such as the channel tunnel rail link and did comparative study of domestic European laws for the European Commission. Friends of the Earth v DEFRA [2015] – neonicitinoids; bees; Commission Regulations on plant protection products; Seiont etc Anglers v Natural Resources Wales [2015] – Environmental Liability Directive, waste water discharge; appeal to be heard on 25/26 May 2016 Ashdown Forest LLP v Secretary of State for Communities and Local Government and Wealden DC [2014] EWHC 406 (Admin) - lawfulness of development plans affected by SAC/SPA and the uncertainty in assessing those impacts; Abbottskerswell PC v Teignbrigdge DC and SSCLG [2014] EWHC 4166 (Admin). Walker and Son (Hauliers) Ltd v Environment Agency Court of Appeal (Criminal Division) [2014] EWCA Crim 100 [2014] 4 All E.R. 825; [2014] P.T.S.R. 929; [2014] 1 Cr. App. R. 30; [2014] Env. L.R. 22; [2014] L.L.R. 625 Criminal law; Environment; Burden of proof; Environmental offences; Environmental permits; Knowledge; Sufficiency of evidence; R (oao) Gilbert v Secretary of State for Communities and Local Government [2014] EWHC 1952 (Admin) Environmental impact assessments; Noise; Precautionary principle; Screening directions; R (oao) Enstone Society v West Oxon District Council [2009] EWCA Civ

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1555 (noise; motor sport; Court of Appeal) R (oao) Wye Valley Action Group ex p Herefordshire Council [2010] Env LR 18 (polytunnels EIA; Habitats Regulations) [2009]; Court of Appeal [2011] EWCA Civ 20

Memberships PEBA

UKELA

Qualifications BSc Royal Society Western European Fellow

PhD

Publications Publications and Podcasts Richard is the author of “Planning Appeals – Practice and Materials” (Bloomsbury 2020) which is an essential practical text for those engaged in Planning Appeals, Hearings and Inquiries. Richard also hosts the regular “Planning Podcast”.

The Interpretation of Planning Policy after Tesco [2012], 9, 1045 – 1052, - Journal of Planning and Environmental Law (Richard Kimblin, Ian Dove QC, Kaitlin Davies)

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Christopher Young QC Sioned Davies The Long Game: How to prepare a planning application which can succeed on appeal 11

Christopher Young QC 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 first 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 firms, 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, Mayfield in Sussex, Sibson Garden Village in Huntingdonshire, Silfield 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 Beaconsfield 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 greenfield 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 firms, as well as retailers such as Tesco Stores and Lidl, mineral operators such as

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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 five 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, five year supply, ecological and nutrient matters and financial 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 always on top of a case and fiercely determined to fight 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 “A fantastic communicator who is extremely well thought of by everyone who has had the pleasure of working with him.”

“A superb advocate. His diligence and ability are top-notch.”

Chambers UK 2019 “Highly experienced in representing housebuilders and developers in planning matters.”

Legal 500 2019 “Very personable and very helpful. He has a very nice style and an amazing ability to read great swathes of documents.

He can relate to everybody in the room and build a good rapport to get them on side.” “A go-to barrister for house builders and promoters of large residential development proposals outside of London. He’s built up an unparalleled bank of knowledge of appellate decisions, which he shares widely.”

Chambers UK 2018 “He works tirelessly for his clients’ interests.”

Legal 500 2017

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Awards Monroe Debating Prize 1998

Qualifications 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

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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 developers, national and local government, the Welsh Ministers, and other interested parties.

Recent highlights have included: - 2 day enforcement inquiry and 1 day hearing (sole counsel) - 8 day inquiry for 473 houses in an Area of Outstanding Natural Beauty (led by Christopher Young QC) - 9 day hearing for mixed use development for 216 homes, 1600 square metres of commercial space (led by Christopher Young QC) - 8 day inquiry for 45 houses with complex heritage issues (led by Christopher Young QC) - 4 day inquiry for industrial development in the Green Belt (led by Peter Goatley QC) - 9 day inquiry for planning permission for residential use (led by Clive Newberry QC) - sole counsel in the High Court permission hearing - pupil barrister shadowing the 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: - Section 106 agreements, negotiations, ransoms - 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, and in her own right, she has advised on: - 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

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- a Transport and Works Act Order for a 35 square kilometres commercial testing offshore tidal power demonstration zone

Civil Orders and Injunctive relief Sioned has a broad range of experience seeking injunctive relief in a variety of courts. This has included: - seeking injunctive relief against direct action protestors on a major infrastructure project for trespass - defending gypsy and travellers in injunctive relief for unauthorised development in the Green Belt - seeking civil orders on behalf of the Metropolitan Police including for Domestic Violence Protection Orders, Sexual Risk Orders and Closure Orders, some of which included vulnerable defendants

Environment Sioned has a keen interest in developing her environmental law practice. During pupillage, Sioned was exposed to leading challenges relating to climate change risk assessment and climate litigation. This included challenges to the UK Emissions Trading Scheme (R (on the application of Georgia Elliot-Smith v SSBEIS).

Areas on which she has been asked to provide advice include: - climate change legislation - marine licensing - flooding - habitats regulations assessments - environmental impact assessments Recent work has included: - Advising on environmental assessments in respect of residential development; road projects and border infrastructure works - Advising on the marine licensing and assessment aspects of an offshore tidal demonstration zone - Working as part of a team of researchers to analyse international obligations on environmental impact assessment

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 firms.

Languages English Welsh (fluent)

Appointments

Government Legal Department Panel of Junior Junior Counsel

Welsh Government Junior Barrister Public Law Scheme

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Awards Kate Bertram Prize for academic distinction (University of Cambridge) Bentham Award for high academic achievement (UCL)

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

Memberships UKELA Young Compulsory Purchase Association

PEBA Administrative Law Bar Association

Qualifications BPP Law School - Bar Professional Training Course – Very Competent (2019) University College London (UCL) – Law (LLB) – First Class Honours (2017)

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

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No5 Chambers Annual Planning Seminar

The Long Game: How to prepare a planning application which can succeed on appeal INTRODUCTION 1. What is the success rate for planning appeals for new housing refused by a local planning authority (“LPA”)? · · ·

27% - for all appeals determined under the NPPF (of February 2019) 1 24% - for small schemes of 2 to 49 dwellings, mostly built by SME builders 43% - for larger schemes of 50-399 which tend to be mostly planning inquiries

2.

Where the benefits of the proposal are properly articulated, it can be a different story.

My own experience over the last 7 years (2014-2021) has been broadly: · ·

80% - success in persuading an inspector to allow an appeal or recommend approval 70% - success taking into account Secretary of State decisions

3.

Succeeding at a planning appeal requires preparation that begins long before the appeal itself. It is our view that it begins even before the planning application is submitted. There are several features of planning appeals where preparation at the application stage greatly improves the chance of success.

4.

The aim of this paper is to focus on some of those characteristics. It is to help you think about preparing an application which maximises the prospects of permission being granted by the LPA or formulating a case which can be robustly defended at appeal.

THE PROBLEM 5.

The success rate at planning inquiries for major housing proposals used to be much higher. It was around 65% in 2014, following the introduction of the NPPF in 2012. The NPPF introduced the need to ‘boost significantly’ the supply of homes. This was coupled with the Presumption in Favour of Sustainable Development, which tilted the balance in favour of granting planning permission if the LPA did not have an up-to-date development plan or could not demonstrate a five year supply of housing land. For the planning system in general, and the These statistics covered the period February 2019 to September 2020 and were used for a discussion with Bridget Rosewell on Have We Got Planning News for You (2 October 2020), see the question posed at minute 39: https://youtu.be/pPbDEGaLqnk 1

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housebuilding industry in particular, the NPPF was very welcome news, at a time when many LPAs were failing to make meaningful progress with their local plan.

6.

So why have success rates at inquiry fallen? Moreover, why, against the backdrop of a persistent and pervasive national housing crisis have the overall success rates for all housing appeals fallen to just 27%? In our view, the answer lies partly in the fact that more LPAs now have an ‘up-to-date’ local plan, more are able to demonstrate a five-year supply of housing land, and some sites are fundamentally objectionable for a variety of reasons unrelated to housing. 2 That, however, does not form the basis of this paper – that could form a paper all unto itself. Instead, we focus on the key lessons for what helps an application to succeed.

THE KEY LESSONS Key lesson 1: properly articulate the benefits 7.

Appellants need to help themselves, by helping inspectors to fully understand the benefits of new housing proposals, including the benefits for the local community and the wider area. This ensures the interests that are being articulated, and listened to, are not just those who are vociferously opposed new housing, but also those who will benefit most obviously from the scheme.

8.

Properly articulating the benefits is something which appellants often overlook.

Enhancing the benefit is important too where the prospects of success at appeal are low (for example, if the appeal carries a high level of risk).

9.

One of the main beneficial aspects of any scheme is the ability to deliver affordable housing. About seven years ago, I was struck by the evidence of Robin Tetlow who was advocating the need for good and effective affordable housing policies in local plans at Malvern Hills District Council’s local plan examination in public. Our paths crossed several times over the following years. I would sometimes appear against him as my practice developed and I started to act for the house building industry and land promoters. My clients would sometimes seek to argue down the affordable housing requirement on a greenfield site. I found this rarely impressed inspectors, much to the detriment of my clients in terms of the overall outcome.

10.

In support of appellants, I made several attempts to get housing associations to speak at public inquiries on behalf of clients’ proposals when they delivered policy-compliant levels of affordable housing. However, none were ever willing to get involved. This was, in part, because the Council retains the right to determine which housing association can take up the new affordable homes, making an appearance by any one of them potentially a waste of time as the housing might ultimately be handed to another such registered provider (“RP”). It was also because RPs were often concerned that if they appeared against an LPA at an appeal, they 2

for example, heritage impact, flood risk, odour, noise or highway safety concerns.

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would be removed from the Council’s list of preferred RPs. Housebuilders do have the ability to go beyond the Council’s preferred RP shortlist when selecting a partner on a site. But LPAs retain responsibility for 100% of initial nomination rights, which makes the RP reluctant to confront the LPA, including those not presently on the Councils preferred panel.

11.

Instead, I have found it more productive to call an affordable housing witness. It is often powerful to establish whether the need is in the district and in the settlement. It is advisable to consider whether there are compelling arguments for enhancing the offer.

Consider if the housing register is lengthy and if there are any other developments offering such affordable housing in the settlement. Consider too the prospects of a solution being found by the LPA. The evidence base needs to support the enhanced offer, but in circumstances, where there is a need, this is an important planning benefit which ought not be overlooked.

Given that those in need of affordable housing are frequently not represented at inquiry, we have found that calling evidence on the issues, particularly where the offer for affordable housing is good, is a way to ensure that the benefits are properly understood.

12.

There are other ways of delivering benefits too. In so doing, consider what the community needs. Does it need land for education? land for sports? Can you bring some other wider community benefit either on the site or by the offer of land that sets the scheme apart from any other site. Market housing has the potential to be a benefit which, in the right area delivers “very substantial weight” where there is an acute level of unmet need (Colney Heath 3).

13.

There may also be an economic benefits case which can be advanced. Such economic benefits are often best addressed through an economic benefits analysis. This can be commissioned at the application stage. It is effective to try and agree such benefits through the Officer’s Report. Such evidence is also best anchored in a strong regional or local story.

Consider too how the impact of the pandemic will have shaped changes to working patterns and economic impacts of home working.

14.

Other benefits which can be considered, and which have recently been given weight in the planning balance includes the need for (a) Self-Build and Custom Build Housing (b) close proximity to a railway station (Bromley appeal 4), (b) the health and wellbeing benefits of more appropriate housing for the elderly (West Malling and Chester appeals), (c) exceptional architecture (Bromley 5 ) and Southgate Office Village (d) the provision of new publicly accessible open space (Bromley) and the (e) enhancement of heritage assets (Bradford and Wheatley).

Appeal A: APP/B1930/W/20/3265925 Roundhouse Farm, Land Off Bullens Green Lane, Colney Heath Land to rear of former Dylon International Premises, London APP/G5180/W/18/3206569 Inspector George Baird 5 Land to rear of former Dylon International Premises, London APP/G5180/W/18/3206569 Inspector George Baird 3 4

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Key lesson 2: the role of the shortfall in Five Year Supply 15.

Many of the appeals allowed have involved the Appellant showing the LPA does not have a five-year supply of housing land, or the Council conceding the point before the inquiry begins. That has been the position in 35 of 50 recent appeals. This is another area where I encourage clients to employ a specialist witness to focus solely on that issue.

16.

A shortfall in the five-year supply is not by any means a necessary requirement to win a housing appeal. Several of these cases involve an appeal allowed despite the Council being able to demonstrate it has a five-year supply. See the following eight appeals: Davenham 6, Shepshed 7 , Ludlow, 8 Newick 9 , Wilstead 10 , Wingerworth, 11 Stoke 12 , and Wheatley Campus, Oxford. 13 17.

In the Launceston appeal 14 , Inspector Geoffrey Hill found the Council couldn’t demonstrate a five-year supply of housing land. But he went on to offer this memorable phrase: “irrespective of whether the five-year housing land supply figure is met or not, NPPF does not suggest that this has be regarded as a ceiling or upper limit on permissions.”

18.

He further observed that: “[a]n excess of permissions in a situation where supply may already meet the estimated level of need does not represent harm, having regard to the objectives of NPPF.”

Key lesson 3: Keep it simple 19.

There is value in keeping the message and the narrative of your case simple. At planning inquiry, evidence can often become overwhelmingly technical and the message can get lost in the detail. Therefore, it is often helpful to try and keep the message crisp and easy to understand. For example, even in technical areas of analysis such as landscape harm, it is helpful to try and think about how a site in the developed countryside might be different from a site in deep countryside.

Land at Fountain Lane, Davenham, Cheshire APP/A0665/A/14/2226994 Inspector William Feildhouse.

Land rear of 62 Iveshead Road, Shepshed APP/X2410/W/15/3007980 Inspector Christine Thorby.

8 Land at Foldgate Lane, Ludlow Shropshire APP/L3245/W/15/3137161 Inspector Culum Parker.

9 Land at Mitchelswood Farm, Allington Road, Newick, APP/P1425/W/15/3119171 Insp. Mathew Birkenshaw.

10 Land to west of Whitworth Way, Wilstead, Bedfordshire APP/K0235/W/16/3147287 Inspector Jackson.

11 Land at Deerlands Road, Wingerworth APP/R1038/W/17/3192255 Inspector Phillip Ware.

12 Land off Meadow Lane Trentham, Stoke-on-Trent APP/M3455/W/18/3204828 Inspector John Felgate.

13 Oxford Brooks University, Wheatley Campus, College Road, Oxford APP/Q3115/W/19/3230827 Inspector Dominic Young.

14 Land north of Upper Chapel, Launceston APP/D0840/A/13/2209757 Inspector Geoffrey Hill.

6 7

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Key lesson 4: focus on the legal and policy tests 20.

Focusing on the key statutory test in s38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) will help to keep you focused. The application must be determined in accordance with the development plan unless material considerations indicate otherwise. It is plainly helpful to focus on how and why your scheme conforms with the development plan in the first instance.

21.

Where the development proposed is in a constrained area, for example, in the Green Belt, the AONB, or concerns heritage matters, consider how Inspectors have applied the tests before. Consider what kinds of factors outweigh the harms, and have led to ‘very special circumstances’ (Green Belt) or ‘exceptional circumstances’ being found in other appeal decisions. Think about circumstances where the ‘tilted balance’ does – and doesn’t apply.

Key lesson 5: think about the local needs 22.

Neighbourhood plans pose another threat to those bringing forward land for new housing. The Secretary of State and some inspectors have cited the need not to undermine confidence in the neighbourhood plan process as a reason for dismissing an appeal. This is becoming more common. It has featured in several recent refusals. Including situations where the LPA is not meeting its own identified housing needs; does not have a five year supply of housing land; there is an acute need for more affordable housing; there are no technical constraints; no heritage constraints; and no loss of any designated or valued landscape: see Newick 15 and Hinckley. 16 23.

Yet despite the support for neighbourhood plans and the permissive interpretation of what constitutes a conflict with a neighbourhood plan in High Court Judgment in Crane v SSCLG [2015] EWHC 425 (Admin), neighbourhood plans are not an embargo on new unallocated development. The strategy I have advised clients to adopt, when promoting schemes which are in conflict with a neighbourhood plan is to “out-localise the localism”. In other words, make the development proposal more in-line with local needs than the neighbourhood plan itself. This involves looking carefully at local housing needs and, where relevant, introducing more varied forms of affordable housing and specialist housing for the elderly.

24.

Also, it is always worth considering an element of self-build, for which there is always a need, whether measured against the statutory requirements of the Self Build and Custom Build Act 2015 (as amended) or the more extensive Build Store data. Where necessary I have started to call a specialist witness on this area, as very few LPAs properly address self-build.

This was the approach the client was willing to accept for a 200 dwelling proposal at Lydney 15 16

Land at Mitchelswood Farm, Allington Road, Newick APP/P1425/W/15/3119171 Inspector John Felgate Land off Sketchley Lane, Burgage, Hinckley, Leics APP/K2420/W/20/3260227 Inspector John Woolock

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in the Forest of Dean Gloucestershire 17, on a site which was not included in the neighbourhood plan. The scheme incorporated a range of proposals and included land for self-builders, SME builders and for a locally run care home. 18 Key lesson 6: Engage early and regularly with consultees and officers 25. It is plainly advantageous to engage early and often with officers and the relevant consultees.

A pro-active approach to overcoming potential issues with the scheme is of paramount importance in minimising the number of reasons for refusal and their scope.

26. It is also helpful to try and minimise the number of technical reasons for refusal, for example, relating to highways, flooding and noise, which can be more difficult to overcome at an appeal if a solution cannot be found.

Key lesson 7: minimise the harm 27. It may seem obvious, but it is imperative that the harms are minimised by the scheme. Whether the planning balancing exercise is ‘tilted’, or whether you are dealing with a site with a particular designation, for example, in the Green Belt or in an Area of Outstanding Natural Beauty (where there is a need to show very special/exceptional circumstances) the fundamental task of the decision-taker is the same: it is a balancing exercise. It follows that the less the harm caused, the fewer the benefits that will need to be delivered to overcome the harm.

28. Even where there is harm caused which is unavoidable, think creatively about way in which such harm can be overcome and mitigated.

In West Malling (2018) there was substantial harm to the Green Belt, by reason of inappropriateness, and visual and spatial harm to openness derived from encroachment. However, this harm was found to be mitigated by the site’s visual containment through an exemplary landscaping strategy. b In Bromley, the site was on Metropolitan Open Land. This constituted Previously Developed Land on part of the Site (right next door to a railway station and the site of some disused sports club buildings). This too meant that harm was minimised. c Similarly, in Wheatley Campus the site was found to be ‘well contained’ behind modern fencing with substantial belts of landscaping such that its current visibility within the wider landscape was limited. 19 The Inspector also considered the a

Land off Driffield Rd, Lydney, APP/P1615/A/14/2218921R Inspector Neil Pope.

The Secretary of State rejected that recommendation and dismissed the appeal. But we managed to get that decision quashed in the High Court. Second time round (appeal 32) Inspector David Rose again recommended approval. And this time the Secretary of State agreed.

19 13.38 of the DL. 17 18

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existing buildings to have an ‘urbanising influence’. 20 That too meant that harm to the Green Belt was limited. d In Colney Heath, the Inspector thought it was a visually contained site more associated with the urban edge of the village than the wider open countryside. Still, she found the inevitable: new homes on an open field where there are not currently any homes causes considerable harm to Green Belt “openness” and she gave that the substantial weight which national policy requires. e Increasingly, good design is expected to come forward with new development and change is not always deemed to be harmful. In Southgate Office Village, 21 the Inspector found that the exemplary design of the scheme would mean that the transformative change to the area (through the introduction of 17 storey development) and the change to the setting of the listed Southgate Station complex would not be a harmful one. 22 Key lesson 8: Instruct relevant experts – and don’t let the planner take on too much 29.

Plainly, investing in your expert team is important. Taking advice early can help formulate the strategy. Recruiting the right team early can means that the planner is properly supported, both during the application, and during the appeal.

Law correct as of 21 February 2022. This paper is presented for information only and does not constitute legal advice.

Christopher Young QC and Sioned Davies

No5 Barristers’ Chambers Email: cy@no5.com and sda@no5.com +44 (0) 845 210 555

13.39 of the DL. Appeal Ref: APP/Q5300/W/21/3270885 Southgate Office Village, 286 Chase Road, Southgate N14 6HT 22 paragraph 29-30 of the decision letter.

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Richard Humphreys QC How appeals may be won or lost

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Richard Humphreys QC Planning and Environment

Year of Call: 1986 | Year of Silk: 2006 Email Clerks: planning@no5.com

Richard has extensive experience in planning, environment, highways, compulsory purchase and local government law, practising in courts at all levels, at public inquiries and related advisory work.

He joined No5 in 2014 having previously practised at 4-5 Gray’s Inn Square, London for 20 years and Francis Taylor Building, London for 6 years.

Planning Planning practice includes extensive experience in substantial regeneration and infrastructure projects, including highways and aviation, development plan preparation, SA/SEA/HRA and EIA, residential, industrial/office, retail, heritage, leisure, agriculture, minerals and waste development, certificates of lawfulness and enforcement notices.

Development Plans Richard has been instructed to advise upon and appear at a number of Development plans and has considerable experience of promoting and opposing plans as well as representing clients in Legal Challenges to adopted Local Plans.

Recent instructions have related to Wiltshire Core Strategy, Lichfield Local Plan, Mendip Local Plan Part 1, West Lancashire Local Plan, Stafford Local Plan Parts 1 and 2, Hartlepool Local Plan, Cheltenham, Tewkesbury and Gloucester Plans, Harrogate Local Plan, North Essex Part 1 Local Plans and, currently, St Cuthbert’s Garden Village, Carlisle.

Residential Richard has advised and/or represented a large number of developers (including Bellway Homes, Bovis Homes, Crest Nicholson, Redrow Homes, Barratts/BDW, Linden Homes, Orbit Homes and Orchard Homes) and Local Authorities at many public inquiries and through subsequent Legal Challenges. Richard therefore has a very good working knowledge of OAN, 5 year supply, employment, viability, Green Belt, heritage, landscape and EIA and Habitats Regulations issues. He recently secured a planning permission for residential development for North Warwickshire and Hinckley College.

He is currently representing the Appellant in the Court of Appeal in Corbett v. Cornwall County Council (interpretation of policy).

Retail Richard has represented large retailers including Asda, Tesco, Aldi, Safeway, the Co-op and B and Q as well as retail park operators and Local Authorities. Richard has extensive experience of convenience and comparison goods retailing, retail warehousing, warehouse clubs, and applications for certificates of lawful use in respect thereof. Recent examples include out of town retail developments in Sunderland and proposed new stores for Aldi at Fletton Close, Leicester and Great Barr, Birmingham.

Industrial/Office/Commercial Richard has advised and /or represented numerous clients in relation to a wide range of such proposals, from Europe’s largest bottle making and filling factory, office development in the grounds of a listed building, a multisports complex, holiday park development and a crematorium. He has also advised Tritax Symmetry Ltd (and related companies) on a wide range of logistics sites (see, too, under “Highways” below).

Conservation Richard has many years’ experience of projects which potentially affect heritage assets (both designated and nondesignated). Examples include Nutfield, West Sussex enabling development, works affecting listed buildings, Dunstable and Eaton Bray, Harlestone, Northants enforcement inquiry, St John’s Wood, London Robert Adam residential development, Extension of listed building, St John’s WoodWater Research Company office redevelopment, Medmenham, West Walls of Carlisle/Tesco retail inquiry, Milton Keynes Council – Tesco, Wolverton redevelopment , Weston Lane,

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Shavington, Cheshire, inquiries at Melksham and Semington, Wiltshire, Ticehurst, East Sussex and Calne, Wiltshire.

Infrastructure Richard has been involved in some of the largest schemes considered at inquiry. He has experience of the DCO process under the Planning Act 2008, as well as substantial infrastructure development pursuant to the Town and County Planning Act 1990, the Transport and Works Act 1992, the Electricity Act 1989 and other infrastructure related legislation.

Examples include the Thames Gateway Bridge, the City of London heliport, Redhill Aerodrome, Manchester Second Runway, Heathrow Terminal 5, London Gateway (Shellhaven) container port development, Carlisle Airport freight development, London Oxford Airport, telecommunication mast cases, wind turbine inquiries inquiries and proposed solar farms. Richard has advised and acted for the CAA in respect of numerous airports including Manchester, Stansted, Cardiff, Southampton and City Airport, London.

Agriculture Richard has wide-ranging experience in agricultural development, from poultry processing to pig and cattle farming, to large scale greenhouse production and agricultural land classification.

Minerals and Waste Richard has been involved in numerous cases involving mineral extraction (from tin to limestone to sand and gravel to gypsum to fullers earth; as well as waste development. He has represented some of the largest Quarry and Waste operators in the country , including Tarmac and Aggregate Industries. He has particular expertise in relation to issues concerning interpretation of permissions and conditions, review of minerals permissions, permitted development rights, environmental impact assessments requirements, viability of extraction, compatibility with residential development, sterilisation of minerals, assessment of reserves and resources, the sale of mineral product, the meaning of waste, waste delivery and the interpretation of supply agreements.

More recent case examples include Former Fullers’ Earth site, Bath; Cornelly Quarries near Bridgend and Mepal Quarry, Cambridgeshire.

Highways Richard has advised and/or represented numerous clients in relation to Highways matter. Experience includes road improvement schemes, bypass inquiries, Motorway Service Areas, Toll Roads, road bridges and footbridges, stopping up/ diversion of highways orders, and rights of way. He is currently representing DB Symmetry Ltd in the Supreme Court (Swindon BC v. DB Symmetry Ltd and Secretary of State (whether a planning condition does and can require a landowner to dedicate a right of way to the public).

Enforcement Richard successfully argued the still leading case of R v Wicks in the House of Lords (the scope for a Defendant to challenge the validity of an enforcement notice when prosecuted for non-compliance). He has appeared at numerous enforcement inquiries and has in-depth knowledge of enforcement law.

Recent instructions have included those from Wycombe DC (Babs Park, Bourne End), and from Nick Hood (Brush Garage, Walsall).

Environmental Environmental work has included numerous advices and/or representation in respect of statutory and public/private nuisances, , environmental protection (prescribed processes, substances and waste) regulations, and hazardous substances regulations, including in relation to Buncefield depot, Hemel Hempstead. Recent instructions include representing Cank Farm, Tanworth-in-Arden (nuisance case) in the High Court.

Compulsory Purchase and Regeneration Compulsory purchase work includes section 17 inquiries (certificates of appropriate alternative development), section 226 TCPA 1990 inquiries/compulsory acquisition for development/planning purposes, compensation, section 84 Law of Property Act 1925 applications (restrictive covenants), and Lands Tribunal(Lands Chamber of the Upper Tribunal) work.

Recent CPO work include the Network Rail (London to Corby)(Land acquisition, level crossing and bridge works) Order (Bovis Homes Ltd) , and the promotion of the Manchester City (Brunswick) CPO. Local Government Local government work includes advising on the scope of statutory powers (including financial), State Aid, governance, the constitution of committees (including political balance), election law, Code of Conduct issues, freedom of information, the acquisition, appropriation and disposal of land, emergency planning, urgent works notices, the provision of affordable housing, the establishment, diversion, extinguishment and protection of public rights of way, town and village greens, common land, charter and statutory markets and fairs, hackney carriage licensing, caravan site licensing and duties in relation to travellers.

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He is currently representing Carlisle City Council, Allerdale Borough Council and Copeland Borough Council in a High Court case brought by Cumbria County Council challenging the decision of the Secretary of State to create 2 rather new unitary authorities rather than a single authority for Cumbria.

He is also currently representing DB Symmetry Ltd in the Supreme Court (Swindon BC v. DB Symmetry Ltd and Secretary of State - whether a planning condition does and can require a landowner to dedicate a right of way to the public).

Recommendations “I find Richard an extremely approachable individual who is open to discuss both the positives and negatives of arguing potential points upon which might have an influence on the outcome. Richard’s wide range of instantly recallable planning knowledge is extremely helpful and he communicates this complex knowledge in clear language which is easy for all to understand.”

Legal 500 2022 - Planning and Environment (Midlands) Ranked as a leading silk in Planning and Environment.

Legal 500 2022 - Planning and Environment (London) “He really tests the case and identifies weaknesses in good time for them to be addressed.”

Legal 500 UK 2018 “I am most grateful for the time and immense care you have taken to review this case.”

Planning consultant, 2018 “Many thanks Richard: a thoroughly thorough opinion! Your advice, options and recommendation/s are understood and appreciated.”

Planning consultant, 2018 “He is very thorough and has a mastery of the detail. Forensic would be the word that springs to mind.”

Chambers UK, 2016

Appointments Bencher, Inner Temple

Memberships PEBA

ALBA

Qualifications LLB (Nottingham),

LLM (Cambridge)

Other information Richard has contributed to the following publications: Contributor, Halsbury’s Laws (Local Government) (2001); A former editor of Crown Office Digest; Contributor to Anti-Social Behaviour Law (publ. Jordans); Contributor to RICS online guidance.

Articles published in Journal of Planning Law include: “Interpreting planning permissions after Stevenage - the primacy of the plans?” (2011);

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“Material Change in use - what’s character got to do with it?” (2011); “20 years of the 10 year period for enforcement: time for reform?” (2011); “Integrity in the planning system in England: lacunas but lessons from a British Isle?” (2015); and “Sustainable development: does the NPPF paragraph 14 ensure that future generations can meet their own needs?” (2016).

Richard was elected a Governor and Trustee of the English Speaking Union (a charity which promotes oracy) in 2021.

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Scott Stemp Nina Pindham Biodiversity Net Gain: What to do right now and how to prepare for 2023

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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 confiscation 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, specific 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

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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

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financial motivations for the prosecution which was commenced in contemplation of confiscation 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 Murfitt (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 definition 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 Western Circuit

Criminal Bar Association

Qualifications 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

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Nina Pindham

Planning and Environment Year of Call: 2012 Email Clerks: planning@no5.com

Nina has a wide-ranging planning practice focusing in particular on environmental law matters in the context of planning applications, including controversial minerals development, hazardous substances consent, waste, EIA, SEA, agriculture, water, air quality, and nature conservation issues. She is editor of the Trees Chapter in Butterworth’s Planning Law Encyclopedia and a legal editor of the ENDS Report. She has appeared before the High Court, Court of Appeal, and the Aarhus Convention Compliance Committee and regularly prosecutes and defends environmental law matters in the criminal courts.

She is ranked as a Tier 1 Planning/Environmental Junior by the Legal 500 (“a rising star”), as one of the country’s toprated juniors by Planning Magazine, and has been ranked as a leading junior by Chambers and Partners every year since 2016. Comments include: “her ability to crack intellectually challenging issues is unbelievable. If you think of it as chess, she is always three or four moves ahead of the opposition” (2016), “has a tremendous capacity to take in a great deal of information and get straight to the point” (2018), “an incredible advocate” (2020). She has been appointed to the Attorney General’s C Panel of counsel.

Planning Housing Nina has acted for developers, local authorities, and third parties in a range of housing appeals. Work includes acting for developers at inquiries where issues involved policy, heritage, housing land supply, noise, and transport and highways impact; and successfully challenging and defending decisions. She has appeared before the High Court and Court of Appeal in a number of cases concerning the legality of planning decision-making: R (on the application of Flemming) v Wiltshire Council [2015] EWHC 1260 (Admin) (compliance with the development plan); R (on the application of Dudfield) v Forest of Dean DC [2016] EWHC 291 (Admin) (consideration of environmental impacts in decision-making); R (on the application of Hampton Bishop PC) v Herefordshire Council [2014] EWCA Civ 878 (led by Richard Kimblin QC) (section 38(6) of the Planning and Compulsory Purchase Act 2004). She acted for the Interested Party in R (on the application of Dukeminster Ltd) v Exeter City Council [2014] EWHC 664 (Admin) (the materiality of planning considerations, including the role of viability concerns in the context of statutory consultees’ deliberations and ransom strips) (led by Ian Dove QC) and for the Claimant in R (Walker) v Bath and Somerset Council [2020] EWHC 1836 (Admin) (successfully arguing a planning decision was irrational).

Neighbourhood Plans Nina has experience at all stages of the neighbourhood plan process on behalf of developers, local planning authorities, and neighbourhood planning groups. She regularly appears on behalf of clients at neighbourhood plan examinations. She was instructed for the claimants in Richborough Estates Ltd v Secretary of State for Housing, Communities and Local Government [2018] EWHC 33 (Admin) concerning the development industry’s challenge to the Written Ministerial Statement on Neighbourhood Planning.

Examinations in Public Nina has appeared at a large number of Examinations in Public. Work includes appearing for developers proposing strategic scale sites, including new towns, opposing allocation of land as Local Green Space, appearing for a developer opposing a proposed mayoral referendum prior to the grant of planning permission for new residential development; and appearing for developers in relation to flaws in the Sustainability Appraisal. She is also experienced in legal challenges (including injunctions) concerning the decision to adopt a plan under s.113 of the Planning and Compulsory Purchase Act 2004.

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Permitted Development Rights Nina regularly advises on the availability of permitted development rights, and the use of planning conditions to exclude those rights. She acted for the successful Defendant in Stevens (t/a KCS Asset Management) v Blaenau Gwent CBC [2015] EWHC 1606 (Admin), a case concerning solar energy development and the applicability of the EIA regime to permitted development rights in Wales (led by Richard Kimblin QC).

CIL/Section 106 Nina has advised a range of clients on the applicability of the CIL Regulations to specific contributions, including advice on the legality of the district and county-wide policy on contributions, the impact of the removal of regulation 123 of the CIL Regulations, and applications to vary planning obligations under a s.106 agreement. She has acted for developers challenging requested contributions and for local planning authorities defending requests. She has appeared at affordable housing appeals under s. 106BC Town and Country Planning Act 1990 and is experienced in the arbitration process to determine disputes arising under s.106 agreements. She was junior to Richard Kimblin QC in a leading case on reg. 122: R (on the application of Hampton Bishop PC) v Herefordshire Council [2014] EWCA Civ 878.

Enforcement/CLEUD/CLOPUD Nina regularly advises on these matters at all stages from application to enforcement. She regularly appears at enforcement inquiries and prosecutions in the Magistrates’ Courts. Work includes: (i) a s. 174 inquiry concerning wind farm development; (ii) a s.174 inquiry successfully alleging that an enforcement notice against an alleged change of use was invalid; (iii) a s.195 appeal against the refusal of a CLEUD in respect of a householder extension; (iv) successfully acting for local planning authorities at appeals based on alleged breaches of planning control. She has extensive experience relating to agriculture and office to resi conversion applications. She appeared on behalf of the Secretary of State in Greenwood v Secretary of State for Housing, Communities and Local Government [2021] EWHC 2975 (Admin) (breaches of conditions precedent).

Committal Orders/POCA Nina has successfully acted in a number of claims concerning committal orders for failure to comply with enforcement notices. She has also successfully applied under POCA for a confiscation order relating to the proceeds of an illegal subdivision of a property into residential flats, and for the proceeds of heritage crime subsequent to the sale of the property.

Heritage Nina regularly advises on a wide range of heritage issues. She has successfully appeared at a number of planning inquiries where the main issue has been the heritage impact of the development and has experience with applications for listed buildings consent, the determination of optimum viable use, applications for enabling development, and injunctions under s.44A of the Planning (Listed Buildings and Conservation Areas) Act 1990. She appeared for the Claimant in R (on the application of Fulford Parish Council) v City of York Council [2013] EWHC 3924 (Admin), a case concerning the location of the Battle of Fulford (led by Ian Dove QC), and as sole counsel in the Court of Appeal in a leading case on the setting of heritage assets: Steer v Secretary of State for Communities and Local Government 2018] EWCA Civ 1697.

Village Greens Nina has experience acting for a local planning authority at a village green inquiry. She also acted for the successful Defendant in R (Kier Ventures Limited and Rubery Owen Holdings Limited) v Birmingham City Council, a case concerning the requirements for duly made village green applications and subsequent amendments (led by Ian Dove QC).

Special Controls Nina has experience of s.215 notices, has appeared before the Upper Tribunal in relation to compensation under the TPO regime, and regularly advises in relation to advertisements and restrictions applying to development in the Green Belt.

Environment Nina has appeared in a number of leading strategic environmental law claims, including R (Friends of the Earth Ltd) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 518 (Admin) concerning the failure to carry out an assessment of the environmental impacts of the National Planning Policy Framework, Fish Legal’s successful claim that an energy company is a public authority for the purposes of the Environmental Information Regulations 2004, R (Finch) v Surrey County Council [2022] EWCA Civ 187 concerning the question of whether downstream greenhouse gas emissions were indirect effects of an oil and gas mine for the purposes of an environmental assessment, a complaint before the UNECE Aarhus Convention Compliance Committee resulting in the Aarhus costs regime being extended to claims under s.288 of the Town and Country Planning Act 1990, subsequent to which she was instructed to appear before the Aarhus Convention Compliance Committee on behalf of the UK Government. She was instructed to appear on behalf of HS2 (led by Richard Kimblin QC) in R (Misbourne Environmental Protection Ltd) v Environment Agency [2021] EWHC 3094 (Admin) (concerning the legality of the permitting process for

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the Chiltern Tunnel section of HS2).

Water Law Nina has particular expertise in water law, having served as a co-convener of the United Kingdom Environmental Law Association’s Water Working Party for six years, through which she has participated in numerous consultations on changes to the water sector. She has also advised local authorities of their powers and duties under the Flood and Water Management Act 2010, in relation to private water supplies, and in relation to private surface water sewers. She regularly defends water companies against prosecutions for breaches of the terms of a permit. She has successful experience of the use of the civil penalty regime for environmental offences under Regulatory Enforcement and Sanctions Act 2008.

She has also led several successful prosecutions for large water companies. She appeared in the Court of Appeal in R (on the application of Seiont, Gwyrfai, and Llyfni Anglers’ Society) v Natural Resources Wales [2016] EWCA Civ 797, the leading case on the interpretation of “environmental damage” (led by Richard Kimblin QC).

Minerals Experience includes enforcement at all stages, and successfully arguing for the validity of a restoration condition in relation to the last remaining coal mine in England; determining the status of a mine (whether pre-1948 and therefore one to which the GDO regime applied); and advising applicants and mineral planning authorities on controversial applications including in national parks and other highly sensitive areas, including fracking applications. She acted for the successful defendant mineral planning authority in R (Haden) v Shropshire Council [2020] EWHC 33 (Admin) (adequacy of environmental information and impact of minerals development on vulnerable local resident).

Energy Nina has assisted at an inquiry regarding the development of a sub-station for a billion-dollar offshore windfarm in Norfolk (led by Richard Kimblin QC). She advised statutory consultees on issues arising from major energy developments such as Hinckley Point C development and the ABLE Marine Energy Park. She also regularly advises in relation to renewable energy development.

Nature Conservation She has extensive experience with nature conservation law, including the legal regime establishing the requirement for biodiversity net gain. She was seconded to Natural England, where she advised on the applicability of marine conservation laws to the Crown and issues arising under the Highways Act, the Natural Environment and Rural Communities Act, the Wildlife and Countryside Act, the Conservation of Habitats and Species Regulations, and the Habitats Directive.

Nuisance Nina advises on both statutory and private nuisance cases, including private nuisance claims against statutory undertakers. She regularly acts in claims for and against developers, particularly in the context of intensive livestock applications. She acted for the claimant in R (Smith-Ryland) v Warwick DC [2018] EWHC 3123 (led by Paul Cairnes QC) (Admin) concerning the implications of consent for residential development adjacent to a working farm.

Interests Prior to joining the Bar Nina trained as a research scientist and was an award-winning artist. Her undergraduate thesis research was published and resulted in the revision of government policy. She has lived and worked in Lebanon, India, Italy, and Estonia and speaks French, Italian, Levantine Arabic, and Estonian to varying degrees of proficiency. She is presently studying Modern Standard Arabic and improving her Hindi. Her hobbies are long-distance running, ideally in the Lake District, and listening to live music.

Awards Acadia University Entrance Award Sir Stephen Chapman Scholarship

Ashler Award Shortlisted for Pro Bono Award, Birmingham Law Society

Memberships United Kingdom Environmental Law Association (Vice Chair) Administrative Law Bar Association

Planning and Environment Bar Association (Committee Member)

Qualifications BSc(Hons) Acadia University BPTC College of Law

GDL Manchester Metropolitan University

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Biodiversity Net Gain: What to do right now and how to prepare for 2023

Introduction 1. Biodiversity loss has been at the forefront of many environmentalist’s concerns for some time. The UK is one of the world’s most nature-depleted countries. 1 Since the 1970s, some 41% of all UK species have declined, while 15% of species within the UK are threatened with extinction. 2 In short, nature is in decline, and much of our wildlife is deteriorating.

2. However, these concerns have not traditionally been primary day-to-day considerations for most of those involved in the land development system. That is all about to change. From 2023, following last year’s ground-breaking Environment Act 2021 (“EA”), biodiversity will become central to almost all planning applications in England.

3. The explanation for how we have reached this point starts with the Government’s stated commitment to taking “urgent and effective action” to halt biodiversity loss. 3 Its major policy to achieve this, following the 2018 25 Year Environment Plan’s ambition for a broad “environmental net gain” principle, is the introduction of mandatory biodiversity net gain into the planning system. 4 4. Biodiversity net gain is an approach to development which means that habitats for wildlife must be left in a measurably better state than they were in before development occurred. 5 The idea is to deliver quantifiable improvements for biodiversity by creating or enhancing habitats in association with that development. 6

House of Commons Committee Report Biodiversity in the UK: bloom or bust? June 2021 Ibid.

3 Explanatory Notes to the Environment Act 2021 at §47 4 A Green Future: Our 25 Year Plan to Improve the Environment 2018 5 Defra Consultation on Biodiversity Net Gain Regulations and Implementation January 2022 at p.7 6 Planning Practice Guidance: Natural environment at Reference ID: 8-022-20190721 1 2

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5. The Government’s first move came in changes to the NPPF, which now states that planning policies and decisions should provide net gains for biodiversity (§174(d)). The NPPF sets out a hierarchical approach that developers should take to address serious biodiversity harm – avoid, mitigate, then compensate.

If that cannot be done, planning permission should be refused (§180(a)). Yet even with these NPPF changes, biodiversity has so far generally only been a determining factor in planning decisions where the development proposed affects a protected site or species.

6. Then in November 2021, after an elephantine gestation period, the EA was finally passed into law. The EA’s provisions on biodiversity net gain represent some of the most fundamental reforms on land use to face this country in at least a generation. The new system is expected to generate a market for biodiversity units worth around £135 million. 7 7. Are these novel reforms that will solve the biodiversity crisis? Or planning by numbers, gone too far? Whatever your views, the net gain regime will affect anyone involved in the development of land, from local authorities and planners to landowners and developers. The aim of this paper is to help those impacted to navigate the evolving legal landscape. First, we summarise the new legal framework. Then we deal with specific legal issues that planners, developers, and local authorities will need to be aware of: the scope of the regime; what actions to take and when; how net gain is calculated; alternatives to onsite provision; and finally enforcement.

The New Legal Framework 8. The relevant provisions for biodiversity net gain in the EA are found in Part 6, Schedule 14 and Schedule 15 (which relates to nationally significant infrastructure projects (“NSIPs”)).

9. Biodiversity net gain will be introduced as a legal requirement for planning permissions granted under the Town and Country Planning Act 1990 (“TCPA”)

7

Defra Consultation on Biodiversity Net Gain Regulations and Implementation January 2022 at p.9

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in England by virtue of section 98 and Schedule 14 of the EA. The mechanism is that Schedule 14 inserts a new schedule (7A) by way of a new section (90A) into the TCPA. 10. The new Schedule 7A of the TCPA is crucial. When in force, paragraph 13 will automatically impose a general pre-commencement condition on all planning permissions granted in England. The condition will stop development from lawfully commencing before a biodiversity gain plan is submitted to and approved by the LPA. 11. This biodiversity gain plan must explain the biodiversity effects of the proposal, contain an assessment of the value of the site’s natural habitats before and after development, and demonstrate that the statutory biodiversity gain objective is met (paragraph 14 of Schedule 7A).

12. The biodiversity gain objective, introduced by paragraph 2 of Schedule 7A, is only met if the biodiversity value attributable to the development exceeds the pre-development biodiversity value by at least 10%. 8 In other words, the wellknown 10% BNG requirement. The 10% net gain requirement is not a cap but a minimum, so developers that want to go further can, and planning authorities can set local policies requiring a higher figure for certain proposals.

13. So how is biodiversity “value” calculated? Biodiversity gains and losses of a development will be measured in “biodiversity units”, using a metric produced and published by the Secretary of State (paragraphs 3 and 4 of Schedule 7A).

This metric is expected to be Natural England’s recently published biodiversity metric 3.0. 9 In practice, what this means is that if an existing site is worth 100 biodiversity units, the site once developed (together with additional offsite measures) should be worth 110 units.

14. The pre-development biodiversity value of the onsite habitat should generally be measured on the date of the application for planning permission unless an Paragraph 2 provides that the Secretary of State can by regulations amend the percentage in future Defra Consultation 2022 p.16. Metric 3.0 is found at https://www.gov.uk/guidance/biodiversitymetric-calculate-the-biodiversity-net-gain-of-a-project-or-development 8 9

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earlier date is agreed with the LPA (paragraph 5 of Schedule 7A). Any postdevelopment increase in biodiversity value can only be taken into account in reaching the 10% objective if the LPA is satisfied that it will be secured for at least 30 years by way of a planning condition, obligation, or conservation covenant (paragraph 9(3) of Schedule 7A and section 100(2) of the EA).

15. While this paper will not deal in detail with NSIPs, it is worth noting that these are also subject to new biodiversity net gain objective requirements set out in Schedule 15 of the EA, which amends the Planning Act 2008 by inserting a new Schedule 2A. The NSIP net gain requirements will be implemented by way of biodiversity gain statements issued by the Secretary of State for the relevant description of development.

16. Importantly, the relevant parts of the EA for TCPA permissions and NSIPs will only come into force on a date specified by the Secretary of State in subsequent regulations. Defra’s January 2022 Consultation (“the Consultation”) on the forthcoming regulations envisages a two-year transition period, with the intended implementation date in November 2023. 10 17. Indeed, as the substance of nearly all of Part 6 of the EA is to be brought into effect by subsequent regulations, much of the final biodiversity net gain legal framework is still unknown. A significant amount of detail has been left to secondary legislation – for example, the Secretary of State can amend the 10% objective, the 30-year timeframe, the types of development caught by the requirements, and set procedures and relevant factors for approval of biodiversity gain plans.

18. Some insight into the likely future shape of parts of the regulations can be gained from the Consultation, which sets out a number of proposals of which those reading should be aware. The most important of these will be highlighted throughout this paper.

10

Defra Consultation 2022 p.15

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Scope of the Regime 19. The first legal issue to consider is the scope: what will be caught by the regime?

The basic premise is that the net gain condition imposed by paragraph 13 of Schedule 7A is to apply to every planning permission granted for development in England.

20. The Consultation is clear that the Government does not intend to carve out wide exemptions. In fact, a number of exemptions which were initially suggested appear to have been taken off the table, including brownfield sites, temporary permissions, statutorily designated sites for nature conservation, and sites in AONBs or national parks. 11 These will all now be included within the regime.

21. Yet, as we all know, there is never really a rule without exception. Schedule 7A itself provides for some limitations, set out below. Importantly, 7A also gives the Secretary of State extremely wide powers to exempt further categories of development from net gain by way of future regulations (paragraph 17(b)). It should, however, be borne in mind that any statutory exemptions will not prevent LPAs from requiring biodiversity gains for excluded developments in line with local or national planning policy.

PERMISSIONS CAUGHT BY THE REGIME 22. The majority of planning permissions will be subject to the new net gain requirements in Schedule 7A of the TCPA. 23. This includes both full and outline applications. Paragraph 19 of Schedule 7A does, however, give the Secretary of State power to modify the requirements in respect of outline and phased development. The Government is proposing additional requirements for biodiversity information to be submitted with such applications to ensure there is a sound strategy in place for the whole site. 12 Here, the biodiversity gain plan will likely need to be submitted for approval prior to the commencement of individual phases.

11 12

Defra Consultation 2022 pp. 25-29 Defra Consultation 2022 pp. 33-34

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24. Applications for variations of conditions under s.73 TCPA are also caught by the regime. The mandatory net gain condition imposed on the original permission will continue to apply if a further permission is granted, and a s.73 application cannot result in the disapplication or variation of the statutory net gain condition. 13 If the s.73 proposals affect the post-development biodiversity value of the site, then a new biodiversity gain plan will also need to be submitted and approved.

25. Similarly, retrospective permissions under s.73A will also be subject to the new net gain requirements. While paragraph 20 of Schedule 7A gives the Secretary of State the power to modify or exclude net gain for such permissions, the Consultation does not indicate that the Government plans to use that power.

26. Development affecting statutorily protected sites (such as Special Protection Areas (SPA), Sites of Special Scientific Interest (SSSI)) is also not exempted from the biodiversity net gain requirement, which is separate and additional to any existing legal or policy requirements.

27. Finally, while small sites are not exempted, the Consultation does propose a simplified biodiversity metric for developments on small sites (fewer than 10 residential units or less than 0.5 ha for other types of development unless priority or protected habitats are present). 14 As elsewhere, the details here remain to be worked out.

EXEMPTIONS 28. There are, nonetheless, a number of exemptions, some of which will be established by way of later regulations. The key exemption under the statute itself will be for planning permissions granted by way of development orders (paragraph 17 of Schedule 7A). This means that any permission granted by virtue of the GPDO will not need to meet the 10% net gain requirements.

13 14

Defra Consultation 2022 pp. 34-35 Defra Consultation 2022 pp. 36-37

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29. In addition, paragraph 18 of Schedule 7A provides that the Secretary of State can exempt sites made up of “irreplaceable habitat” from the net gain system.

The Consultation makes clear that the Government does intend to use this provision to make the exemption. 15 Where a development results in losses of both irreplaceable and non-irreplaceable habitat, net gain will, however, still apply to any affected non-irreplaceable habitat.

30. The Consultation also proposes that future exemptions granted by way of regulations will likely include: developments impacting habitat areas below a de minimis threshold; householder applications; and change of use applications.

Additionally, up for consideration for future exemptions are biodiversity gain sites and self-build and custom housing. Again, the detail on all of this will come later.

What Developers Need to Do 31. So what do developers need to do, both now and when they come to apply for a relevant planning permission? From today, the forthcoming requirements should be factored into strategic decision-making including at site appraisal stage. To prevent future delays in implementing permissions, developers should also be considering early investment in the biodiversity gains market (more on which below).

32. Once the relevant provisions of the EA come into force, there will be a number of new steps to take both at application stage and before commencement of operations.

PRE-COMMENCEMENT CONDITION 33. The first important point to note is that the EA’s requirement for an approved biodiversity gain plan outlining the 10% value added is effectively a precommencement condition, meaning it must be discharged by way of approval from the LPA before development can begin. In other words, the plan itself is not required at planning application stage.

15

Defra Consultation 2022 pp. 30-32

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34. However, this does not mean applicants can rest easy. First, it is important to remember that net gain will operate alongside existing protections for natural habitats. Developers will still need to demonstrate accordance with existing environmental policies and regimes where relevant, including for protected sites and species, irreplaceable habitats, and the environmental impact assessment regime. The NPPF remains relevant, too.

AT APPLICATION 35. Secondly, while the entire plan does not need to be submitted at application stage, the Government is proposing that core biodiversity information will need to be included with any relevant planning application. 16 The Consultation suggests that the information required will include: the pre-development biodiversity value of the site; steps taken to minimise adverse biodiversity impacts; the proposed approach to enhancing biodiversity onsite; and any proposed offsite enhancements. As noted above, with regard to outline or phased development, additional information is likely to be required at application stage around the overall net gain strategy for the whole site and around plans for delivery in phases. 17 36. Applicants are, therefore, likely to need to use biodiversity metric 3.0 in advance of producing the net gain plan (to assess the baseline value of the site at application stage). Natural England’s User Guide is a helpful starting point for those not yet familiar with the metric. 18 In short, the general approach is that users first define the site boundary, then divide the land into appropriate parcels of habitat, then record information about those parcels. The metric scores the quality of the site based on habitat parcels’ distinctiveness, condition, and strategic significance. “Biodiversity units” are then calculated using the size of a parcel and its quality. Future applicants should get to grips with metric 3.0 in advance of the EA coming into force to work out how much time and resource will be required at the pre-application stage.

Defra Consultation 2022 pp.12, 51-52 Defra Consultation 2022 pp. 33-34 18 Biodiversity Metric 3.0 User Guide pp.9-10. Available at http://publications.naturalengland.org.uk/file/6449751093673984 16 17

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37. Thirdly, while the biodiversity net gain plan in full is not required at application stage, it can be submitted with the application if the relevant information is already available. The advantage of this would be that once permission is granted and the plan is approved, the net gain condition will be immediately discharged and development can commence. In short, there is less room for delay and no need for a separate application and approval process.

AFTER PERMISSION IS GRANTED 38. Once permission is granted, the next important stage for developers is the preparation and completion of that biodiversity gain plan. It can be expected that the biodiversity gain information submitted with the planning application will usually form a key part of this.

39. Paragraph 14 of Schedule 7A prescribes the contents of the plan. It must include details of: the steps taken to minimise adverse effects; the predevelopment biodiversity value of the site; the post-development biodiversity value; any registered offsite gain; and any purchased biodiversity credits. The EA also includes powers for the Secretary of State to make provision for further information to be included in such plans.

40. A number of important steps will thus need to be completed prior to commencement of operations: 19 i) assessing and understanding the baseline habitats on the site; ii) analysing the post-development biodiversity value of the proposal, and exploring design options for onsite mitigation and enhancement; iii) securing and registering offsite habitat enhancements on other landholdings or from the market, if a sufficient onsite biodiversity gain cannot be achieved (more on this below); iv) purchasing statutory biodiversity credits, if offsite habitat enhancements cannot be secured (see more on this below);

19

See Defra Consultation 2022 p.50

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v) completing a metric assessment of the biodiversity net gain including final secured onsite and offsite measures; vi) submitting the completed biodiversity gain plan and waiting for approval before development can be commenced.

41. When preparing a plan, it will be important to note that biodiversity net gain is intended to follow the mitigation hierarchy set out in NPPF §180(a). Developers will need to demonstrate that they have designed the enhancement measures to achieve the 10% uplift in the following order: 20 first, aiming to avoid or reduce biodiversity impacts through site selection and layout; secondly, enhancing and restoring biodiversity onsite; thirdly, creating or enhancing offsite habitats; and finally as a last resort purchasing statutory biodiversity credits.

SUBMISSION AND APPROVAL OF PLANS 42. The technical procedure for submission and approval of these key plans is not yet clear. The Secretary of State under paragraph 14(3) of Schedule 7A has the power to make regulations regarding the form of a biodiversity gain plan, the procedure to be followed (including the time by which a plan must be submitted) and persons who may or must submit a plan. If the plan is refused, development cannot proceed lawfully unless there is a successful appeal.

43. Once the plan is approved, then development and the associated biodiversity enhancements can go ahead. The Government proposes that onsite biodiversity gains should usually be secured for delivery within 12 months of the development commencing, and a clear timeframe for delivery should be reflected in any planning conditions, obligations or covenants securing offsite gains. 21

20 21

See Defra Consultation 2022 p.16 See Defra Consultation 2022 p.54

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Figure 2 taken from Defra January 2022 Consultation

What LPAs need to do 44. Turning to LPAs, the regime will evidently require significant resource and training for officers involved in determining biodiversity gain plan submissions.

LPA ecologists will also need training in the use of metric 3.0 for effective scrutiny of the data. Central Government has stated that it is committed to funding in full additional burdens placed upon LPAs arising from the new net gain requirements, although again the detail is still being worked out. 22 AT APPLICATION 45. At planning application stage, the LPA will need to consider the realism and feasibility of the biodiversity net gain information provided. The NPPF and PPG should be taken into consideration, along with the provisions of the EA. LPAs should note that a proposal to deliver biodiversity net gain does not affect the weight that should be given to other existing planning considerations, policies, or legal obligations including those relating to protected sites, protected species

22

See Defra Consultation 2022 pp.17-18

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and irreplaceable habitats. 23 These must all be considered as usual at application stage.

46. The biodiversity net gain condition will automatically be imposed on any grant of permission without any action on the LPA’s behalf. The LPA’s main determination regarding net gain will thus usually come later, when the biodiversity gain plan is submitted for approval.

APPROVING THE PLAN 47. The LPA can only approve the biodiversity gain plan if the biodiversity value attributable to the development exceeds the pre-development biodiversity value of the onsite habitat by at least 10% – i.e. if 10% BNG is achieved. LPAs also need to be satisfied that the information provided in the plan is complete and meets the statutory requirements.

48. The key statutory provision is paragraph 15(2) of Schedule 7A, which provides that a planning authority to which a biodiversity gain plan is submitted must approve the plan if, and only if, it is satisfied that: i) the pre- and post-development biodiversity values specified in the plan are correct; ii) any offsite gain has been allocated and is correct; iii) any credits have been purchased; iv) the biodiversity gain objective has been met; and v) any other matters specified in future regulations are complied with.

49. Before approval, the LPA also needs to be certain that any claimed on- or offsite gains are appropriately secured and allocated. Increases in onsite biodiversity value can only be counted if they are secured through a suitable mechanism (a condition, obligation, or a conservation covenant) and if the LPA is satisfied that they will be maintained for at least 30 years. Offsite measures also need to be secured for 30 years.

23

See Defra Consultation 2022 p.7

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50. The Secretary of State by virtue of paragraph 16 of Schedule 7A has the power to establish set procedures for approval of biodiversity gain plans, including the time by which a determination must be made. Paragraph 16 also gives the Secretary of State power to make regulations as to factors which may or must be taken into account by LPAs in making such determinations, and appeals relating to such a determination. The devil, again, will be in the detail.

51. It will be important for officers to be able to identify evasion of the net gain requirements, whether through improper manipulation of the metric, attempts to bring the development within one of the modified or exempted categories (for example, splitting large sites into smaller sites), or deliberate reduction in the pre-development biodiversity of a site. LPAs should keep in mind paragraph 6 of Schedule 7A, the effect of which is that if the developer undertakes activities such as clearing the site that reduces its biodiversity value, then the predevelopment value to be considered is the one that existed before clearance took place. Existing records and local knowledge would be essential to establishing that.

LOCAL PLAN POLICIES 52. Beyond decision-taking, LPAs also have a policy-level role on biodiversity net gain to consider. It is the Government’s intention to allow higher biodiversity net gain percentage targets to be set by planning authorities at a local or site level. 24 LPAs can start to consider from now whether there may be any local justifications for such higher targets for certain sites or types of proposal.

OTHER REQUIREMENTS 53. Finally, local authorities should also be aware of the additional broader duties relating to biodiversity that will be placed on them by the EA. First, s.102 of the EA will amend section 40 of the Natural Environment and Rural Communities Act 2006 (“NERC”) by placing an enhanced general duty to conserve and enhance biodiversity on LPAs. Secondly, s.103 of the EA will insert a new s.40A into NERC requiring LPAs to publish Biodiversity Reports every five years summarising biodiversity actions taken and proposed in relation to Schedule 24

Defra Consultation 2022 p.34

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7A of the TCPA and as against the duty in section 40 of NERC. While these duties are not yet in force, again our advice would be to start familiarising yourselves with the new proposals in plenty of time, for there is ample scope for these various duties and regimes to work together and in conjunction with other new biodiversity issues such as the to-be-legislated species abundance target and Local Nature Recovery Strategies.

Alternatives to Onsite Provision 54. The mitigation hierarchy outlined above is clear that, in the first place, any biodiversity harms should be avoided or reduced, and in the second place, any enhancement or restoration should ideally occur onsite. However, for many developments, it will simply not be feasible to create a 10% net gain onsite.

55. The EA, alive to this concern, includes allowance for offsite net gain provision in such circumstances. Paragraph 2 of Schedule 7A TCPA provides that postdevelopment biodiversity value is the total of (a) the onsite habitat, (b) the biodiversity value of any registered offsite biodiversity gain allocated to the development, and (c) the biodiversity value of any credits purchased for the development. There are thus essentially two options, which should be considered in the following order: creating new offsite habitats, or purchasing statutory biodiversity credits.

OFFSITE HABITAT CREATION 56. Turning first to registered offsite biodiversity gain, what this means is an offsite habitat enhancement that is secured by way of a conservation covenant or planning obligation and that is recorded in the biodiversity gain site register (to be newly established) (paragraph 10(1) of Schedule 7A).

57. The details on the operation of the planned new biodiversity site register, including who will administer it (likely Natural England or the Secretary of State), what fees will be payable for applications, the procedures for applications and amendments, and eligibility criteria are all to be worked out in the secondary legislation. However, what we do know now is that a site can be registered as

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a “biodiversity gain site” where: there is a conservation covenant or planning obligation requiring habitat enhancement; it is required to be maintained for 30 years; and the enhancement can be allocated to a development for which planning permission is granted (s.100 EA).

58. The register will be publicly accessible, creating transparency for developers looking for sites, and facilitating monitoring for local authorities and the public (s.100(3) EA).

59. The Consultation suggests that the Government currently intends to set a maximum period for determination of application for sites to be registered of 28 days, and that there will be a right of appeal where the applicant can evidence that there has been an inappropriate application of criteria. 25 To disincentivise the provision of false information to the register operator, the Government also intends to provide for financial sanctions. 26 CREDITS IN PRACTICE 60. The key question for many, though, will be how the buying and selling of offsite biodiversity units will operate in practice. The Government’s vision is that an open market for biodiversity gain sites will be established, ensuring a sufficient supply of offsite units where these are needed.

61. The supply of these units will come from a number of places. First, individual landowners with sites that can be enhanced to the required standards can sell the resulting units or the land itself to developers. Secondly, it is proposed that planning authorities will be able to sell biodiversity units from their own land (albeit this raises obvious concerns about conflicts of interest and competition). 27 Thirdly, developers can deliver offsite gains on other existing landholdings. Fourthly, if a developer can exceed the 10% net gain requirement for a particular site, they are likely to be allowed to sell or use the additional

Defra Consultation 2022 p.65 Defra Consultation 2022 p69 27 Defra Consultation 2022 p59 25 26

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biodiversity units generated as offsite gains for a different proposal. 28 And finally, there will also be the option of using new “habitat banks”.

HABITAT BANKS 62. Habitat banks are a tool that will aim to help to equilibrate unevenness in supply and demand of biodiversity gain sites. How they work is the owner or manager of a biodiversity gain site carries out biodiversity enhancement and creation in advance of the site’s allocation to a particular development. The biodiversity units generated are “banked” so they can be sold to developers when needed.

The Government is clear that it will, wherever possible, encourage habitat banking because of the certainty this provides through allowing enhancements to be delivered before development. 29 63. One core concern around the feasibility of habitat banks is that they will require significant upfront finance. Some state support is being offered through the Natural Environment Investment Readiness Fund. 30 The private sector is also starting to move. In particular, the Environment Bank is establishing a nationwide network of habitat banks and is additionally launching its own biodiversity net gain credits system, whereby developers can buy credits for local biodiversity units in a single transaction. 31 64. While there are a number of options available and potential for further innovative products, this market is unlikely to operate smoothly from the outset.

The Government itself acknowledges there is a risk of supply shortages in certain areas in the early years of the regime. In recognition of this, we are told that while policy and guidance will encourage offsite gains to be delivered locally, where necessary delivery outside the local area will be allowed. 32 The Government is also planning to introduce the last resort of statutory credits. 33

Defra Consultation 2022 p.59 Defra Consultation 2022 p.57 30 https://www.gov.uk/government/publications/apply-for-a-grant-from-the-natural-environmentinvestment-readiness-fund/how-to-apply-for-a-natural-environment-investment-readiness-fund-grant 31 https://www.environmentbank.com/ 32 Defra Consultation 2022 p.56 33 Defra Consultation 2022 p.56 28 29

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65. In practical terms, the key message for developers is that there is an opportunity to start strategising and investing now in the biodiversity gain site market, whether through financing habitat banks or purchasing sites for in-house offsite delivery of net gain. Effective early preparation will mitigate any teething problems in the system when the key EA provisions come into force in 2023.

BIODIVERSITY CREDITS 66. If developers cannot source biodiversity units on the market for registered gain sites in an appropriate timeframe, the Government is also planning to sell statutory biodiversity credits as a last resort mechanism. The credits will be given a biodiversity gain value which can be included in a biodiversity gain plan in order to meet the 10% final requirement.

67. Provision is made for the establishment of this credit system in section 101 of the EA. Section 101(6) provides that payments received by Government for such credits can be used only for works for the purpose of habitat enhancement on land in England, purchasing interests in land with a view to carrying out such works, or operating or administering the arrangements.

68. Much of the detail of this system will be established by later regulations.

However, the Government’s current thinking is that these credits should be a last resort where developers can demonstrate no other options, and that credits should be phased out once the private market takes hold. 34 To ensure that the credit system does not damage the nascent market, the Secretary of State is required by EA section 101(4) in determining the price of credits to have regard to the need not to discourage the registration of land in the biodiversity gain sites register. In short, the intention is to sell the credits at an uncompetitive price. Whether or not credits will nonetheless represent an attractive option remains to be seen.

Enforcement

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Defra Consultation 2022 p.78

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69. As set out above, the EA provides that for a biodiversity gain plan to be approved, the 10% biodiversity net gain on the site needs to be secured for a period of 30 years by way of a condition, obligation, or covenant. That applies whether the 10% gain is achieved through maintenance of offsite registered biodiversity gain sites (EA section 100), or through onsite habitat enhancement (TCPA Schedule 7A paragraph 9).

70. Two questions around enforcement thereby arise. First, what can the LPA do to ensure that enhancement is maintained over 30 years? And secondly, what happens after the 30-year lifetime of the scheme?

71. Local authorities need to keep in mind that they will have to report biodiversity net gain progress in the periodic reports that will be required by section 103 of the EA. Early capacity and expertise building will be essential to complying with those requirements.

THE FIRST 30 YEARS 72. The EA itself is somewhat silent on enforcement during the first 30 years. This means that where the biodiversity enhancement is effectively secured by way of a planning condition, obligation, or conservation covenant, 35 the usual routes of enforcement (and their associated problems) will apply. A covenant or obligation, both essentially just different types of private agreements will be enforceable by way of injunctions (and ultimately proceedings for contempt of court) or through other contractual remedies such as damages. A breach of condition can be enforced under the TCPA by way of a breach of condition notice (see section 171A). The Consultation indicates that new policy and guidance may also be forthcoming on enforcement. 36 73. A key concern for enforcers will be around monitoring: how will the LPA discover breaches when it becomes responsible for so many new sites and when nature itself is so unpredictable? There is no clear answer, and this is likely to remain a case-by-case issue.

35 36

See Part 7 of the EA for more detail on these new types of agreement Defra Consultation 2022 p.81

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74. The first thing to note is that the burden for monitoring progress and reporting fulfilment of obligations will be placed on developers and landowners. 37 Planning authorities will need to set proportionate monitoring requirements as part of planning conditions and obligations so that they receive the necessary information regarding habitat extent, type and condition. While monitoring requirements will inevitably depend on habitat type and extent, a typical schedule for a medium sized habitat creation project might, it is suggested, result in approximately five reports over a 30-year scheme. 38 75. Some will be concerned about the risks of relying entirely on developers and landowners for accurate information. As yet, it remains unclear whether there will be any consequences for misreporting. However, one important safeguard built into the system is the intended transparency of the biodiversity gain site register and biodiversity gain plans. These are planned to be publicly accessible, and the idea is that this information can be used by the public, planning authorities, and third parties such as local wildlife trusts to keep track of what should be happening on a given site at a given time. Nonetheless, evidently much will rely on accurate reporting by developers and adequate funding for LPAs. AND THEN? 76. The second key issue around enforcement that arises is what happens once those 30 years secured by obligation, covenant or condition are over. The Government states that it will encourage developers to secure sites for a longer period (or in perpetuity) where possible through policy and guidance, however no detail has been published or even suggested yet as to how that will be done. 39 As things currently stand, there will be no requirement to maintain those sites after the date to which the landowner or developer has agreed.

77. Nonetheless, the EA does specifically leave room for the Secretary of State in future to increase the 30-year minimum period for both onsite and offsite gains.

Defra Consultation 2022 p.81 Defra Consultation 2022 p.81 39 Defra Consultation 2022 p.58 37 38

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The Government plans to consider increasing the minimum period for new developments and registrations after at least three years of evaluation of the operation of the system. 40 The suggestion is that any extension will not result in retrospective changes to pre-existing agreements.

78. In addition, all those reading should note that the Government has suggested in the Consultation that over the coming decades enhanced habitats “are likely to be subject to a range of wider protections in policy or legislation which will incentivise their retention.” 41 Thus, even when the net gain commitment under the initial covenant or obligation runs its course, there may at that point be new requirements in place regarding how sites with biodiversity enhancements will need to be treated.

79. In short, as things currently stand, biodiversity net gain will only need to be secured for 30 years. However, the Government is suggesting that this is just the start of a more comprehensive system to be introduced eventually, whether that be through policy and guidance, extension to the statutory timeframe, or new legislation.

Conclusion 80. The new biodiversity net gain requirements that will be brought into force by the EA 2021 represent a radical change to the treatment of nature and wildlife within the planning system in England.

81. It is clear that the reforms will place significant new burdens on developers, landowners and local authorities. As such, our key advice is to consider what needs to be done in terms of training, capacity building, strategy, and investment sooner rather than later, and certainly in advance of the prospective 2023 start date.

40 41

Defra Consultation 2022 pp.57-58 Defra Consultation 2022 p.65

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82. What is still not clear, however, is what the final legal framework will look like.

As this paper has addressed, secondary legislation by way of regulations will be critical to almost all aspects of that final framework. Those reading should keep in mind that there remains an opportunity to shape those regulations through Defra’s ongoing Consultation. The Consultation is open until 5 April 2022, and a response is anticipated in summer 2022.

83. Finally, while net gain’s metrics, percentages, and registers might seem like a stark departure from our previous approaches to biodiversity, this may just be the first step into a new world of planning. The 25 Year Environment Plan 2018, a key basis for the development of the biodiversity net gain regime, indicates that the Government wants eventually “to expand the net gain approaches used for biodiversity to include wider natural capital benefits, such as flood protection, recreation and improved water and air quality”. 42 So, no matter where you stand, net gain seems to be here to stay.

Law correct as of 1 March 2022 This paper is presented for information only and does not constitute legal advice Scott Stemp. Nina Pindham. Odette Chalaby. ss@no5.com npi@no5.com oc@no5.com No5 Barristers’ Chambers +44 (0) 845 210 5555

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25 Year Environment Plan p.33

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Thea Osmund-Smith Howard Leithead Housing Land Supply: Lessons from recent Appeal Decisions and Judgments

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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.

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 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. Thea has considerable experience in advising on costs protection and the application of the Aarhus Convention. In 2018, Thea was appointed to the Attorney General’s C Panel of Counsel (London) and regularly appears in the High Court.

Planning Hearings, Inquiries and Examinations Thea is an experienced Inquiry practitioner, often appearing at multi-week Inquiries on behalf of land promoters, and developers. Thea advises on a broad spectrum of planning related matters including appeal strategy and site promotion through local plan examinations. Thea has appeared at over 100 Planning Inquiries and Hearings.

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 Larkfleet 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 appeared at the West of England Joint Spatial Plan Examination on behalf of Persimmon, to make submissions on the Sustainability Appraisal of the Plan’s preferred strategy. Thea has also been taking part in the examination of the Wrexham Local Plan.

Residential Thea has extensive experience of section 78 appeals and has appeared at more than 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 has recently secured permission for several homes including 380 dwelling 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, 76 dwellings in Wrexham, and 55 dwellings in Stoke Golding.

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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.

Thea is often instructed to review documents prior to application and considers this a valuable service that all developers should consider using for more complex and/or EIA development.

Thea also has a keen interest in the Habitats Regulations and advised extensively on the implications of People Over Wind, Peter Sweetman v Coillte Teoranta C-323/17. Thea was also involved in ClientEarth’s challenge to the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019, acting on behalf of the Secretary of State.

Renewable Energy Thea has acted for promoters and objectors of a wind farm and solar development. Given the scale of renewable energy development landscape impacts and potential harm to the historic environment are common issues. Moreover, environmental impact, protection of European protected species and the Habitats Directive are also issues that often need to be addressed. Projects include the following: - Llaithddu Wind Farm Promoting a 27 turbine scheme in the context of a conjoined s36 Inquiry together with 5 sites and related grid connection works.

- Mynydd y Gwynt Promoting a nationally significant infrastructure project for up to 27 turbines - a decision is pending.

- Hemswell Cliff Wind Farm Thea acted on behalf of a local residents group – VOCAT in objecting to the scheme on heritage, archaeology and landscaped grounds. The appeal was refused after the introduction of the new planning practise guidance because the scheme was found not to have community backing. The Secretary of State refused permission, accepting the recommendation of the Inspector. APP/B3030/W115/3003130 - Churchover Wind Farm Acting on behalf of the Parish Council objecting to a scheme of 3 turbines on heritage and landscaped grounds. The decision considered arguments on the recent PPG and the meaning of “community backing” featured heavily in both the evidence and the submissions. APP/E3715/A/14/2227479 - Griffe Grange Wind Farm (APP/P1045/W/15/3130874) Thea acted on behalf of Derbyshire Dales District Council in resisting a three turbine wind farm scheme. The issue included heritage (listed building, conservation area and scheduled ancient monuments), and the impact on the National Park.

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 specific 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 2018 National Conference of the Planning and Environmental Bar Association Annual conference 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. Enforcement Thea regularly appears at Enforcement Inquiries and understands the importance of early involvement to assists both local authorities and appellants in what can be a very complex process. In particular, Thea often advises on the principles enunciated in the case of Ahmed v Secretary of State for Communities and Local Government [2014] EWCA Civ 566 and the availability of obvious alternatives.

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.

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In 2018, Thea was invited to speak at the PEBA National Conference on the top of CIL and section 106 Contributions.

Recommendations “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, efficient and proactive.”

Chambers UK 2020 “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.”

Chambers UK 2019 Noted for her strong inquiry practice. She regularly advises major clients, including energy providers, house builders and local authorities. “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.“ Strengths: “Very knowledgeable and thorough, as well as being very friendly, approachable and easy to work with. Her drive and enthusiasm are clear to see and her professionalism is exemplary.” “She is thoughtful and decisive whether acting alone or being led.”

Chambers UK 2018 Noted for her strong inquiry practice, she regularly advises major clients including energy providers, house builders and local authorities. She attracts a wealth of praise from market sources, who cite her as one to watch due to her dedication and enthusiasm. Strengths: “She is very, very good, and has a lovely manner. She is client-friendly and pursues points very thoroughly.” “She is enthusiastic and an excellent junior.”

Chambers UK 2017 Cited by commentators as a junior with an impressive ability to see straight to the heart of the matter at hand. She has particular experience of inquiries relating to housing and renewable energy development. Strengths: “She gives clear and robust advice, performs well on her feet as an advocate, and handles clients extremely well.”

Chambers UK 2016

Notable Cases 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.

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Edward Blake Limited v Secretary of State for Communities and Local Government (2018). Thea was successful in challenging the decision of an Inspector (APP/C1625/W/17/3177291) to refuse permission for the demolition of Prinknash Abbey to accommodate new residential development. The Secretary of State consented to Judgment.

Awards The Lord Slynn of Hadley UK Environmental Law Moot 2011, Winner Duke of Edinburgh Entrance Award, Inner Temple (2009)

Major Scholarship, Inner Temple (2009) University of Warwick Law School Prize for Best Overall Performance (2008, 2009)

Memberships

PEBA

UKELA Inner Temple

Qualifications

BVC College of Law

LLB, First Class, University of Warwick

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Howard Leithead Planning and Environment

Year of Call: 2014 Email Clerks: planning@no5.com

Howard is a specialist planning and environmental 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, campaign groups, local residents, and private individuals.

Howard accepts instructions both from professional clients and on a public access basis.

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 and applications for injunctions; and (3) criminal prosecutions (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.

Appeals: - Land at Unit 33, Lordswood Industrial Estate, Chatham, Kent APP/U2235/C/20/3247757, represented the developer in an appeal against an enforcement notice concerned with a car park within an industrial estate - Land at Flat 5, 28 Harrington Gardens, London, APP/K5600/C/18/3195807 (808), represented the developer in an appeal against an enforcement notice concerned with a terrace on a residential property, which was eventually withdrawn after reaching agreement with the local planning authority - Land at Elgar Coaches, Lightwood Lane, Cotheridge, APP/J1860/C/17/3187661 (665), represented the local planning authority in an appeal against enforcement notices concerned with unauthorized operational development on a commercial site - Land at Watercress Farm, Bristol Road, Wraxhall, APP/D0121/C/18/3194965 (994/995), represented the developer in an appeal against an enforcement notices which were concerned with the material change of use of land to a mixed use that included residential use Notable case: - Ball v Secretary of State for Housing Communities and Local Government (High Court), represented the appellant in a s.289 appeal against an appeal decision of the Secretary of State

Development 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, such as heritage impact, Green Belt, interpretation of policy, landscape and visual impact, appropriateness of location and sustainable travel, five years housing land supply, highways, air quality, ecology, viability, affordable housing, and the public sector equality duty.

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Other development issues that he deals with include disputes over the interpretation of planning permissions and listed building consents, section 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 also has a particular interest in compulsory purchase disputes and has 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.

Appeals: - Land off Melton Road, Burton on the Wolds, Leicestershire, APP/X2410/W/20/3264488, represented the local planning authority in an appeal against its refusal to grant planning permission for a proposed housing development (appropriateness of location, affordable housing, impact of an emerging neighbourhood plan) - Land at Former Poultry Processing Plant, Haughley Park, Haughley, Stowmarket, APP/W3520/W/20/3258516, led by Richard Kimblin QC, represented the developer in an appeal against the refusal of the local planning authority to grant planning permission for a housing development adjacent to a Grade I listed building (heritage, appropriateness of location, commercial impact, noise, highway) - Land at Barn, Back Lane, Darley Moor, Matlock, APP/P1045/X/19/3223796, represented the local planning authority in an appeal against its refusal to grant a lawful development certificate (time limits for enforcement action and permitted development rights) - Land to the east of Reading Road, Lower Shiplake, Oxfordshire, APP/Q3115/W/19/3220425, led by Christopher Young QC, represented the developer in an appeal concerning the proposed redevelopment of a retirement village, (accommodation for the elderly, highways, landscape and visual impact, five years housing land supply, affordable housing) - Land at Oakhurst Rise, Charlton Kings Cheltenham, APP/B1065/W/19/3227293, led by Satnam Choongh, represented the developer in an appeal against the local planning authority’s refusal to grant planning permission for housing development appeal housing development (heritage, arboricultural, ecology, affordable housing) - Land at Clack Hill, Kettering Road, Market Harborough, APP/F2415/W/17/3190327, acted for the local planning authority and secured a costs award against the appellant after it withdrew its appeal shortly before the inquiry was scheduled to take place (landscape and visual impact, five years housing land supply) - William Sutton Estate, Cale Street, London, APP/K5600/W/17/3177810 (Secretary of State decision), represented Save the Sutton Estate, a Rule 6 Party, which opposed the proposed demolition and redevelopment of the Sutton Estate (heritage, design, effect on character and appearance of the area, viability) - Land south of High Street, Tetsworth, Oxfordshire, APP/Q3115/W17/3182192, led by Jeremy Cahill QC, acted for the developer in an appeal against the local planning authority’s refusal to grant planning permission for a housing development (landscape and visual impact, sustainable travel, highways, educational provision) - Land at Foxley Lane, Binfield, Berkshire, APP/R0335/W/17/3177088, led by Christopher Young QC, represented the developer in an appeal against the local planning authority’s refusal to grant planning permission for a housing development (landscape and visual impact, objectively assessed housing need, five years housing land supply, affordable housing, heritage, agricultural land, highways, sustainability, air quality and impact on a Special Protection Area (SPA)) - Mythe Bridge House, Tewkesbury, Worcestershire, APP/J1860/X/3171996, represented the local planning authority in an appeal against a refusal to grant a lawful development certificate (permitted development rights, interpretation of precommencement conditions) - Land to the north of Oaks Road, Great Glen, Leicester, APP/F2415/W/17/3167654, represented the local planning authority, which did not give evidence in the appeal (landscape and visual impact, five years housing land supply, sustainable travel, drainage and flooding) - Land at Daw Mill Colliery, Arley, North Warwickshire, APP/R3705/W/16/3149827 (Secretary of State decision), led by Christopher Young QC, represented the local planning authority, which opposed a proposed development on a former mining site (Green Belt, landscape and visual impact, ecology, noise, tranquillity, restoration plan, employment land) - Land south east of Warwick Road, Kibworth Beauchamp, APP/F2415/W/16/3152485, represented the local planning authority, which did not give evidence in the appeal (educational provision, sustainable travel) - County of Herefordshire District Council v Secretary of State for Housing, Communities and Local Government (High

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Court, ongoing), represented the local planning authority claimant in s.288 statutory review concerning a residential development where the Secretary of State and the interested parties consented to judgment.

- 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 QC, 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 QC, judicial review claim linked to a planning appeal concerning Land to the east of Reading Road (see above) 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 QC, challenged an appeal decision in a section 288 review concerning a residential development where the Secretary of State consented to judgment - R (Mencke) v London Borough of Islington (High Court, 2019), acted for a local resident opposing a controversial development near her property

Environmental Howard undertakes 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).

Appeal: - Nine Mile Point Industrial Estate, Cwmfelinfach, Caerphilly, ENV/3172985, represented local campaign group who opposed an application for an environmental permit for the operation of a waste recycling facility to produce solid recovered fuel and waste derived fuel (air quality)

Other - Opposed application to discharge extended civil restraint order in the High Court in Bozeat v Hannington Parish Council and Swindon Borough 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, and judging mooting competitions.

Awards Major Scholarship, Inner Temple Lightfoot Prize, University of Cambridge

Exhibition Award, Inner Temple 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 BA (Hons), Trinity College, Cambridge (First Class)

MPhil, Trinity College, Cambridge (Distinction)

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Housing Land Supply: Lessons from recent Appeal Decisions and Judgments 1. What makes housing land supply so interesting (and this isn’t a joke), is that it is a creature entirely of policy. Determining the housing land supply involves understanding the interaction between different parts of national planning policy and development plan policy, the context for carrying out the exercise, which is the need to boost significantly the supply of housing, and of course, the application of oodles of planning judgement.

Housing land supply is a playground (or battleground) for planners and lawyers alike, where new disputes arise all of the time.

2. This paper looks at some of those disputes that have arisen in recent times. Part of this paper will go over ground familiar to many, but there are some new arguments with which people might not be so well acquainted.

1) The policy context and recent appeal decisions

3. NPPF para. 74 requires that local planning authorities (“LPAs”) should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need (“LHN”) where the strategic policies are more than five years old.

4. The definition of “deliverable” is set out within the glossary to the NPPF which provides for two categories of sites which it treats differently.

Category A sites are those which do not involve major development and have planning permission, and all sites with detailed planning permission. They are presumed deliverable unless there is “clear evidence” that they will not be delivered in 5 years.

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5. Category B sites, are those where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register.

The presumption is that these are not deliverable unless there is clear evidence that housing completions will begin on site within five years.

6. Are they closed lists? Experts promoting development would say “yes”, and those acting for LPAs would say no. The answer is that they probably aren’t. The definition was nearly the subject of helpful litigation in East Northamptonshire Council -v- SSHCLG, 1 but the Secretary of State consented to Judgment on the basis that an Inspector had: “erred in his interpretation of the definition of deliverable within the glossary of the National Planning Policy Framework (“NPPF”) as a ‘closed list’. It is not. The proper interpretation of the definition is that any site which can be shown to be ‘available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years’ will meet the definition; and that the examples given in categories (a) and (b) are not exhaustive of all the categories of site which are capable of meeting that definition. Whether a site does or does not meet the definition is a matter of planning judgment on the evidence available.”

7. While a consent order is neither citeable nor binding because it doesn’t actually determine the issues, it is a very clear statement of the Secretary of State’s view of his own policy, and it’s unlikely that Inspectors appointed on behalf of the Secretary of State would come to a different conclusion. In short, the practical and somewhat unhelpful effect is that the distinctions remain between the two categories, but sites which are CO/917/2020: Consent Order available at : https://cached.offlinehbpl.hbpl.co.uk/NewsAttachments/RLP/CO009192020.pdf 1

And see also: https://www.planningresource.co.uk/article/1687090/secretary-state-acceptsdeliverable-housing-site-definition-wider-nppfs-closed-list

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not explicitly mentioned can be included (such as emerging allocations, unallocated and unapproved sites) providing there is “clear evidence” that supports their delivery in 5 years. It is also the case that more time will be spent debating the question at appeal which is an unfortunate feature of the Secretary of State’s apparently broad approach to the definition of deliverable.

Clear Evidence 8. So where are we with the issue of “clear evidence”? It’s unsurprising that We would refer to a decision of senior Inspector Harold Stephens at this point, because if Carlsberg made planning Inspectors …

9. Inspector Stephens said the following in the Sonning Common Oxfordshire Appeal Decision 2 “19… I have assessed these disputed sites in the context of the test of deliverability set out in Annex 2 of the NPPF. This specific guidance indicates which sites should be included within the fiveyear supply.

20. I have also had regard to the PPG advice published on 22 July 2019 on `Housing supply and delivery’ including the section that provides guidance on `What constitutes a `deliverable’ housing site in the context of plan-making and decision-taking.’ The PPG is clear on what is required: “In order to demonstrate 5 years’ worth of deliverable housing sites, robust, up to date evidence needs to be available to

2

APP/Q3115/W/20/3265861

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support the preparation of strategic policies and planning decisions.”

This advice indicates to me the expectation that `clear evidence’ must be something cogent, as opposed to simply mere assertions.

There must be strong evidence that a given site will in reality deliver housing in the timescale and in the numbers contended by the party concerned.

21. Clear evidence requires more than just being informed by landowners, agents or developers that sites will come forward, rather, that a realistic assessment of the factors concerning the delivery has been considered. This means not only are there planning matters that need to be considered but also the technical, legal and commercial/financial aspects of delivery assessed.

Securing an email or completed pro-forma from a developer or agent does not in itself constitute `clear evidence’. Developers are financially incentivised to reduce competition (supply) and this can be achieved by optimistically forecasting delivery of housing from their own site and consequentially remove the need for other sites to come forward.”

Which housing requirement to use for the assessment and when?

10. The next question we want to tackle is what housing requirement to use for the assessment and when?

11. As set out above, para. 74 offers a binary choice between two potential requirements 3. The first is the housing requirement set out in adopted strategic policies, but, where the strategic policies are more than five

3 While the LHN isn’t technically a “housing requirement”, we use the term ”requirement” as short hand for the figure against which the housing land supply is measured.

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years old, then the supply should be measured against the LHN. This is defined in the NPPF as: “The number of homes identified as being needed through the application of the standard method set out in national planning guidance (or, in the context of preparing strategic policies only, this may be calculated using a justified alternative approach as provided for in paragraph 61 of this Framework).”

12. However, one should not forget footnote 39, the effect of which is that the LHN should be used where strategic policies are more than five years old unless the strategic policies have been reviewed and found not to require updating.

When does the five-year period in NPPF para. 74 expire?

13. Imagine this scenario. A plan is more than five years old, and its strategic policies need updating (or no footnote 39 review has been carried out) and the Council are determining an application for housing, or the Appellant is at appeal. The Council is still to update its supply position using the LHN so which requirement should be used?

14. That question was answered in the Bransford Road Appeal Decision in Malvern Hills 4 and followed by another Inspector in same district 5 . In those circumstances, the LHN should be used from the fifth anniversary of the adoption of the strategic policies:

APP/J1860/W/19/3242098 APP/J1860/W/21/3267054 Claphill Lane and costs were awarded to the Appellant because the Council persisted in making the same case which had already been dismissed as Bransford Road.

4

5

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“The appeal falls to be determined now. As per paragraph 73 6 of the Framework, it would not be correct to rely on the now more than fiveyears old adopted strategic policies.”

15. Accordingly, the five-year period starts from the fifth anniversary of the plan – not the point at which a Council decides to update its housing land supply position. That makes good sense of course because if the requirement to use the LHN only kicked in when the LPA updated its position, the application of national policy would be inconsistent, and entirely dependent upon the timeliness and whim of LPAs. 16. Another interesting feature of those decisions was that the development plan for Malvern Hills District was the joint South Worcestershire Development Plan, and it was the intention that future planning would also be done on a joint basis. For that reason, the Council argued that its five-year housing land supply (“5YHLS”) should be undertaken on a plan-wide basis together with the other South Worcestershire authorities.

However, that approach was also rejected since the approach to the distribution of need and housing would need to be established though the plan making process as confirmed by the PPG. 7

Departing from policy

17. There are several occasions over the last few years where LPAs have sought to depart from National Planning Policy altogether, and there has been some enthusiasm on the part of Planning Inspectors to do just that.

We address two scenarios below:

6 7

Decision arrived at under NPPF 2019, now para 74 Paragraph: 028 Reference ID: 68-028-20190722

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The non-standard method

18. This is where LPAs have plans that are more than five years old and require updating, but where the LPA claims the LHN shouldn’t be used as the basis for calculating the housing land supply. That argument represents a departure from NPPF 74 because as set out above, NPPF 74 offers a binary choice, it is either the strategic policies or, where they are more than five years old (and subject to footnote 39) it is the LHN. The NPPF was even amended between 2018 and 2019 to make clear that it was only in the context of plan making that a justified alternative approach to the LHN could be used.

19. Nonetheless, it is something that participants in the planning process should be aware of, because as a matter of law, decision makers may depart from the NPPF where there is a good reason for doing so. 8 However it is clearly not something that should be done lightly; imagine telling a decision taker that there are good reasons for departing from Green Belt or AONB policy in the context of a particular application of appeal.

20. Examples where the non-standard approach has been seen are Central Bedfordshire 9, Tendring 10 and North Norfolk 11. In all cases, the LPAs considered that the LHN figure was unreliable because of underlying errors in the data that feed into the standard method (“SM”), and so they put forward alternative lower figures. Such arguments inevitably involve the need to call expert witnesses to deal with the competing positions

R. (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 1 AC 245 per Lord Dyson at [26]; EC Gransden v. Secretary of State for the Environment (1987) 54 P.&C.R 86 and R. (Watermead Parish Council) v Aylesbury Vale DC [2017] EWCA Civ 152, [2018] PTSR 43 per Lindblom LJ at [29] 9 APP/P0240/W/18/3206495 Appeal A 10 APP/P1560/W/20/3256190 11 APP/Y2620/W/20/3248468 8

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and give evidence as to whether there are sufficient reasons to depart from the NPPF.

21. The arguments against a non-standard approach are that the Government considers the SM a key part of its commitment to ensuring that 300,000 homes are delivered each year. If individual LPAs depart from the SM and promote a lower figure than the SM identifies, then we move further away from the figure. The SM isn’t perfect, and doesn’t pretend to be, but part of the reason for introducing it (revealed by the background documents) was to avoid lengthy debates on housing need during both LP examinations, and section 78 inquiries where such debates were frequently had and contributed to expense and delay by all parties. The former approach was regarded as complex and lacking in transparency; expensive, and ultimately a hindrance to the planning system.

22. The Government consulted on the SM and was aware of the issues it might cause for some local authorities through statistical anomalies with official projections. However, the Government pressed on regardless.

Further, the NPPF is a document that attracts significant weight in planning decisions. It is the Government’s expression of up-to-date national planning policy and is a document that contributes to transparency and consistency in decision taking. Departing from the NPPF may not accord with the aim of boosting significantly the supply of housing, or the principles of transparency and consistency and is not something that should be done lightly.

23. The answer of course to all of these issues, is for LPAs to get an up-todate plan in place, because through that process and the application of the “exceptional circumstances” test 12, LPAs can justify an alternative approach to determining the minimum number of homes needed in their area. Nonetheless, in all of the appeals cited above (and others that have 12

NPPF 61

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followed), the decision takers have almost always preferred the Councils’ approach, but it is clearly an argument that works both ways, and one that is open to Appellants to use if the SM yields a LHN which is too low by virtue of statistical anomalies.

A soon to be different requirement

24. In February 2021, two appeals by Gladman Developments 13 against the decisions of East Riding of Yorkshire Council were heard together. The appeals were heard at Inquiry in January and February 2021, at a time when the plan was nearing its fifth anniversary – 7th April 2021. There was to be no footnote 39 review (then footnote 37), and the Appellant accepted that it was highly likely that in a matter of weeks the 5YHLS would be calculated by reference to the LHN from 7 April 2021. The Decision Letter was promulgated on 17 March 2021.

25. The plan requirement was for 1400 (net) dwellings per annum, but the LHN was much less at only 900 dpa (approx.). The Council’s case was that the requirement against which to measure the supply should be a “hybrid” of the plan requirement for the part of the calculation before the plan became five years old, and the LHN figure thereafter. The parties agreed that the if the plan requirement was used then there was not a 5YHLS. If the LHN hybrid was used then there was, and so the matter was critical to understanding whether the titled balance was engaged.

26. The Council’s case was that the change was imminent and certain so as to justify a departure from NPPF 74 (then NPPF 73), and relied on two appeal decisions (one a Secretary of State decision) in which the decision-takers had apparently departed from the SM and favoured an emerging plan requirement in the section 78 context. 14 The Appellant’s 13 14

APP/E2001/W/20/3250240 Swanland & APP/E2001/W/20/3259564 Pocklington APP/P1560/W/20/3256190 Clacton-on-Sea, and APP/G6100/W/19/3233585 VIP Trading

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case was that while the imminent switch to the LHN was a material consideration it was not appropriate to calculate the 5YHLS in the way the Council proposed since is conflicted with clear language of national planning policy which was a significant material planning consideration in the determination of the appeals, and which should be applied consistently and transparently according to a straightforward reading of the policy. NPPF 74 is admirably clear in its instructions to decision takers and gives no choice or discretion about how to calculate the 5YHLS. It couldn’t sensibly be argued (it was submitted) that there is any ambiguity in the paragraph, which does not support a mix and match approach enabling different authorities to calculate the 5YHLS in any way they see fit.

27. Inspector Searson rejected the Council’s position, concluding (at DL 34) that:

“Paragraph 73 of the Framework is clear that a minimum of 5 years worth of deliverable sites should be calculated against either the housing requirement in the adopted strategic policies or the local housing need where the strategic policies are more than 5 years old (my emphasis). As part of this, the SM was introduced in 2018 in order to be simpler, quicker and more transparent and I am of the firm view that to adopt a hybrid approach would undermine that efficiency and transparency.”

28. The Inspector also rejected the idea that the imminent switch to the LHN was the same as an emerging plan requirement which engaged a different part of the NPPF, at para. 48. Nonetheless, in approving both appeals, the Inspector did return to the 5YHLS position in the weighing

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up of planning benefits and concluded that “the time-limited nature of the somewhat small shortfall in supply, reduces the amount of weight and I consider that housing delivery attracts moderate weight, rather than the significant weight the appellant sought to argue.”

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2) Case law 29. At the end of last year there were two important judgments dealing with 5YHLS: a

East Riding of Yorks C v SSLUHC (“East Riding of Yorks”) 15

b

Tewkesbury BC v SSHCLG (“Tewkesbury”) 16

East Riding of Yorks 30. The East Riding of Yorks case follows on from the two appeal discussed above at paragraphs 24-28. The second defendant, Gladman Developments Ltd (“Gladman”) applied to the claimant local planning authority, East Riding of Yorkshire Council (“the Council”) for planning permission for two developments on different sites: the first included up to 150 homes on one site and the second for 380 homes on another site.

Appeals 31. Both applications were refused and Gladman appealed each refusal to the Secretary of State. The two appeals were heard together by means of an inquiry as discussed above.

High Court 32. In the High Court, the Council relied on two Grounds. The first criticised the reasoning of Inspector’s reasoning concerning the consideration of the five-year housing land supply calculation in several respects.

33. The second Ground alleged that the Inspector had misinterpreted para.

48 of the NPPF (which was, and still is, concerned with the weight to be given to emerging local plans). As to the interpretation of para. 48, the 15 16

[2021] EWHC 3271 (Admin).

[2021] EWHC 2782 (Admin).

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Council argued a) that the Inspector had misunderstood that the imminent introduction of the LHN figure was a material consideration in the appeal which essentially operated in the same way as the imminent adoption of a local plan housing requirement, or b) reached an irrational conclusion in any event as there was no sensible basis for distinguishing between the two material considerations.

34. Dove J concluded in relation to ground 1 that the Inspector’s reasoning that there was no basis for departing from para. 73 of the NPPF was adequate and said that it was not necessary for her to consider each and every argument raised by the Council in the course of its evidence and submissions.

35. As to Ground 2, the Judge said that it was neither irrational, nor a misunderstanding of para. 48 of the NPPF, for the Inspector to treat as materially different a) the engaging of that para. where an emerging local plan was imminent and b) the situation where the use a new local housing need figure was imminent as a result of the fifth anniversary of the adoption of the local plan.

Practical Points 36. The key point to emerge from this judgment was that the Inspector was entitled to conclude that there was no basis for departing from the approach in what is now para. 74 of the NPPF when calculating a fiveyear housing land supply.

37. Where adopted strategic policies are less than five years old, LPAs should use the housing requirement set out in those policies, unless the policies have been reviewed and found to be not wanting. Where the adopted strategic policies are more than five years old, the LHN should be used calculated by using the SM.

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38. This approach has the advantage of comparative simplicity, though as above there remains the possibility of departing from the NPPF in limited circumstances as already considered.

39. Where an appeal is likely to be determined after the fifth anniversary of the adoption of strategic policies, developers should consider the implications of submitting an appeal. Thought should also be given as to whether it might be possible or desirable to argue that there is a good reason for departing from the approach set out in NPPF para. 74.

Tewkesbury Facts 40. The interested parties, JJ Gallagher Ltd and Mr Richard Cook applied to the claimant local planning authority, Tewkesbury BC (“the Council”) for outline planning permission for the erection of up to 50 dwellings. The Council refused permission in 2020 as the proposal and the interested parties appealed to the defendant Secretary of State. An Inquiry was held before an Inspector, who dismissed the appeal in his decision.

41. In the appeal, the parties agreed that the Council could not demonstrate a five-year housing land supply, but disagreed about the extent of it. The key question was whether or not past oversupply of housing measured against an annual requirement could be taken into account when calculating the current housing land supply.

42. The Council argued that they were able to demonstrate a supply of 4.37 years if the oversupply from previous years within the plan period were taken into account. The interested parties argued that if the oversupply were removed, the five-year housing land supply would be reduced to 2.4 years and, if disputed sites were removed, it would be further reduced to 1.84 years.

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43. The Inspector decided that over supply could not be used to discount the Council’s housing requirement set out in its adopted strategic policies.

She further said that the disputed sites could not be incorporated within the five-year housing land supply.

44. The Council challenged the Inspector’s decision in the High Court by means of a statutory review under s.288 of the Town and Country Planning Act 1990 (as amended).

High Court 45. In the High Court, the Council argued that: a

while the NPPF did not explicitly address the question of how past oversupply of housing should be taken into account, the correct interpretation of the NPPF (and of what was para. 73 in particular) is that oversupply should be taken into account when assessing fiveyear housing land supply;

b

or alternatively, the oversupply was such an obvious material consideration that it was irrational for the Inspector not to take it into account.

The correct interpretation of the NPPF in respect of oversupply 46. Dove J disagreed with the Council’s argument. He held that the NPPF did not require any oversupply prior to the period for a which five-year housing land supply is being calculated to taken into account. The Judge explained (paras 42 to 47): a The text of the NPPF does not require any such suggestion; b It is not an inference which can properly be drawn;

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c

In the absence of any specific provision within the NPPF there is

no text falling for interpretation and it is not the task of the court to fill gaps in policy; d It is far from uncommon for there to be such policy gaps and policies are seldom designed to cover every conceivable situation, particular where the relevant policy is a high-level policy with a broad scope like the NPPF; e Where there is no policy covering the situation under question the decision-maker is required to exercise planning judgment to make the necessary assessment of the issue in order to determine the weight to be placed within the planning balance in respect of it; f

Thus, where there is an oversupply of housing prior to the five

year period being assessed in the calculation of the 5YHLS, the question of whether or not to take it into account will be a matter of planning judgment for the decision-maker bearing in mind the particular circumstances of the case being considered. g Further, the Judge said that, contrary to the Council’s submissions, there was no binary or arithmetical choice between either taking past supply into account or not, in practical terms there were several broad policy approaches that might be taken into account.

47. As to the broad policy approaches available to the decision-maker, the Judge said (at para. 46): “It might be taken into account on a one-for-one basis as essentially sought by the claimant; the oversupply might be credited but applied over the remaining plan period which would be likely to be less than

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one-for-one in terms of the credit allowed in calculating the five-year housing land supply; the policy choice might be that past oversupply cannot be credited at all; the question of whether credit is made in the next five years or carried across the remaining plan period could be a matter left for the planning judgment of the decision-maker; finally the issue could be one left in its entirety to the planning judgment of the decision-maker in each case. Thus, the issue is perhaps not as simple as the claimant’s primary submission would suggest, and in addition to the concerns set out above the defendant’s submission reinforces the concern of the court as to the propriety of second guessing these policy choices.”

Whether the Inspector’s approach was irrational in any event 48. Dove J further rejected the Council’s argument that, even if they were wrong in relation to ground 1, the oversupply was so obviously material that it was irrational for the Inspector not to have taken it into account.

He said (at para. 52) that: a The Inspector was acutely aware of the earlier oversupply as a material consideration for her to address; b She concluded correctly that it was a matter for the exercise of her planning judgment; c

In the relevant paragraph of the decision letter, the Inspector drew

attention to her observations already made about the Council’s arguments and her concern in relation to the viability of the supply beyond year 3 of the 5YHLS calculation. d The shape of the housing trajectory was also reflected in the weight that she gave to the issue in the planning balance.

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Practical points 49. This judgment clarifies that there is no requirement under the NPPF for a decision-maker to take into account oversupply prior to the commencement of a five-year housing land supply period.

50. However, this does not necessarily mean that the oversupply should not be taken into account. While how to treat the oversupply is ultimately a matter of planning judgment for the decision-maker, there are a number of different ways as to how it can be considered.

51. Thus, both developers and local planning authorities will need to consider the relevance of the prior oversupply and how it should affect the planning balance. It will be necessary to take a case-by-case approach and it may not be easy to predict which approach a decisionmaker will take, particularly in appeals to the Secretary of State.

Law correct as of 1 March 2022.

This paper is presented for information only and does not constitute legal advice

Thea Osmund-Smith and Howard Leithead No5 Barristers’ Chambers theaos@no5.com and hle@no5.com +44 (0) 845 210 5555

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Satnam Choongh Jack Smyth Local Plans: How to write Local Plan Submissions/Hearing Statements which will get the Inspector to ask the right questions 84

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 field of planning and environmental law, including matters related to listed buildings, Conservation Areas, Green Belt, Sites of Special Scientific 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 Lichfield DC at the first 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 Mayfield 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

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- 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 “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 firm 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 fights 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 “A very experienced and trusted barrister with a keen intellect and a detailed knowledge of the planning system. He is thorough in his preparation, robust in his advocacy and good at thinking on his feet. He is also friendly, approachable and always happy to help.” “Highly regarded and very intelligent. He cuts to the chase and has a good manner. A straighttalking, to-the-point solicitor.”

Chambers UK 2018 “A robust advocate.”

Legal 500 2018

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

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(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) Woodfield 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 Lichfield 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 defining “waste” in European Union Law)

Memberships Planning and Environmental Bar Association

Qualifications 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

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Jack Smyth

Planning and Environment Year of Call: 2007 Email Clerks: planning@no5.com

Legal 500 awarded Jack the prestigious honour as “Legal 500 UK Regional Junior Barrister of the year” 2018. Its Judges noted: “2017 was Smyth’s tenth year of call and he continues to punch above his weight across a number of practice areas. He frequently acts for prominent clients such as Secretaries of State and makes frequent successful appearances in the higher courts” Jack was also rated as a Top Tier grade 1 barrister in Planning law in the Midlands in 2017.

Jack has a strong practice across the piste in Planning and Environmental law with a particular interest in High Court challenges and enforcement.

Jack has been appointed by the Attorney General as Junior Counsel to the Crown for the Midlands (formerly known as the Treasury Solicitors’ Panel). As a result, he frequently finds himself in the High Court defending the decisions of Planning Inspectors.

Jack has been appointed as a Drainage Member of the Lands Tribunal (Wales). He is the youngest appointee to the tribunal. In that role, he adjudicates on disputes which revolve around boundaries, the causes of flooding and the best solution to be found to mitigate harm. In that guise, he is experienced with scrutinising competing expert evidence in an area of the law which is both technical and fact-specific.

Residential Development Jack is experienced with dealing with residential development appeals for appellants, local authorities and residents’ groups and frequently appears at Public Inquiries and Informal Hearings. Jack has experience of a range of issues relating to residential applications including 5 year supply, viability, Green Belt, heritage and landscape.

Enforcement Jack is considered to be one of the go-to barristers for enforcement matters, with a particular expertise in injunctive proceedings. He is experienced in advising on paper, appearing at inquiries and in the Court system, including Criminal proceedings. Cases include Enforcement prosecutions, Temporary Stop Notices, Injunctions (Gypsies and Travellers), CLEUDs, Tree Preservation Orders, Environmental issues pursuant to EPA including noise and odour abatement notices, Statutory nuisance, POCA, Committals for breaches of court orders and Breach of Condition notices.

Injunctions He commonly obtains injunctive relief in respect of unauthorised breaches of planning control. This is done on an emergency basis for anticipated breaches and also to compel compliance with enforcement notices and conditions attached to planning permissions. He regularly finds himself in the High Court for injunctions and is used to advising at short notice and undertaking emergency injunctions. Recently, Jack completed a long-running injunction in respect of the illegal tipping of waste on land in the open countryside. During the course of the litigation, a witness was sent to prison for 28 days for perjury following Jack’s cross-examination. In light of the defendant’s failure to obey the injunction, he was committed to prison for 12 months for contempt. This is the longest sentence ever imposed for breach of a planning injunction.

Gypsy Traveller Law His forte is successfully representing Councils and residents’ groups in resisting gypsy traveller sites. He has represented residents’ groups in two high profile gypsy cases in the Midlands which have both featured on Midlands Today and in the national press: Beausale and Meriden. He often obtains injunctions.

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Historic Heritage He has extensive experience of advising and providing advocacy in the area of built heritage, in particular, the impact of new development upon Conservation Areas and Listed Buildings. Recent cases include a 2-week inquiry against a Silk on behalf of a residents’ group resisting the demolition of a large building in a Conservation Area to make way for a large supermarket development (the appeal was dismissed) and successfully representing a local authority at an appeal for residential development within the setting of a listed mill. On the enforcement side, recent cases include advising an architect being investigated for unauthorised works to a Listed Building and a home owner facing a joint prosecution by Historic England and the local authority for the gutting of a Listed Building and the excavation of an Ancient Scheduled Monument.

Statutory Nuisance He frequently advises appellants and local authorities in respect of statutory nuisance. He is experienced with interrogating technical expert evidence in respect of noise and odour. Recent successes include prosecuting a restaurant in Leicester for failing to obey an abatement notice for odour and resisting an appeal made by a Working Men’s Club in Cannock in respect of a noise abatement notice.

High Court Work Jack is adept at advising potential Claimants and Defendants on a wide range of High Court challenges including Judicial Reviews and statutory challenges (such as s288 and 289 claims). He has a reputation for turning work around at short notice and providing hard-headed, commercial advice to clients.

Recommendations “Pre-eminent in enforcement injunctions.” “He is very good - he knows exactly what he is doing.”

Chambers UK 2021 “Professional, supportive, approachable, and knowledgeable.”

Legal 500 2021 “Very adept and knowledgeable.”

Legal 500 2019 “A good advocate who is very good in injunctions and injunction breach work. He is becoming a go-to barrister for regulatory enforcement by local authorities.” “He is excellent and provides timely advice. He responds very quickly on matters even before I’ve formally instructed him.”

Chambers UK 2018 Rated as top tier I in the Midlands: “A junior with a niche interest in statutory nuisance law” Legal 500 2017 “His planning expertise is second to none, especially for someone so junior. He’s a confident advocate, clients are always happy, and I can’t fault him.” “He has clarity of thought, engages well, is really interested in the case and makes it easier as a result of his good insight into matters. He is also incredibly quick.”

Chambers UK 2017

Reported Cases Hedges v Secretary of State for Housing, Communities and Local Government [2021] EWHC 2392 Jack represented the defendant and successfully defended an Inspectors decision following an enforcement appeal. The case turned on whether the Inspector was entitled to focus exclusively on evidence of actual use when deciding whether the unauthorised camping use was immune rather than other evidence about ’usability’ of the site.

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Notable Cases Mole Valley DC v Casey et al [2021] 6 WLUK 130 Jack successfully obtained an injunction for the council to maintain the status quo at an unauthorised gypsy traveller site in the green belt and stop its expansion until such a time as the planning merits are settled.

East Cheshire BC v Maloney and Ors [2021] EWHC 350 (QB) Jack successfully represented the council in this high-profile injunctive claim. After the emergency hearing, officers arrived at the site in the nick of time to serve the injunction as heavy machinery was in the process of expanding the unauthorised gypsy site. The injunction was repeatedly breached in the succeeding months and the council brought 4 committal applications. The matter culminated in a 4 day trial in the High Court where a final order was made and the contempt allegations were found proven.

Abbey Properties Cambridgeshire Ltd v East Cambridgeshire D.C. [2020] EWHC 3502 (QB) Jack successfully represented the Council in resisting a claim for judicial review to quash the Witchford Neighbourhood Plan. The claim revolved around an apparent tension between the content of the emerging neighbourhood plan and the existing local plan and the legality of a Local Green Space designation.

R (oao Manor Oaks Homes Ltd) v East Cambridgeshire DC [2020] EWHC 2039 (Admin) Jack represented the Council resisting a JR against the Witchford Neighbourhood Plan (“NP”) brought by a housing developer. The claim revolved around the allegation that the NP did not meet the basic conditions and the Council was wrong to treat it as making allocations when the Examiner had removed references to this term and replaced them with “housing proposal sites”. At the renewal hearing, Lang J refused permission on all grounds and awarded the Councils costs in full.

R (oao Coventry Gliding Club) v Harborough DC [2019] EWHC 3059 A claim for judicial review against a local authority’s decision to grant an application for prior approval for a barn conversion under the new Class Q permitted development. The case revolved around whether the site notice was “near” to the land and the quality of the officer’s report.

London Borough of Bromley v Persons Unknown and London Gypsy Travellers [2020] EWCA Civ 12 This has become a “test case” for the use of borough-wide injunctions by local authorities to protect public open spaces from Gypsy Traveller incursions. 34 such injunctions had been granted by the High Court. In Bromley’s case the court refused to grant the injunction but, unusually, gave permission for the matter to be finally determined by the Court of Appeal. A number of organisations, including the pressure group Liberty, appeared as Interveners. At the final hearing, the Court of Appeal set out sweeping guidance on the deployment of such injunctions and what conditions must be met before they are granted in future.

Gladman Development Ltd v Secretary of State for Communities and Local Government and Sedgemoor DC [2019] EWHC 128 (Admin) The High Court found that the Inspector’s decision to dismiss an appeal for residential development was unlawful on the basis that he had refused to make a finding as to whether the Council could demonstrate a 5-year housing land supply.

Banghard v Bedford Borough Council [2017] EWHC 2391 (Admin): It provides guidance on how local planning authorities should exercise their discretion to decline to determine a planning applications pursuant to s.70C of the Town and Country Planning Act 1990.

Daventry District Council v Secretary of State for Communities and Local Government [2016] EWHC (Admin) 1555 He successfully represented the Secretary of State against a section 288 claim. The case turned on the lawfulness of the Inspector’s decision which followed a written representations procedure where the parties had failed to tell the Inspector that the LPA’s Local Plan had been adopted. The Judge, whilst finding that the Inspector had reached his decision on an erroneously unlawful basis, exercised his discretion not to quash the planning permission on the basis that the claimant LPA had been incompetent and contributed to the error by failing to inform the Inspector of the important change.

R (oao Headcorn Parish Council v Secretary of State for Communities and Local Government [2016] EWHC 1158 He successfully represented the Secretary of State against a claim for permission to pursue a judicial review. The case turned on the lawfulness of the Secretary of State’s screening opinion. In particular, the manner in which the screening opinion addressed the effects of the proposed residential development on the highway and a SSSI. Whitby v Secretaries of State for Transport and Communities and Local Government and Network Rail Infrastructure Limited [2016] EWCA Civ 444 He successfully represented the Secretaries of State in the Court of Appeal [led by Richard Kimblin QC]. This is the first reported case on the proper meaning and interpretation of paragraphs 132 and 133 of the (original) NPPF in respect of justifying harm to heritage assets.

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Malvern Hills District Council v Secretary of State for Communities and Local Government and Jones [2015] EWHC 2244 He successfully represented the District Council in its section 288 appeal to quash an Inspector’s decision. The appeal centred around the proper interpretation to policies of an out of date Local Plan.

Crane v Secretary of State for Communities and Local Government and Harborough District Council [2015] EWHC 425 He successfully represented the District Council upon the claimant’s section 288 appeal to quash the Secretary of State’s decision to afford “very substantial negative weight” to an identified breach of a Neighbourhood Plan. This was one of the first challenges to the Secretary of State’s flagship localism policy.

Hampton Bishop Parish Council v Herefordshire Council [2014] EWCA Civ 878 He was led by a Silk in the High Court and later the Court of Appeal, the claim to quash the grant of planning permission was successfully resisted. The case provides useful guidance on the extent to which off-site benefits can reasonably be regarded as material considerations to which the CIL regulations apply. It is a case quoted approvingly by the Planning Encyclopaedia.

Gilbert v Secretary of State for Communities and Local Government, Harborough District Council [2014] EWHC 1952 He successfully represented the District Council in the High Court and Court of Appeal upon the claimant’s judicial review to quash the Secretary of State’s screening decision and the Council’s grant of planning permission. The case revolved around the proper interpretation of the EIA regulations and whether the noise arising from vehicles using the former World War II airfield at Bruntingthorpe, Leicestershire was likely to have significant environmental effects.

Greaves v Boston Borough Council [2014] EWHC 2237 He successfully represented a local authority in resisting an application to quash a grant of planning permission for a single wind turbine. The case turned on the lawfulness of a noise condition. Following an appeal to the Court of Appeal, the claim was dismissed.

Appointments Deputy District Judge

Awards Legal 500 UK “Regional Junior Barrister of the year”, 2018 The Jules Thorn Scholarship by Middle Temple, 2006

Memberships UKELA HELA

Qualifications Degree in Politics from the Durham University, First Class Honours

Rated as a Top Tier grade 1 barrister in Planning law in the Midlands, 2017

PEBA

Graduate Diploma of Law, with Distinction - LLB

Articles and Publications Local Government Lawyer: ’Injunctions: a no-brainer? The quickest, easiest, cheapest and most effective way to enforce compliance’ How to Prosecute a Breach of an Enforcement Notice: A Practical Guide Listed Building Prosecutions: A Practical Guide

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How to write Local Plan Submissions/Hearing Statements which will get the Inspector to ask the right questions

INTRODUCTION 1. In a “genuinely plan led” system it is axiomatic that the local plan is vitally important. For those promoting sites within the district, if a site can be included as an allocation within the plan or identified within an area of broad location for development it follows that the principle of the proposed use at this location is settled. In these circumstances, it is much, much easier to obtain planning permission. In contrast, if the plan is unfavourable it can provide a significant constraint for obtaining planning permission. If an emerging plan can be amended to be less unfavourable, the prospects are greater. In that context, planners have a huge opportunity to alter the prospects of success by making persuasive representations to the emerging plan.

2. Plan-making is a long process and it is important to be involved right from the outset. Representations can and should be made at the Reg.18 (draft plan) and Reg.19 (publication draft plan) stages, and this means that you need to be clear right from the outset what you are seeking to achieve and what your strategy is for achieving it. Make sure you are familiar with the Procedure Guide for Local Plan Examinations. You will see from this that the Inspector sets out his Matters, Questions and Issues well in advance of the date when Hearing Statements need to be submitted. If you are going to engage advisers, including counsel, you should do so right from the outset so that they can advise on Reg. 18 and Reg. 19 submissions and help draft the Hearing Statements. Once positions have been committed to in writing it is difficult to back-peddle at the Examination hearings themselves.

WHAT IS THE POLICY CONTEXT? 3. The NPPF tells us [para 16]:

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Plans should: a) be prepared with the objective of contributing to the achievement of sustainable development; b) be prepared positively, in a way that is aspirational but deliverable; c) be shaped by early, proportionate and effective engagement between planmakers and communities, local organisations, businesses, infrastructure providers and operators and statutory consultees; d) contain policies that are clearly written and unambiguous, so it is evident how a decision maker should react to development proposals; e) be accessible through the use of digital tools to assist public involvement and policy presentation; and f) serve a clear purpose, avoiding unnecessary duplication of policies that apply to a particular area (including policies in this Framework, where relevant).

4. The NPPF draws a bright distinction between strategic and non-strategic polices of a plan.

5. What are the requirements for strategic policies? They should [paras 20-23]: a) Set out an overall strategy for the pattern, scale and design quality of places. b) Make sufficient provision housing, employment, retail, leisure & other commercial development, infrastructure for transport, telecommunications, security, waste management, water supply & wastewater, flood risk & coastal change management, minerals & energy, community facilities, conservation & enhancement of the natural, built & historic environment and planning measures to address climate change. c) Be labelled ‘strategic policies’ if they serve that purpose. d) Be limited to those necessary to address the strategic priorities of the area (and any relevant cross-boundary issues), to provide a clear starting point for any nonstrategic policies that are needed. e) Remain ‘macro’: they should not extend to detailed matters that are more appropriately dealt with through neighbourhood plans or other nonstrategic policies. f) Be forward looking. They should look ahead over a minimum 15 year period from adoption to anticipate & respond to long-term requirements and opportunities. g) Set broad locations for development indicated on a key diagram and landuse designations & allocations should be identified on a policies map.

They should provide a clear strategy for bringing sufficient land forward, and at a sufficient rate, to address objectively assessed needs over the plan period, in line with the presumption in favour of sustainable development.

This should include planning for and allocating sufficient sites to deliver the strategic priorities of the area.

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6. Non-strategic policies should be micro. They should be more detailed policies for specific areas, neighbourhoods or types of development. This can include allocating sites, the provision of infrastructure & community facilities at a local level, establishing design principles, conserving and enhancing the natural & historic environment and setting out other development management policies [para 28].

WHAT DOES GOVERNMENT EXPECT OF LOCAL PLANS? 7. The preparation and review of all policies should be [paras 31-34]: a) Underpinned by relevant and up-to-date evidence which is adequate and

proportionate, focused tightly on supporting and justifying the policies concerned and takes into account relevant market signals. b) Informed by a sustainability appraisal that meets the relevant legal requirements. This should demonstrate how the plan has addressed relevant economic, social and environmental objectives (including opportunities for net gains). Significant adverse impacts on these objectives should be avoided and, wherever possible, alternative options which reduce or eliminate such impacts should be pursued. Where significant adverse impacts are unavoidable, suitable mitigation measures should be proposed (or, where this is not possible, compensatory measures should be considered). c) Reviewed to assess whether they need updating at least once every five years and should then be updated as necessary. Such reviews should be completed no later than five years from the adoption date of a plan and should take into account changing circumstances affecting the area, or any relevant changes in national policy. In particular, relevant strategic policies will need updating at least once every five years if their applicable local housing need figure has changed significantly; and they are likely to require earlier review if local housing need is expected to change significantly in the near future. d) set out the contributions expected from development but in a way which does not undermine the deliverability of the plan.

HOW DOES A LOCAL PLANNING AUTHORITY DEMONSTRATE THAT IT HAS DISCHARGED ITS DUTY TO COOPERATE? 8. The PPG reminds us that strategic policy-making authorities are required to cooperate with each other (and other bodies) when preparing (or supporting the

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preparation of) policies which address strategic matters. This includes those policies contained in local plans (including minerals & waste plans), spatial development strategies and marine plans. A key tool to prove that this is being done are statements of common ground (“SCGs”).

9. SCGs are expected to contain the following (PPG reference 61-011-20190315): a. a short written description and map showing the location and administrative areas covered by the statement, and a brief justification for these area(s); b. the key strategic matters being addressed by the statement, for example meeting the housing need for the area, air quality etc.; c. the plan-making authorities responsible for joint working detailed in the statement, and list of any additional signatories (including cross-referencing the matters to which each is a signatory); d. governance arrangements for the cooperation process, including how the statement will be maintained and kept up to date; e. if applicable, the housing requirements in any adopted and (if known) emerging strategic policies relevant to housing within the area covered by the statement; f. distribution of needs in the area as agreed through the plan-making process or the process for agreeing the distribution of need (including unmet need) across the area; g. a record of where agreements have (or have not) been reached on key strategic matters, including the process for reaching agreements on these; and h. any additional strategic matters to be addressed by the SCG which have not already been addressed, including a brief description how it relates to any other SCG covering all or part of the same area.

WHAT IS THE POLICY TEST AGAINST WHICH SUBMISSIONS SHOULD BE JUDGED?

10. The crux of national policy is found at para 35. This sets out the tests for soundness:

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Local plans and spatial development strategies are examined to assess whether they have been prepared in accordance with legal and procedural requirements, and whether they are sound. Plans are ‘sound’ if they are: a) Positively prepared – providing a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development; b) Justified – an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence; c) Effective – deliverable over the plan period, and based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by the statement of common ground; and d) Consistent with national policy – enabling the delivery of sustainable development in accordance with the policies in this Framework and other statements of national planning policy, where relevant.

WHAT IS THE ROLE OF THE EXAMINATION INSPECTOR? 11. The Inspector’s role is constrained. He will assess whether the plan has been prepared in line with the relevant legal requirements (including the duty to cooperate) and whether it meets the tests of soundness.

12. It is difficult to over-emphasise how important it is that objectors make whatever points they wish to make as fully as possible as part of the Examination process.

Whilst it is possible to challenge the adoption of a plan by making a challenge in the High Court under s.113 of the Planning and Compulsory Purchase Act 2004, the case-law is clear that the bar for quashing is very high indeed. The courts have repeatedly stated that ‘soundness’ is a matter of planning judgment for the Inspector. A challenge to soundness must be made as part of the Examination: it is not possible to wait until after the event and raise the matter for the first time in a legal challenge to plan adoption (see Trustees of the Barker Mill Estates v Test Valley [2016] EWHC 3028 (Admin), [88]).

13. Plans will not be quashed unless the challenger can show that the judgments made were irrational (see Keep Bourne End Green [2020] EWHC 1984 (Admin), [57]-

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[58] and Oxted Residential Ltd v Tandridge DC [2016] EWCA Civ 41, where the court said [27] “Challenges such as this to the adoption of a development plan document by a local planning authority will seldom succeed”).

14. The duty on the Inspector to give reasons for his decisions is fairly light-touch. In Aireborough Neighbourhood Forum v Leeds City Council [2020] EWHC 1461 (Admin), [95]-[96] the court said that reasons can be more succinctly expressed than in a decision-letter for a s.78 appeal.

15. The upshot of all of this is that Plan Examination Inspectors are increasingly emboldened to have their own view about the soundness of a plan and push that view through. That does not mean that they cannot be persuaded to change their mind about the plan as a whole or individual policies within it, but it is for objectors to make the running with focussed, evidence-based objections. If your objective is to save the plan but make amendments to it, it helps enormously if having identified a problem, you give the Inspector a ready-made solution to that problem by suggesting a manageable modification.

16. The PPG tells us (PPG reference 61-050-20190315): If necessary, the Inspector may be asked by the local planning authority to recommend modifications to the local plan that would address any issues with soundness or procedural requirements that are identified during the examination. The Inspector can only recommend modifications if they are asked to do so by the local planning authority itself, and where they are necessary to achieve a sound plan. If, in doing so, the Inspector identifies any fundamental issues with the plan, they may recommend that the plan should not be adopted by the local planning authority. The local planning authority will then need to consider whether to withdraw the plan and prepare a new document for submission. In this situation, any existing local plan policies will remain in force while a new plan is prepared, although some of those existing policies are likely to become increasingly out-of-date.

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17. If you are seeking a modification, the objective must be to show that the plan is unsound without it. If the Inspector agrees, the planning authority will be forced to ask the Inspector to make the modification necessary to save the plan.

PRACTICAL TIPS: WHAT IS MY OBJECTIVE?

18. At the outset, you must be clear what you want to achieve with your representation: a)

Are you basically content with the overall strategy of the draft plan but

want to promote modifications that will help you get what you want (e.g increase the housing number, amend requirements set out in a specific policy to make it easier for your development to be approved etc)? b)

Do you object fundamentally to the strategy of the draft plan, or other

major aspects of the plan, such that you want the plan declared unsound and the LPA to start again?

19. To put it bluntly: do you want the draft plan to succeed or fail?

20. You must decide which category you fall into, because that will help you to focus your written representations, and ensure you take an approach at the Examination which is consistent and logical with the outcome you want.

PRACTICAL TIPS: RULES OF THE GAME 21. In pursuing your objective you must be aware of the rules and processes that govern the Examination. Reference has already been made to the Procedure Guide for Local Examinations (7th Ed. 14 February 2022), but you should also read the PINS guidance on Plan Examination (‘Local Plans: Taking Part in Examination”

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February 2022). The key points to remember are as follows: a. Inspectors front load their scrutiny of the plan and issue their Matters, Questions and Issues well in advance of inviting Hearing Statements from the parties. Para. 3.3 of the Guide states “During the initial assessment the Inspector will identify the matters and issues affecting the plan’s soundness. These will provide the focus for the examination. The Inspector will take a proactive and inquisitorial approach to this task, taking account of the representations but bearing in mind that the absence of representations on a matter is not a guarantee of soundness (and vice versa). The Inspector may also write to the LPA with a series of initial queries to assist in understanding the plan and the evidence base.” b. Para 5.1 of the Guidance states: “By the time the hearing sessions begin, the Inspector will have completed the initial assessment of the plan. The Inspector will be familiar with the content of the plan, the evidence base and the written material that has been submitted, including the representations and any hearing statements that have been invited. From the initial assessment the Inspector is likely to have formed a preliminary view on at least some of their identified issues and questions.” c. Therefore you should front-load your work also – all issues of legal compliance and soundness should be flagged up in your Reg.18 stage submissions and re-enforced in your Reg. 19 submissions. d. It is the LPA’s Plan and it is for the LPA to defend it. Supporters of the plan (normally those who have their sites allocated and are not seeking any changes) are usually not allowed a seat at the table. Para. 3.14 of the Guide provides as follows: “At the hearings, the role of explaining and justifying the submitted plan is performed by the LPA. Representors who are not seeking any changes to the submitted plan, including landowners or developers who are promoting a site that is allocated in the plan, do not have a right to appear at the hearings and will not usually be invited to

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participate. However, in some circumstances the LPA may wish to include one or more such representors as part of their team for a hearing session.

It is also open to the Inspector to invite them to appear in their own right, if it would assist his or her understanding of a soundness or legal compliance issue”. e. Make sure you get your Hearing Statement in order and submitted in good time. Para. 3.21 of the Guide states: “The deadline for submission of hearing statements and other written material will usually be two or three weeks before the hearings open, in order to give the Inspector and participants sufficient time to absorb their contents. If the hearings are split into two or more blocks, staggered deadlines may be set. Since late submission of statements causes difficulties for all parties, the Inspector will not normally accept statements that miss the deadline.” f. Try and anticipate the arguments of your opposition and make your case accordingly. Para. 3.22 of the Guide states: “Because the examination is an inquisitorial rather than an adversarial process, it is inappropriate for parties to make further submissions countering the arguments of others. In order to avoid this situation arising, the date for submission of hearing statements will normally be the same for all parties, including the LPA. However, the Inspector may invite further submissions on particular matters from the LPA or any other participant, if that is helpful to aid understanding of the issues.” Whilst there will be scope for some back and forth at the Examination itself as part of the debate, as a general rule concentrate on your own case rather than putting yourself in a position where you are responding to others. g. Inspectors are not interested in omission sites. Para. 5.15 of the Guide provides as follows: “If the plan is allocating sites for development, the hearing sessions will usually involve discussion of the soundness of the allocated sites and of the method by which they were selected and alternative sites were rejected. But the merits of sites not allocated in the submitted plan (known as “omission sites”) will not normally be discussed

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at the hearing sessions. This is because the focus of the examination is on the soundness of the submitted plan. However, there may be exceptional circumstances where it is necessary to discuss alternative sites. For example, if the provision of housing land in the plan falls below the area’s identified housing need, such a discussion may assist the Inspector in determining whether or not additional housing land is available and suitable for allocation”. h. It is therefore vital that all your representations should focus on the merits or demerits of the plan as submitted. Pointing to a site or sites that have been omitted, and arguing that they are ‘better” than the site or sites included, will not further your cause. An omission site should only be brought up to bolster/exemplify a wider point about the unsoundness of the submitted plan (e.g show the flaws in the SEA; challenge LPA’s argument about constraints and lack of appropriate sites sufficient to meet housing needs etc). i.

Legal representation at the hearings is permitted, but the role of legal advocates is very different to that at a s.78 Inquiry. Para. 5.16 of the Guidance provides as follows: “Sometimes participants choose to be represented at the hearings by a legal advocate (barrister or solicitor).

Legal advocates take part in the hearings in the same way as any other participant. They will not usually be permitted to present evidence formally and cross-examine as they would at an appeal inquiry, as this would undermine the inquisitorial purpose of the hearing as well as the principle that all participants are equal partners in the discussion (Circumstances where formal presentation of evidence and cross-examination may be permitted are considered in Section 9 below).” Para. 5.17 adds that “It is often particularly helpful for the LPA to be assisted by a legal advocate. Their familiarity with presenting cases can prove useful in reviewing the adequacy and appropriateness of the LPA’s evidence base and marshalling the evidence to assist the Inspector.”

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j. In our experience being legally represented at the Hearing is extremely valuable. The usual skills of the advocate (identifying the key issue, seeking out the relevant supporting evidence for that issue and directing the Inspector to it, and making the right point about that issue succinctly, persuasively and before the moment has passed in what can be a fast moving debate) can assist in making sure you do the best for your client at the Examination.

HOW CAN I MAXIMISE THE FORCE OF MY SUBMISSION? 22. Considerable thought and care should be put into the written representations. If a convincing submission can be drafted, this can persuade the Inspector at the outset before the Examination is convened. Input from specialists including Counsel is usually advisable at the earliest opportunity.

23. The submission ought to be drafted in a way which is likely to have the most impact on the Inspector. The Examination is not an opportunity to indulge in a general whinge about the Council or the draft plan. The Inspector wants assistance with the particular task he is required to tackle. To that end, it ought to be selfconsciously and explicitly focussed on the tests for soundness. All the planning judgments and criticisms of the draft plan ought to be expressed under the guise of soundness. All the points made about the substance of the plan and any modifications promoted ought to be linked back to the 3 tests for soundness.

24. How might that look in practice?

25. If your objective is for the draft plan to fail, the priority is to identify a “showstopper” which offends the soundness test. To that end, one might focus on the following a. challenge the appropriateness of the SA underpinning the plan (although given the Courts’ reluctance to declare a SEA legally deficient, it is best to use the shortcomings in the SEA to bolster an attack on soundness rather than legal compliance – see for example Flaxby Park v Harrogate [2020]

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EWHC 3204 (Admin), [128]-[135] b. Attack the housing requirement upon which the plan sits as underestimating the area’s objectively assessed needs (e.g does it make sufficient provision for the unmet need from neighbouring areas?); c. Identify reasonable alternatives which the Council has failed to consider; d. Draw attention to the deficiencies of joint working on cross-boundary strategic matters; e. Identify parts of the plan which are inconsistent with national policy; f. Draw attention to shortcomings and material omissions in the SCGs; g. Cast doubt on whether the plan is sufficiently ambitious at the “back-end” of the plan period.

26. If your objective is for the draft plan to pass the soundness test (because you act for the LPA, or are a supporter of the plan) one might focus on the following: a. Defend the strategy and draw attention to the fact that the expectation for the search for reasonable alternatives is limited and based on proportionate evidence; b. Show-case the benefits of the strategy in general and the allocation in particular; c. Draw out all the elements of the plan, which are controversial, which can be shown to be consistent with national policy.

27. Promoters of a plan, when faced with a difficulty which cannot satisfactorily be addressed can fall back on provision for a review. This will “keep the show on the

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road” and allow the Inspector to judge the plan sound.

28. If soundness requires that new allocations be made, this may result in a delay to the adoption of the plan as part of the major modifications process. Think carefully about whether a delay suits your overall strategy. The Procedure Guide at para. 6.11 says: “If the MMs are likely to involve the allocation of additional sites that did not appear in the submitted plan, the Inspector may ask the LPA to undertake SA, HRA and consultation on the additional sites as a separate process, before the schedule of MMs is agreed. This will enable the Inspector to consider the representations on the additional sites, and if necessary, hold further hearing sessions to discuss them, before consultation on the other MMs takes place. No further consultation on the additional sites will usually be necessary unless there are subsequent substantive changes”.

WRITING YOUR HEARING STATEMENTS 29. As explained above, the Hearing Statements come right at the end of the written stages of the Examination and are the last stage before the Examination hearings commence. At this stage go back through all of the submissions you have made at the various stages (reg. 18 and 19) and make sure that what appears in your Hearing Statements is consistent with what you have submitted at early stages. If you need to change tak make sure you are able to justify this by reference to new evidence that has emerged or a change of position by others to which you have had to respond.

30. Most importantly, do not simply set out what you wrote in your earlier submissions. You need to recast those earlier submissions in a manner that takes account of, and clearly and succinctly responds to, the Inspector’s Note & initial findings and answers the questions he has raised for the Hearing sessions. The Statement ought not to be a comprehensive essay on the merits of the plan. It ought to be narrowly focussed on the areas of controversy through the lens of the tests for soundness. As with a proof of evidence, it ought to be succinct, clearly & logically structured and well expressed. It should answer the questions asked by the inspector.

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Law correct as of 7th March 2022

This paper is presented for information only and does not constitute legal advice

Satnam Choongh sc@no5.com Jack Smyth js@no5.com No5 Barristers’ Chambers +44 (0) 845 210 5555

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Peter Goatley QC Odette Chalaby Green Belt: How to build a very special circumstances case now

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Peter Goatley QC Planning and Environment

Year of Call: 1992 | Year of Silk: 2020 Email Clerks: planning@no5.com

Peter Goatley 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 significant 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 floorspace at Waterton Retail Park,

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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 Pathfinder 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 has an amazing ability to assimilate information and present his case in a first-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 firm 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 “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 No 5 Chambers’ offices. 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 firm, 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

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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 Hatfield DC [2018] EWHC 382 (Admin) Successfully quashed a grant of planning permission for a new crematorium where the officer’s report significantly 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 first 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 definition 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.

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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)

Qualifications MA (Oxon)

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Green Belt: How to build a very special circumstances case now Introduction 1.

As many of you will be aware, just last month Basildon, an authority which is 63% Green Belt, 1 abandoned years of work by voting to pull a 20,000 home local plan. Basildon is not alone. In January 2022, Hertsmere (80% Green Belt 2) pulled its emerging local plan, which had proposed 12,000 new homes. The trend also includes Green Belt authorities of Tonbridge and Malling (withdrawn in 2021), St Albans (withdrawn late 2020) and Uttlesford (also 2020).

2.

The plan-led system is not working in many Green Belt areas. That undoubtedly makes things harder for those promoting development. However, it does not make it impossible. The purpose of this paper is to outline how, even without an allocation in an adopted plan, it is possible to build a strong planning case (with a sufficiently clear prospect of prevailing at appeal) for a wide variety of proposals that count as “inappropriate development” in the Green Belt – from large scale housing, to sheds, schools and even crematoria.

3.

In NPPF paragraph 147 3 we are told that inappropriate development in the Green Belt should not be approved except in “very special circumstances”.

Paragraph 148 explains what this means in practice: “When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.”

4.

In other words, very special circumstances represent those considerations that are so compelling that not only the substantial weight that must be accorded to any Green Belt harm but also any other harm is “clearly outweighed”. The

1

https://www.basildon.gov.uk/article/2191/Green-belt-information

2ahttps://www.hertsmere.gov.uk/Documents/09-Planning--Building-Control/Planning-Policy/Local-

Development-Framework/Review-of-Selected-Green-Belt-Sites-and-Boundaries.pdf 3 Please note that the numbering of the relevant paragraphs of the NPPF has changed over time

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Courts have emphasised that decision-makers must apply the test with appropriate “rigour”. 4 The Court of Appeal has also made clear that very special circumstances is a “stricter test” than that of the “exceptional circumstances” required for release of Green Belt land through a local plan. 5 5.

However, it is evident from looking at a wide range of Green Belt appeals in recent years that, in many circumstances, securing permission is not an unachievable goal, even with that rigour applied. The decisions show that it is possible to promote development successfully in a wide variety of contexts, so long as the proposal is built carefully on a well-justified planning case.

6.

The starting point is that the very special circumstances test is one of planning judgement, not of law. It is not a quantitative test involving a mathematical exercise 6, but a qualitative look at the case as a whole. 7 Very special circumstances do not have to be wholly extraordinary. What that means in practice is there is a wide scope for applicants to affect the final outcome. A number of apparently small tweaks can affect that overall judgement.

7.

So what concrete steps can you take to build a very special circumstances case? A wide range of development might be promoted in the Green Belt, to which different considerations will apply. Therefore the approach of this paper will be to first address some key summary learnings from different areas before outlining six general steps for building the strongest case possible.

Pertemps v SSCLG [2015] EWHC 2308 (Admin) at §25 R (Luton BC) v Central Bedfordshire Council and Others [2015] EWCA Civ 537 at §56 6 See, for instance, Sefton MBC v SSHCLG [2021] EWHC 1082(Admin), the claimant's submissions at §21 and the courts explanation on the inappropriateness of a mathematical exercise at §30-34 7 Wychavon District Council v SSCLG [2008] EWCA Civ 692 at §21 4 5

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Experiences Across Different Areas Housing 8.

In many ways, housing represents the greatest challenge for building a very special circumstances case. Outlining unmet housing need and significant shortfall in the five year housing supply will be an important starting point.

However, unlike some of the less typical types of development discussed below, there is usually prima facie no particular reason houses need to be in one precise location rather than another. In addition, there is unmet housing need across the country, and if simply addressing that amounted to very special circumstances then almost all proposals would be justified.

9.

Indeed, for some time the Government’s express position was that housing need alone would not normally amount to very special circumstances. This position was expressed in Brandon Lewis’ 2013 Written Ministerial Statement (and emphasised in a second statement in 2015): “The Secretary of State wishes to make clear that, in considering planning applications… the single issue of unmet demand, whether for traveller sites or for conventional housing, is unlikely to outweigh harm to the green belt and other harm to constitute the ‘very special circumstances’ justifying inappropriate development in the green belt.”

10.

This statement was not, however, incorporated into either the 2019 or 2021 versions of the NPPF. Similar guidance has also subsequently been removed from the PPG. Arguably, it has been impliedly withdrawn. In 2019, Sir Duncan Ouseley suggested in Compton PC v Guildford BC

8

that for the less stringent

“exceptional circumstances” test for release of Green Belt land, housing need, on its own, is potentially capable of amounting to exceptional circumstances: “General planning needs, such as ordinary housing, are not precluded from its scope; indeed, meeting such needs is often part of the judgment that "exceptional circumstances" exist; the phrase is not limited to some unusual form of housing, nor to a particular intensity of need….”

8

[2019] EWHC 3242 (Admin) at §72

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11.

The Ministerial Statement was struck another blow last year, with the important appeal in Colney Heath, 9 a grant of permission for 100 dwellings in the Green Belt on the boundary of St Albans and Welwyn Hatfield Borough. Inspector Masters addressed the Written Ministerial Statement head on, stating that since the comments had not been incorporated in the NPPF and had been removed from the PPG she could only give it “little weight” (DL47).

12.

As required by policy, Inspector Masters found that the considerable reduction in openness, the fundamental aim of Green Belt protection, would carry substantial weight. However, there was only modest additional harm beyond that (the site was visually well-contained, encroachment into the countryside was not a concern, and there were no technical constraints).

13.

Colney Heath did not have an allocation or proposed allocation in the local plan.

There was no offer of land for a school or any other unusual benefits for which housing would be the enabling development. The only real benefit was housing.

Neither local authority had a five year housing land supply (both were in the range of 2-3 years), and there was no obvious plan to address this. The gravity of unmet need meant delivery of market and affordable housing both were accorded very substantial weight. The provision of up to 10 self-build or custombuild dwellings also attracted substantial weight. In all, the provision of housing outweighed harm to the Green Belt, amounting to very special circumstances.

14.

However, while the tide may be turning, Colney Heath is still an unusual decision and does not give carte blanche to any housing proposal in an area lacking a five year housing supply. On 31 January 2022, an appeal in Sevenoaks, Kent10 for up to 800 dwellings was dismissed despite the Inspector finding a “serious and chronic undersupply” (DL86) of housing in the District (1.9 to 2.8 years’ supply and continuing decline). The proposal included 320 affordable homes, self-build plots, a C2 retirement community, a primary school hub, sports facilities, public open space, commercial B1 units, and

9

Appeal 3265925, 14 June 2021. All appeals are referred to by their 7-digit reference number Appeal 3273188, 31 January 2022

10

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community facilities. The site had even been allocated for housing in an earlier draft of the emerging local plan, albeit withdrawn before the final submission.

15.

The Sevenoaks proposal would have made a significant contribution to meeting unmet housing need in terms of market, C2, and self and custom-build housing.

However, on the basis that, among other things, the appellant had acknowledged in cross-examination that provision of housing alone is not an argument that overcomes Green Belt harm (DL144), the Inspector did not find very special circumstances.

16.

In short, different Inspectors are taking different approaches. While it may be possible to get through with a uniquely powerful case for the need for market housing, it remains true that a Green Belt housing case will be strengthened significantly by either (a) the housing acting as enabling development for a different site-specific benefit, and/or (b) provision of a significant level of specialist housing, whether that be affordable or housing for the elderly. Two key questions to ask are, therefore, whether there is something the community particularly needs that the development can offer, and whether you can increase the specialist housing offer?

17.

With regard to housing as an enabler for a site-specific community benefit, a clear example is 2020’s Secretary of State permission at Cheadle Hulme, Stockport, 11 where Green Belt housing cross-subsidised development of a school for children with special educational needs. Very special circumstances derived from the pressing need for the school and the housing benefits in the context of lack of market and affordable supply (DL30).

18.

With regards to specialist housing, the provision of housing for the elderly to meet a clearly identified local need has been critical to establishing very special circumstances in a number of appeals. In January 2022, an appeal was allowed for a C2 retirement community comprising 80 assisted living apartments and 44

11

Appeal 3205559, 22 April 2020

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bungalows at Burston, St Albans. 12 As well as Green Belt harm, there was also harm to the setting of two listed buildings (including Grade II* Burston Manor). Interestingly, in 2020 a similar appeal for a 64-bed care home on the same site had been refused. The Appellants pointed to a number of factors they said meant circumstances had changed since, including the Colney Heath decision and the withdrawal of St Albans’ emerging local plan (DL8). The Inspector afforded very substantial weight to meeting specialist as well as general housing needs (there was only 2.4 years’ supply) (DL66). He also gave very significant weight to lack of alternative sites (DL69) and concluded there were now very special circumstances (DL82).

19.

Just a month before Burston, in December 2021 an appeal at Stapleford, Cambridge 13 for a C2 retirement village comprising housing with care, communal health, wellbeing and leisure facilities, public open space, and a public access countryside park was also allowed in the Green Belt. The Inspector referred to the “critical” shortage of specialist housing for an ageing population, as recognised in national planning guidance, and gave meeting these needs locally very significant weight. Combined with biodiversity enhancements to Green Belt land and recreational provision, this amounted to very special circumstances (DL73). Of note is a comment by the Inspector at DL69 that: “government advice is that housing need alone does not amount to very special circumstances required to justify inappropriate development within the Green Belt but, in this case, that housing need is combined with a lack of effective action to meet the need.”

20.

Other examples of specialist housing contributing to the very special circumstances case include Retirement Villages’ appeal in 2018 in West Malling, Kent 14 and that of Castleoak in 2019 in Great Boughton, Chester. 15

21.

However, before embarking on an exercise to simply increase specialist housing provision, it is critical to understand clearly the need in the

Appeal 3279463, 31 January 2022 Appeal 3280395, 29 December 2021 14 Appeal 3202040, 19 December 2018 15 Appeal 3203413, 17 July 2019 12 13

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district/borough and settlement – look at the existing provision, waiting lists, the pipeline of new proposals, and the prospects of other solutions, for example.

Specialist experts can assist from an early stage in establishing the evidence base. If the evidence does not support the enhanced offer, it is unlikely to assist.

Commercial and Economic 22.

Often commercial proposals will be large and even more visually and spatially harmful than housing. Unsurprisingly, a significant number of recent Green Belt appeals have been called in by the Secretary of State. However, in some ways building a very special circumstances case can be easier here: the earlier Ministerial Statement is not casting a long shadow, and often proposals will be more particular and with more pronounced location-specific requirements than housing.

23.

Some support for employment and economic benefits can be garnered from the NPPF. Paragraph 81 tells decision-makers that “significant weight” should be placed on the need to support economic growth and productivity. In addition, paragraph 83 provides that 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.” (emphasis added)

24.

In the early years of the NPPF, there were some distinctive successes for commercial proposals in the Green Belt, including in 2014 the expansion of Pinewood Studios 16 and a Strategic Rail Freight Interchange (“SRFI”) at the Former Aerodrome, Upper Colne Valley 17. Both of those appellants pointed, in particular, to the unique need for the proposals in that location – the film studio was already in place, and there was a recognised requirement for a new SRFI to serve London and the South East. In short, these were unusual proposals that could not be located elsewhere.

16 17

Appeal 2199037, 18 June 2014 Appeal 2109433, 14 July 2014

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25.

Similarly, in February 2022, three Inspectors granted permission for Bristol Airport 18 to increase its capacity through extensions to the terminal building and almost 5,000 new parking spaces. The application had been refused against an officer’s recommendation, amid significant local opposition to the scheme. Part of the development was in the Green Belt, however the Inspectors found that there was a demonstrable need for the scheme and that it would deliver important socio-economic benefits. Taking into account the lack of alternative sites outside the Green Belt (DL438), the Inspectors found very special circumstances justifying the grant of permission (DL561).

26.

However, it has also become clear in recent years that commercial Green Belt development does not need to be quite so distinctive. An effective approach is to focus on the impact the development will have in the region or district in terms of significant job creation, economic growth and “levelling up”, and meeting clearly identified local or regional business needs. At the core of any strong planning case will be a substantial socio-economic analysis reflecting current conditions, which should ideally be commissioned early. A wide range of policy, guidance and economic data should be marshalled to support the case for why this development, in this location, at this time.

27.

A clear demonstration of this approach working well is 2021’s called-in grant of permission for over 2.2 million square feet of B2 industrial and B8 distribution space entirely in the Green Belt to the east of St Helens. 19 Unsurprisingly, the Secretary of State found significant harm to Green Belt openness and conflict with the purposes of safeguarding from encroachment and preventing merging of neighbouring towns (DL17-19). In addition, there was also significant weight given to harm to the landscape character of the area (DL26) and heritage harm which carried great weight (DL30).

28.

Yet, the economic case was so powerful that all that harm together was clearly outweighed. The development is expected to deliver around 3,900 full time

18 19

Appeal 3259234, 2 February 2022 Appeal 3265899, 11 November 2021

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equivalent jobs and to contribute around £141.5 million in Gross Value Added to the St Helens economy (DL24). There was, in addition, a shortage of readily available sites to meet the needs of major logistics operators in the North West (DL23). The Secretary of State found that the tangible significant benefits would represent an opportunity to address significant deprivation issues in St Helens, providing a critical boost to the local economy and supporting regeneration.

Overall, the socio-economic benefits delivered attracted very significant weight amounting to very special circumstances (DL25).

29.

St Helens is an important decision reflecting the growing importance of the levelling up agenda for significant commercial development proposals in the Green Belt. It is also echoed by similar grants of permission by the Secretary of State in appeals called in at the same time at Junction 25, Wigan20 and Wingates Industrial Estate, Bolton. 21 All of these inquiries proceeded with some consensus in respect of the economic benefits and the absence of alternative sites to meet the clearly articulated evidence on commercial needs.

In the Bolton case, for example, the decision followed a similar pattern to St Helens, with the Secretary of State noting the “substantial planning need” for major logistics (DL15). The Secretary of State referred to NPPF paragraphs 80/82 (now 81/83) and pointed out that the proposals would support up to 2,500 jobs with other economic benefits in an area of severe deprivation, attracting very substantial weight (DL27). 22

30.

Finally, another recent permission of note is Denby Hall, 23 the extension of a business park through construction of three new B1, B2, and B8 units. Amber Valley is an area with a strong industrial/manufacturing heritage but with an economy that had shrunk in the pandemic. The Inspector found that the provision of new manufacturing jobs was central to combat local unemployment and to boost regional economic growth. The economic benefits case was

Appeal 3253242, 21 June 2021 Appeal 3253244, 21 June 2021 22 Note, the Secretary of State did refuse permission Haydock Point (Appeal 3256871) which was a proposal not supported by the LPA and where the Inspector agreed as to the evident likelihood of a sufficient supply of employment land without the need for that site 23 Appeal 3265602, 17 September 2021 20 21

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established around four pillars: (1) job creation (810 net jobs, safeguarding 100 more jobs, and 390 construction jobs); (2) economic growth; (3) innovation through clustering; and (4) environmental benefits (DL44).

31.

In short, commercial proposals have been successful in overcoming Green Belt harm where the economic benefits are stark and can be rapidly delivered, whether through job creation to combat unemployment, or economic growth that could turn an area facing deprivation onto a new path. A strong local or regional story is critical. If those benefits, alongside the absence of viable alternatives, can be properly evidenced, this will go a considerable way towards persuading decision-makers that very special circumstances are made out.

Crematoria 32.

A third growing area which last year saw several successes in the Green Belt is slightly more unusual – crematoria development. While the NPPF specifies at paragraph 149(b) that cemeteries and burial grounds are not always inappropriate development in the Green Belt, crematoria are and so need to meet the very special circumstances test. Today around 80% of deaths result in cremations, and the evidence shows an increasing trend towards these, generating significant need for provision of facilities. The growing need is exacerbated by England’s ageing population and very significant increase forecast in future death rates, putting real pressure on established facilities.

33.

Furthermore, under the Cremation Act 1902, crematoria need to be located at least 200 yards away from the nearest dwelling and 50 yards away from the public highway. In many parts of the country, those constraints make it difficult to avoid Green Belt locations, given their extent outside of built-up areas.

34.

Three recent permissions have shown that carefully articulating a planning case around these two factors – clearly demonstrated local need, combined with a lack of suitable alternative sites – can amount to a successful route to building a very special circumstances case for such proposals.

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35.

Essington 24 involved two proposals for crematoria in Staffordshire, both recovered for consideration by the Secretary of State, who found Green Belt harm in terms of openness and encroachment and gave that substantial weight.

However, remarkably, he found very special circumstances to justify both schemes. Critical to this success was the carefully constructed need case: the Secretary of State was persuaded of the need for not only one but two new crematoria in the area (DL17). The case was built on the quantitative need for more facilities and also on the qualitative need for a better quality of experience in the context of existing crematoria ageing, in need of investment and updating, and at or reaching capacity. Addressing qualitative need in and of itself attracted significant weight (DL16). It was also uncertain that other satisfactory sites would come forward causing less Green Belt harm.

36.

The permission at Oxted 25 was for a crematorium with a ceremony hall and parking in the Surrey Green Belt. The site was also in the setting of the Surrey Hills AONB, however careful landscaping proposals meant that harm to its setting was only moderate. Again, the focus of the decision was on the crematorium meeting “an essential community need”, with regard to both qualitative and quantitative under-provision. All five existing facilities were found to be ageing with problems including inadequate car parking, poor public transport and prominent religious iconography (DL40). Contribution to meeting the growing need was afforded very substantial weight. Moderate weight was also given to additional benefits in the form of landscape planting, biodiversity net gain, and a boost to the local economy through jobs and spending on local services. Meeting need together with these incidental benefits met the very special circumstances test (DL51).

37.

Although not required by national or local policy, the appellant in Oxted had, in addition, undertaken a site search appraisal to show how it had arrived at the appeal site. The extent of this assessment was the subject of some criticism by

24 25

Appeal 3039129, 31 March 2021 Appeal 3272384, 30 September 2021

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the Council, but this criticism was rejected by the Inspector who considered that the assessment was based on a thorough and structured process (DL37).

38.

Most recently (December 2021), Inspector McDonald granted permission (together with a partial award of costs against the LPA) for a unique proposal for the UK’s first Hindu crematorium located along with a large dining hall for up to 100 people (to allow for ritual washing and eating) at the Anoopam Mission temple in Denham 26 in Buckinghamshire. The plans introduce large and permanent built form into the Green Belt: total built floor area will be over 2,000 square metres, along with considerable areas of hardstanding and parking for up to 156 cars and 6 coaches. The level of activity will also be significant, with the crematorium catering for up to 500 attendees.

39.

Again, a strong need case constructed with the help of two expert witnesses (one dealing with quantitative need, the other dealing with qualitative need in relation to Hindu faith requirements) was critical. The Inspector found, having regard to the Public Sector Equality Duty, that there were failures (that were also recognised nationally by Government) of existing crematoria to meet the requirements of the Hindu faith community (DL21). These failures include a lack of parking owing to larger attendances, lack of viewing rooms, failure to enable open coffin rituals and a Christian setting (DL30). The Inspector gave significant weight to quantitative need, with the site situated close to a substantial Hindu population, and also very significant weight to addressing the qualitative deficit (DL27, DL31). As in Oxted, the appellant had carried out an alternative sites assessment, which the Inspector found to be robust, with lack of suitable alternatives weighing significantly in favour of the proposal (DL27-28).

40.

The key lesson from these crematoria appeals is that a strong case based on clear evidence of need and lack of alternatives will be at the core of any successful argument that very special circumstances exist.

26

Appeal 3270138, 16 December 2021

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Renewable Energy 41.

Another type of development that has seen some recent change and that could represent a growing area in future is renewable energy provision in the Green Belt, in particular solar farms. Paragraph 151 of the NPPF makes clear that many renewable energy projects will comprise inappropriate development when located in the Green Belt. However, it then goes on to offer a limited degree of support for such proposals: “…very special circumstances may include the wider environmental benefits associated with increased production of energy from renewable sources.”

42.

In addition, renewable energy schemes benefit from a presumption at paragraph 158 of the NPPF that such applications should be approved if the impacts can be made acceptable.

43.

Back in 2016, the Secretary of State called in and dismissed several appeals for Green Belt solar developments including at Frodsham, 27 Codicote, 28 Upminster 29 and Claverdon, 30 holding in each that tackling climate change did not amount to very special circumstances sufficient to outweigh Green Belt and any other harm.

44.

Following those call-in decisions, solar developers have evidently been reluctant to go to appeal. That is unsurprising, given that it appears that until very recently all Inspectors have followed the Secretary of State’s approach, dismissing all Green Belt very special circumstances appeals (see for example Berkswell 31 in 2017, and Milford Road, Everton 32 in 2019).

45.

However, as climate change, net zero, and energy security become increasingly important priorities for the Government, this could well represent a

Appeal 3140162, 25 May 2016 Appeal 3131943, 31 October 2016 29 Appeal 3007618, 2 February 2016 30 Appeal 3029788, 20 April 2016 31 Appeal 3155025, 1 March 2017 32 Appeal 3199671, 7 February 2019 27 28

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significant future body of work. It may be that the tides have already started to turn. In 2020, an appeal for a solar development in Hertfordshire’s Green Belt at Digswell 33 was unusually given the go ahead by an Inspector. The Inspector found that the environmental benefits of the scheme and the fact that impacts could be made acceptable amounted to very special circumstances justifying permission (DL28). In 2021, at least two solar proposals in Green Belts were also allowed at application stage by Brentwood Borough Council and Central Bedfordshire Council.

Six Steps to Success 46.

There has clearly been some divergence in the experiences of securing permission for development across the different types of Green Belt proposals above. However, the common theme is that while building a very special circumstances case is not easy, it is definitely possible if it is well-constructed and based on strong planning arguments. Indeed, a number of more general lessons can be derived from a wide range of cases across these areas.

No 1 – Tell a clear story 47.

As highlighted at the start of this paper, it cannot be emphasised enough that the test for very special circumstances is a matter of planning judgement, not law (Wychavon). As such, telling a persuasive story, and giving the right overall impression, is absolutely critical to success. A very special circumstances case should ultimately be capable of simple expression, however intricate the underlying evidence base. What is really so special about your proposal?

Whose lives will it change? Why is it needed here and now?

48.

One obvious possibility is grounding the case in a strong local and regional story. That was critical in St Helens, where the Secretary of State found that the proposal had the potential to turn around an entire area by spearheading economic revival, transforming employment prospects, and stopping the onset

33

Appeal 3225810, 26 February 2020

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of deprivation. Added to that story was helpful framing of the Government’s levelling up agenda.

49.

Another possible narrative might be improving the lives of an underserved local community, be that the unmet needs of a minority religious group (Denham), a growing elderly population without access to appropriate housing (Burston), or children with special needs urgently requiring new facilities (Cheadle Hulme).

Looking to national policy support and Government recognition of the problems can add to the imperative of addressing the identified concern. For example, the PPG now states that the “need to provide housing for older people is critical” 34 – the only such use of the word in national guidance on housing need, and something that should be clearly identified to the decision-maker.

50.

Articulating the story in clear and memorable terms must be considered from the initial Planning Statement through to preparation of proofs for appeal. The Inspector should not discover that story for the first time in a barrister’s closing remarks at inquiry. Instead, the story should frame the decision-makers understanding of all the documentary and oral evidence from the outset.

No 2 – Build a package of benefits 51.

In R (Basildon DC) v First Secretary of State and Temple 35 the High Court dismissed a submission that the very special circumstances test requires that each factor relied upon must itself be “of a quality that can reasonably be called ‘very special’”. Instead, a number of ordinary factors, none of them very special when considered in isolation may, when combined together, amount to very special circumstances.

52.

The upshot is that it is always a good idea to consider what additional benefits for the local community and the wider area the scheme could provide – and to

34 35

Reference ID: 63-001-20190626 [2004] EWHC 2759 (Admin) at §10

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articulate those clearly to the decision-maker as factors contributing to the overall judgement of very special circumstances.

53.

The NPPF considers that it is important for local planning authorities to look for opportunities to offer public access to established Green Belts, to provide opportunities for outdoor sport and recreation and to enhance landscapes (paragraph 145). With this in mind, could your scheme open up land which has been publicly inaccessible? Could you offer landscape or biodiversity enhancements? Is there an opportunity for provision of space for sports or recreation? In short, are there opportunities for some form of compensatory improvements of the sort contemplated in PPG 64-002 (although that is more properly directed to plan-making context). Addressing an acute local concern can not only set the scheme apart from any other Green Belt site but also gain support of local residents.

54.

A good demonstration is the Denham crematorium. Alongside the primary case on need, the Inspector afforded positive weight to footpath improvements opening access to the public, landscape and ecological enhancements, 10% biodiversity net gain, water features, incidental job creation, and provision of a “high quality, beautiful and sustainable building”. Together this package of incidental benefits carried significant weight in the planning balance (DL41).

55.

There are many other examples. In the Secretary of State decision to allow permission for some 500 new homes on the Green Belt in Burley-inWharfedale, 36 there was “great weight” given to provision of a site for a new primary school, “significant weight” for net benefits for biodiversity, and “very significant weight” for the heritage benefits of using a Roman Temporary Camp as an educational resource (DL41). Economic benefits, new recreational facilities and minimising need to build in areas of greater flood risk all carried moderate weight (DL41).

36

Appeal 3208020, 3 March 2021

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No 3 – Evidence the need case 56.

Crucial to successful appeals across all four areas outlined above has been building the case around clearly evidenced unmet local, regional, or national need for the proposals. Often, this will be most effective if specialist experts are brought in early, when the terms of the application are being formulated, to create the foundations of the strongest possible evidence base, whether for affordable housing, care, or unemployment.

57.

In the context of housing, it is helpful to drill down on the specific local circumstances and tailor the proposals accordingly. How many people are on the social housing register, and is there a particularly acute income to housing cost ratio? Is there a long waiting list for self-build or custom-build sites? Is the local authority failing to address the needs of elderly people? In the Burston appeal, the benefits relating to both general and specialist housing needs, having regard to local provision, were accorded very substantial weight. Even if it is not often enough on its own, a strong case on unmet market housing needs in the context of an authority without a five year housing land supply has also plainly assisted in many appeals including Colney Heath, West Malling, Stockport, and Burley-in-Wharfedale (which had less than 2 years’ supply).

58.

If the need evidence is not persuasive or up-to-date it will be far harder to persuade an Inspector that Green Belt harm is outweighed. An example of this is the recent dismissal of an appeal at Rixton, Warrington 37 for a C2 use class 74 bed space dementia care home in the Green Belt. In refusing permission, the Inspector found the current care home occupancy rate appeared to be able to cope with existing need and there were “uncertainties concerning demand” for such facilities brought about by the Covid pandemic, which had to be factored into assessment of future need (DL34).

59.

It is also important to keep in mind that for many types of proposals an analysis of quantitative need can be bolstered significantly by careful consideration of

37

Appeal 3256101, 15 June 2021

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qualitative need. This has been a factor in each of the three crematoria successes of 2021, particularly determinative at Denham where qualitative need on its own was afforded very significant weight. However, it is worth considering qualitative need for other types of development, too. For example, if you are proposing a C2 facility with specialist accommodation for older people, consider augmenting your case with expert evidence on the quality of existing provision in the area and whether it meets reasonable 21st century standards (do existing facilities have ensuite bathrooms, for example?).

60.

Similar considerations regarding qualitative need might also apply to other proposed community facilities such as recreation or sports – even if they exist, are they no longer fit-for-purpose? In the September 2021 grant of permission for some 167 dwellings in the Green Belt at Codicote, 38 the appellant offered playing pitches for the adjacent school which was in desperate need of expansion. The need was described as “urgent” because, for the school to be able to expand – as it needed to – it had no other option than to start using up its own playing fields and pupils were having to travel elsewhere, which was unsustainable. That was a “clear and very important benefit” that should be afforded significant weight (DL47).

61.

In addition, it will assist if you can show that no alternative sites are likely to meet that carefully evidenced need in the required timeframe. Even though not required by national or local policy, the appellants’ alternative sites assessments at both Oxted and Denham were important factors for the Inspectors in coming to their conclusions. The Burston Inspector gave very significant weight to lack of alternative sites (DL69). And a lack of suitable alternatives is often critical to commercial proposals, as at Denby Hall and St Helens. In the November 2021 dismissal of the appeal for a motorway service area at Chalfont St Peter, 39 core to the Inspector’s reasoning was that there was a feasible alternative site that would offer the same benefits with considerably less harm.

38 39

Appeal 3273701, 28 September 2021 Appeal 3272171, 17 November 2021

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No 4 – Make use of emerging allocations 62.

An allocation of the site for the type of development proposed in an emerging local plan will be a material consideration for a decision-maker, whether at firstinstance or appeal. The weight given to that allocation will increase the later the stage of preparation of the emerging plan (see NPPF paragraph 48). The permission at Codicote was notably granted in the context of the emerging local plan being at an advanced stage and the appeal site being proposed for housing in that plan. Combined with concerns about the Council raising arguments on prematurity, this can create a temptation to delay an application.

63.

However, some recent cases demonstrate that moving quickly on an emerging allocation may actually be more advantageous. First, allocations at very early stages in the local plan process can still be helpful. In the West Malling appeal, the Council was still consulting on whether the appeal site was suitable for removal from the Green Belt, and the plan had not been submitted for examination (DL46). Nonetheless, the Inspector still gave some positive weight to the allocation, and “accord[ance] with the site’s draft allocation” clearly played a role in his conclusion (DL59). A draft allocation as a strategic housing site (for 300 homes) was also relevant in the grant of permission for 500 houses at Oxford Brookes, Wheatley Campus, 40 for 100 residential units at Roman Road Brentwood41 and for Cheadle Hulme, where there was a proposal to remove the housing part of the site from the Green Belt in the emerging plan.

64.

Secondly, while a draft allocation at an early stage of an emerging plan will give some support to the proposal, there is always a risk of losing that support if either the allocation or the plan itself is withdrawn (see paragraph 1 of this paper!). The refusal of permission at Sevenoaks, even where the Inspector found a “serious and chronic undersupply” of housing, was in the context of the

40 41

Appeal 3230827, 23 April 2020 Appeal 3256968, 11 May 2021

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site having been allocated in an earlier draft of the emerging plan but then subsequently withdrawn from the later Regulation 19 submission.

65.

In short, an emerging allocation may bolster the very special circumstances case, even at an early stage. However, the reality of the failings of development plans in Green Belt areas around the country suggests that it may be wise to give consideration to the optimal time to submit an application for permission.

Whilst there cannot be any set prescription that is appropriate for all cases, the options may include (1) awaiting adoption of the plan (if it is progressing), (2) awaiting withdrawal of a plan (especially if it is simply for unjustifiable, perhaps wholly political, reasons), or (3) acting when the delay in the plan's preparation is becoming so inordinate as to amount to a cessation of progress. There may be a window that arises that would justify submitting an application early and then going to appeal. The appropriate course will need to be judged in each case.

No 5 – Remember that not all Green Belt is equal 66.

It might be inevitable that your proposal has to go in the Green Belt. However, when selecting a site, remember that not all Green Belt is the same.

67.

One obvious manifestation of this is that your case will be easier if at least part of the site is made up of previously developed land. Under paragraph 149(g) of the NPPF, redevelopment of previously developed land which would (i) not have a greater impact on the openness of the Green Belt than the existing development; or (ii) not cause substantial harm to openness while contributing to meeting identified affordable housing need, will not count as inappropriate development. As such, if even part of the site is previously developed, this might constitute a factor that may be beneficial to the promotion of the site, even if it does not necessarily form a fully justified exception to the application of Green Belt policy.

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68.

Partial redevelopment has been relevant in a number of cases. In the grant of permission for 151 apartments at Station Approach, Bromley, 42 the Inspector held that 38% of the site was previously developed land and, crucially, the proposed development would have no greater impact on openness in that area (DL20). For Wheatley Campus, the Secretary of State considered that all the university’s greenfield playing pitches were to count as previously developed, so only 14% of the total site required very special circumstances.

69.

Another factor to keep in mind when considering site selection within the Green Belt is the natural visual containment of the site – and possibilities for later landscaping reducing visual harm over the development’s lifetime. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open (NPPF paragraph 137). Openness has both visual and spatial meanings in this context. 43 As such, harm to openness will be reduced if a site is visually well contained. Can you offer landscaping and open space that will assist in mitigating the visual impacts of the scheme?

70.

The importance of visual containment is demonstrated in a number of appeals.

At Oxted, the potential impact on landscape was a significant part of the case, with the Inspector finding that the visual loss of openness would be very localised, and that by year 15, once the landscaping had matured, the scheme would merge into a wider wooded setting (DL16). That site had been carefully selected by way of a site search appraisal. Visual containment also played a role in the grant of permissions in Burston (DL19), Colney Heath, West Malling, and Wheatley. The solar development appeal at Digswell was also given the go ahead in part due to the landscaping and the topographical benefits of the site being able to locate the solar panels within a hollow.

Appeal 3206569, 26 June 2019 Note the Supreme Court judgment in Samuel Smith v North Yorkshire Council [2020] UKSC 3, [22][23] and PPG 64-001-20190722 42 43

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No 6 – Minimise other bases for objection 71.

Finally, while it may go without saying, in inappropriate Green Belt development cases it is more important than ever to minimise other harms amounting to additional bases for objection. The case law is clear that very special circumstances must be capable of outweighing all harm (“any other harm”) and not just harm to the Green Belt. 44 Applicants should seek to overcome any technical objections early, from highways to flood risk, and certainly before any appeal determination.

Conclusion 72.

Building a very special circumstances case is never straightforward. However, the nature of the test (an overall qualitative judgement) means there is wide scope for applicants to strengthen their case significantly through deploying the steps outlined in this paper.

73.

It is important to remember that very special circumstances are not a particular “thing” or “benefit” of a scheme, but the outcome of a balancing exercise that considers whether all harm, including the substantial harm that must be accorded to Green Belt inappropriateness, is outweighed by other considerations. Equally as important as the benefits are the other harms, which is why site selection and overcoming technical objections are so important.

74.

Despite the inevitable challenges, there have been many success stories in recent years, particularly where the applicant has been able to show a combination of a strong evidence base on need, a compelling story, a package of well-articulated benefits, and a well-selected site. That is so both across traditional housing development and also in growing areas such as crematoria.

Law correct as of 4 March 2022

44

Redhill Aerodrome Ltd v SSCLG [2014] EWCA Civ 1386 at §20, §21

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This paper is presented for information only and does not constitute legal advice Peter Goatley QC & Odette Chalaby pgoatley@no5.com, oc@no5.com No5 Barristers’ Chambers +44 (0) 845 210 5555

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Hashi Mohamed Christian Hawley Older Persons Need: How to measure need and build a strong combined benefits case

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Hashi Mohamed

Planning and Environment Year of Call: 2010 Email Clerks: planning@no5.com

Hashi Mohamed has been consistently listed as one of the highest rated planning barrister in England and Wales. Hashi’s practice focuses on housing, infrastructure, enforcement and compulsory purchase work. Hashi appears on behalf of claimants and defendants and specialises in all aspects of planning and environment law.

Hashi undertakes work on behalf of clients including housebuilders and major landowners, and local planning authorities across England and Wales; including at hearings and inquiries, local plan examinations, High Court and the Court of Appeal.

Hashi is a published author of two books; People Like Us; What it Takes to Make it in Modern Britain (Profile Books, January 2020) and the forthcoming A Home of One’s Own (Profile Books, September 2022) Planning Law - Section 288 and 289 TCPA statutory appeals to the High Court - Housing related Section 78 TCPA inquiry appeals - Highway matters; safety, cumulative impacts, capacity issues - Enforcement matters including prosecutions of breach of enforcement notices and injunctions.

- Permitted Development rights and Certificates of Lawfulness - Community Infrastructure Levy (CIL) - Green belt matters- including NPPF and local policy related disputes - Development in highly sensitive locations, including Areas of Outstanding Natural Beauty - Heritage Impact Assessment - Enforcement of Section 106 Agreements and similar litigation - Criminal prosecutions under the Environmental prosecutions Act 1990 - Compulsory purchase appeals and compensation claims Environmental Law - Environmental Impact Assessments and Strategic Environmental Assessments - Aarhus Convention, and in particular in relation to Protective Costs Order - European Union Habitats/Birds Directive - Flooding and Flood risk assessments - Statutory Nuisance - Public Nuisance

Public Inquiries Hashi Mohamed has appeared at over 180 planning inquiries and hearings, including.

APP/Y3940/W/17/3190561 Old Sarum Airfield, Lancaster Road, Old Sarum, Salisbury, Wiltshire Two week inquiry by Old Sarum Airfield Limited for approximately 462 residential dwellings, a mixture of employment,

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commercial / leisure, office use (Class B1) and aviation uses.

APP/H2265/W/19/3227034 Land east of Lavenders Road, West Malling, Kent Two week inquiry by Bellway Homes Strategic for an outline application for up to 80 residential dwellings (including 40% affordable housing), open space, drainage, access and associated works.

APP/U1430/W/19/3234340 Land at Clavering Walk, Cooden, Bexhill on Sea One week inquiry for an outline application (with all matters reserved except for means of access) for residential development of up to 85 dwellings.

APP/U1430/W/20/3270665 Land off Spindlewood Drive, Bexhill on Sea Two week inquiry for an outline application by Exigo Project Solutions for residential development for circa 160 dwellings with all matters reserved other than access.

APP/W3710/W/18/3217924 The Long Shoot, Land North of Greendale Road, Nuneaton One week inquiry for an outline application for residential development by Bellway Homes West Midlands of up to 75 dwellings including public open space, associated earthworks.

APP/U2235/W/20/3254134 Land West of Church Road, Otham Two week inquiry for an outline planning application by Bellway Homes Ltd for up to 440 residential dwellings, with associated access, infrastructure, drainage, landscaping and open space.

APP/E3715/W/21/326869 Land North of Coventry Road, Long Lawford One week inquiry for an outline planning application by Bloor Homes for residential development of up to 153 dwellings with associated landscaping, public open space and infrastructure.

APP/W/3005/W/21/3274818 Land off Ashland Road West, Sutton in Ashfield Two week inquiry for an outline application by Bellway Homes for residential development of up to 300 dwellings with associated infrastructure and landscaping.

APP/Q3305/W/17/3187245 Land at Bath Road, Beckington 5 day inquiry by Redrow Homes Ltd against the decision of Mendip District Council for the development of 28 dwellings.

APP/Q3115/W/16/3153639 Land east of New Road, East Hagbourne Two week inquiry by Grainger PLC against the decision of South Oxfordshire District Council to refuse outline planning permission for the development of circa 170 residential dwellings.

APP/L3245/W/15/3011886: Land North of the A371 and West of Wells, Wells, Somerset 5 day planning inquiry appeal against the decision of Mendip District Council to refuse permission for the development of circa 200 dwellings. This also involved a challenge to the recently adopted Mendip District Local Plan.

APP/L3245/W/15/3011886: Land East of Nobold Lane, Longden Road Shrewsbury 4 day planning inquiry acting on behalf Shrewsbury Council, over the development for up to 125 dwellings.

APP/A0665/V/15/3013622: Land East of Clifton Drive, Chester.

4 day planning inquiry acting on behalf of Cheshire West and Chester Council over development of up to 142 dwellings.

APP/Q3305/A/13/2194751: Farm, Piltown, West Pennard, Glastonbury, Somerset, BA6 8NQ 4 day Planning Inquiry over development of two wind turbines.

Local Plans and Neighbourhood Plans Hashi is advising various clients with interests linked to Local Plans and Neighbourhood Plans, including those in the private sector, strategic land, housebuilders, local planning authorities and others at the following examinations.

St Albans Local Plan Examination Cranbrook Plan Examination Uttlesford Local Plan Examination Sevenoaks Local Plan Examination Norton St Philip Neighbourhood Plan Mendip District Local Plan Part 1 and Part 2 County Durham Local Plan

Languages Hashi is fluent in Somali and French.

Recommendations

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“His engaging character helps get judges and planning inspectors on side.”

Legal 500 2020 An up-and-coming planning barrister who handles a wide range of work on behalf of both local authorities and private clients. He regularly appears in the High Court and in planning inquiry appeals in matters including Section 106 enforcements, CIL-related cases and compensation claims.

Chambers UK 2019

Reported Cases R (on the application of McLaren) v Woking BC [2021] EWHC 698 (Admin) A case finding that there was no error on the part of a local authority in granting planning permission for the construction of a block of flats on a site that encompassed two pieces of land, where the owner of only one piece of land had executed a s.106 agreement that was required as part of the permission.

R. (on the application of Lochailort Investments Ltd v Mendip DC [2020] EWCA Civ 1259 A case overturning High Court ruling on one ground; namely that in the absence of reasoned justification, a policy in a neighbourhood development plan which was more restrictive than national green belt policy would be unlawful.

Old Sarum Airfield v Secretary of State for Housing, Communities and Local Government [2020] EWHC 2112 (Admin A case where the High Court found that an Inspector had been entitled to conclude that the harm that a proposed mixeduse development would cause to a historic airfield’s open character and appearance would not be outweighed by the development’s public benefits. She had not been required to give reasons on other issues that did not affect the determination.

R. (on the application of Lochailort Investments Ltd v Mendip DC [2020] EWHC 1146 (Admin A case in which the High Court found that a planning authority had been entitled to accept an examiner’s recommendation that a village’s draft neighbourhood plan met the statutory requirement under the NPPF, including those for the designation of local green spaces, and should proceed to a referendum.

Wiltshire Council v Secretary of State for Housing, Communities and Local Government [2020] EWHC 954 (Admin Case in which a planning inspector, in granting planning permission for the change of use of annexed accommodation, had erred in finding the subdivision of an existing residential planning unit, comprising a single dwelling and separate annex, into two dwellings. This was particularly concerned with whether it fell within the scope of exception against isolated rural development in the NPPF paragraph 79(d).

R. (on the application of Lochailort Investments Ltd v Mendip DC [2019] EWHC 2633 (QB Case seeking interim relief to prevent local planning authority from holding a referendum on a draft neighbourhood plan where the applicant had a reasonable prospect of succeeding on its proposed claim for judicial review.

R. (on the application of Shropshire Council v Secretary of State for communities and Local Government [2019] EWHC 16 (Admin Provectus Remediation Ltd v Derbyshire CC [2018] EWHC 1412 (Admin This case was the first to consider the meaning behind the regulations which govern the refunding of planning application fees in cases where there has been non-determination of applications within the prescribed periods.

Richborough Estates Ltd v Secretary of State for Housing, Communities and Local government [2018] EWHC 33 (Admin This was landmark case which involved the determination of the meaning behind the Written Ministerial Statement on housing from 2016.

Persimmon Homes (North East Ltd v Newcastle City Council [2017] EWHC 688 (Admin A case concerning a masterplan adopted by a local authority to deal with the provision of various elements of infrastructure required for the development of a neighbourhood growth area had complied with the authority’s core strategy in relation to the provision of an access road to accommodate the resulting increased traffic.

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Bromley LBC v Secretary of State for Communities and Local Government [2016] EWHC 595 (Admin This is the latest case interpreting para.89 of the framework, which sets out the exceptions to the general policy that new buildings were inappropriate development in the green belt.

Fox Land and Property LTD v (1 Secretary of State for Communities and local government (2 Castle Point Borough Council [2015] EWCA Civ 298 An important judgement which clarified how green belt policy ought to be interpreted when considering the relationship between the supporting text to a local planning policy and the policy itself.

R (on the application of Holder v Gedling Borough Council [2014] EWCA Civ 599 What constitutes ‘material consideration’ in a case involving erection of a wind turbine in the Green Belt. What advice should be given to committee members by officers as to the range of issues which could qualify as ‘material consideration’.

R (on the application of Holder v Gedling Borough Council [2013] EWHC 1611 (Admin The High Court upheld Gedling Borough Council’s decision to grant planning permission for the erection of a wind turbine in the Green Belt.

Memberships The Honourable Society of Lincoln’s Inn Planning and Environmental Bar Association

Administrative Law Bar Association

Qualifications 2009-2010 - Bar Vocational Course, City University London 2003-2007 - BA (Hons) Law and French, University of Hertfordshire

2008-2009 - MSc, St-Antony’s College, University of Oxford 2005-2006 - Erasmus Scholar, Political History, Philosophy and French, Universite de Jean Monnet, StEtienne

BBC and Media Work Publications Hashi regularly presents documentaries on BBC Radio 4, and provides commentary on varying topics in other BBC outlets, as well as other media outlets. The latest of which are, Sir William Macpherson on what’s happened since Stephen Lawrence Inquiry – March 2019 Macpherson: What Happened Next – March 2019 BBC Radio 4, Start the Week: Jordan Peterson, Rules for Life – May 2018 As more young people die on London’s streets, its time to take drastic measures – April 2018 Scott. E. Page – Diversity Bonus: the intellectual and moral case for diversity – August 2017 Setting UP Home: BBC Radio 4, The Fix – August 2017 ‘Missing Muslims’ Report: Citizens UK Report launch – July 2017 Telling children ‘hard work gets you to the top’ is a lie – April 2017 The ‘case for the wild card’ – April 2017 Adventures in Social Mobility: BBC Radio 4 – April 2017 The Priest and The Mayor: BBC World Service – August 2016 Muslims in the Media: a call to UK editors – April 2016 The Boat Children, my time in Italy – December 2015 A tale of two Alis, a bit more about my background – December 2015 My lecture on terrorism in London, Response to Terror – July 2015

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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 conflict 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 beneficial 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 specific proposal at hand triggers (or not) the usual range of contributions required by mainstream residential developments.

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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 justified 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 Charfield, 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 (greenfield), (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, Charfield, Glos (2018) Led by Jeremy Cahill QC – secured permission following a two-week public inquiry for Barratt Homes for up to 121

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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 financial 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 financial 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 floorspace and (2) for five 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 Smithfield, 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, Hatfield 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 Modification Inquiry – Cleobury Mortimer, Shropshire (2018) Advised and acted successfully at Inquiry for Shropshire Council in relation to a proposed Footpath deletion and proposed Footpath modification. The Order was opposed by the landowner affected. The two Orders were confirmed.

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

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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

College of Law / Freeth Cartwright Environmental Law Prize 2011

Memberships Member of the Royal Institute of Chartered Surveyors

Member of the Honourable Society of the Inner Temple

Qualifications BPTC – Very Competent, BPP Leeds 2011-2013 Postgraduate Diploma in Surveying – Distinction, University of Reading 2009-2011

GDL – Commendation, College of Law Chester 2009-2011 BA (Hons) History and Politics – 2.1, University of York 1996-1999

Previous Experience 2002-2015 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 fit-out of new supermarkets, (5) Management of the existing property portfolio.

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Older Persons Housing: Building a strong case for new development proposals Introduction 1.

Residential development targeted toward the specific needs of older people isn’t new. Yet it is perhaps the most misunderstood (or least understood) form of housing development.

2.

Yes, it is constantly evolving. Yes, the different labels placed upon different categories of such housing adds a layer of complexity. But that is not unique, the planning system regularly deals with matters of considerable complexity, yet time after time applications involving housing for older people are determined without the decision-maker really reaching a point of understanding of what exactly the specific proposal is for.

3.

In our view the starting point for ensuring that a strong case can be made for such schemes is clarity.

Apples and Pears 4.

Planning is a world of technical jargon and acronyms. Housing for older people is no different with a wide range of terms including retirement villages, retirement living, independent living communities, extra care units, assisted living units, care homes, care homes with nursing, sheltered accommodation 1.

5.

It is entirely correct that each discrete form of accommodation is provided its own descriptive ‘label’. However, it is equally important to bear in mind the audience.

See also PPG 010 ID 63-010-20190626 which provides a non-exhaustive list of different types of “specialist housing designed to meet the diverse needs of older people” (notably the different types identified are expressed to be indicative / not definitive with a “significant amount of variability in the types of specialist housing for older people” expressly acknowledged.)

1

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Applicants know exactly what those different forms of accommodation entail – but do the decision-makers? Do your planning officer(s), Planning Committee Members and, if necessary, your Inspector properly understand the difference between different models of provision?

It may seem blindingly obvious to you, particularly if you deal with a daily diet of

6.

such proposals. However, for a planning officer, Member or Inspector that is not necessarily the case and certainly it should not be assumed to be the case.

7.

It is essential that the particular proposal at hand is accurately described, that consistent terminology is used and that ample information is provided as to what exactly permission is being sought for.

8.

Different forms of accommodation meet different needs and provide different benefits. Both are critical components of any overall planning appraisal. In order to give your application the best prospects of success the decision-maker needs to properly understand exactly what needs are being met and exactly what the particular benefits of a proposal are.

9.

In preparing your application assume that the reader knows nothing about housing for older people. Furthermore, assume that the reader knows nothing about the particular category of housing for older people that the proposal falls within. Explain clearly what it is, how it operates, who it is for, the specific need that it will meet and the specific benefits that will accrue 2.

10.

In short, you don’t want your decision-maker to be thinking about apples when you are proposing pears.

See APP/Q3115/W/20/3265861 Little Sparrows, Sonning Common, Oxfordshire RG4 9NY for an excellent example of this in action (considered in further detail later in this paper) 2

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Make it personal 11.

Step one having been completed the application clearly explains what exactly the proposal is for. Now is the time to put some meat on the bones.

End User

12.

It is undoubtedly an advantage if the proposal has an identified operator (or if the application itself is made by or on behalf of a specific operator / developer).

13.

Having an identified end user generally provides a greater degree of certainty not only that the scheme will be delivered but that it will be delivered in a specific form.

This invites the decision-maker to place greater reliance (and so weight) upon the specific need that will be met and the benefits which will accrue.

Illustrative materials / case studies

14.

Where an identified end user exists it is helpful to provide examples of other similar schemes which evidence the matters claimed in the present application i.e. quality of design, provision of facilities, type(s) of care packages (if applicable) etc.

15.

Even where an application does not have an identified end user, materials should be sourced which demonstrate the type of scheme which will be provided. Whilst there will undoubtedly be matters of detail which are ultimately determined by the specific operator there are nonetheless elements which are common to each type of proposal.

16.

Providing illustrative / descriptive materials or case studies detailing the specific elements of the scheme as part of the supporting documentation (over and above site plans / illustrative plans / elevations) allows the decision-maker to more easily understand the proposal at hand.

17.

Given that, generally speaking, these types of proposal have plenty of positive aspects, the greater the understanding the decision-maker has, the greater the likelihood of the scheme being determined on its actual merits as opposed to its

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assumed merits. Or for that matter the lesser the likelihood of it being refused as a result of a misunderstanding as to the merits of the scheme.

Flexibility 18.

Of course, as with any scheme, there will likely be matters which, of themselves, point toward refusal. Some are simply factual (a site might lie outside of the defined settlement boundaries) whereas others can be responded to (for example there may be particular landscape, streetscape, design or character concerns or perhaps there are disagreements as to design / appearance).

19.

As with any scheme the objective is to ensure that the matters weighing in the ‘negative’ side of the planning balance are minimised so far as possible. Do not assume that simply because a scheme will meet an identified need and delivers a list of benefits that doing so will inevitably outweigh any issues raised.

20.

Wherever feasible schemes should be amended / evolved through the planning process to address concerns raised – a flexible approach should be adopted. This in turn is of benefit should a scheme have to be appealed. It is almost always easier to ‘sell’ a scheme that has been the subject of review and amendment to address specific matters raised than cases where a design is fixed and no flexibility is demonstrated. Allegations that a proposal is one of a ‘standard’ product (whether general housing, housing for older people or indeed other forms of development) is lazy and commonplace but nonetheless can still resonate.

Prep like a boss 21.

It is obvious that any applicant’s preference is to secure a local approval. The best prospect of achieving that goal is to prepare, from the very start, for an appeal. By applying the rigour associated with preparation for an appeal every aspect of an application can be sense-checked and challenged. There is no doubt that this results in a more robust and compelling application from the very start of the process.

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22.

Whilst there are inevitably cost implications in taking such an approach it is often the case that such expenditure is either recouped in the time and cost saving of securing a permission locally, or is expenditure which would be required in any event on appeal.

23.

There is also the benefit of ensuring that as little ‘wriggle room’ or ‘doubt’ which could give rise to an LPAs resistance to a scheme is in play. At the very least issues can be narrowed which, if an application is refused, means that the reasons for refusal are kept as tight as possible.

24.

By ensuring that any potential reasons for refusal are constrained an LPAs mind can (or at least should) be focused upon the question of whether or not a refusal can be defended at appeal rather than the easy option of refusal because certain matters have not been adequately addressed. Sometimes that can be enough to secure a permission, at the very least it means that the battle lines on appeal are clearly drawn.

Sell, sell, sell….

Setting out all the positive benefits of the scheme is no time to be shy. Nor should it be assumed that benefits are so obvious that they do not need to be detailed.

That of course applies to any planning proposal but it is especially important here not only because there are a wide range of benefits which are unique to such applications but because those benefits are not necessarily obvious to decisionmakers for whom this is not part of their daily diet.

25.

Preparation and research is key. In particular: a.

identifying the need for the specific type of proposal in the locality / district;

b.

demonstrating (wherever possible) that such need is not being fully met (or met at all);

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c.

demonstrating (evidentially) the ‘downstream’ or ‘spin off’ benefits of providing such accommodation e.g. in terms of releasing existing housing – in particular showing how such proposals are a ‘multiplier’ as not only do they provide new housing but they also free up a range of more general housing types through down-sizing.

26.

Some, more recent, local plans will have specific policies in place which can be relied upon in support of such schemes. Even where the adopted development plan is silent or vague as to the provision of such accommodation there will often exist local research which has already been undertaken (e.g. SHMAs or HEDNAs) either in preparation for a now adopted local plan or as part of an emerging local plan. These are often ripe ground for identifying that there is a specific unaddressed need for older persons accommodation. Not only that but given that they are an LPAs own documents the use of them is relatively uncontentious.

27.

Such an approach often serves as a sound starting point. It may however, dependent upon the circumstances, be advantageous to go further and commission expert evidence in this regard. Such an approach is hardly unusual – it is now commonly adopted in seeking to demonstrate a particular need for affordable housing, or specific types / tenures of affordable housing. That approach applies equally here – a clearly demonstrated and evidenced need for a proposal provides an application with a good head start.

28.

Not only that, such schemes are a ‘multiplier’ in that they deliver both intrinsic benefits and have the potential to release other resources not just housing. There is now a wealth of evidence which demonstrates the importance of providing older persons accommodation in all of its various forms, indeed the NPPG states that the need to provide such housing is ‘critical’ 3.

3

ID 63-001-20190626

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Appeal Decisions 29.

In seeking to meet that ‘critical’ need it is hugely helpful for an application to clearly set out the benefits of a proposal in terms of the future occupants of the scheme and in terms of the ‘external’ benefits.

30.

There are clear social benefits of providing older persons housing including the health and well-being benefits for older people as recognised by Inspector Harold Stephens in an appeal at Sonning Common, Oxfordshire 4: “Such benefits to elderly people are entirely obvious… they are separate from housing delivery. The benefits specialist housing for older people can bring include addressing concerns about suitable supervision, frailty, care, assistance, recreation, loneliness and isolation”.

31.

Those benefits are different benefits over and above the straightforward delivery of housing, they can potentially assist in addressing the specific issues relevant to this demographic. As part of any application these ‘social’ benefits should be fully explained and evidenced. It is all too easy for such benefits to be taken ‘as a given’, they should not be – they are tangible, they reach much more widely than a particular scheme itself. In a recent appeal in Bath the potential for “…improved health outcomes and NHS savings” was accepted as an element of the “substantial material considerations” which weighed in favour of the appeal scheme 5.

32.

The delivery of housing is also an obvious benefit of these proposals, it is important however to maximise (through clear evidence and explanation) that benefit. There are a number of individual facets to it:

a.

Need – in nearly every case there is an identified (or identifiable) need for the particular form of housing, where that need is going unmet there is a clear (and we say significant) benefit in making provision for it;

4 5

APP/Q3115/W/20/325861 APP/F0114/W/21/3268794 (Homebase Site, Pines Way, Bath) at §130

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b.

Existing Housing Supply – the provision of new accommodation ‘frees up’ existing (often family) housing, there is a clear benefit in that existing stock being made available to those who it is most suited: “Under-occupied homes could then be released onto the market where they would be particularly attractive to those in younger age groups in need of larger houses to raise families. The provision of specialist housing more suited to the needs of older persons is likely to encourage them to move and would make a valuable contribution to overall housing needs which should be weighed in the balance” 6;

c.

Timeframe – for general housing schemes some LPAs rely upon assurances that their plan will ultimately deliver with trajectories pushed back to later years. Whilst that it is any event an unsatisfactory response where existing need is going unmet it is particularly so in terms of housing for older people (especially for more intensively care led schemes) as “Elderly people requiring care home accommodation are less able to wait than those in the general population needing accommodation because their needs are immediate” 7.

d.

Specialist Accommodation – each scheme is designed to meet a particular need (or needs), such schemes are not general housing but are targeted toward a particular niche. That particular need cannot, generally, be met by other types of housing or indeed other forms of housing for older people. In relation to Royal Cambridge Home, East Moseley Inspector Jackson

stated

that

“The

provision

of

purpose

designed

care

accommodation to modern standards is a significant public benefit…” 8.

APP/H2265/W/18/3202040 - Land to rear of 237-259 London Road, West Malling, ME19 5AD APP/B1930/W/20/3259161 §34 – Chelford House, Coldharbour Lane, Harpenden. Whilst that appeal decision was specifically in relation to a care home it is our view that the point can be applied to other forms of housing for older people.

8 APP/K3605/W/20/3257109 – Royal Cambridge Home, Hurst Road, East Molesey at §32 6 7

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33.

In terms of economic benefits they will vary according to the particular type of scheme. For example ‘retirement living’ schemes will generally have a greater economic impact in terms of the future spend of occupiers in the locality.

Dependent upon location this can contribute toward enhancing the vitality and viability of local centres, services and facilities.

In contrast for schemes providing a high degree of care (for example specialist

34.

dementia housing) a greater emphasis can be placed upon the economic benefit of providing employment opportunities (i.e. the trained medical staff and carers along with support staff required to run such a facility). That benefit can be ‘enhanced’ where there are demonstrable programmes in place for ensuring that job opportunities are provided locally along with training / career progression schemes.

All schemes will have an economic impact in terms of construction spend, the

35.

amount will vary according to the scheme but as a benefit it stands in its own right and should be taken into account. The benefit can be ‘enhanced’ through local labour / contractor provisions for the procurement of the project where appropriate.

Potential environmental benefits largely stem from the specifics of the individual

36.

site / scheme. One potential benefit (where applicable) is the recycling of previously developed land – a benefit specifically recognised by the NPPF at §130(c).

Following that policy guidance it is unsurprising that the parties were able to agree in the Homebase Site, Bath appeal that the regeneration of the site should be afforded substantial weight 9.

37.

Obviously that benefit does not apply for greenfield developments however they too have the potential to deliver important environmental benefits, for example the provision / enhancement of public footpaths, providing greater connectivity to those footpaths, facilitating landscape / woodland / green infrastructure improvements.

9

APP/F0114/W/21/3268794 at §93.

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There is also the matter of bio-diversity net gain. Whilst the forthcoming

38.

mandatory 10% requirement means that all schemes will need to provide a gain of at least that amount it remains a benefit and that benefit is not diluted simply because it is a requirement. Equally the delivery of a gain in excess of 10% goes to the weight that should be afforded to it as a positive factor of the scheme.

Numbers however are not the be all and end all – if the opportunity exists to improve the habitat or conditions for a particular species, flora or fauna then that too should be fully explored as a particular aspect of the overall BNG benefit.

In virtually every case strong arguments can be presented that all three of the

39.

‘overarching objectives’ 10 of sustainable development are being met. It is critical to ensure that those benefits are presented in detail, that it is not simply assumed that they will be taken into account and / or ascribed appropriate weight. The presentation of these benefits should not simply be undertaken on a ‘tick box’ basis but each and every one should be fully evidenced and supported.

40.

There are three appeal decisions which are also worth considering. In particular in relation to how different Inspectors have approached the balancing exercise of harm vs benefits; overcoming green belt harm 11; housing needs generally and needs of older people in particular; the freeing up of general housing 12; the role of the local plan context; the impact on character and appearance; or the effect of the development on protected sites and planning balance overall. 13

Obstacles in the road 41.

Whilst every scheme will have its own particular issues which need to be addressed there are two common, and to a degree related, matters which are often the subject of debate, disagreement and, ultimately, delay: affordable provision and viability.

NPPF §8 APP/H2265/W/18/3202040 – Land to the rear of 237-259 London Road, West Malling 12 Ibid 13 APP//N1730/W/18/3203638 – Land at Southwood, Thackham’s Lane, Hartley Wintney 10 11

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42.

If your scheme is an affordable product then, happily, you can skip this section.

Plainly either an entirely affordable scheme or a policy compliant scheme (in terms of affordable housing provision) attracts positive weight in the planning balance.

Many schemes however do not make provision for affordable housing and this often becomes an intractable issue between applicants and LPAs. Quite recently, an Inspector grappled with this issue, how it impacted the S106 obligation and other viability concerns. 14

43.

It is almost inevitable that any market scheme will have to justify why it should not provide an element of affordable. The starting point is of course the affordable housing policy in the adopted development. The particular wording of the policy (or policies) may or may not ‘bite’ in terms of specialist forms of accommodation.

44.

Council websites are littered with legal opinions bounced back and forth arguing (most commonly) whether or not a particular proposal is or is not a ‘residential institution’ (i.e. a C2 use) and whether or not such a use is required, on the particular terms of the policy, to make provision for affordable housing. Inevitably each scheme falls to be considered on its own particular features against the relevant policy on its own particular wording. There is no over-arching answer.

45.

It will however almost always be raised as a potential issue and so early thought should be given, at the point of preparing the application, as to what position is to be taken and what justification can be given for taking that position. Simply ignoring the point will almost always lead to (lengthy) delay during the application process.

46.

It is also important to take a realistic view of the position – what in fact are the prospects of convincing a well-informed decision maker that a particular policy does not apply to a particular scheme. Pick the battles that you can win, not the battles that cause inordinate delay and which have only limited prospects of success.

47.

Even where it is accepted that a scheme is required to provide an element of affordable housing there often follows a debate as to whether or not the scheme can viably support such contributions. LPAs are understandably keen to secure 14

APP/X5990/W/19/3229842 – Land at 36 St John’s Wood Road and 38-44 Lodge Road, London

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affordable housing, equally however many developers / providers of housing for older persons consider that the viability challenges facing such provision are not properly entertained or understood.

48.

It is abundantly clear that most schemes carry additional costs over and above ‘general’ housing including the provision of communal facilities and the additional costs of accessibility measures such as increased corridor widths and lift provision.

Setting out all of the additional viability burdens at an early stage can potentially avoid a protracted future debate as to the viability of the scheme. Even if it doesn’t it at least sets the scene and clearly explains the rationale for raising the issue of viability.

Conclusions 49.

You know your schemes inside out. You need to remember that those determining the applications for those schemes probably don’t. The most important tool is education and knowledge – ensuring that the decision-maker understands (and therefore properly takes into account) the undeniable benefits of housing for older people.

50.

Make it simple and make it clear. But do not be shy of setting out all of those particular aspects of the proposal which weigh in its favour in excruciating detail whilst also seeking to explain or blunt those which weigh against.

51.

As with any case evidence and preparation is key – there are many sources of information which can be used to develop and detail a compelling case.

52.

Most importantly these schemes almost always have ‘super benefits’, that is to say they can carry all the benefits associated with housing schemes but then bring even more to the party.

53.

It is critical to ensure that those ‘super benefits’ are not simply assumed, played down or forgotten – they should be unashamedly front and centre of any application for housing for older people.

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Law correct as of 1 March 2022.

This paper is presented for information only and does not constitute legal advice

Hashi Mohamed / Christian Hawley No 5 Chambers March 2022 No5 Barristers’ Chambers +44 (0) 845 210 5555

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Hugh Richards Oliver Lawrence Officers Reports: How to write a Report to Committee that will withstand legal challenge

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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, Lichfield, 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 offices, 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.

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- 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: offices 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 Significant 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: - Definitive Map modification - Town / Village Green registration - School Governance and Admissions

Recommendations

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“He is good on strategy, dependable, offers practical advice and successfully navigates through difficult 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 difficult issues.”

Chambers UK 2021 “Sound practitioner.” “He works incredibly hard and works well with his clients.”

Chambers UK 2020 “Experienced in a wide range of planning and infrastructure matters.”

Legal 500 2020 “He gives clear and pragmatic advice about solutions.” “Very approachable and easy to deal with.”

Chambers UK 2019 “A steadfast cross-examiner.”

Legal 500 2019 Has wide-ranging planning experience, which includes handling High Court litigation and public inquiry work. He acts for both local authorities and developers. He is noted for his adept handling of infrastructure and energy matters, with particular expertise in nuclear projects. He also regularly handles planning matters pertaining to residential development.

“He has got a good knowledge of the city and of local plan review, and a very good rapport with clients. The quality of advice and speed of response is very good. His manner easily gets the confidence of the client.” “A forceful advocate who looks after clients’ interests very effectively.”

Chambers UK 2018 “He inspires confidence in his team and he will get right to the point in a case and get it across nicely and firmly. He just inspires confidence.” “He is a forceful advocate and looks after his clients’ interests very effectively.”

Chambers UK 2017 Commended by sources for his wide-ranging experience acting for all sides on planning matters. His instructions involve energy and infrastructure, waste and housing matters. “He is a committed advocate who is very good at talking things through. He gets into his cases, and often looks at things from different angles.” “He acts with character: he is engaging, and it is stimulating to work with him. He will up the tempo in an inquiry. A very astute, experienced player.”

Chambers UK 2016

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 officer 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 officers’ 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

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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 first 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 deficit. [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)

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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 flooding 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 firm of consultants proposing flood-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 financial 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 floor 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 floor space of a supermarket was not uncertain. [2009] EWHC 964 (Admin)

Memberships Planning and Environment Bar Association.

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Oliver Lawrence

Planning and Environment Year of Call: 2018 Email Clerks: planning@no5.com

Oliver completed his pupillage in Planning and Environment Law under the supervision of Richard Kimblin QC in 2019.

After his first six months of practice, he was included in the 2020 Planning Law Survey as one of the top rated planning barristers under 35.

Oliver has been involved in several high-profile court cases including R (Heathrow Hub Ltd) v Secretary of State for Transport [2019] EWHC 1069 (Admin) and Friends of the Earth Ltd v SSHCLG [2019] EWHC 518 (Admin). He was instructed as a junior by CALA Homes to bring a s288 claim in the High Court shortly after obtaining tenancy.

Oliver has also been instructed as a junior at a number of significant inquiries. As a junior to Paul Cairnes QC, Oliver recently secured planning permission for 350 homes in West Malling, Kent. The sites had been allocated for employment use.

Oliver’s advisory practice encompasses the following areas of expertise: - Breaches of Condition - Commencement of Development - Policy Interpretation - Judicial Review - Permitted Development Rights - S106 Agreements - Injunctive Relief - Heritage Assets - The Community Infrastructure Levy Regulations Oliver’s interest in environmental law encompasses the regulatory field. He has been instructed as a junior Counsel on several occasions to defend prosecutions for environmental offences in the criminal courts. In his own right, Oliver has represented many prosecuting authorities and is well placed to advise them on matters relating to planning enforcement, statutory nuisance and community protection.

Oliver finished as a runner up in the Inner Temple Advocacy Competition 2019. He has appeared before appellate tribunals on several occasions in the course of his pro bono work.

Awards Inner Temple Advocacy Prize 2019 – Runner Up

Qualifications BA, Philosophy Politics and Economics, Oxford

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Officers’ Reports: How to write a Report to Committee that will withstand legal challenge

The Threat of Legal Challenge 1. The planning permission is finally in the bag. You have survived months of officer feedback, dutifully tweaking the application, responding to demand after demand. You have obediently acquiesced to every planning condition suggestion for your application by the local authority.

2. On the other side of the process, officers have been working equally hard, consulting, assessing, briefing and piloting the application through committee.

Members have resolved to grant permission. Conditions have been finalised.

Any necessary planning obligation has been executed. The permission has been issued.

3. There is only one thing which can stop the development now: a quashing order from the High Court.

4. A claimant has six weeks to bring a claim for judicial review after the grant of planning permission. Beforehand, they are normally expected to follow the Judicial Review Pre-Action Protocol by writing a letter to the Council and applicant / landowner setting out the basis of the proposed claim and asking for agreement to a proposed quashing order. This provides an opportunity for obvious errors to be identified and accepted early, and the application put back in the hands of the Council for re-determination without the months of delay the court process inevitably takes.

5. Claimants will ask the court to quash the planning permission on the basis of some legal error. Although a quashing order does not prevent a grant of planning permission in the future, the process is essentially reset back to

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square one. Time and money will have been wasted, both in the application process and in fighting the judicial review itself. Even if a judicial review is eventually dismissed, proposed development will be ‘stalled’ for many, many months.

6. Very often, the document which takes centre stage in these judicial review claims is the report on the application from the planning officer to the planning committee. The reason the officer’s report is so crucial is because the courts will assume that the members of the Council granted planning permission for the reasons set out in the report unless there is other information to the contrary 1. It is therefore of utmost importance that planning officers draft their reports carefully so as to avoid legal error. It is also important that applicants check the report for potential legal error. The Council and developer will essentially be stuck with the officer’s report in defending any judicial review claim. The Council will have the opportunity to put in a witness statement by the planning officer but he or she will not be able to provide ex post facto reasoning as to their thought process. Judicial review focuses the spotlight on the reasons given at the time of the decision. The local planning authority will not get a “second bite at the reasoning cherry”. 2 Applicants can help to prevent the planning officer falling into legal error in the report by careful drafting of the planning statement which is submitted to the Council setting out the merits of the application. It is sometimes the case that the error of the officer is in fact attributable to a misleading planning statement produced by the applicant.

7. The courts will quash a planning permission if they find that the decision to grant planning permission has been tainted by a procedural legal error: the planning officer has failed to follow due process, or a substantive legal error (the officer has failed to take into account a material consideration, or taken into account an immaterial consideration, or demonstrated irrationality). The report must be shown to be ‘significantly material’ in a material way that is left uncorrected by the Council. ‘Corrections’ to a report can be made in an ‘update sheet’, verbally 1 2

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

Timmins v Gedling BC [2014] EWHC 654 (Admin) at paras. 109-114.

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in committee, or even by taking the matter back to committee before the permission document is issued. The Court will not quash a decision where it is likely that the same end result would have been arrived at in the absence of the error.

8. A look at recent Planning Court cases to see what alleged errors of law have been determined at substantive hearings (so, many months after the permission was issued) include: -

Failing to apply the correct decision-taking approach: determining the application in accordance with the development plan unless material considerations indicate otherwise.

-

Failing to take into account a legislative requirement – for example with regard to Listed Buildings, Conservation Areas, Environmental Impact Assessment, protected Species or Habitats.

-

Failing to apply the correct policy framework – including any error to understand what policy means or requires.

-

Failing to take into account a material consideration.

-

Failing to address the principal controversial issues.

-

Failing to assess or determine similar applications consistently.

-

Making a significant error of fact.

-

Procedural errors – including failing to follow the correct process for making, publicising and consulting on planning applications.

The Court’s Approach 9. The principles to be applied by the Court in a case where a challenge to the validity of a grant of planning permission is founded upon criticisms of the planning officer's report to the planning committee are stated in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2019] PTSR 1452 at [41]-[42] –

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(1) Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge.

(2) Unless there is evidence to suggest otherwise, it may reasonably be assumed

that,

if

the

members

followed

the

officer's

recommendation, they did so on the basis of the advice that he or she gave.

(3) The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice.

(4) One example given of such a case is where the planning officer has plainly misdirected the committee as to the meaning of a relevant policy.

The Content of the Reports The Overarching Goals 10. The primary focus of the officer’s report is of course the development plan pursuant to the well-known statutory route. Section 70(2) of the Town and Country Planning Act 1990 provides that in dealing with an application for planning permission, the local planning authority must have regard to the provisions of the development plan, so far as material to the application. Section

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38(6) of the Planning and Compulsory Purchase Act 2004 provides that if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise. The development plan must be read as a whole.

11. The report therefore has three main goals: 1. Conclude whether the development is in accordance with the development plan; 2. Assess the material considerations; 3. Avoid misunderstanding planning policy and planning law.

The Basic Structure 12. The reality of the planning officer’s job is that they will often have several reports in their in-tray at one time. Templates can help ensure consistency with standard sections and paragraphs which show that the required factors have been taken into account. The structure should contain: 1) A summary of the main findings and recommendation of the report; 2) A description of the proposed development and site; 3) The relevant planning history of the site so far as is relevant; 4) A section addressing any important parts of the process – e.g. in cases of EIA development, amendments to the application since submission; 5) A summary of consultation responses and representations; 6) The relevant policies of the development plan; 7) Any other material considerations; 8) An identification and analysis of the main / principal controversial issues; 9) An evaluation of the section 38(6) exercise;

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10) A recommendation with a list of reasons for refusal or a list of recommended planning conditions/obligations.

Some Pitfalls in Practice The Development Plan 13. We know that the development plan has to be considered as a whole. There is no one ‘right way’ of doing that. But, as a suggestion the following approach is offered: -

What policies apply to the site of the proposed development? Is it allocated for development? Is it covered by any ‘restrictive’ policies? (for example, Green Belt, AONB, SSSI etc)

-

What policies apply to the type of development being proposed? (for example, housing, employment, retail, leisure etc)

-

What other policies applying to all development are relevant in this case? (for example, highways, heritage, air quality, ecology etc)

14. That analysis will allow the decision-taker then to reach the required overall judgment after taking into account the effects of planning conditions and obligations.

15. Some alleged errors come up time and again in the reported cases. We consider some of them below.

Heritage Assets 16. The court will not always give the officer the benefit of the doubt when it comes to the heritage asset tests. In R (Wyeth-Price) v Guildford BC [2020] EWHC 3355 (Admin), the officer had failed to advise the Council how to apply the duty in the Planning (Listed Buildings and Conservation Areas) Act 1990 s.66(1), which required them to give considerable weight to the harm to listed buildings

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in the balancing exercise. Furthermore, he had not referred them to the guidance in the NPPF paras 193-194 when considering the potential impact of designated heritage assets, or applied those provisions when he undertook the balancing exercise.

17. Standard paragraphs can help bullet-proof the report in this respect. Here is one example of a straightforward paragraph which can be inserted into an officer’s report to show that the officer knows the weight which is legally required to be given to potential harm to the setting of a listed building: Development within the Setting of a Listed Building Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires that special regard should be had to the desirability of preserving the setting of listed buildings. This means that considerable importance and weight must be given to any harm caused to designated assets in the planning balance. This includes any harm to the setting of a listed building. The NPPF provides that when considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance. A finding of harm to the setting of a listed building or to a conservation area gives rise to a strong presumption against planning permission being granted.

The presumption is a statutory one. It is not irrebuttable. It can be outweighed by material considerations powerful enough to do so.

The Views of Consultees 18. The requirement to consult can create room for legal error. These errors can include failing to comply with the consultation requirements imposed by article 15 of the Town and Country Planning (Development Management Procedure)

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Order 2015, failing to re-consult after material amendments are made to the application, and missing the deadline for the publication of the officer’s report.

19. The report need only show that consultation responses from members of the public have been taken into account. A summary of the responses will often suffice with a description of the recurring concerns raised by the objectors. The importance of the views of expert statutory consultees has been expressed by the courts in the following way 3: “70…The importance of the role of a statutory consultee is demonstrated by the fact that a decision-maker is required to give the views of statutory consultees great or considerable weight. In Shadwell Estates v Breckland DC [2013] EWHC 12 (Admin), Beatson J. stated, at [72] that: “a decision-maker should give the views of statutory consultees, in this context the “appropriate nature conservation bodies”, “great” or “considerable” weight. A departure from those views requires “cogent and compelling reasons” 20. Sometimes the officer will be faced with expert views on both sides of the argument. The question of which view the officer prefers is a matter for planning judgment for him or her with which the courts will be slow to intervene. The officer must provide some explanation for their preference, referring to their view on the planning merits as well as any relevant requirements of the development plan.

21. It is not always easy, particularly when faced with a ‘battle of the experts’ on technical issues. But this is what planning inspectors and officers often have to deal with; it is the way our system works – just explain which is preferred and why. An applicant’s expert can be asked why the view expressed by a consultee

3

R(Swainsthorpe Parish Council) v Norfolk County Council [2021] EWHC 1014 (Admin):

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is wrong. A consultee can be asked whether it accepts the view being put forward by an applicant, and of not, why not.

Material Considerations 22. It is sometimes the case that an officer’s report appears to overlook a material consideration. The Council may be able to persuade the court that the consideration will so obvious that it is simply implausible that the officer failed to take it into account. The Council may have to provide contemporaneous records demonstrating that the officer had regard to the matter. These costly legal vulnerabilities can be avoided by the officer taking the requisite care in drafting the report.

23. In R (Kerswell) v Lewisham LBC [2019] EWHC 754 (Admin), planning permission was quashed when the officer’s report had failed to address a proposed development’s effect on amenity arising from structural noise disturbance. The context of the application was an important factor in the decision and implied that the officer had given the matter no consideration at all. The officer had discussed airborne noise where he would have been expected to discuss structural noise if he had considered the issue.

24. The lesson is that it is safer for an officer to refer to a material consideration and then state that he or she is giving it little or no weight then to leave it out of the report altogether.

Policy Requirements 25. It is easy for an officer to misstate a legal or policy requirement, the meaning of which can be materially altered by getting one word wrong. Take the NPPF’s presumption in favour of sustainable development: 11) Plans and decisions should apply a presumption in favour of sustainable development….For decision-taking this means…

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d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless: i)

the application of policies in this Framework that protect areas or assets of particular importance provides

a

clear

reason

for

refusing

the

development proposed; or ii)

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.

26. In Thurston Parish v Mid Suffolk v Bloor Homes Limited [2022] EWHC 352 (Admin), the officer made the mistake of misquoting paragraph 11d: “Members are advised that the 'Tilted Balance' described in paragraph 11 of the NPPF (2019) is triggered by the fact that some of the Council's relevant adopted planning policies are 'out-of-date' 27. The judge in Thurston found this to be an error of law, referring to the case of Wavendon Properties Ltd v SSHCLG [2019] EWHC 1524 (Admin): “In [55] of Wavendon Properties Limited , Dove J recorded the submission of Counsel as to the exercise required by paragraph 11(d) of the NPPF in relation to the assessment of the question as to whether the policies which were of most importance for determining the application were out-of-date – "the first step was to identify which were the policies which were most important for determining the application. Having done so, it is then necessary for the decision-taker to examine each of those policies, applying the Framework and the approach in the Bloor

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Homes case [2017] PTSR 1283 , to see whether they are out-ofdate. Having done so, the next step required by paragraph 11(d) is an assessment of all the basket of policies most important to the decision in the round to reach a conclusion as to whether, taken overall, they could be concluded to be out-of-date or not for the purposes of the decision. If they were out-of-date then the presumption would be triggered".

28. The officer in Thurston fell into error by not assessing the basket of all the policies most important to the decision in the round. The claimant succeeded in part because of the officer’s misquoting paragraph 11d. Paragraph 55 of the Wavendon judgment is another good example of a standard paragraph which demonstrates that the officer has considered the ‘basket assessment’ exercise correctly!

Failing to address the key s38(6) question 29. In the case of Corbett v Cornwall Council [2020] EWCA Civ 508, the officer made the mistake of not making it completely clear why the development accorded with the development plan. The problem with the report was that one of the development plan policies appeared to expressly forbid the development and yet the officer found that the development complied with the plan. The Court of Appeal eventually upheld the permission because the officer had written in his report that the development complied with the plan as a whole. It is worth pausing here to note that an officer can find overall development plan compliance even if the development straightforwardly conflicts with one of the policies.

30. However, the reason why the challenge got all the way to the Court of Appeal was because the report could have attended to the subject of development plan conflict more clearly. Officers would benefit from having templates which follow the interrogative structure of section 38(6) PCPA. One example of this structure might be:

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Is the development in accordance with all of the relevant development plan policies?

-

If yes, then planning permission should be granted

-

If no, then is the development in accordance with the development plan read as a whole?

-

If yes, then planning permission should be granted

-

If no, then do material considerations indicate that permission should be granted?

-

If yes, then planning permission should be granted

-

If no, then planning permission should be refused.

31. The important thing is that an officer’s report enables the reader to understand what route the officer took along the section 38(6) pathway.

“Defensive” Drafting 32. Sometimes an application is so controversial, that the officer knows that the permission is going to be challenged in the courts no matter what the report says. In these circumstances, the goal of the officer should be to deprive prospective claimants of potential arguments. There is a tension here. On the one hand, clarity and detail is important so as not to create room for any doubt as to whether the officer has applied the correct thought process. On the other hand, the more the officer says about the correct legal or policy approach, the more targets an aggressive claimant will have.

33. Let us consider the following approach which will likely strike the reader as unremarkable: “Policy DF7 requires new residential development to respect and enhance the appearance of its locality. The objectors have raised several concerns regarding the modern structure of the proposed

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dwelling. The applicant has submitted details which show that the design of the development will be largely in keeping with the design of nearby residences. On balance, I find that the proposed development accords with Policy DF7.”

34. Now let us expand on the officer’s reasoning with one extra line: “Policy DF7 requires new residential development to respect and enhance the appearance of its locality. The objectors have raised several concerns regarding the modern structure of the proposed dwelling. The applicant has submitted details which show that the design of the development will be largely in keeping with the design of nearby residences. In particular, the details show that the design of the development perfectly matches that of 8 dwellings within the locality. On balance, I find that the proposed development accords with Policy DF7.”

35. Here we see that the officer has pointed to one aspect of his reasoning to support his conclusion. However, the effect is to render his conclusion more vulnerable to challenge. For example, imagine that the 8 dwellings which match the design of the proposed dwelling are situated 1200 metres away, whereas the 50 or so dwellings which are closer to the proposed dwelling look completely different. Suddenly, the officer has enabled the claimant to make a new argument aimed at the potential misinterpretation of Policy DF7 and what the policy means by “locality”.

36. There was nothing legally dubious about the first conclusion. The courts are required to read officers’ reports with reasonable benevolence and not with undue rigour. This is the nature of any ‘presumption in favour of the officer’ applied by the courts. Sometimes the less that is said the better.

Conclusion

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37. There are several measures which officers can implement to make their reports safer from judicial review. Template paragraphs are one such measure.

Routine checks for misquotes are another.

38. We all learn lessons from the appeals and court cases we have been involved in. But what about appeals and cases we read about in the planning press or hear about at seminars? Does your office (private or public sector) have a system that causes you to ask “should the outcome of this appeal/case change the way in which we draft planning statements / reports to committee?” or “do our standard paragraphs need tweaking?”

39. But officers cannot have boilerplates for every situation and there will inevitably be reports which an officer cannot write safely without some form of legal assistance.

40. It may often be prudent for officers to share their reports in draft with the applicant’s solicitor and consult them prior to publication. It is also often a good idea to instruct counsel to assess the legal vulnerability of a draft report. What takes a few hours for counsel may prevent an application being delayed by a number of years.

Law correct as of 28th February 2022.

This paper is presented for information only and does not constitute legal advice.

Hugh Richards Oliver Lawrence No5 Chambers

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Rowena Meager James Corbet Burcher Legal Update (1) Private Rights vs Development (2) Planning Court and Appellate Judgments from the Past 15 Months 177

Rowena Meager

Planning and Environment Year of Call: 2007 Email Clerks: planning@no5.com

Rowena has a busy planning practice and has experience of appearing at both planning (appeal) inquiries and inquiries concerned with applications for the registration of new greens pursuant to the Commons Act 2006 (previously the Commons Registration Act 1965). She has experience of appearing on behalf of applicants, land owners, local planning authorities and Rule 6 parties and has recently been instructed to appear at inquiries into the registration of new greens, inquiries in connection with housing development, appeals against the refusal of planning permission for change of use from sui generis use to retail and other matters such as appeals against refusal of permission for temporary agricultural dwellings. Rowena has experience of planning control and enforcement. She has been instructed to provide representation at hearings, proceedings in the magistrates’ court and a Crown Court appeal against conviction for breach of condition notice.

Rowena also has a busy advisory practice. Rowena also frequently appears at public inquiries for the parties in applications to register new town and village greens, both applicants and objectors, as well as providing advice on the merits and the strategic management of such applications. In addition to Inquiry work Rowena has recently undertaken court work in the High Court (statutory challenges and judicial review) and Court of Appeal.

Rowena’s practice has been wide ranging and includes (but is not limited to) issues concerned with: - New town and village green applications - Public rights of way - Interpretation of historic enclosure awards - Change of use (including limitation issues) - Housing development - Article 4 directions - General permitted development - Enforcement (including injunctions in relation to anticipated breach of planning control) - Wind farm development Rowena is regularly instructed by commons registration authorities to sit as an Inspector to preside over non-statutory public inquiries into applications to register land as a new town or village green. Recent inquiries at which she has sat as the appointed Inspector include: - Land known as Baxter’s Field, Summer Street, Stroud - Boundary disputes - Land adjacent to Churchdown Community Centre, Churchdown - Land known as ‘Debenham’s (Bon Marche) Sports Field’, Gloucester - Land at Grove Lane, Keresley - Land known as the ‘Humpty Dumps’ at Bowling Green Lane, Cirencester - Land at Keresley Newlands (Le Hanche Close) - Land at Back Lane, Long Lawford

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- Land off Hardings Drive at Stinchcombe Hill, Dursley - Land at Weddington (known as Weddington Church Fileds), Nuneaton

Seminars and Training Rowena frequently delivers seminar / training papers on a wide range of topics to audiences of legal practitioners as well as to other professionals such as planning consultants. Recent papers delivered include topics such as localism, emerging policy and the weight to be attributed to ministerial statements, break clauses in commercial leases, agricultural and business property relief from inheritance tax, commercial leases and the landlord and tenant relationship and contentious probate (due execution of wills, capacity, undue influence, want of knowledge and approval, etc).

Academic Profile Prior to joining No5 Barristers’ Chambers Rowena enjoyed an academic career. She has held lecturing posts at New College, Oxford, and the University of Buckingham. Until 2014 she continued to teach the Law of Trusts for New College every year (alongside her practice) and from 2009 to 2012 Rowena held a three year, fixed-term appointment as an external examiner for the University of Cambridge for their Land Economy Tripos undergraduate programme (with specific responsibility for all law and planning papers).

Rowena has published widely on various property law related topics although she does have a particular interest in the rapidly developing law on the registration of new greens. Her publications address but are not limited to topics as diverse as the law concerning the registration of new greens, issues concerning public and private rights of way, proprietary estoppel, the establishment of rights in the family home and issues arising in respect of the liability of trustees who are also directors of a corporate trust company. Rowena has been a regular contributor to the Rights of Way Law Review (an authoritative commentary on English Law relating to rights of way, new green registration and highway law, amongst other things) and one of her articles (RWLR Oct 2009) was cited with approval by Lord Hope in the Supreme Court in R (Lewis) v Redcar and Cleveland BC [2010], a decision which changed the legal test for the registration of new town and village greens.

Publications Prescription and User As of Right: Ripe for Wholesale Reform? Modern Studies in Property Law Volume 6, Hart Publishing, 2011, Susan Bright ed, Chapter 12, p 241 New Town and Village Greens and Rights of Use, Rights of Way Law Review (RWLR), April 2011, Section 15.3, page 189 The Village Green Industry: Back in Business [2010] 69(2) Cambridge Law Journal 238 Redcar in SC: Deference is Dead Rights of Way Law Review, May 2010, Section 15.3, 161 Wild v Secretary of State Rights of Way Law Review, January 2010, Section 6.2, 27 Nec vi, nec clam, nec precario: The only criteria for a prescriptive claim? [2009] 73 Conveyancer and Property Lawyer, 505 Deference and User As of Right: An Unholy Alliance Rights of Way Law Review, October 2009, Section 15.3, 147 Pick a Number (2009) New Law Journal 1281 ‘Dog-leg’ claims kicked into touch: beneficiaries exposed? [2009] Denning Law Journal 119 A setback for the village green industry? [2009] 68(2) Cambridge Law Journal 281 A Family Affair (2009) New Law Journal 588 Smith v Muller Rights of Way Law Review, February 2009, Section 14.2, 85 Show Me The Money (2009) New Law Journal 144 The Winchester Case Rights of Way Law Review, February 2008, Section 7.1, 33 New Town and Village Greens Rights of Way Law Review, October 2007, Section 15.3, 123 New Town and Village Greens: Back From the Brink [2006] 70 Conveyancer and Property Lawyer 584 New Town and Village Greens: A Thing of the Past? [2006] 70 Conveyancer and Property Lawyer 265 A New Dawn for Town and Village Greens? Rights of Way Law Review, February 2006, Section 15.3, 91 Secret Trusts: Do They Have a Future? [2003] 67 Conveyancer and Property Lawyer 203

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Notable Cases Solihull MBC –v- (1) Gallagher Homes Ltd (2) Lioncourt Homes Ltd [2014] EWCA Civ 1610 (junior to Christopher Katkowski QC) Gambone –v- SOS for Communities and Local Government and Another [2014] All ER (D) 246 University of Bristol –v- North Somerset Council [2013] EWHC 231 (Admin); [2013] JPL 940 (junior to Ian Dove QC) Infocus Public Networks –v- SOS for CLG [2013] EWHC 4622 (Admin) Judicial review concerning the proper interpretation of provisions within the Growth and Infrastructure Act 2013 as they relate to town and village green applications (settled after 2 days) (junior to Ian Dove QC)

Awards Awarded a ‘Lord Denning Scholarship’, a ‘Hardwicke Scholarship’ and a ‘Shelford Scholarship’ by Lincoln’s Inn Awarded the ‘Clifford Chance Prize’ for best performance in Civil Procedure in the 2003 BCL examinations Awarded ‘Linnels Pize’ for best graduating undergraduate law student in her year

Awarded a ‘Buchanan Prize’ by Lincoln’s Inn for ‘outstanding’ BVC performance Awarded the ‘Barnett Bequest’ by Merton College, Oxford, to study for the BCL

Memberships Lincoln’s Inn (Lord Denning, Hardwicke and Shelford Scholar and Buchanan Prize Winner) Property Bar Association Planning and Environment Bar Association

Denning Society (society of scholars of Lincoln’s Inn) Society of Legal Scholars

Qualifications LLB (Hons) (First Class) BVC (graded ‘Outstanding’)

BCL (Oxon) Licensed for direct access

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James Corbet Burcher Planning and Environment

Year of Call: 2011 Email Clerks: planning@no5.com

James Corbet Burcher is a specialist planning and environmental law barrister.

He acts for the full range of participants in the planning process: at appeal, at plan examinations and in court.

Directories and Rankings James has consistently been voted in the Top Juniors in Planning Magazine’s Annual Planning Law Survey in 2019, 2020, 2021 and 2022. He was voted the No.1 Junior Under 35 years in 2018.

Chambers and Partners Bar UK records him as a Band 1 Junior for Planning in the Midlands Region, with sources describing: “James 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 client-focused.” [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] “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]

Court Work James has appeared in over 50 cases before the Planning Court, Court of Appeal and Supreme Court.

He has acted in all types of administrative law proceedings: especially judicial review, s288 challenges to appeal decisions and s113 challenges to local plans. His clients have included claimants, defendants and interested parties of all kinds, from major landowners and housebuilders and promoters to parish councils and individuals.

The focus of much of his court work has been the interpretation of the National Planning Policy Framework. He has been instructed in many of the challenges which have explored and defined the scope of the Presumption in Favour of Sustainable Development. He represented the successful claimant in Wavendon Properties v SSCLG [2019] EWHC 1524 (Admin) (led by Peter Goatley QC) and one of the successful Interested Parties in Hopkins Homes [2017] UKSC 37 (led by Chris Young QC), which remain two of the leading cases on the interpretation of the presumption.

In the Local Plan s113 sphere, he has extensive experience of litigation involving Housing Requirements, Green Belt and the Duty to Cooperate stretching back to 2014. Cases in recent years have included: Flaxby Park v Harrogate BC [2020] EWHC 3204 Compton PC v Guildford BC [2019] EWHC 3242 (Admin) (led by Chris Young QC) and Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 2183 (Admin).

Appeal Work James has appeared at over 40 planning inquiries and hearings.

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Appeal work in recent years has included: - Garner Holdings, securing permission for three new B1/B2/B8 use units in the Green Belt on land adjacent to Denby Hall Business Park; - Gladman Developments, securing permission for 180 dwellings - Land at Pear Tree Lane Chorley (led by Chris Young QC) - Oxford Brookes University, securing permission for 500 units at Wheatley Campus – the largest Green Belt permission of its kind (led by Chris Young QC) - The successful Appellant securing planning permission for 150 homes in Brimington, Chesterfield; - Newcastle Under Lyme Borough Council in the dismissal of an appeal for 80 homes at Loggerheads, Newcastle- UnderLyme; - Forest Care, successfully securing permission for a care home development in Hartley Wintney, in Hart District Council.

- Davidson Homes securing planning permission for 141 dwellings at Hanslope, Milton Keynes; - Cove Homes, in its successful appeal securing planning permission for 23 dwellings in Alfold, Waverley Borough Council - Derbyshire Dales Borough Council in the dismissal of an appeal for 165 dwellings at Doveridge

Local Plan Examinations James advises regularly on the promotion of sites through the local plan process, especially in the context of strategic planning at the City Region level.

Instructions in recent years have included appearing at the Harrogate, Bedford, West of England, St Helens and Salford examinations.

His work on s113 challenges informs all of his advice in this area, including work in the context of National Policy, Strategic Environmental Assessment, Green Belt, Viability and the Duty to Cooperate.

Neighbourhood Plan Examinations James is one of the leading barristers operating in the field of neighbourhood planning.

In the last five years, he has advised on a total of more than 60 neighbourhood plans at all stages of development.

He has also appeared for parties at 10 neighbourhood plan hearings and in several of the judicial review challenges in this field, notably one of the leading Court of Appeal cases: DLA Delivery Ltd v Lewes DC [2017] EWCA Civ 58.

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 however also advised local planning authorities on procedure on several occasions.

In 2016, he represented Milton Keynes Town Council in the major called-in inquiry concerning a town centre retail development, which raised a number of issues concerning Localism.

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.

Bar Representation James is a member of the Planning and Environmental Bar Association’s (PEBA) Committee and is its representative on Bar Council

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He also sits on Bar Council Legal Services Committee and IT Panel.

He is a qualified Advocacy Tutor with Lincoln’s Inn, and has taught on a number of pupillage and new practitioner events.

He is a registered pupillage supervisor.

He is a registered pupillage supervisor.

Academic and International Work James has an active interest in academic work, with a strong international focus, alongside his practice in England and Wales.

He is a member of the Planning Law and Property Rights Association (PLPR) and has delivered papers at their conferences in the USA (2019), Czechia (2020) and was a co-author of a paper presented remotely in 2021.

He has been appointed a member of the Platform of Experts in Planning Law. He is a member of the International Society of City and Regional Planners, the International Bar Association, the American Bar Association, the American Planning Association and the International Planning History Society.

He is the co-author (with Ashley Bowes) of a Chapter in Professor Rachelle Altermann’s forthcoming major work, Routledge Handbook of Comparative Planning Law (forthcoming, 2022).

James has a particular interest in the development of planning legislation and policy to promote and support new technologies (PropTech, PlanTech) and international comparative land use law (notably in the USA, France and Germany).

Prior to coming to the Bar, James worked on post-war London planning history to postgraduate level. This grounding in the historical development of the British planning system informs all of his professional work today.

Notable Cases Leech Homes v Northumberland CC [2021] EWCA Civ 198 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 45 (Admin) and [2020] EWHC 2183 (Admin) Compton PC v Guildford BC [2019] EWHC 3242 (Admin) R(Wright) v Resilient Energy Severndale Ltd [2019] UKSC 53 ([2017] EWCA Civ 2102; 2016] EWHC 1349 (Admin)) Peel Investments (North) Ltd v SSHCLG [2019] EWHC 2143 (Admin) Wavendon Properties v SSHCLG [2019] EWHC 1524 (Admin) Richborough Estates v SSCLG [2018] EWHC 33 (Admin) St Modwen v SSCLG [2017] EWCA Civ 1643 ([2016] EWHC 968 (Admin)) 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 ([2016] EWHC 2973 (Admin)) R(Williams) v Powys CC [2017] EWCA Civ 42 Suffolk Coastal DC v Hopkins Homes ; Cheshire East BC v SSCLG [2017] UKSC 37 ([2016] EWCA Civ 168) DLA Delivery Ltd v Lewes DC ([2017] EWCA Civ 58 [2015] EWHC 2311 (Admin) Trustees of the Barker Mill Estates v Test Valley BC [2016] EWHC 3028 (Admin) R(Kebbell Developments Ltd) v Leeds City Council [2016] EWHC 2664 (Admin) R(Flint) v South Gloucestershire Council [2016] EWHC 2180 (Admin) Stryjak v Hounslow LBC [2016] EWHC 1897 (Admin) Cheshire East BC v SSCLG and Renew Land Developments [2016] EWHC 571 (Admin) R(Williams) v Powys County Council and Bagley [2016] EWHC 480 (Admin) R(Dudfield) v Forest of Dean DC [2016] EWHC 291 (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 Bar Council IT Panel

Bar Council Legal Services Committee

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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) National Infrastructure Planning Association (NIPA) International Bar Association (IBA) American Planning Association (APA) International Planning History Society (IPHS)

UK Environmental Law Association (UKELA) Constitutional and Administrative Law Bar Association (ALBA) American Bar Association (ABA) International Society of City and Regional Planners (ISOCARP) International Planning History Society (IPHS)

Qualifications BA(Hons) Modern History (First Class), Magdalen College, University of Oxford CPE (Distinction), City University BPTC, BPP (London)

Mst Modern History, Magdalen College, University of Oxford LLM (Distinction), University College London

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PUBLIC RIGHTS vs DEVELOPMENT CASE STUDIES 1. This paper explores the interface between development and public rights (or claimed rights) by reference to some recent cases in which I have been involved, either in an advisory capacity or through the provision of representation at hearings / inquiries. The significance of public rights of way (“PROWs”) and town and village greens (“TVGs”) in the context of development / proposed development will be explored.

PROWs 2. The first of my case studies, in which I acted for the developer, involved a development of seven detached properties on the edge of a Cotswold village.

The site had a PROW that ran through a garage and some gardens and needed to be diverted. There was also a definitive map modification order (“DMMO”) in respect of a route that skirted around the rear of the development and whilst capable of being accommodated within the scheme, it was not an attractive proposition for potential purchasers that they have a public footpath hard up against their rear garden boundaries. At the time of the hearing (diversion order) and inquiry (extinguishment order) the properties were built but those affected by the relevant PROWs had been held prior to second fix.

Diversion Order 3. The developer had made an application for a diversion order pursuant to section 257 of the Town and Country Planning Act 1990 (“the TCPA”) which authorises the stopping up or diversion of a PROW where such steps are necessary to enable development to be carried out. In determining whether or not to divert or stop up a PROW the planning merits are not in issue as that will already have been determined by the granting of planning permission, Vasiliou v SOS for Transport [1991] 2 All ER 77.

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4. An “… inspector does have latitude to consider wider issues. He should consider the overall public interest in diverting or stopping up a right of way and how it will affect those concerned. Considerations could include, for example, matters such as how the confirmation would result in the loss of trade (which might be particularly relevant in view of the fact that there is no provision for compensation in relation to this type of order). Such issues may not be a material consideration at the planning stage. Furthermore, there are bound to be some matters which are overlapping – ie relevant to both the planning merits and the merit of whether or not an order should be confirmed”, para 4.1.5, PINS Rights of Way Advice Note 9.

5. The power to confirm a proposed diversion (or stopping up) is discretionary. It is not obligatory to confirm an order even if the development affects the line of the path or way. Non-confirmation might be justified where a proposed diversion is not the most suitable.

6. In this case the diversion related to a relatively short section of the PROW and the new footpath along the diverted route had already been installed. The merits of the resistance to confirmation of the order by the local Parish Council were limited. As noted above, whilst on the face of it the development looked well progressed, it hadn’t been completed which was an important issue 1 given that the section 257 procedure can only be adopted where the development is not yet substantially completed, Ashby & Dalby v SOS for the Environment [1980] 1 WLR 673. The logic behind this limitation to the exercise of the statutory power is that if the development has already been substantially completed, there would be no need to divert the PROW to ‘enable the development to be carried out’.

7. During the hearing there was much discussion about what works were still outstanding in order that the Inspector could satisfy himself that the development was not substantially complete. The developer produced a comprehensive list of works that were yet to be undertaken for this purpose. It is imperative that the development is not substantially completed as the 1

In reality the most important issue before the Inspector.

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applicant found in Hall v SOS for the Environment, Transport and the Regions [1998] JPL 1055.

8. In that case the applicant had completed the development but demolished a garage wall in an attempt to satisfy the need for the development to not yet be substantially complete (presumably he had not paid sufficient attention to the relevant test). Reversing the Inspector’s decision the Court held that at the time of the inquiry the planning permission was ‘spent’, the development having been carried out, and it was not possible for the developer to reverse that state of affairs by demolishing part of his building. Accordingly, the original decision to divert the PROW pursuant to section 257 was quashed.

9. Section 257 of the TCPA is not the only basis upon which an order to divert a PROW can be made but it is the one concerned with enabling development to be carried out and, therefore, the most likely to be useful in the planning and development context. In the alternative, section 119 of the Highways Act 1980 (“The HA”) enables authorities to make a orders diverting a PROWs. Extinguishment Order 10. In this case the extinguishment order was sought in respect of a PROW that was the subject of a DMMO that had not yet been confirmed. Nevertheless, section 118(1) of the HA facilitates the stopping up of such a way. The basis upon which an authority may make an extinguishment order is where “… it is expedient that the path or way should be stopped up on the ground that it is not needed for public use”. Such an order may be confirmed by the Secretary of State if he is “satisfied that it is expedient to do so having regard to the extent (if any) to which it appears likely to him … that the path or way would, apart from the order, be likely to be used by the public, and having regard to the effect which the extinguishment of the right of way would have as respects land served by the path or way …”, section 118(2).

11. What will be apparent is that the tests that the order making authority and the Secretary of State have to apply are different. The inspector should not reconsider the question of need. The Inspector’s job is to consider the broader,

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discretionary question under section 118(2) as to the expediency of making such an order having regard to, amongst other things, the extent, if any, to which it appears to the Inspector that the path would, apart from the order, be likely to be used by the public, Auld J, R v Secretary of State for the Environment, ex parte Cheshire County Council [1991] JPL 537, confirming the approach of Phillips J, R v Secretary of State for the Environment, ex parte Stewart (1980) 39 P & CR 534.

12. In my case the party objecting to the order being confirmed was the Parish Council. The grounds for resisting the order in the circumstances were limited and relatively unconvincing. In particular, the question of future use was simply not addressed by the Parish Council. It relied upon historic evidence questionnaires submitted in support of the DMMO and which said nothing as to likely future use even if the evidence contained therein was taken at face value.

13. The parish Council raised other issues, some of which had been raised at planning stage and were clearly not appropriate for reconsideration at the inquiry. The result was that the extinguishment order was confirmed. Clearly, a poorly advanced objection to such an order will be welcome but the main point to remember is the difference in the tests as applied by the order making authority and the Secretary of State. It is imperative that evidence produced in support of any such order is targeted to the scope of the inquiry that will be made at each stage.

TVGs 14. Many a development has been, if not thwarted, certainly delayed or put at risk by strategically made applications to register land as a new TVG. Section 15 of the Commons Act 2006 (“the 2006 Act”) creates the right for any person to make an application to the Commons Registration Authority (“CRA”) to register land as a new TVG. The effect, if successful, is devastating to the landowner.

Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 have the effect of preventing development on land so registered, Oxfordshire County Council v Oxford City Council [2006] UKHL 25.

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15. The ability for anyone to pursue a new TVG application was curtailed by the Growth and Infrastructure Act 2013 which introduced a new section 15C which prevents an application from proceeding where certain ‘trigger events’ have occurred. Trigger events are broadly ‘development related’ and from a landowner or developer’s perspective this was a very welcome ‘damping down’ of the potentially harmful effects of the TVG legislation. Whilst the effect has been to substantially reduce the number of TVG applications that can progress, it has not eradicated them completely.

16. The statutory test requires an applicant to prove that “a significant number of the inhabitants of any locality, or any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and they continued to do so at the time of the application”.

17. Whilst the fine detail is beyond the scope of today’s short paper, the statutory test can be broken down into its component parts, as follows. This illustrates that achieving registration is not straightforward. … a significant number …

18. The “significant number” component has never been formally defined but in R (McAlpine) v Staffordshire County Council [2002] EWHC 76 (Admin) (“McAlpine”) Sullivan J said “… ‘significant’, although imprecise, is an ordinary word in the English language and little help is to be gained from trying to define it in other language …”. What matters “… is that the number of people using the land in question has to be sufficient to indicate that their use of the land signifies that it is in general use by the local community for informal recreation, rather than occasional use by individual trespassers”, para [71].

19. More recently, in R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11 (“Redcar”), at para [75] Lord Hope, very much echoing what Sullivan J said in McAlpine, said “… The question is

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whether the user by the public was of such amount and in such manner as would reasonably be regarded as being the assertion of a public right …”.

20. However, only recreational use by members of the public from the claimed locality, or neighbourhood within a locality, will contribute to the “significant number” test given that the test is “a significant number of the inhabitants of any locality or neighbourhood within a locality”. In other words, use by people that do not come from the claimed locality or neighbourhood will not contribute to the “significant number” test and to the extent that evidence of such use is adduced, it must be discounted for the purposes of determining an application to register land as a new TVG. … of the inhabitants of any locality or of any neighbourhood within a locality …

21. A “locality” must be an area known to the law such as a borough, parish or manor, Ministry of Defence v Wiltshire County Council [1995] 4 All ER 931, 937.

In contrast, a “neighbourhood within a locality” need not be a recognised administrative unit or an area that is known to the law (in other words it does not have to meet the same stringent criteria that applies to establishing a locality). A housing estate can be a neighbourhood, McAlpine, as can a single road, R (on the application of Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust) v Oxford County Council [2010] EWHC 530 (“Warneford Meadow”). However, a neighbourhood cannot be just any area drawn on a map. It must have some degree of cohesiveness, McAlpine. That cohesiveness must be established by evidence. Furthermore, if an applicant relies upon a neighbourhood, they must also identify the locality within which the neighbourhood is located. … have indulged as of right …

22. For user to be “as of right” it must be user that has been without force, without secrecy and without permission (traditionally referred to as nec vi, nec clam, nec precario). In Redcar, referring to the three criteria that must be met for user

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to be “as of right”, Lord Rodger said “… their sense might be best captured by putting the point more positively: the user must be peaceable, open and not based on any licence from the owner of the land”, para [87].

23. In R (Beresford) v Sunderland City Council [2004] 1 AC 889, at para [72], Lord Walker observed that “as of right” has sometimes been likened to “as if of right”.

Since the House of Lords’ decision in R v Oxfordshire County Council, ex parte Sunningwell [2000] 1 AC 335 (“Sunningwell”) it has been settled that the subjective belief of the users as to whether they were permitted to use the land in question is irrelevant.

24. The basis for the creation of rights through user “as of right” is that the landowner has acquiesced in the exercise of the right claimed (in the case of applications to register a new TVG the period of user required is twenty years, Dalton v Angus & Co (1881) 6 App Cas 740, 773) and the user can rely upon their long use to support a claim to the right enjoyed.

25. “Force” is not limited to physical force. User is by force not only if it involves the breaking down of fences or gates but also if it is user that is contentious or persisted in under protest (including in the face of prohibitory signage) from the landowner, Smith v Brudenell-Bruce [2002] 2 P & CR 4.

26. “Stealth” is user that is deliberately secretive. Such use will not satisfy the “as of right” test because such use would not come to the attention of the landowner and he could not, therefore, be said to have acquiesced in such use.

27. “Permissive” use is use ‘by right’ and is, therefore, incapable of being use “as of right”. The Supreme Court’s decision in R (on the application of Barkas) v North Yorkshire County Council and Another [2014] UKSC 31 is the most recent authority at the highest judicial level on the question whether user is ‘by right’. … in lawful sports and pastimes …

28. The term “lawful sports and pastimes” (“LSPs”) is a composite phrase that includes informal recreation such as walking, with or without dogs, and children

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playing and, indeed, any activity that can properly be called a sport or pastime.

Lord Hoffmann in Sunningwell expressly agreed with what had been said in R (Steed) v Suffolk County Council (1995) 70 P & CR 487 about dog walking and playing with children being in modern life the kind of informal recreation which may be the main function of a village green. However, in Warneford Meadow the court interpreted the word lawful as excluding any activity that would constitute a criminal offence.

29. Use that is akin to ‘thoroughfare’ use, however, does not contribute to LSP use.

Sullivan J in R (on the application of Laing Homes Limited) v Buckinghamshire County Council & SOS for the Environment and Rural Affairs [2004] 1 P & CR 36 at para 102 said “…it is important to distinguish between use which would suggest to a reasonable landowner that the users believed they were exercising a public right of way – to walk, with or without dogs, around the perimeter of his fields – and use which would suggest to a landowner that the users believed they were exercising a right to indulge in lawful sports and pastimes across the whole of his fields”. … on the land …

30. It is not necessary for the whole of the land to have been used for LSPs; only that the land has been used generally in that manner. There may be land, for example, that has a pond on it or, as in Oxfordshire County Council v Oxford City Council [2004] Ch 253 (“Trap Grounds”), that is not wholly accessible for recreational use. The fact that some of the application land might have been inaccessible for use for LSPs does not preclude registration. It is not necessary for a registration authority to be satisfied that every square inch of a piece of land the subject of an application has been used. … for a period of at least twenty years …

31. In the case of an application made pursuant to section 15(2) of the 2006 Act the relevant twenty year period during which qualifying use must be established is the twenty years immediately preceding the date of the application. Use must

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be continuous throughout the whole of the relevant twenty year period, Hollins v Verney (1884) 13 QBD 304. Any use outside that period will not contribute to meeting the statutory test.

‘As of right’ 32. Very recently I have advised in respect of a TVG application where local residents are seeking to register land that has not been identified for development (and in respect of which, therefore, no trigger event has occurred) but is required for the delivery of highway improvement works to support development proposals.

33. Whilst it is by no means certain that the applicant will ever be able to establish that all parts of the statutory test are met, in the meantime the application puts the proposed development at risk. One of the issues that arises in this particular application concerns the question whether the use of the land was as of right rather than being permissive (by right). The land is owned by the local authority, has been designated a nature reserve and managed in a way that actively encourages use by the public but has not been formally appropriated to use as open space that the general public has a statutory right to use.

34. The question whether use is permissive has been considered by the Supreme Court a number of times over the last decade and save for straightforward situations where the local authority owner has specifically designated land pursuant to statute for public use, it may not be the case that publicly owned land carries rights of use, absent which, the possibility of user ‘as of right’ arises.

In R (on the application of Barkas) v North Yorkshire County Council and Another [2014] UKSC 31 Lord Neuberger said at paragraph [24] “I agree with Lord Carnwath JSC that, where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use … it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land “as of right”, simply because the authority has not objected to their using the land …

The position is very different from that of a private owner, with no legal duty and

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no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights”.

35. It is clear from the foregoing that ‘allocation’ to public use is highly relevant. But it does not answer the point about publicly owned land that has not been specifically allocated or appropriated. My case study is in the early stages and it is yet to be seen how the CRA will deal with the ‘as of right’ versus ‘by right’ point but what is clear is that there is no easy answer emerging from the authorities on this point.

36. One thing is clear, if publicly owned land is likely to be required to deliver development (but has not been identified in a local plan document and is not covered by a specific planning application) the status of that land needs to be considered and steps taken, if appropriate, to bring any potentially qualifying TVG use to an end. It certainly cannot be assumed that because land is in public ownership it is not susceptible to a TVG application.

Law correct as of 1 March 2022.

This paper is presented for information only and does not constitute legal advice

Rowena Meager No 5 Chambers March 2022 No5 Barristers’ Chambers +44 (0) 845 210 5555

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Case Law Update January 2021- March 2022 James Corbet Burcher Introduction 1. This Case Law Update identifies over 30 judgments of interest handed down between 1 January 2021 and 7 March 2022, collected under eight headings: (1) National Planning Policy (2) Decision-Making at Committee (3) Certificates of Lawfulness (4) Permitted Development Rights (5) Heritage; and (6) Environmental Assessment; (7) Climate Change (8) Other Overview and General Patterns (1) Numbers 2. There is no central record of Planning Court judgments and consequent appeals, rendering statistical analysis something of a challenge.

3. Public databases and other professional sources 1 record that there were at least 90 judgments in the 15-month period from 1 January 2021 to 7 March 2022, including: (i) 72 High Court Judgments (ii) 17 Court of Appeal Judgments (iii) 1 Supreme Court Judgment 4. The broad split of such challenges was approximately 60% judicial reviews and 40% other statutory challenges, The majority of the latter category were Section 288 Challenges to Section 78 Appeals, with only 1 Section 113 Challenge to a Local Plan.

1

Westlaw; Town Legal LLP’s Town Library

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5. The overall number of High Court Challenges reaching a final judgment appears to have decreased progressively, but very gradually, in recent years. 2 6. This may be attributed to three main causes: (a) Lower rates of issuing claims; 3 (b) Higher rates of refusal of permission. 4 (c) Covid/Lockdown-related delays in decision-making 7. It is too early to say whether there is a reduced appetite for litigation, or for the courts to hear such cases. This may only become clear with “postlockdown” data from 2022 onwards.

(2) Success Rates 8. Success rates are a difficult metric to assess and describe with precision, given the variation in remedies and the courts’ power to identify an error of law but to withhold a quashing order (e.g. under Section 31(2A) of the Senior Courts Act 1981).

9. A percentage success rate at the substantive stage does not tell the full story as it excludes both those claims that were issued and then either: (a) settled successfully through quashing orders agreed by consent with the defendant; or (b) refused permission at first instance or on hearing. 5 10. However, the approximate success rate in judgments was 30% in this period (i.e. claims in which the High Court or the Appeal Court either quashed the decision or ordered a declaration in favour of the Claimant).

11. The success rate at appeal was particularly low. The Court of Appeal upheld the first instance judgment in all but 1 case across this period. The only Supreme Court case was also dismissed.

12. Low appellate success rates are not necessarily remarkable – being a sign of a robust first instance jurisdiction. However, it is notable that a relatively

See Town Legal LLP’s Planning Court Case Explorer: https://www.townlegal.com/library/planningcourt-case-explorer/ 3 This is difficult to assess given the decentralised nature of such decisions 4 This would require further interrogation of the Planning Court’s own records.

5 Plus a much smaller category of cases discontinued post-issue 2

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high proportion of such appeals continue to be granted permission and endure comparatively long waits before judgment.

(4) Claimant Identity 13. Given the disparate nature of the types of challenge and the low overall numbers, it is difficult to draw out specific patterns as to claimant identify.

14. The approximate figures were 30% “private”/“developers” (commercial entities, individual applicants) and 70% “public” (comprising 15% local authorities, 5% parish councils and 50% objectors, including groups and individuals).

15. This demonstrates how the majority of Planning Court litigation is still driven primarily by resistance to development, rather than those seeking to have another go at the s78 appeal process.

(4) Deference to Decision-Makers and Planning Judgment 16. The low overall success rate reflects the Court’s ever-increasing reluctance to interfere in questions of planning judgment.

17. The salutary warnings in judgments such as Hopkins Homes 6 on the extent of deference owed to Inspectors in particular have continued to be a prominent theme in the s288 jurisdiction in particular. The very low rate of s113 challenges to Local Plans is also particularly notable.

18. As we shall set out below, there has therefore been a discernible reduction in challenges based on policy interpretation, heritage and EIA, all of which have driven waves of litigation in previous years. The successor “hot topics” are not yet readily discernible.

(5) Duration 19. The precise duration between issue of claim and judgment is a statistical exercise beyond the scope of this paper. Whilst there were some brief delays in parts of the procedure (e.g. permission decisions), determinations gathered speed towards a return to pre- March 2020 levels.

6

Hopkins Homes v SSCLG [2017] UKSC 37; [2017] 1 W.L.R. 1865 (10 May 2017)

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Summary Observations 20. In 2021 and early 2022, the Planning Court continued to occupy a central role within the planning system.

21. The Government’s judicial review reform programme’s suggestion that litigation is delaying the planning system or the delivery of major infrastructure does not entirely reflect the numbers reaching final judgment.

22. On the contrary, the total disputes reaching that stage remains very small in the context of all permissions granted each year.

23. There is however a strong case for the Court publishing its own statistics, in line with the Planning Inspectorate’s approach, to assist in the general understanding of the Court’s work and its role in delivering ever more rapid dispute resolution.

CASES 24. The following case summaries eschew detailed exposition of the factual background of the respective cases.

25. Every case that reaches the Planning Court has an extensive factual background. The extent to which it may act as a precedent can never be fully conveyed in an update of this kind.

26. Instead, the summary below seeks to identify certain core themes, building on some of the points already observed above – notably the courts’ reluctance to interfere in questions of judgment.

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1) National Planning Policy 27. The 10th anniversary of Tesco v Dundee 7 falls on 21 March 2022, just a couple of days short of the NPPF’s own 10th anniversary.

28. Litigation over the NPPF has been one of the most prominent features of the past decade.

29. There were a number of important interpretation cases during the 2021-22 period. However, it is fair to say that the court’s enthusiasm for such challenges was reflected in their success rates.

30. This is an area where challenges remain an important aspect of clarification of ambiguities in the policy text, but those areas in which the court will identify an error in a decision-maker’s interpretation seem ever more concentrated each year.

NPPF 11d 31. January and February 2021 saw three judgments handed down by the Court of Appeal in the final wave of litigation over NPPF 11d in the Revised NPPF in 2018.

32. In Paul Newman Homes, 8 the Court of Appeal confirmed that the scope of NPPF 11d’s first limb term “no relevant planning policies” was to be construed very narrowly – merely engaged, rather than “determinative”. This judgment has effectively now rendered the first limb ineffective save in wholly exceptional circumstances.

33. In Monkhill, 9 the Court of Appeal further considered NPPF 11d(ii)’s “clear reason for refusing the development proposed” holding that this too did not require self-contained criteria or some test, failure of which would be fatal to the proposal. On the contrary, in the case of AONB development, the requirement simply to give “great weight” to conservation and enhancement was sufficient.

Tesco Stores v Dundee City Council [2012] UKSC 13.

Paul Newman New Homes Ltd v Secretary of State for Housing, Communities And Local Government [2021] EWCA Civ 15 (12 January 2021) 9 Monkhill Ltd v Secretary of State for Housing, Communities and Local Government & Anor [2021] EWCA Civ 74 (28 January 2021) 7 8

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34. Finally, in Gladman, 10 the Court of Appeal confirmed that there was nothing in the wording of NPPF 11d(ii) to exclude the consideration of conflict with the development plan in the context of “any adverse impacts”.

35. This latter judgment has not entirely resolved the significant tension between the statutory presumption under section 38(6) PCPA and the apparent intention of the policy presumption under NPPF 11d, but it reflects the courts’ clear reluctance to legislate or re-write policy themselves in place of Government.

Housing Requirement 36. Cases on housing land supply have similarly now reduced considerably in number, following clarification of the main principles in 2019/2020.

37. In East Riding of Yorkshire, 11 the High Court dismissed a s288 challenge that alleged that a “hybrid approach” should be taken to NPPF 37’s position on housing need taking both a single year remaining on the Local Plan before the need figure dropped in the following year under the standard method. The High Court held that the Inspector was entitled to take the current Local Plan figure, notwithstanding the imminent nature of its replacement – another clear decision in favour of Inspector discretion.

Green Belt 38. A similar pattern could be observed in Green Belt cases.

39. In Sefton, 12 the High Court confirmed that the NPPF 143/144 (now 147/148) did not require a forensic/mathematical approach to the weighing of harm to the Green Belt, e.g. in respect of distinguishing different types of harm, aggregating different specified weights and then balancing the aggregate weight. All that was required was “a single exercise of judgement to assess whether there are very special circumstances which justify the grant of permission notwithstanding the particular importance of the Green Belt” 40. A solitary s113 challenge, Cherwell Development Watch Alliance, 13 considered the ambit of “exceptional circumstances” for Green Belt release Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 104 (3 February 2021) 11 East Riding of Yorkshire Council v Secretary of State for Levelling Up, Housing and Communities & Anor [2021] EWHC 3271 (Admin) (2 December 2021) 12 Sefton Metropolitan Borough Council v Secretary of State for Housing, Communities, and Local Government [2021] EWHC 1082 (Admin) (7 May 2021) 13 Cherwell Development Watch Alliance v Cherwell District Council & Anor [2021] EWHC 2190 (Admin) (30 July 2021) 10

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through a local plan partial review. The Court reiterated the broad ambit of judgment in that respect, both in respect of housing need and the availability of alternatives. This judgment followed many earlier such decisions in both the s113 and Green Belt context.

Retail 41. In Asda, 14 the Court of Appeal rejected a claim that NPPF 90 “should be refused” created a free-standing presumption of refusal. It had to be considered in the round.

NPPF 17c: Veteran Trees 42. A rare success was seen in case of Juden, 15 aka the Former London Chest Hospital case, in which it was held that NPPF 175c’s provisions on the loss of veteran trees required an approach that did not merge the “wholly exceptional circumstances” test with the existence of a “suitable compensation strategy”. The decision to grant permission with the relocation of a veteran mulberry tree was therefore quashed.

43. Each of these judgments therefore re-emphasised the wide ambit of planning judgment, by both Inspectors and Committees, and rejecting the invitation to construe the policy text with a greater degree of rigour. Heritage cases are considered as a separate category below.

2) Decision-Making at Committee 44. The largest category of challenges before the Planning Court remained challenges to planning permissions granted at first instance by Committees (i.e. by definition locally controversial or significant proposals).

45. In each case, the courts emphasised the wide ambit of Members’ discretion and rejected challenges which argued bias, lack of expertise or other confusion as the applicable principles.

General Principles 46. Gill 16 is a compendious textbook judgment on those principles. It concerned various development plan and SPD interpretation points in the wake of an earlier quashing order of a decision to grant permission. The court observed R(Asda Stores Ltd) v Leeds City Council & Anor [2021] EWCA Civ 32 (20 January 2021) Juden v London Borough of Tower Hamlets [2021] EWHC 1368 (Admin) (21 May 2021) 16 R(Gill) v London Borough of Brent [2021] EWHC 67 (Admin) (18 January 2021) 14 15

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the primacy of the development plan text, that policies might pull in different directions and that there was no basis for a conclusion that the report had materially misled members in the manner alleged.

47. In Ashchurch Parish Council 17 the High Court rejected three grounds challenging a road bridge to a large garden town development: (1) failure to consider the harms from that larger development (as well as its benefits); (2) a salami-slicing EIA ground alleging that both needed to be taken into account and (3) an allegation of bias arising from separate consideration of the larger development. All grounds were dismissed, the court noting that members were well-aware of the respective issues and there was no discernible bias.

48. In Fraser, 18 the High Court rejected a challenge on the basis that a specialist housing scheme for those over 55 years failed to provide adequate open space for housing, both on interpretation and discrimination grounds.

Errors in Officer’s Reports 49. There were however important successes, demonstrating the importance of vigilance by both local authorities and the beneficiaries of grants of permission at the Committee stage.

50. In Cross, 19 the High Court identified that a Committee’s grant of permission for development in the AONB was defective on the basis of inadequate reasons for the grant – noting the officer’s clear advice to refuse and the extent of public opposition – and a parallel failure to consider the relevant policy in the development plan.

51. In Backland, 20 an officer’s report was found to have significantly misled the Committee in stating that drainage fields should be located 10 metres from a building rather than the required 15 metres – noting the importance of addressing the risk of nuisance to both current and future occupiers.

Committee Procedure 52. There were also a series of interesting cases in respect of Committee procedure, including successful claims on such grounds.

Ashchurch Rural Parish Council, R (On the Application Of) v Tewkesbury Borough Council [2022] EWHC 16 (Admin) (7 January 2022) 18 R(Fraser) v Shropshire Council [2021] EWHC 31 (Admin) (11 January 2021) 19 R(Cross) v Cornwall Council [2021] EWHC 1323 (Admin) (21 May 2021) 20 Backland v Monmouthshire County Council [2021] EWHC 2185 (Admin) (3 August 2021) 17

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53. In Blacker, 21 the High Court considered a narrow procedural point on resolutions to grant/refuse. It was held that an earlier decision to defer an application when “minded to approve” was a purely procedural decision and did not prevent a second decision reaching a resolution to refuse.

54. In Save Warsash, 22 the High Court quashed a decision where information on the previous use of a site had not been published on the Council’s website for the required five clear days, thus depriving objectors of the opportunity to comment on this.

55. In SPVRG, 23 the High Court dismissed a multi-ground challenge on (amongst other grounds), a deficiency on flood risk in the text of the Officer’s Report, that was addressed orally at Committee, as evidenced by the transcript.

56. In Swainsthorpe, 24 the High Court quashed a decision where the County Council’s reponse as a local highway authority took into account economic benefits of development, when such responses are constrained by Article 18 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 to highways matters. Moreover, the consultation was incomplete and inadequately reasoned.

3) Certificates of Lawfulness 57. There were several cases concerning Certificates of Lawfulness in this period, developing certain principles in respect of interpretation and change of use which have featured prominently in the past 3-4 years.

Interpretation 58. Gallagher 25 was a helpful reiteration of the principles in Shepway, 26 that in construing a planning permission one must look first to the permission itself and application documents referred to therein, before proceeding to extrinsic material only where ambiguity has arisen. On this basis, the High Court quashed an Inspector’s refusal of a CLOPUD on the basis of

R(Blacker) v Chelmsford City Council [2021] EWHC 3285 (Admin) (6 December 2021) R(Save Warsash and the Western Wards) v Fareham Borough Council [2021] EWHC 1435 (Admin) (28 May 2021) 23 R(SPVRG Ltd) v Pembrokeshire County Council [2022] EWHC 143 (Admin) (26 January 2022) 24 R(Swainsthorpe Parish Council) v Norfolk County Council [2021] EWHC 1014 (Admin) (23 April 2021) 25 R(Gallagher Ventures Ltd) v Secretary of State for Housing Communities And Local Government & Anor [2021] EWHC 3007 (Admin) (11 November 2021) 26 R v Ashford Borough Council ex parte Shepway District Council [1999] PLCR 12 21 22

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ambiguity as to the lack of clarity as to the geographical scope of an earlier permission.

59. In Choiceplace, 27 the High Court rejected a challenge to an Inspector’s decision refusing a CLEUD for development where the consented plans were found to be inaccurate in respect of ridge height. It was held that the relationship between such structures was “a matter to be accurately depicted on plans accompanying planning permission for good reason”.

Material Change of Use 60. In Sage, 28 the High Court rejected a s288 challenge to an Inspector’s dismissal of an appeal against refusal of a CLEUD for a personal trainer’s outbuilding on the basis of “visual disturbance”. The judgment held that the reasons were adequate in concluding this from visits by four or five daily visitors. The judge (Sir Duncan Ouseley) held that a secondary business use in a dwelling house could create a material change of use where it was not merely ancillary and not reasonably incidental to the enjoyment of the dwellinghouse. Moreover, the key test is not adverse environmental impact, but change in the character of use.

4) Permitted Development Rights 61. As the permitted development regime has expanded, a number of cases have arisen owing to ambiguity in the text. The courts have again emphasised the wide ambit of discretion.

62. In Cab Housing, 29 the High Court considered the prior approval regime under Class AA of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development ) (England) Order 2015 (“GDPO”) in respect of enlargements of a single dwelling house by the upwards addition of up to two storeys, or one storey above a single-storey building. It was held that the various provisions AA.2(3)(a) on scale, AA.2(3)(a)(i) “impact on amenity” and AA.2(3)(a)(ii) “external appearance of a dwellinghouse” were not to be approached narrowly, as per the Claimant’ submissions. This broad approach looks likely to endure, into what may be a number of further such challenges in 2022.

Choiceplace Properties Ltd v Secretary of State for Housing Communities And Local Government [2021] EWHC 1070 (Admin) (27 April 2021) 28 Sage v Secretary of State for Housing, Local Government and Communities [2021] EWHC 2885 (Admin) (28 October 2021) 29 Cab Housing Ltd & Ors v Secretary of State for Levelling Up, Housing and Communities & Ors [2022] EWHC 208 (Admin) (03 February 2022) 27

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63. In Smolas, 30 the High Court considered the prior approval regime for the erection of an agricultural building under paragraph A, Part 6, Schedule 2 of the GDPO. The Court identified a two stage process, prior notification, then prior approval. The Court found no illegality in refusing prior approval at the same time as considering prior notification, as the definitional requirements of paragraph A of Part 6 were not met.

5) Heritage 64. Heritage cases remained common in this period, albeit with clear signs of the end of the Barnwell Manor era of litigation.

Heritage Balance 65. The key judgment of the year was Bramshill, 31 where the Court of Appeal robustly dismissed the concept of a “net” or “internal” balance in respect of heritage-related benefits and harms – identifying no such basis in either s66(1) of the Planning (Listed Building and Conservation Areas) Act 1990.

The judgment is also notable in heritage terms in identifying that the absence of express reference to the NPPF tests did not thereby render the policies inconsistent with the NPPF and therefore out-of-date. This was a point which a significant number of Inspectors had previously accepted.

66. In Wiltshire, 32 the High Court found that irrespective of whether the balancing exercise arose from paragraph 196 of the NPPF or the development plan policy, the weight to be applied to the conflict with such a policy would also be a question of planning judgment.

67. Bramshill was also further considered in Juden. 33 68. In Save Stonehenge, 34 the High Court quashed the Secretary of State’s DCO in respect of the A303 Stonehenge Tunnel (made contrary to the Inspectors’ recommendation). The court first held that the decision failed to correctly carry out the necessary balancing exercise in respect of all designated heritage assets. Secondly, it was held that the decision failed to consider alternative schemes on their respective merits, especially given that they had been raised by third parties. This decision undoubtedly turns R(Smolas) v Herefordshire Council [2021] EWHC 1663 (Admin) (21 June 2021) City & Country Bramshill Ltd v Secretary of State for Housing, Communities And Local Government & Ors [2021] EWCA Civ 320 (9 March 2021) 32 Wiltshire Council v Secretary of State for Housing Communities and Local Government & Anor [2022] EWHC 36 (Admin) (14 January 2022) 33 Juden v London Borough of Tower Hamlets [2021] EWHC 1368 (Admin) (21 May 2021), [59]-[87] 34 R(Save Stonehenge World Heritage Site Ltd) v Secretary Of State For Transport [2021] EWHC 2161 (Admin) (30 July 2021) 30 31

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on its own highly unusual facts, but demonstrated the courts’ continuing interest in upholding rigorous heritage assessment – especially in cases of decision-makers not following recommendations.

Officer’s Reports 69. In Kinsey, 35 the High Court quashed a decision in which the Report had failed to use the correct heritage balance, merely adopting an unweighted approach – demonstrating that a number of years after Barnwell Manor such issues can still arise and require careful checking of reports.

70. In Buxton, 36 the High Court held that the principle of “reversibility” did not require the decision-maker to have regard to the prospect/realism of actual reversal (Historic England Advice Note 2: Making Changes to Heritage Assets, para 43). Other grounds based on setting were dismissed.

6) Environmental Asessment 71. There were a range of EIA and Habitats grounds scattered across various challenges to Committee decisions (e.g. Ashchurch above). However, again the overwhelming theme was one of respect for discretionary decision-making, even in cases of some complexity/specialism beyond the conventional.

Outline / Reserved Matters 72. In Abbotskerwell, 37 a wide-ranging challenge was brought on the basis of EIA and Habitats grounds, primarily the lawfulness of deferring consideration of certain matters to the reserved matters stage. The High Court upheld the Secretary of State’s decision to grant permission on the basis that the outline permission had legitimately set parameters and would in due course require compliance with further documents under the conditions.

Public Safety 73. In Crest Nicholson, 38 the High Court refused to quash a decision to extend a radiation emergency zone, “Detailed Emergency Planning Zone” (DEPZ) R(Kinsey) v London Borough Of Lewisham [2021] EWHC 1286 (Admin) (18 May 2021) Buxton, R (On the Application Of) v Cambridge City Council [2021] EWHC 2028 (Admin) (19 July 2021) 37 Abbotskerswell Parish Council v Secretary of State for Housing, Communities & Ors [2021] EWHC 555 (Admin) (11 March 2021) 38 Crest Nicholson Operations Ltd & Ors v West Berkshire District Council & Ors [2021] EWHC 289 (Admin) (12 February 2021) 35 36

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which intefered with a housing allocation, noting public safety and national security matters – again noting the wide ambit of discretion in such circumstances.

74. In Valero Logistics, 39 the High Court upheld a grant of permission for a change of use from C3 with an ancillary heliport to commercial heliport. The High Court held that in the context of the COMAH (Control of Major Accident Hazards Regulations that whilst committee members are “not specialist risk assessors”, reports of planning officers must not be subject to “hypercritical analysis”, this principle to apply “with even greater force” to oral discussions at committee meetings. The Authority were also entitled to have regard to the regulatory regime operated by the Civil Aviation Authority (CAA) under the Rules of the Air Regulations.

Nitrate Neutrality 75. In Wyatt 40 the High Court dismissed a challenge on the basis of the unlawfulness of Natural England’s guidance on nitrate neutrality on the basis that this lacked the necessary certainty for the purposes of Regulation 63 of the Conservation of Habitats and Species Regulations 2017. The court however raised questions in respect of the use of a national occupancy rate (2.4 people/dwelling) for the appraisal of water consumption in all circumstances.

7) Climate Change 76. Following Heathrow 41 just prior to the start of 2021, there were a handful of cases concerning climate change. Whilst the courts’ approach was restrictive, the seeds of a generation of climate change / emissions challenges have plainly been sown.

77. In Transport Action Network, 42 the High Court rejected a challenge to the Government’s Road Investment Strategy on the basis of failing to have regard to the Paris Agreement objective to achieve “rapid reductions”, the net zero target by 2050 target under the Climate Change Act 2008 and the carbon budgets under the Act. The court found respectively that the Secretary of State for Transport was aware of each of these objectives and did not accept that these were obviously material in the manner alleged.

Valero Logistics UK Ltd & Anor v Plymouth City Council [2021] EWHC 1792 (Admin) (30 June 2021) R(Wyatt) v Fareham Borough Council [2021] EWHC 1434 (Admin) (28 May 2021) 41 R(Friends of the Earth) v Heathrow Airport Ltd [2020] UKSC 52 (16 December 2020) 42 Transport Action Network Ltd, R (On the Application Of) v Secretary of State for Transport [2021] EWHC 2095 (Admin) (26 July 2021) 39 40

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78. In Finch, 43 the Court of Appeal upheld the High Court’s dismissal of a challenge on the basis of the requirement to take into account “downstream: carbon emissions resulting from the burning of the products of oil extraction in the EIA process. The Court identified that there was no mandatory requirement to consider such emissions and that this would therefore lie in the discretion of the authority. However, there was a notable dissent from Moyland LJ. This case would surely be a strong candidate for a further appeal to the Supreme Court.

8) Other Curtilage 79. In Blackbushe Airport, 44 the Court of Appeal rejected the suggestion that the curtilage of the airport terminal building could extend to its entire operational area (115 acres) in the context of an application for registration as common land. The test of “part and parcel of the building” was to be preferred, rather than the planning unit.

Neighbourhood Plan Challenges 80. In Fylde, 45 the Supreme Court made clear that judicial review challenges to neighbourhood plans must be brought within six weeks of the decision to send for referendum, pursuant to s61N(2) of the Town and Country Planning Act 1990. This marked a relatively quiet year for planning-specific appeals before the UKSC. Supreme Court 81. In terms of future Supreme Court cases in 2022, the most notable is Hillside in respect of the implementation of planning permission. 46 Summary 82. Where will the Planning Court challenges of 2022 arise?

83. The peak of litigation in respect of the NPPF and heritage matters has certainly passed, following major Court of Appeal judgments such as Gladman and Bramshill.

R (Finch on behalf of Weald Action Group) v Surrey County Council [2022] EWCA Civ 187 Blackbushe Airport Ltd v Hampshire County Council, R (On the Application of) & Ors [2021] EWCA Civ 398 (18 March 2021) 45 R(Fylde Coast Farms Ltd) v Fylde Borough Council [2021] UKSC 18 (14 May 2021) 46 Hillside Parks Ltd. v. Snowdownia National Park Authority [2020] EWCA Civ 1440 (3 Nov 2020) 43 44

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84. I would conclude with three predictions.

85. First, the move towards “planning by numbers” in areas such as Biodiversity Net Gain involve a level of precision / binary decision-making which will prompt challenges where there is a realistic doubt as to whether the permission would have been granted or not. This will impose greater standards of scrutiny on Officer’s Report and Inspector’s Decision Letters.

Expect the first wave of challenges to explore the mechanics of such tests in some detail and to deal with defences on the basis of 31(2A) of the Senior Courts Act 1981 whether the result would have been the same in any event.

86. Second, events of the past two years have created challenges in the verification process in various local authorities and left significant resourcing gaps. At the same time the appetite for judicial review amongst objector groups appears unabated. Expect further challenges on the basis of errors in Officer reports, building both on the above topic, and also in conventional areas of policy interpretation.

87. Third, climate change based challenges will increase in prominence with a rise in “politics by other means”.

Law correct as of 7 March 2022

This paper is presented for information only and does not constitute legal advice

James Corbet Burcher No5 Barristers’ Chambers [E-mail] +44 (0) 845 210 555

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