Thursday, 30 June 2011

Development plan conundrum

Development plan conundrum

As I have observed on a number of occasions in the past, the full implications of some judgments do not always become clear on a hurried first reading. When looking at the Court of Appeal’s decision in Cala Homes [27 May], I did not initially spot the Court’s warning that “it would be unlawful for a local planning authority preparing, or a planning inspector examining, development plan documents to have regard to the proposal to abolish regional strategies. For so long as the regional strategies continue to exit, any development plan documents must be in general conformity with the relevant regional strategy.”

As other commentators have pointed out, the Court’s judgment could have significant implications for the plan-making process in those areas where regional strategies are in force. I have already pointed out in a previous post that abolition of regional strategies will not immediately occur upon the Localism Bill receiving Royal Assent, because the government has first to complete its strategic environmental assessment. Ministers pretended that they were doing this on a purely voluntary basis, but they would have been in breach of European law if they had failed to take this step, as ‘Sir Humphrey’ no doubt pointed out to them.

The requirement for local development plan documents to be in general conformity with the regional strategy in those regions where they are in place may therefore continue for some time after the Act is passed. The temptation may be for LPAs to delay progress on their LDFs, although other government initiatives to free up the planning process could lead to planning by appeal where continuing delay means that there is no up-to-date development plan in place.

It would appear, on the other hand, that LPAs are free to down-size their housing targets in those regions where the RSS did not get beyond the draft stage before the Secretary of State decided to scrap regional strategies. There would appear to be no reason for authorities in those regions to delay work on their core strategies and other local development documents. The soundness of these core strategies, however, may well be called in question if planned housing provision is inadequate to meet identified need. The absence of a regional strategy does not negate the research which underpinned the housing targets which were written into the draft strategies. Those figures will continue to be a material consideration, notwithstanding abandonment of the draft regional strategy. Where real problems may arise in the development plan process is in those regions where there is a regional strategy in place, even though it will sooner or later be cancelled by the government.

One last point: I read in another commentary the suggestion that in light of the Court of Appeal’s decision in Cala Homes, a number of developers might seek to challenge adverse appeal decisions made in the past few months (even if now out of time under s.288). However, unless someone can draw to my attention relevant statutory or judicial authority to tell me I’m wrong, I have always been and remain firmly of the view that the 6-week time limit laid down by s.288 is absolute, and that the Court has no jurisdiction to extend that time (in contrast to the discretion they have in enforcement cases under s.289). If a decision letter was issued in a s.78 appeal more than six weeks ago, it is too late now to challenge that decision in the High Court.


Monday, 27 June 2011

Protecting trees by condition

This post is a follow-up to my recent post on ‘pre-commencement conditions’.

I am very grateful to Chris Anscombe, who is a retired Planning Inspector with wide experience of such matters, for contributing the following note.

Chris writes:- “I quite agree there is no substitute for a TPO when it comes to protecting trees. I used to ask awkward questions as an Inspector when conditions were suggested in order to protect existing trees, or indeed hedges. Even after the permission has been implemented, how could such conditions be enforced? If a tree is cut down in breach of a condition what can the LPA do? Breach of a condition in itself is not an offence so there can be no prosecution. The LPA could serve an enforcement notice or breach of condition notice but could only require the planting of a replacement tree within in certain period. A sapling for a mature tree. Not quite the same and possibly far less of a constraint on the development of the site. But what then if that tree subsequently dies? The notice would have been complied with on the planting of the tree.

Even more difficult with hedges. If a hedge is removed a replacement can be required to be planted, but would take time to become established. However, I once had a S73 conditions appeal case where the condition required an existing hedge be maintained at a height of 2m (in that case for privacy and screening purposes). I asked the planning officer what he would do if it were reduced in height to 1m. He said he would take enforcement action. I asked what would be the required steps. Graft the hedge cuttings back on perhaps? He got the point and then said he would specify that the hedge not be cut until it was again 2m in height. I asked what would be the period for compliance - did he know how long the hedge would take to grow to that height again? In any event an enforcement notice requires steps to be taken, not inaction!

Conditions relating to living things can be quite difficult.” - CHRIS ANSCOMBE

This goes some way beyond the problem I originally had in mind. I confess that I had not seen any problem in post-commencement conditions seeking to protect trees. I am not sure that I would entirely agree with Chris Anscombe’s pessimism about the practicability of enforcing such conditions, once the planning permission has been implemented. Some of the criticisms of such conditions which he makes might equally be made of TPOs. If a tree is destroyed, whether deliberately or accidentally, it has gone and the best one can do is to insist that another tree be planted to replace it. The threat of criminal sanctions if a tree protected by a TPO (or by s.211 of the 1990 Act in a conservation area) is wilfully damaged or destroyed would, one hopes, be a deterrent to such action being taken by a developer, but one has to place some reliance on the good faith of the developer.

Making a TPO might be an option which some LPAs would wish to pursue in these circumstances, but if an LPA chooses to go down that route, one hopes that they will have the commonsense to ensure that only the trees shown on the application drawings as being retained are included in the schedule.

In any event, as I indicated before, I am entirely unable to suggest a form of wording for a pre-commencement condition which would be effective to prevent anything being done on site which falls short of commencement of the development authorised by the planning permission, prior to the implementation of that permission. This, as I explained in my original post, is due to the fact that the condition itself will not take effect until the planning permisison is implemented.


Friday, 24 June 2011

Pre-commencement conditions

I have been ‘off the air’ for a time due to pressure of work recently, in particular a planning inquiry in South Wales in which I appeared for the appellant – very hard work, but I do enjoy it.

We came to that part of the inquiry when there is an informal discussion of conditions, and I caused general consternation by making a passing remark to the effect that, of course, pre-commencement conditions are in practice unenforceable. It was like one of those moments illustrated in Bateman’s cartoons.

I am not talking here about so-called ‘conditions precedent’ (you will be relieved to learn). A condition which is typical of what I had in mind would be something of this sort:

A scheme shall be submitted to and approved by the Local Planning Authority before any site clearance or development works commence on site to ensure the retention and protection of all existing trees on the site and to ensure that such trees are not damaged in the course of the development. All works subsequently carried out shall be in strict accordance with the approved scheme.”

Pre-commencement conditions of this sort are commonly used throughout the country, and I think it is fair to say that most developers would be happy to comply with them, not least because the retention of trees is likely to enhance the visual appeal of the development and is therefore a selling point. But there is a potential problem, because by their very nature pre-commencement conditions of this sort are not in fact enforceable.

Why do I say this? Well, it is really very simple – the conditions attached to a planning permission only take effect when the planning permission is implemented. If the development is never carried out, then the developer (or landowner) is not liable to comply with any of the conditions attached to that planning permission.

Now, let us suppose that the developer (or anyone else) were to remove the trees, assuming that they are not protected by a TPO and are not located within a Conservation Area, at some time after the planning permission containing a condition like the one quoted above was issued, but before any other work had been carried out on site. Removal of trees or bushes, etc. cannot amount to ‘development’ (within the definition in Section 55), unless the work involved in site clearance could be said to amount to ‘engineering operations’ or even, conceivably ‘other’ operations, which would seem unlikely in most cases. In any event, I would not regard this sort of activity as coming within the definition of a material operation under Section 56. So at the time when this clearance work is carried out, the planning permission has not been implemented, and even this work, whilst it might well be preparatory to the implementation of the planning permission, would not amount to the commencement of development. So at that point in time, the conditions in the planning permission will not have come into effect and they cannot be enforced.

Where the LPA requires something positive to be done before the commencement of development (such as the submission and approval of additional details over and above the approval of the usual reserved matters), the obvious and most effective means of ensuring this is by means of a negatively worded ‘Grampian’ condition which is so worded as to operate as a ‘condition precedent’. But that type of condition would not be effective to prevent something else being done before the commencement of development, such as the removal of trees.

Unless someone else can come up with a practical suggestion, I am unable to envisage a legally effective device for preserving the trees on site (other than by means of a TPO) or of preventing any other things being done which do not in themselves amount to development but which the LPA wants to avoid prior to the commencement of development.


Tuesday, 14 June 2011

Localism Bill – enforcement problems

I commented some months ago on the enforcement provisions in the Localism Bill, but I am prompted to return to the topic by a helpful briefing note prepared by the Law Society for use in connection with the consideration of the Bill by the Lords. This is very much in line with my own criticisms of these clauses in the Bill.

The Law Society proposes the deletion of subsection (4) in Clause 108 (originally Clause 104), so as to preserve the right for a person to appeal against a planning enforcement notice on the grounds that planning permission ought to be granted. Clause 108(4) amends section 174 of the 1990 Act to provide that if a retrospective planning application has been made but an enforcement notice has been issued before the time for making a decision has expired, the developer cannot then appeal against the enforcement notice on ground (a) that planning permission ought to be granted. The Society considers this amendment to be unnecessary as the enforcement system is working satisfactorily and does not need changing. At present a retrospective planning application and an enforcement appeal can be dealt with at the same hearing. The change could give rise to additional costs both for local authorities and the private sector, it could give rise to unnecessary litigation and it will cause uncertainty in the property markets.

I could never see the point of this proposal in the Bill, and I hope the Lords will agree with the Law Society that Clause 108(4) would best be deleted from the Bill.

The clause in the Bill which causes me the greatest concern is Clause 109 (originally Clause 104). The Law Society proposes that this clause should be deleted in its entirety. This clause has the effect of removing the limitation periods for the enforcement of planning control, which are currently four years for most operations (and also for a change of use to use as a single private dwelling) and ten years for other changes of use and for breaches of condition. The clause would allow local planning authorities to enforce outside the limitation periods where there is a concealed breach of planning control, but the definition of ‘concealment’ (which expressly includes inaction) will effectively apply to almost any breach of planning control of which the local planning authority was unaware. Thus, unless the person committing the breach of planning control actually reports the breach to the authority themselves, their failure to do so would amount to ‘concealment’.

I predicted that some ill-thought out legislative amendment would be proposed in face of the two notorious planning enforcement cases which have been going through the courts over the past couple of years – Fidler and Welwyn Hatfield (Beesley). But these are very rare and unusual cases, and as Lord Brown suggested in giving judgment in the Supreme Court in the Welwyn Hatfield case, legislation is not even required to deal with cases as extreme as these, because they are already well covered by the Connor principle, which would prevent a developer claiming the benefit of their own wrong-doing in this way.

The real objection to Clause 109 is that it would effectively remove the limitation period for planning enforcement action altogether, even where the breach of planning control had been inadvertent or where the property had been sold on many years later to an entirely innocent purchaser who was unaware of the breach of planning control. The uncertainty this would create would cause immense problems, as it becomes increasingly difficult with the passage of time to be certain as to what was done and whether it was lawful at the time or not. It was precisely for this reason that the 4-year rule and 10-year rule were introduced in the first place. Arguably, a single limitation period (say 6 years) would be an even better solution, thus removing the difficulties and uncertainties which already surround the question as to whether it is the 4-year rule or the 10-year rule which applies in certain marginal cases.

As Lord Brown suggested, in light of the Supreme Court decision in Welwyn Hatfield, parliament can safely leave it to decision-makers, backed up by Planning Inspectors and by the Courts to apply the Connor principle in cases where a developer has behaved in the manner of Mr Fidler or Mr Beesley. This problem, such as it is, does not need heavy-handed legislation in order to tackle it.


Friday, 10 June 2011

Localism Bill - Lords 2nd reading

As you are probably aware by now, the Second Reading debate on the Localism Bill was held in the House of Lords on Tuesday of this week. It would be impossible to summarise the debate here, but there are a few points which are worth noting.

An encouraging feature of the debate was the number of speeches which focused on Part 5 of the Bill, dealing with planning. It appears that this part of the Bill is likely to receive rather closer attention than it received in the Commons. It certainly needs it.

The Bill is, of course, far too long and should have been presented as two or even three separate Bills. As Lord Beecham pointed out, this Bill (in its most recently amended form) sprawls over 510 pages, with 215 clauses and 25 schedules. Together with 111 pages of Explanatory Notes, it weighs two pounds, 13 ounces, to which must be added impact assessments weighing all of eight pounds, 11 ounces. As Churchill might have said, "Some impact, some assessment". No wonder, he observed drily, the Government have had second thoughts about their plans for forestry.

Baroness Andrews was the first of several peers to express concern at the loss of the strategic component in town and country planning. There are few more contentious issues than housing supply. Whatever the complaints about the regional spatial strategies, they had some merits: they were evidence-based, independent and offered a coherent way of looking at where housing was needed and could be provided according to land resource. The regional spatial strategy also provided a mediating process for local authorities; now local authorities are on their own and face unforgiving housing pressures.

Baroness Young pursued this theme later in the debate, noting that that there are areas of planning decision-making that are not best made at local level. Under this Bill, we are seeing the demise of regional planning and spatial strategies, but there needs to be an ability to plan at a scale above local. That is important for two reasons. There are some activities subject to the planning system where the decisions can only be made at the scale above the local scale, like waste management, flood risk management, the management of river basins and some of the biodiversity issues that are about international considerations. Many of these cannot simply be resolved on the spatial scale that is often offered at a local level. There are also some decisions that are simply too difficult to make at a local level. Waste management is a prime example. The same applies to difficult decisions between important wildlife sites and economic regeneration that will create jobs. For local people, it is very difficult to take wise decisions about longer-term interests and intangible values that increase our sustainability and quality of life, like biodiversity, when it may mean that you are actually voting against a job for local people.

Lord Marlesford drew attention to the proposed replacement of a large body of ministerial policy advice by a single National Planning Policy Framework. Planning policy, he noted, has been nourished by decades of casework and experience. It is neither possible nor desirable to seek to oversimplify the planning system. The core of the system has been the evolution of the series of policy planning guidance notes - PPGs, as they were known. Most of them have now been redrafted as planning policy statements. The PPG and PPS system is excellent and full of experience and expertise. He had the gravest doubts about the wisdom of replacing it with an overarching new planning policy framework that could, in its attempt at simplification, send a whole generation of babies down the plughole.

In her speech later in the debate, Baroness Young took up this point, when she said: “The third issue I want to make a plea for is not in the Bill, but is integral to all the provisions that are - the whole question of planning guidance. I very much support the words of Lord Marlesford in this. We are waiting for the emerging national planning policy framework and I hope a draft will be available for us to look at soon. It will replace a wealth of wisdom and expertise that currently resides within the planning policy statements. If it removes that wealth of wisdom and expertise, which has been honed to be fit for purpose and useful over the past 20 years, and replaces it with something rather less adequate, that will be a backward step.”

Viscount Simon was concerned that, in a move signalled in the March Budget Statement, which described the planning system as a chronic obstacle to growth, the Bill has been amended to give short-term, economic interests undue weight in the planning process. This is instead of ensuring that the planning system makes decisions that are in the public interest and places equal importance on economic, social and environmental considerations, as it has since the 1947 Act. The Government have picked on the wrong target. The planning system might have its faults, it might sometimes be opaque and slow, but it is wrong to present it as an obstacle to growth. For instance, high house prices and low house building rates are not due to obstacles in the planning system but are largely a consequence of restricted credit availability.

Several peers joined in expressing deep uneasiness about the new clause (now Clause 124) which introduces financial incentives into the planning system, which are to be taken into account as a material consideration in the determination of planning applications under Section 70 of the 1990 Act

Lord McKenzie complained that the changes to the planning system that the Bill encompasses are a major untested upheaval, made worse by the blundering approach of the Secretary of State, who had to be restrained by the courts but not before creating confusion and chaos for the local planning authorities, developers and communities alike. The demise of regional spatial strategies and pronouncements to ignore housing allocations have, according to the National Housing Federation, already caused dramatic reductions of some 200,000 housing units being planned for in local development plans. The abolition of regional spatial strategies will leave England as the only country in Europe without a regional planning framework, with the duty to co-operate as an inadequate substitute.

This is a very inadequate selection from a debate which was notable for many excellent speeches. It gives me grounds for hoping that, as it moves on to its Committee Stage in the Lords, the Bill (and in particular Part 5) will at last be given the scrutiny which the Commons so signally failed to give to its planning provisions.

The Law Society has produced a very helpful briefing on the planning provisions in the Bill, and I will refer to some of the points they make in a future post.


Tuesday, 7 June 2011

Promptness in judicial review

I have commented previously in this blog on cases which have emphasised the need for promptness when applying for judicial review. One aspect of this rule which has been a source of potential difficulty is its possible incompatibility with European law. This was a point which was raised by Lord Steyn in the course of his speech in the House of Lords in Burkett. However, the ECHR (in the case of Lam v UK) had already dismissed the suggestion that the slightly flexible formulation of the period within which an application for judicial review should be made (promptly, and in any event within three months) produces legal uncertainty as to the applicant’s resort to the Court, contrary to Article 6. It seems that Lam was not cited to the House of Lords in Burkett.

The point arose again in Uniplex (UK) Ltd v NHS Business Services Authority in which the European Court of Justice gave judgment on 28 January 2010. The issue before the Court was whether a requirement that proceedings must be brought “promptly” was consistent with the protections of Directive 89/665. The ECJ confirmed (on the basis of earlier case law) that, in order to achieve an effective review of decisions which is as swift as possible, as required by Article 1(1) of Directive 89/665, Member States may impose limitation periods for actions requiring tenderers to challenge promptly preliminary measures or interim decisions in respect of public procurement contracts. However, that objective of rapidity must be implemented alongside compliance with requirements imposed by the need for legal certainty and the principle of effectiveness. The limitation periods set down in national law must not render impossible or excessively difficult the exercise of Community law rights.

Following the Opinion given by Advocate-General Kokott, the ECJ held that a limitation period whose duration lay in the discretion of the national court was not predictable as to its effects and did not therefore effectively transpose Directive 89/665. A provision requiring proceedings to be brought “promptly”, failing which they might be dismissed, was therefore precluded. The ECJ also considered the circumstances in which the national court might exercise its discretion to extend the limitation period. The Court held that it is for the national court to interpret domestic provisions for limitation periods in a way which will accord with the objective of Directive 89/665. Thus, the national court must, as far as is at all possible, interpret the national limitation provisions in such a way as to ensure that time did not begin to run until the claimant knew, or ought to have known, of the infringement. Should it not be possible to interpret the provisions in this way, the national court would be obliged to extend the time period provided for in domestic legislation so as to run from the date upon which the claimant knew, or ought to have known of the infringement.

The Uniplex case was concerned primarily with public procurement, and doubt was expressed by commentators at the time as to whether it would be of wider application in relation to judicial review, for example in planning and environment law cases. It was this issue which finally came before the High Court in R (Buglife) v. Medway Council [2011] EWHC 746 (Admin) in which judgment was given on 30 March 2011.

This was an application for permission to bring proceedings by way of Judicial Review, seeking the quashing of a planning permission issued by the Council in circumstances in which Buglife challenged the adequacy of an EIA. Both Medway and the developer sought to have Buglife’s challenge ruled out on the ground that the proceedings had not been filed promptly (just 2 days before the expiry of the 3-month deadline). Buglife contended that it had an unqualified entitlement to a period of up to three months before it must file its claim, relying on the decision of the ECJ in Uniplex.

Medway and the developer contended that the Uniplex decision was confined to the relevant time limits imposed for proceedings associated with the Procurement Directive, whereas the current proceedings were associated with the EIA Directive. Furthermore, the provision challenged in Uniplex had been contained in the Regulations intended to give effect in domestic law to the Procurement Directive. In the present case, the challenge was to a particular application of a general provision relating to all judicial review proceedings.

The defendants also argued that the Environment Directive only contained a very general requirement on Member States to give effect to the directive in their respective domestic laws. However, the Deputy Judge did not accept the limitation of the Uniplex decision contended for by Medway and the developer. The decision applied general and core principles of Community Law which are applicable to all directives. He held that the requirement of certainty and the application of that requirement to limitation periods imposed on those seeking to enforce their rights arising under the directive in a national court has general application to such enforcement proceedings arising out of any directive. In those circumstances, the Deputy Judge said it was clear that there was a failure of the legislature to transpose the Environment Directive into domestic law in a way which avoids uncertain time limits arising from the requirement of promptness. That requirement, he held, is not now enforceable in the English courts following the Uniplex decision.

In the event, permission to proceed was refused on other grounds. Buglife might seek to take the matter to the Court of Appeal, but if they were to do so they might come up against a problem. The decision of the Deputy Judge seems to overlook the decision of the Court of Appeal in Hardy and Maile v. Pembrokeshire County Council [2006] EWCA Civ 240, (a case to which I have drawn attention on two previous occasions in this blog) in which Keene LJ observed that there are a number of problems with this line of argument. First and foremost, this very point had been advanced before the European Court of Human Rights in the case of Lam v. United Kingdom, Application 41671/98, and rejected. That was a case concerning an application for leave to seek judicial review of a planning decision, where leave had been refused on the ground of lack of promptness. The applicant contended before the ECHR that the terms of Order 53, rule 4(1) of the Rules of the Supreme Court (the predecessor to CPR 54.5(1)) were contrary to the principles of legal certainty, and reliance was also placed on Article 6. The ECHR held that this complaint was manifestly ill-founded, stating:

In so far as the applicants impugn the strict application of the promptness requirement in that it restricted their right of access to a court, the Court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their situation on the strength of administrative decisions.”

Keene LJ referred to several other authorities which pointed in the same direction and concluded that for all these reasons and despite the doubts expressed obiter in Burkett, there was no realistic prospect of the applicants in that case successfully establishing that CPR 54.5(1), insofar as it requires a claim form to be filed "promptly", is contrary to European law and unlawful.

I think that might be enough to negative the proposition (which has been expressed by at least one commentator) that the Uniplex decision is not confined to procurement cases but applies to other cases involving EU directives. My advice to clients will continue to be that if they wish to apply for Judicial Review, they must do so “promptly”, even in cases involving EIA or the Habitats Directive. Equally, I expect that the Courts, following Hardy rather than Buglife, are likely to continue to rule out claims under CPR Part 54 which have not been brought “promptly”.


Monday, 6 June 2011

The future of appeals

When following debates in the Commons on the Localism Bill, I noticed a rather ominous passage in a speech by Greg Clark, in which he acknowledged that the right of appeal is a reasonable safeguard, but he then went on to say: “ I want to make the local plan clear and sovereign, so that it becomes the determinant of planning applications, so that they do not need to go to appeal. The combination of neighbourhood plans and local plans in the new system will be much more robust than at present. Too often at the moment, an appearance before the planning committee is merely the first step on the way to an appeal, and that is the wrong way to do planning.” (emphasis supplied)

I am not the only commentator to have noticed these words, and it warns us that the suggested changes to the appeals system canvassed in the Conservatives’ pre-election ‘Green Paper (“Open Source Planning” [sic]), whereby appeals would be reduced to a mere desk-based checking exercise, may still be in the pipeline for later implementation. We should be grateful, I suppose, that this proposal was not shoved into the Localism Bill, but this should not make us complacent about the longer-term future of the right to bring a fully argued appeal in respect of unjustified refusals of planning permission.

Clark is living in Cloud-cuckoo-land if he believes that the combination of neighbourhood plans and local plans now being introduced in the Localism Bill will be much more robust than the current development plan system. It will simply add further chaos to an already unworkable procedural morass. There are, in any event, important material considerations other than the development plan itself which must be taken into account in reaching a decision on a planning application or appeal.

The idea of effectively emasculating the appeals system has been bouncing about inside the Tory party for some years, and it was advocated by John Seldom-Glummer in his regular column in Planning magazine back in 2006. It prompted me to pen the following riposte in this blog at the time. Here is what I wrote:

Why don’t we just scrap the appeals system?

[First published 4 September 2006]

Perhaps one shouldn’t rise to the bait, especially when it is dangled by a has-been politician, but I was so amazed to see in print the most recent aperçu by John Seldom Glummer in his regular column in ‘Planning’ magazine, that I simply could not resist the temptation to respond to it here.

Gummer opined that the planning appeals system should be scrapped. He particularly objects to Inspectors basing their decisions on up-to-date information, such as changed planning policies, revised ministerial planning guidance, recent judicial authority and the like, which may not have been available to the LPA when it originally determined the application. What Gummer wants is simply a desk-based review of the papers, just to make sure there was no mistake.

We are all aware of the profound ignorance of the planning system among politicians at all levels, but Gummer’s lack of appreciation of the nature and purpose of the planning appeals system is breath-taking - and this man is a former Secretary of State for the Environment!

Just in case any of the planning professionals for whom this commentary is primarily written might be tempted to support Gummer’s bizarre views on the subject, this may be a timely opportunity to remind readers of the principles that underlie our planning appeals system.

It is a very well established principle of administrative law and practice that that there should be some system by which administrative decisions of all types can be reviewed by an impartial tribunal. This is especially important where the original decision is made by elected representatives who may well be subject to various political pressures in reaching their decisions. It was for that reason that the 1947 Act gave the right to applicants to appeal to the Secretary of State against the refusal of planning permission. I have sat through enough planning committee meetings over the past 30 years or more to be acutely aware that many elected members are pig-ignorant about planning, and cannot be trusted to make sensible decisions about anything. An appeals system is essential while applications continue to be determined by local planning authorities with member involvement.

In accordance with well-established practice which is certainly not confined to planning appeals, the appeal takes the form of a complete rehearing of the case, not just a review of the decision itself. The reason for that is that the tribunal (in this case a planning inspector) is unlikely to be able to derive sufficient information from the decision itself to be able to come to a sound conclusion on the appeal.

It is in any event a principle entrenched in our administrative law that both parties should have the opportunity of being heard by the appellate tribunal, whether orally or simply in writing. This is one of the rules of natural justice – ‘Audi alteram partem’ (Hear both sides). What Gummer is calling for, one hopes in vain, is an abrogation of a fundamental principle of British administrative law and practice, guaranteeing the right of the citizen to a fair trial of their case in civil as well as criminal matters (reinforced now by Article 6 of the European Convention on Human Rights).

So far as I am aware, John Gummer has no official remit on behalf of his party as a spokesman on planning matters, so maybe we should ignore his outpourings. It is, however, disturbing that someone who might reasonably claim to be a ‘senior’ politician should be so woefully ignorant of the legal and administrative basis of the system for which he once had ministerial responsibility.


Thursday, 2 June 2011

Implied conditions - an exception to the rule?

A recent Court of Appeal decision relating to conditions - Hulme v SSCLG [2011] EWCA Civ 638 - seems to have been seen by some commentators as a case primarily concerned with wind farms. Whilst it was a planning permission for a wind farm which gave rise to this litigation, the point in issue is of wider interest and potentially applies to all types of development. In fact this case has serious implications for the interpretation of conditions generally.

The Court was concerned with two conditions, the first of which required measurements of noise attributable to ‘blade swish’ in the event of a noise complaint being received by the LPA, and the second prohibited the generation of electricity to the grid until the LPA has approved a scheme providing for the measurement of greater than expected ‘blade swish’ noise, the object of this condition being to evaluate compliance with the preceding condition. What these conditions did not do was to prohibit ‘blade swish’ noise exceeding any specified or measured levels.

In giving the leading judgment, Elias LJ reminded himself of the legal principles to be applied to the interpretation of conditions:

a) The conditions must be construed in the context of the decision letter as a whole.

b) The conditions should be interpreted benevolently and not narrowly or strictly. (See Carter Commercial Development Limited v SSE [2002] EWHC 1200 (Admin) para 49, per Sullivan J, as he was.)

c) A condition will be void for uncertainty only "if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results" per Lord Denning in Fawcett Properties v Bucks CC [1961] AC 636, 678 (an application of the benevolent construction principle), and

d) There can be no ‘implied’ conditions (per Widgery LJ in Trustees of Walton on Thames Charities v Walton and Weybridge DC [1970] 21 PMCR 411 at 497).

For those reasons, whilst there must be a limit to the extent to which conditions should be rewritten to save them from invalidity, if they can be given a sensible and reasonable interpretation when read in context, they should nevertheless be interpreted in such a way as to make sense of them. Thus, as Elias LJ put it, the rule that there can be no ‘implied’ conditions “needs careful analysis”.

The appellant (a third party objector) sought to challenge the grant of planning permission by the Inspector on the basis that the Inspector intended to impose a mechanism to ensure that the level of ‘blade swish’ did not exceed acceptable levels, and that without these conditions, planning permission would have been refused. The appellant contended that these two conditions failed to achieve that objective. In response, the Secretary of State and the developer submitted that, properly understood in context, the conditions do envisage an effective enforcement of acceptable ‘blade swish’ noise levels. The clear intention, they said, is that the scheme adopted under the second condition would provide the necessary system of enforcement.

The appellant called in aid the decision of Sullivan J (as he then was) in Sevenoaks DC v FSS [2004] EWHC 771. That was a case in which there was a condition requiring the submission and approval of the details of all engineering works involved in the formation of a golf course, prior to the commencement of that development. However, the condition did not actually require the execution of the engineering works in accordance with those details. The engineering works subsequently carried out were not in accordance with the approved details, but Sullivan J held that this did not constitute a breach of the condition, because it could not be implied that there was an obligation to carry out the works in accordance with the approved scheme. To do so would involve implying a condition, contrary to the principle enunciated in the Trustees of Walton case. Sullivan J also put some weight on Circular 11/95, which points out that a mere statement that a scheme requires approval does not mean that the LPA will be able to require the scheme to be implemented as approved unless there is a specific condition to that effect.

Elias LJ, however, felt that the construction he was adopting here did not fall foul of the Trustees of Walton principle, which he distinguished by reference to its facts. The implied term relied on in Walton depended on reading into the planning permission an obligation which was said to arise from extrinsic circumstances. Here, in Elias LJ’s judgment, the obligation not to contravene the standards set out in the first of the two conditions in question arose as a necessary implication from the language of the express conditions when read in the context of the decision letter. He therefore thought it more accurate to describe it as a matter of construction rather than implication. But even if it could be described as an implied condition, it was very different in nature from that envisaged in the Trustees of Walton case. He accepted that it is not easy to reconcile this analysis with the Sevenoaks case, but that seems to have involved conditions in a planning permission which were not to be read against the background of a decision letter. In any event he was satisfied that it ought not to dictate the outcome in the present case.

It followed that in his judgment there is an obligation on the developers to comply with the ‘blade swish’ levels specified in the first of these two conditions and that obligation will run for the duration of the planning permission. That obligation can be enforced by the planning authority in the normal way. Accordingly, the principal ground of appeal failed, although he was prepared to accept that that the enforcement mechanism does not operate through the scheme adopted under the second condition.

Patten LJ agreed that the relevant conditions could and should have been drafted with greater precision but, read in the context of the planning permission as a whole and against the background of the objectives set out in the Inspector's report, it is clear that the intention was that the limits referred to in the first condition should be complied with. The omission of any such requirement was, he thought, inconsistent with the reference in the second condition to the purpose of the scheme being to evaluate compliance with the standards referred to in the first condition. That pre-supposed the existence of a prior duty to comply with those standards as a term of the planning permission rather than as an obligation imposed through the medium of a scheme complying with the second condition.

Patten LJ observed that there is an undoubted need for the terms of any planning conditions to be set out clearly in the permission so that the developer and the local planning authority know exactly where they stand. But that does not mean that a lack of verbal or grammatical completeness should defeat the purpose of a condition when its meaning and effect is readily comprehensible by any reasonable person reading it with knowledge of all the relevant background material. At the risk of trespassing into the very field which Widgery LJ in the Trustees of Walton case said was forbidden territory in this branch of the law, he felt that a limited analogy with recent developments in the law relating to the construction of contracts could be helpful. He had in mind particularly what Lord Hoffmann said in A-G of Belize v Belize Telecom Ltd [2009] 1 WLR 1988: -

"The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls.

In some cases, however, the reasonable addressee would understand the instrument to mean something else. He would consider that the only meaning consistent with the other provisions of the instrument, read against the relevant background, is that something is to happen. The event in question is to affect the rights of the parties. The instrument may not have expressly said so, but this is what it must mean. In such a case, it is said that the court implies a term as to what will happen if the event in question occurs. But the implication of the term is not an addition to the instrument. It only spells out what the instrument means

The current case seemed to Patten LJ to fall very much into the second of these two categories. In his view, the Court’s construction of the conditions did not really involve the addition of a new term at all. It merely recognised what the informed reader of the condition would always have understood it to mean.

I share the view already expressed by other commentators that it is hard to reconcile this decision with Sevenoaks, which seems to have been lightly brushed aside with a minimum of reasoning. If effect is given to the approach adopted by the Court of Appeal in this case, it could lead to a significant change in the way in which the courts construe planning conditions. I frankly find myself in disagreement with this judgment, and wonder whether the appeal might be taken on to the Supreme Court.