Thursday, 27 February 2020

The Heathrow Third Runway case

There has been some excitement in the news media about the judgment handed down by the Court of Appeal this morning in an appeal relating to proposals for the construction of a third runway at Heathrow Airport (R. (Plan B Earth) v Secretary of State for Transport (and conjoined appeals) [2020] EWCA Civ 214. However, as all too often happens, some people have been getting over-excited and are trying to read too much into this decision.

Opponents of the third runway at Heathrow had launched a root and branch attack on the scheme, but their appeal succeeded in the Court of Appeal on only one ground. The Court concluded that, in one important respect, the Airports National Policy Statement (‘ANPS’) supporting this project was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of government policy in a national policy statement, which Parliament put in place in the Planning Act 2008, was not fully complied with. The Paris Agreement [on climate change] ought to have been taken into account by the Secretary of State in preparing the ANPS, but was not.

The Court agreed with the appellants that the Government’s commitment to the Paris Agreement constitutes government policy on climate change, which the Secretary of State was required to take into account. However, the Government when it published the ANPS had not taken into account its own firm policy commitments on climate change under the Paris Agreement. The Court nevertheless emphasised that section 5(8) of the 2008 Act does not require of the Secretary of State to follow or act in accordance with government policy. In terms, what it requires is that the ANPS should explain how the Secretary of State has “taken into account” government policy. It is necessarily implicit in that obligation that the Secretary of State must indeed first have taken that government policy into account. This is an important aspect of the transparency of the Secretary of State’s actions and his accountability, both to Parliament and to the wider public.

The Court of Appeal did not consider that it should quash the ANPS, but confined the relief granted to a Declaration. Other grounds of appeal were all dismissed. These included issues relating to the operation of the Habitats Directive, and also on a variety of issues concerning the operation of the Strategic Environmental Assessment Directive.

The Court of Appeal made it clear that these judicial review proceedings, did not require the Court to decide whether and how Heathrow should be expanded. That is not the kind of decision that courts can make. It is ultimately a political question for the Government of the day. Rather, the Court was required to consider whether the court below (the Divisional Court) was wrong to conclude that the Government’s policy in favour of the development of a third runway at Heathrow was produced lawfully. This is an entirely legal question.

The Court of Appeal was also at pains to stress the limited scope of their judgment. The Court did not decide, and could not decide, that there will be no third runway at Heathrow. Nor did they find that the ANPS supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. However, the consequence of the Court’s decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed.

A successful claim in judicial review proceedings often proves to be a ‘pyrrhic’ victory, and this may well be the case here. All that the Secretary of State need do now is to reconsider the matter, “taking account” of stated government policy in relation to the implementation of the Paris Agreement. As the Court of Appeal made abundantly clear, the Secretary of State is not required to follow or act in accordance with government policy. It is therefore entirely possible that the Secretary of State, having taken account of the government’s own policy as to their obligations under the Paris Agreement, may nevertheless decide for economic and other reasons that the ANPS supporting the expansion of Heathrow Airport should be reaffirmed in its present form, thus allowing the third runway at Heathrow to go ahead.

The government has already stated that they will not seek to appeal to the Supreme Court, but will abide by the judgment (which, as I have explained, should prove to be a comparatively easy exercise). The owners of Heathrow Airport, on the other hand, were all set to pursue a further appeal, but they may think better of it when it becomes clear to them that this judgment is unlikely in practice to prevent the expansion of Heathrow that they have planned.

[Just to make one thing clear, I am not taking sides in this case. I can see that there may well be arguments against further airport development in the face of the mounting climate crisis, but as the Court of Appeal made abundantly clear, that is a political issue, and is not one with which the courts can concern themselves. The government simply has to follow the correct procedure in accordance with section 5(8) of the 2008 Act, and they are home and dry.]


Section 73 - Going to Supreme Court?

I believe the Finney case, in which the Court of Appeal gave judgment in November, may be going on to the Supreme Court. I haven't seen this in black and white yet, so watch this space.


Monday, 24 February 2020

Ministerial revolving door spins yet again

In Boris Johnson’s recent cabinet reshuffle, the Communities Secretary, Robert Jenrick, kept his job, but Esther McVey (“The Mouth of the Mersey”) got the sack as Housing and Planning Minister after barely six months in the job. Her replacement is Christopher Pincher, the MP for Tamworth since 2010 (prior to which the seat had been held by Labour). He last held a junior ministerial position in the Foreign Office and as a government whip. His precise ministerial responsibilities are still not stated on the MHCLG website.

If we were in the Crown Court, Hizonner (before passing sentence) would turn to Inspector Morse and ask him to read the antecedents, to which Morse would have to reply, “Nothing known, Your Honour.” I have never known a minister to have such a vague, or in fact non-existent, CV. I have only seen one press report in which he was vaguely stated to have been “an IT consultant”. MPs are rarely so reticent about their careers before entering parliament.

One thing that is certain is that he knows Sweet Fanny Adams about town and country planning, but since when has complete ignorance of the subject for which one has been given ministerial responsibility ever been seen as a disqualification?

I can’t recall how many Housing & Planning ministers there have been since 2010, but whatever the actual number may have been it has been far too many. Ministers can hardly master their departmental briefs before being moved on, which does not make for any continuity or consistency in policy making or in the delivery of those policies. It’s hardly surprising that the long-awaited Planning White Paper has been postponed yet again.

What a way to run a country!


Tuesday, 18 February 2020

Plans and drawings accompanying a prior approval application

A correspondent recently raised with me an issue regarding a prior approval application which an LPA had refused to accept as a valid application, on the ground that the plan accompanying the application was not drawn to an identified scale. The question was whether the LPA was correct in this, or whether the 56-day period would run in any event, so that the LPA’s failure to process and determine the application would lead to an automatic right to go ahead with the development after the expiry of the 56-day period, failing the LPA’s determination of the application having been notified to the applicant. An alternative scenario is that the LPA does issue a decision rejecting the application on this ground. How would an appeal against such a decision fare?

So far as plans are concerned, in Part 3, paragraph W(2) simply requires that the application must be accompanied by a plan indicating the site and showing the proposed development. Similar provisions are found in other Parts of the Second Schedule to the GPDO (for example, in Part 1, paragraph A.4(2)(b)) There is no requirement that the plan should be to any particular scale, or that it should be a scale plan at all. It may be inferred that the plan should be adequate to identify the site and to show the proposed development with a sufficient degree of precision to enable the plan to be understood, but there is no specific requirement in the GPDO that lays down any particular standard for plan drawing.

The decision of the Court of Appeal in Murrell v SSCLG [2010] EWCA Civ 1367 established that the validity of a prior approval application does not depend upon the LPA accepting it as a valid application. Whether there is a valid application or not is an objective question of law. Thus, the running of time is not dependent on the application being ‘validated’ by the LPA. The appellant’s application in Murrell complied with the requirements of the GPDO and was a valid application, contrary to the LPA’s assertion. Consequently, the PD right claimed by the appellant came into effect upon the expiry of the determination period (calculated from the day following receipt of the application by the LPA). As noted above, the GPDO does not require that the plan indicating the site and showing the proposed development must be drawn to any particular scale. Even a plan marked “Not to Scale” and/or “Do not scale from this plan” would be perfectly adequate to comply with the requirement in the GPDO for “a plan indicating the site and showing the proposed development”.

But what of a refusal of prior approval by the LPA (or a dismissal of the application under paragraph W(3))? The answer to this question is provided by a recent planning appeal [3226314] in Greenwich LBC relating to a prior approval application under Part 1. The Inspector pointed out that Class A paragraph A.4(2) requires the developer to notify the Council with certain information about the proposal, before development commences. The Council stated that the extension drawn on the submitted block plan measured 4.78m and was therefore inconsistent with the written description of 5m. However, paragraph A.4(2)(b) does not require the plan to be drawn to any scale. The plan needs only to indicate the site and show where the proposed extension is to be located. The actual dimensions of the proposed extension are required to be stated in writing under A.4(2)(a), which the appellant did. The appellant also submitted detailed drawings, which clearly indicated that the extension would project 5m. Thus, precise accuracy of the delineation of the extension on the submitted block plan was not critical. Accordingly, the Inspector found that the Council’s stance on this matter was incorrect and that in the absence of any objections, prior approval should not have been refused for the reason given on the decision notice. [Unfortunately, the Inspector was nevertheless obliged to dismiss the appeal, because the applicant had ‘jumped the gun’ by starting work on the extension, and this disqualified the proposed extension as permitted development.]

I wouldn’t want readers to assume that they can get away with only the vaguest indication of what development is actually proposed. As the Inspector observed in the Greenwich appeal, there is a requirement in Part 1 to state the dimensions of the proposed development, so the written description of the proposed domestic extension in such a case must contain that information. In relation to Part 3, whilst a simple but legible plan should suffice for the purposes of a change of use under Part 3, something more will be required if operational development is also proposed, under Classes C(b), M(b), N(b) or Q(b). In this case, there would appear to be an inescapable need for dimensioned drawings to be provided, in order properly to describe the operational development that is proposed. [This is discussed in more detail in paragraphs 13.5 and 13.5.1 of Chapter 13 in A Practical Guide to Permitted Changes of Use.]

It should also be borne in mind that the LPA has the right to ask for additional information under paragraph W(9) of Part 3, although such a request must be confined to the matters that are specified for approval in relation to the Class of development in question. In some cases, this could include a request for more precise details of any operational development that is proposed, in order to be able to assess its design or external appearance, and it could perhaps include a requirement for additional drawings. If such information is properly required, then a failure to provide it might justify the dismissal of the application under paragraph W(3), but the LPA might then face an appeal, with a risk as to costs if they were found to have acted unreasonably.


Wednesday, 5 February 2020

Extending the 56-day period by agreement

As I briefly reported in my post of 3 Feb, the High Court (Holgate J), in a judgment handed down on 31 January in Gluck v SSHCLG [2020] EWHC 161 (Admin), has reversed the effect of last year’s judgment in R (Warren Farm (Wokingham) Limited v Wokingham BC [2019] EWHC 2007 (Admin), which had determined that Article 7 of the GPDO did not (as had been universally assumed) enable the 56-day period for the determination of a prior approval application relating to permitted development under any Class in Schedule 2 to the GPDO to be extended by agreement between the applicant and the LPA. Holgate J ruled that the decision in Warren Farm should not be followed.

The subject matter of the Gluck case was the proposed residential conversion by the Claimant of two office buildings under Class O of Part 3. There was correspondence between the claimant and the LPA before the 56-period for determination had expired, indicating the claimant’s willingness to agree an extension of time for the determination of the prior approval application beyond the end of the 56-day period. (The claimant later denied that a specific extension of time had in fact been agreed in writing by the LPA, a contention that was rejected both in his appeal against the LPA’s refusal of prior approval, and by Holgate J in the instant case. We will come back to this point briefly later.)

The Warren Farm case had not been decided in the High Court by the time that the appeal decision that Mr Gluck sought to challenge was decided, but it was a major plank in his case in the High Court. He sought to rely on the decision of Mr Mark Ockelton (sitting as a Deputy High Court judge) in Warren Farm that a time period specified in Schedule 2 of the GPDO 2015 for a determination by the authority as to whether its prior approval is required in a particular case was incapable of being extended, so that once it had expired without a decision being made the applicant could proceed with the development described in their application (in so far as it complied with the terms of the Order).

However, the Secretary of State submitted that that decision was incorrect and should not be followed; so that the provision in the Article 7 of GPDO for agreeing an extension of time periods applies to all prior approval procedures. It is a well-known principle that the High Court is bound to follow its own previous decisions, but the Court is not in fact bound to take that course if the judge in a later case is satisfied that there is a powerful justification for not doing so (see Willers v Joyce (No.2) [2018] AC 843 at [9]). For the reasons set out in detail in his judgment, Holgate J therefore declined to follow the judgment in Warren Farm. In that earlier case, the deputy judge stated that he had not been referred to any prior approval procedure in the GPDO 2015 to which the provision for extending time could be applied if his construction of the legislation was correct. By contrast, in the present case there was extensive discussion of this issue.

As in Warren Farm, the Claimant referred to the three alternative time limits under Article 7 for a prior approval to be determined by an LPA, namely -

(a) within any period specified in Schedule 2,
(b) where no period is so specified, within 8 weeks beginning with the day immediately following the receipt of the application by the LPA; or
(c) within such longer period as may be agreed by the applicant and the LPA in writing,

and argued that (c) is an alternative to (b), but not to (a). Therefore, he argued, a period specified in Schedule 2 is incapable of being extended (whether by agreement or otherwise). It is only where a period is not specified in Schedule 2, and the default position in (b) is engaged, that the ability to extend time by agreement under (c) applies.

The way the Secretary of State put it was that the Claimant’s construction conflicted with the purpose of including option (c) in Article 7. That provision recognises that prior approval applications of all kinds will sometimes involve technical issues requiring detailed assessment and consultation with other authorities. That may apply, for example, to the amenities of the future occupants of the residential development to be carried out under Class O. The same time period specified in Schedule 2 provisions such as paragraph W(11)(c) applies both to the LPA’s decision as to whether prior approval is required and, if so, whether it should be granted. These provisions involve a single time period for decision-making. Insufficient information may have been submitted with the application to enable the LPA to decide whether prior approval should be granted (if required) within that period. In that respect the position is similar to that which may arise for permitted development rights which are subject to the grant of prior approval in all cases. A developer faced with the prospect of his application being refused, for example because of the inadequacy of the information he has supplied with the application, might well prefer to have the period for determination extended so as to avoid a refusal and the prospect of having to appeal to the Secretary of State. The flexibility which option (c) was designed to provide logically applies to cases falling within both paragraphs (a) and (b).

Holgate J observe that Bennion on Statutory Interpretation states at section 16.6:–

“Where a single sentence is broken up into several paragraphs with the word ‘or’ or ‘and’ at the end of the penultimate paragraph, there is an implication that each of the preceding paragraphs is to be treated as if separated by the same conjunction.”

Phillips v Price [1959] Ch. 181 is an example of this principle being applied. It represents the natural way of reading the statute and layout of Article 7. By contrast, the Claimant’s argument would depend on reading paragraphs (a) and (b) as if they were separated by the word “and” instead of “or”.

The absence of a provision answering to paragraph (a) in Article 7 could mean that all “prior approval” cases in Schedule 2 fall within paragraph (b). It would then follow ineluctably that paragraph (c) would apply in all such cases, and an extension of the time period could be agreed. Furthermore, paragraph (a) would be otiose. The Claimant’s legal argument on the main issue would collapse. The procedural code for dealing with prior approval applications should not be construed so literally that it would produce unreasonable or unworkable results. The legislation does not require that approach to be taken.

Nor did Holgate J consider that the Claimant’s interpretation of the legislation could be supported by a purposive approach to the language used. Plainly the avoidance of delay in decision-making by LPAs is an important objective. But sound decision-making on matters of public interest is no less important. That needs to be based upon adequate information from an applicant and necessary consultation. Some of the issues involved may be of a highly technical nature. These considerations apply with just as much force to permitted development rights where the time period for decision-making falls within paragraph (a) of Article 7 as to those within paragraph (b). It may well be in the interests of an applicant to agree to extend the time period for determination to enable him to remedy a deficiency in the information he has supplied and/or to hold discussions with the LPA and consultees, so as to avoid a decision by the LPA that prior approval is both required and refused, and the consequential need to pursue an appeal, or to submit a fresh application, together with additional costs and delay. It would be undesirable to deny that option to developers seeking to rely upon permitted development rights falling within paragraph (a) of Article 7 unless the language of the GPDO 2015 compels that conclusion, particularly as the ability to extend time under paragraph (c), and the length of any extension, would be subject to the developer’s agreement.

Furthermore, the practical effect of treating time periods falling within paragraph (a) as incapable of extension would probably lead to more decisions by LPAs refusing applications (e.g. because the information provided in the time available for decision-making is inadequate) and more appeals to the Secretary of State. That would not be conducive to efficient decision-making or to encouraging acceptable forms of development to proceed without undue delay.

In his lordship’s judgment, the language of the GPDO 2015 does not require the Court to conclude that paragraph (c) is an alternative only to paragraph (b). The specification of a time period in Schedule 2 (such as 56 days) for a decision on whether prior approval is required, linked to a restriction on commencement of development, is not incompatible with the possibility of extending time under paragraph (c). Paragraph (b) lays down a finite period of 8 weeks for decision-making, but that is to be read together with, and subject to, any extension under paragraph (c). The language of paragraph (a) does not preclude an extension of time under paragraph (c) simply because the time period is specified in Schedule 2 rather than in Article 7. Nor is any such extension precluded because the time period is used to control when development may lawfully commence. A provision such as paragraph W in Part 3 of Schedule 2 is capable of being read together with Article 7. Permitted development rights granted under schedule 2 are expressly subject to other provisions of GPDO 2015 including Article 7 (Article 3(1)).

On a separate point, Holgate J also accepted the Secretary of State’s submission that if the legislature’s intention had been to treat time limits specified in Schedule 2 as operating independently, and to be incapable of extension by agreement, which would be the effect of the Claimant’s argument, then there would have been no need to include paragraph (a) or to refer to those time limits in Article 7 when the GPDO 2015 was enacted.

Holgate J therefore concluded that Article 7 must be read as if paragraph (c) is an alternative to both paragraphs (a) and (b). The consequence is that any of the prior approval time periods specified either in Schedule 2 or in Article 7 is capable of being extended by an agreement by the applicant and the LPA in writing. The decision in Warren Farm should not be followed.

An additional argument deployed by the Claimant was that an extension of time had not in fact been agreed by the LPA, and/or that such agreement had not been sufficiently evidence in writing. On the first point, Holgate J saw no error in the factual conclusion reached by the Inspector on this point in his appeal decision. As to whether the agreement was sufficiently evidenced in writing, he accepted that an email does qualify as being “in writing”, and no greater formality of communication is required. The Claimant’s argument therefore failed also on this point. I would simply observe that my own view has always been that an email does qualify as being “in writing”, but subject to the proviso that the email has actually been received by the addressee (i.e. that it has arrived in their In box, even if it was not opened or read). A request for an automatic delivery receipt added to the outgoing email is always advisable in such cases.

Holgate J’s judgment in Gluck is very welcome in restoring the understanding that most of us had as to the interpretation of Article 7, and confirming that a written agreement (if only by an exchange of emails) between the applicant and the LPA to extend time for the determination of a prior approval application is effective for that purpose in all cases. However, I did stress in paragraph 15.3 in both the First and Second Editions of A Practical Guide to Permitted Changes of Use that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. There would need to be some written evidence that both parties had agreed to extend time. A nil response from the applicant to the LPA’s request for more time would not prevent the expiry after 56 days of the time within which the LPA is required to determine the prior approval application and notify the applicant of that determination. Unfortunately, this passage does not appear in the Third Edition, having been removed shortly before publication in light of the Warren Farm judgment.


Monday, 3 February 2020

56-day period CAN be extended – High Court

Like many other planning professionals, I was frankly non-plussed by the judgment in R (Warren Farm (Wokingham) Ltd) v Wokingham BC, for the reasons I explained in a blog post on 2 August last year.

Now, Holgate J has declined to follow that judgment in the High Court in delivering judgment in Gluck v SSHCLG [2020] EWHC 161 (Admin) last week, when he made a detailed and carefully reasoned analysis of the GPDO, applying well-established principles of statutory interpretation.

I have not had time yet to read the judgment in detail, but in view of its importance, I am publishing this note now to record the fact that Article 7 of the GPDO does permit the 56-period for determining a prior approval application under Part 3 to be extended by agreement between the applicant and the LPA, as we all thought it did before the Warren Farm case.

I hope to publish a post setting out details of the judgment in Gluck shortly.