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Planning and environmental legislation update - July 2017

18 July 2017

This newsletter is published by the Law Society's Planning and Environmental Law Committee and sent to solicitors with SRA records indicating interests in planning and/or environmental law. For more about the Committee's activities, and to tell us how we can improve our newsletter, please contact us.  


A roundup of notable recent policy developments, appointments, practice guidance and other changes.  

Housing update

In a recent speech to the Local Government Association, secretary of state for communities and local government Sajid Javid announced an upcoming consultation on a standardised approach to housing need assessment. He was critical of progress on adopting up-to-date local plans, and launched the previously-announced Housing Infrastructure Fund. A series of recent articles by Savills summarise a rather sorry housing picture.

No watering down of protection - Gove

Interviewed on a recent broadcast of BBC Radio 4's 'Farming Today' programme, and ahead of European Union (Withdrawal) Bill, the secretary of state for environment, food and rural affairs said 'We need to maintain, and where possible enhance, environmental and animal welfare standards... I do not for a moment want to see either of them diluted or eroded.' A group of lawyers intend to keep him to his word.

NPPF clarified - again

Readers might be forgiven for thinking that paragraph 14 of the National Planning Policy Framework (NPPF) had appeared in court more often than Rumpole. Unlike many before it, however, a recent Court of Appeal case has considered how the presumption in favour of sustainable development applies in situations where there is an up-to-date local plan, including a five year housing land supply.

In upholding a High Court judgment quashing an inspector's decision, the court deemed that the inspector had misapplied section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires determination in accordance with the development plan unless material considerations indicate otherwise.

With long-delayed revisions to the NPPF now predicted for late 2017, Simon Ricketts wonders if greater clarity might be in prospect.

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In brief

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Committee news

The Committee participated in two evidence sessions for the Town and Country Planning Association's Raynsford Review of Planning. Beth Harris contributed to a session on whether England still has a plan-led system, while Jamie McKie considered the case for a national spatial plan. Written submissions are also invited from a wider audience.

Incoming committee Chair Tim Smith will lead a session on 'planning issues for conveyancers' at this year's national property law conference

Summer is here (or has it been already?) and readers' thoughts may turn to matters less professional. However, two ways to explore the impact of green belt policy may be of interest. The Law Society Golf Club asked us to encourage interested solicitors to contact them, which we are happy to do. Secondly, for the lycra-lovers among you (and there are quite a few), a free-to-join virtual cycling club for planning and environmental law professionals now exists on the Strava app. 

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The Planning and Environmental Law Committee regularly responds to official consultations on points of law and technical matters. We may not respond to all those consultations listed below but if you have input you'd like to share, please contact us.  

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Case law

In each newsletter we highlight a small number of notable judgments across a range of topical legal points. This month, in addition to the East Staffordshire NPPF case reported above, a challenge to a National Policy Statement (NPS), interpretation of local plan policy, and the latest episode in a long-running saga concerning a single wind turbine on a Welsh hillside.

R (Scarisbrick) v secretary of state for communities and local government; Date: 30 June 2017; Ref: [2017] EWCA Civ 787
This case examined the meaning of the NPS for hazardous waste, and whether the secretary of state had misapplied or misinterpreted it. It was brought by a landowner adjacent to the site of a Development Consent Order for a landfill facility in the green belt. The claimant argued that the NPS only established national need, and did not establish the need for the specific facility. Lord Justices Lindblom and Irwin dismissed the claim, asserting that the secretary of state had not failed to consider all necessary factors.

Dignity Funerals Ltd v Breckland District Council [2017] EWHC 1492
The claimant challenged the council's permission for a new crematorium on the grounds that it had misinterpreted local plan policy and had failed to consider alternative sites. Justice Holgate dismissed the misinterpretation grounds, referring to Tesco and Hopkins Supreme Court cases which discouraged excessively mechanistic interpretation of policies. He also dismissed the argument about the consideration of alternative sites, asserting that the council had been under no legal obligation to do so in this case.

Williams, R (on the application of) v Powys County Council & Anor [2016] EWHC 480
An application for a single wind turbine, granted in December 2013, was quashed by consent and a new application submitted. It was granted in May 2015 and challenged in the High Court in 2016. That case was dismissed but permission to appeal granted. Lord Justices Lindblom and Irwin in the Court of Appeal ruled that the planning authority had failed in its duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have 'special regard' to preserving the setting of grade II* listed church nearby and directed the county council to 'lose no time in taking the decision again'.