Key judgments

R(GOESA Ltd) v Eastleigh Borough Council [2022] EWHC 1221 (Admin)

This case dealt with a planning permission for a runway extension at Southampton International Airport and the Secretary of State’s power under s.77 Town and Country Planning Act 1990 on whether to call-in an individual planning application.

Under Article 31 of Town and Country Planning (Development Management Procedure) (England) Order 2015, the Secretary of State has the power to restrict a local planning authority (LPA) from issuing a planning decision if the Secretary of State is in the process of deciding whether to call-in an individual application.

It has, however, become common practice that the local council can agree informal undertakings with the Secretary of State to refrain from issuing planning permission whilst the Secretary of State is deciding whether to exercise his or her powers under s.77 TCPA 1990. This saves the Secretary of State having to officially use his or her powers under Article 31.

Holgate J concluded here that such informal undertakings, not limited in time, would amount to the LPA acting ultra vires since the LPA had only three options under its statutory powers (except for powers under s.70A to 70C TCPA 1990 to decline to determine an application, which did not apply here):

1. Grant planning permission; or
2. Refuse planning permission; or
3. Issue a notice that the application has been deferred to the Secretary of State under s.77 TCPA 1990.

The decision on whether an application should be called-in rests entirely in the hands of the Secretary of State; the LPA has “no role to play in the making of that decision” [70].

Another key observation in this case by Holgate J was that, under paragraph 11(d) of the NPPF, a planning authority or Inspector can “legitimately discount a policy as not being important for the purposes of paragraph 11(d)” [159] for that specific application if the decision-maker believes the respective policy would not be breached in those circumstances.

Barton Park Estates Ltd v SSHCLG [2022] EWCA Civ 833.

This was an important case which added to and qualified the ‘I’m Your Man’ line of case law in interpreting planning permissions and change of use.

In I’m Your Man Ltd v Secretary of State for the Environment, Transport and the Regions [1998] 4 PLR 107, the Court ruled that if a planning permission is granted for a certain use, any restrictions on how that use should be exercised must be given by express conditions attached to the planning permission; it is not sufficient for a restriction to be simply stated in the description of the development.

In Barton, planning permission was granted for “9 residential vans, 16 holidays chalets, 18 static vans & 30 touring units”, but there was no separate condition attached to the permission that limited the numbers of caravans to those specific units. The owner of the site then applied for a certificate of lawful use for stationing up to 80 caravans “for the purposes of human habitation” but the application was refused. The Inspector dismissed an appeal by the site owner against the refusal of the application on the grounds that the proposed use of stationing 80 caravans “for the purposes of human habitation” fell outside the scope of the planning permission. This was because the planning permission intended the site to have the mixed use of providing part permanent and part holiday accommodation, however, the proposed use would allow the site to be used for permanent accommodation only.

The Court dismissed the appeal against the Inspector’s decision for the following reasons:

1) The proposed use fell outside of the scope of the planning permission. As such, although there was no condition restricting the number of caravans, the proposed use amounted to a material change of use and;

2) The Inspector was entitled to find that the proposed use amounted to a material change of use and any other finding would have been at least arguably Wednesbury unreasonable.

This follows on from the previous case of Winchester City Council v Secretary of State for Communities and Local Government and others [2015] EWCA Civ 563, where the Court concluded that the ‘I’m Your Man’ principle dealt with only the manner that a permitted use may be exercised and not the extent of the use.

R (Hough) v Secretary of State for the Home Department [2022] EWHC 1635 (Admin)

This case dealt with the Town and Country Planning (Napier Barracks) Special Development Order 2021 (“the Order”). The effect of the Order was to grant planning permission for a change of use for asylum accommodation at Napier Barracks. The site was already being used as asylum accommodation under permitted development rights. The continued use of the site as an asylum accommodation had already proven controversial amongst the local community, with heightened racial tensions and harassment of residents of the accommodation. The site was also subject to a major housing redevelopment scheme.

The Appellant succeeded in having the Order judged unlawful on the grounds that there had been a “failure to have proper regard” to the Public Sector Equality Duty under s.149 of the Equality Act 2010, especially given the known impact of the site on community relations between locals and residents of the asylum accommodation. Although, an equality impact assessment had been prepared, it was based on the assumption that the site would only continue to act as asylum accommodation for two months, whereas the Order granted planning permission for change of use for five years.

Key consultations

Consultation on the principles of Marine Net Gain (closes 30 August 2022) – In its response to the 2018 terrestrial Biodiversity Net Gain (BNG) consultation, the Government confirmed its intention to implement a comparable regime for the marine environment, whereby all in-scope developments will be required to leave the environment in a better state than before. Defra is now seeking views on how this policy objective should be implemented in the English inshore and offshore region. They are particularly keen to hear from marine industries, recreational marine users, non-governmental organisations (NGOs), conservationists, academics, and coastal communities.

Improved reporting of food waste by large food businesses (closes 5 September 2022) – Defra is seeking views on options to improve food waste reporting by large food businesses in England, including the types of businesses and material in scope, the reporting process, the costs and impacts associated with improved reporting and the enforcement of any new regulatory requirements.

Greenhouse gas removals (GGR) business models (closes 27 September 2022) – The Department for Business, Energy and Industrial Strategy (BEIS) seeks views on the design of a business model for engineered greenhouse gas removal (GGR) technologies, to enable them to attract private investment and deploy at scale from the mid 2020s. Their intention is to develop a contract-based model for early projects. In particular, the department would like to hear from those with an interest in GGR technologies and negative emissions markets, including:

• project developers
• financial investors
• academics and research institutes
• carbon crediting programs and buyers

Upcoming events

ENDS Report Webinar on the UK’s Green Governance Landscape

ENDS Report are hosting a webinar on Wednesday 20th July: ‘Watch the Watchdogs: The UK’s emerging green governance landscape’. A panel of speakers with experience across regulators and the third sector will examine the UK’s new post-Brexit environmental governance arrangements, considering the progress made in establishing new green watchdogs to replace the EU’s scrutiny and enforcement role, their powers and early priorities and what this means for people working in the environmental sector.

You can register to attend the webinar for free here.
Young UKELA Social — Guided Walking Tour

Join Young UKELA for a social walk from Temple to Trafalgar Square exploring Central London’s environment, how it has changed over hundreds, thousands and millions of years, and what challenges it will face into the future. Devised and led by Rosie Oliver, founder of Dotmaker Tours, this walk will cover everything from infrastructure to court cases. The event is free to join and is aimed exclusively at those in the early part of their career – up to 7 years post qualified. You must be a member of UKELA and book a ticket in advance, since availability is limited.

Meet 11am at Temple tube station.

Finish 1pm at Trafalgar Square.

Book your place here.

Get outdoors!

To help us all become nature connecters as well as nature defenders, The Green Olive Network will be making regular recommendations for fun outdoor activities with an environmentally conscious slant.

With the weather hotting up, why not head to one of the UK’s many beautiful bits of coast to try and catch a bit of sea breeze!? If you are lucky enough to live near one of our major seabird colonies, like St Bees Head or Bempton Cliffs, you might be able to see nesting seabirds like Gannets, Guillemots and Razorbills. Just remember to check before you travel — some RSPB reserves are sadly closed at the moment due to outbreaks of bird flu in seabird populations.

Alternatively, why not join a local beach clean? You can find out where your nearest one is from the Marine Conservation Society here.