In case you missed them in the run up to the Christmas break, three judgments were handed down on 21 December 2022, which are worth noting.

Firstly, the High Court decision in The King (LW Zenith Limited) v Secretary of State for Levelling Up, Housing and Communities v Hart District Council [2022] EWHC 3317 (Admin) relates to the imposition of conditions.  The judgment serves as a reminder of the following principles:

  • An application for prior approval is not the same as an application for planning permission. The local planning authority in determining a planning application must have regard to all material considerations and has wide powers to impose conditions, including conditions requiring the carrying out of works under section 72(1)(a) of the TCPA 1990 (as amended). In contrast, the GPDO specifies those planning matters for which approval must be sought, and the controls which the local planning authority is able to exercise and the considerations it is entitled to take into account, when determining an application for prior approval. The procedure for applying for prior approval is set out in paragraph W of the GPDO. Paragraph W(13) provides that the local planning authority may grant prior approval unconditionally or subject to conditions "reasonably related to the subject matter of the prior approval."
  • Case law has established that a negative condition may be imposed on a prior approval but there is no obligation on a planning inspector to cast about for a condition where none is suggested.
  • The PPG warns that refusing permission on a planning ground capable of being dealt with by conditions risks an award of costs on the basis of unreasonable behaviour by a local planning authority. Examples are given as to when conditions should not be used, one of which is to require development to be carried out in its entirety, as there may be enforcement issues.
  • Taking these points into account, the High Court held that an Inspector’s decision not to grant prior approval under Class O should be quashed and re-mitted for redetermination. The Court considered that although the imposition of a condition requiring the entirety of a 2019 permission permitting the installation of windows to be carried out was not appropriate,  the Inspector should have considered imposing a condition stipulating that the flats should not be occupied before the installation of the permitted windows undertaken. By not doing so, the Inspector failed to take into account a material consideration relating to natural light. There was nothing in the wording of paragraph W(13) or in the PPG to prevent the imposition of a negative condition relating to occupation.
  • In addition, the Court held that although there was no procedural requirement for the Inspector to disclose to the claimant the authority's supplementary comments, as a matter of fairness, she should have given the claimant the opportunity to respond to the authority's comments.

Secondly, the Court of Appeal’s decision in  R. (on the application of Braithwaite and Melton Meadows Properties Ltd) v East Suffolk Council [2022EWCA Civ 1716 reiterates the effect of CIL liability notices. The key provisions to note are Regulation 65(1) which sets a time limit within which liability notices have to be issued, Regulation 65(5) which grants the power to issue revised liability notices "at any time" and Regulation 65(8) which states that on the issuing of subsequent liability notices, any earlier notice "ceases to have effect".

Thirdly, the High Court's decision in The King (Stephen Whiteside) v The Council of the London Borough of Croydon v Stars Homes Ltd, Liberty Speciality Markets [2022] EWHC 3318 (Admin) serves as a useful reminder of the interaction between committee reports and s106 agreements and the quantification of financial contributions. Two grounds of challenge arose relating to an obligation in a s106 agreement to pay £10,500 to the authority prior to occupation of the development "…to be utilised towards (which could but not limited to Council exercising absolute discretion) Off-Site Car Clubs with EVCPs and/or highway changes such as on street restrictions, improvements/creation of cycle routes, removal of residential parking permit entitlement for new residential units to the present, and any, controlled parking zones within the area."

  • In the first ground, the claimant argued that the committee was materially misled by the officer's report because it was led to believe that car club membership would be secured by the agreement, which it was not. Reliance was upon the well-established principles as to the approach which the Court should adopt in assessing officers' reports set out in R  (Mansell) v Tonbridge and Malling Borough Council and Others [2017] EWCA Civ 1314, with the claimant submitting that on a fair reading of the officer’s report as a whole, it was intended that there would be free membership of a car share scheme. The authority and interested party submitted that it was not necessary for the agreement to do so and that as the instrument of delegation is the resolution of the committee, the officer's report provides context but is not automatically incorporated in the resolution. Reliance was placed upon the lead judgment of Sir Keith Lindblom in R (Flynn) v London Borough of Southwark Council [2021] EWCA Civ 827. The Court agreed with the latter interpretation and noted that if the intention was that the agreement should contain the provision of free membership of a car share scheme, the members could have included that in express terms or requested that the draft agreement be reviewed by them before it was signed. The contribution provided was also consistent with policy requirements.
  • In the second ground, the claimant argued that the lack of particularisation of the financial contribution meant that there was insufficient evidence for the committee to conclude that the requirements of regulation 122, and in particular 122(2)(c), requiring contributions to fairly and reasonably relate in scale and kind to the development, were made out. The claimant referred to R (Tesco Stores Ltd) v Forest of Dean District Council [2015] EWCA Civ 800, in which Sullivan LJ, giving the lead judgment said: "…while a planning decision-maker must approach the assessment of the three requirements in regulation 122(2) with appropriate rigour, what is appropriate will vary depending on the circumstances of each case. There will be cases where some form of quantification will be necessary because the decision-maker will have concluded that an adverse impact has to be reduced by a certain amount, or to a particular level, or in a certain way, if it is to be acceptable in planning terms; but it does not follow that "quantification" will be necessary in every case, or that it was necessary in this case given the basis upon which the Members' decided that this application should be approved." The claimant argued there was an absence of the required rigour. The authority and interested party submitted that for the purposes of regulation 122(2)(c) there was no need to quantify the effect of the obligation and the contribution was to be spent on a variety of sustainable transport initiatives. The Court held that the contribution was modest and the committee was entitled to take the view that it was fairly and reasonably related to the scale and kind of the development.