Planning - property update - May 2014

29 May 2014

Our real estate experts provide an update on planning issues.

Limitations on planning permissions

Since the "I'm Your Man" case in 1998 (I'm Your Man Ltd v Sec of State for the Environment), it has been settled law that if a limitation is to be attached to a planning permission, it must be by way of an express condition. A limitation cannot be inferred from the description of the development.

In Cotswold Grange Country Park LLP v Sec of State for CLG [2014], the principle was again applied. A permission granted in 2010 authorised the use of land for 54 caravans for year round holiday accommodation. One condition prohibited the use of each of the 54 caravans as the occupier's sole or main residence.

The planning authority later refused an application for a lawful development certificate for the stationing of six additional caravans for residential use. On appeal, the inspector upheld the refusal on the basis that the application was in conflict with the terms of the 2010 permission.

The court quashed the inspector's decision. The condition did not limit the number of caravans on the site and no such condition could be implied from the description of the development, on the "I'm Your Man" reasoning. The inspector had erred in law.


Importance of the Officer's report to committee

When the planning committee of the local planning authority is determining a planning application, the planning officer will write a report on which the members of the committee will rely for information and guidance.

Decision makers have a statutory requirement to have regard to the development plan for the area and any other material considerations. Further, there is case law which requires that the decision maker must properly interpret the policy (EC Gransden v SSE 1987).

In R (on the application of Gibson) v Mid Sussex District Council [2014], the council granted permission for 26 houses on the edge of but outside a settlement limit. The relevant policy stated that such development should only be permitted in exceptional circumstances where there was no other suitable site to meet local need - a "rural exceptions" policy.

The officer's report mentioned the policy in general terms but did not draw members' attention to the need for an alternative sites assessment. The officer said in a statement to the court that alternative sites had been considered during the application process, although this was disputed by the claimant.

The claimant applied to the court to quash the decision to grant permission on the basis that the committee had failed to interpret the policy properly and had failed to take account of it. The court agreed. The members had been significantly misled by the report. Consideration of alternative sites by the officer was not consideration by the members. As the court was not satisfied that the committee would have reached the same decision if the report has been properly prepared, it quashed the decision. While the court has discretion not to quash a decision, it declined to exercise it in this case.

The moral of the story for local planning authorities is obvious. There is also a valid issue for developers - if the officer's report is obviously defective and is relied upon by the decision maker, then any grant of permission is vulnerable to challenge, with all the delays that brings.


Pre-NPPF housing figures

In Gallagher Homes Ltd v Solihull Metropolitan Borough Council [2014], the claimant's sites for housing development were placed in the green belt in the local plan. The plan proposed a housing provision based on a figure taken from the revoked Regional Spatial Strategy (RSS), which in its day, had accorded with the then current policy.

The latest policy is set out in the National Planning Policy Framework (NPPF) and requires a local plan to meet full objectively assessed needs (for housing), together with a supply of specific deliverable sites to provide five years' worth of housing.

The RSS figure was not based on "objectively assessed" need although the council argued that the RSS figure had taken into account housing need and development constraints. In any event there had been no change in demographics.

The court found that the plan was not sound on the basis that the requirements of the NPPF had not been met.

Can planning authorities still use housing data from a revoked RSS? The court confirmed that they could but only with "extreme caution". While the RSS may provide a starting point, there must still be a figure in the local plan which is set against a full objectively assessed housing need.


Supreme Court decision finally deals with "as of right" in town and village green cases

One of the early town and village green (TVG) cases dealt with land owned by a local authority and used for many years as informal public open space (R on the application of Beresford v Sunderland City Council [2003]).

In order to succeed in a claim to register land, a claimant must show (among other things) use of the land "as of right" for 20 years. In Beresford, the court found that the local authority had allowed the public use of the land. However, despite the council mowing the grass and placing seats on the land, there was no implied permission given to the public to use the land. Therefore the use by the public was "as of right" and the land was registered as a TVG.

That decision has continued to be problematic but in R (on the application of Barkas) v North Yorkshire County Council and Scarborough Borough Council [2014] the Supreme Court has finally distinguished Beresford and given guidance on use "as of right".

Lord Neuberger explained the difference between use "as of right" and "by right":

"...If a person uses land "by right", the use will have been permitted by the landowner - hence the use is rightful. However, if the use is "as of right", it is without the permission of the landowner and is therefore not "by right" but is carried on as if it were by right."

Lord Neuberger went on to say:

"As against the owner (or more accurately, the person entitled to possession) of land, third parties on the land either have the right to be there and to do what they are doing, or they do not. If they have a right in some shape or form (whether in private or public law) then they are permitted to be there and if they have no right to be there, then they are trespassers. I cannot see how someone could have the right to be on land and yet be a trespasser (save, I suppose, where a person comes onto land for a lawful purpose and then carried out some unlawful use). In other words a "tolerated trespasser" is still a trespasser."

In Barkas, land was held by the Borough Council and maintained as a recreation ground for over 50 years. It was used by residents of the surrounding housing for the usual informal leisure activities. The report of the inspector appointed to hold a non-statutory inquiry into the application for registration concluded that while all the other criteria for a TVG had been met by the applicants, the use had not been "as of right". That conclusion was upheld by the High Court, the Court of Appeal and the Supreme Court.


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