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2nd August, 2017 by Jay Mehta
Howes Percival has this month defeated another judicial review claim to enable a multi-million pound development to proceed. This case of Dignity Funerals Limited v Breckland District Council and Thornalley Funeral Services Limited [CO/497/2017] is a further example of the Courts being asked to scrutinise a planning authority’s decision making and provides another welcome reminder of the duties under section 38 (6) of the Planning and Compulsory Purchase Act 2004. The decision also explores the duty to consider alternative sites and other material considerations. Planning law and judicial review specialist, Jay Mehta, summarises the salient lessons arising from the High Court’s decision and provides practical advice on how best to protect planning permissions against successful judicial review.
The High Court’s decision in Dignity Funerals Limited v Breckland District Council and Thornalley Funeral Services Limited [CO/497/2017] concerned a new crematorium development in Breckland. The proposed development attracted considerable local interest and the planning permission was legally challenged by the Claimant, Dignity Funerals, who sought to promote a competing site.
During the substantive hearing, the Claimant raised three primary grounds of challenge. Many arguments focussed on the interpretation of particular policies in the Council’s development plan and, whilst the Court rejected any criticism of how these policies were interpreted and assessed, the Court’s conclusions are fact specific to particular policies of this authority’s development plan and are not therefore discussed further.
The remaining arguments are however of particular interest and will be relevant to future development proposals progressed by developers, and to the decision making by local planning authorities or Secretary of State on appeal:
The High Court’s Decision
The Judge was clear in his conclusions and comprehensively dismissed all grounds of challenge.
With regards to the first point on s.38 (6) compliance, the Judge rejected the approach advocated by the Claimant in that it was “legally impossible” for a decision maker to find compliance with the development plan on the whole unless: a) it found compliance with one or more policies that “positively” supported the proposals; and b) those “positive” policies were capable of outweighing any “negative” effect or conflict with landscape or other policies.
Drawing on the well-known judgments of Lord Clyde in City of Edinburgh, the Judge usefully summarised the legal position as follows, which re-affirms the correct approach to the s.38 (6) exercise:
“…I am unable to accept the Claimant’s approach. It is too mathematical or mechanistic. Conflict with one particular policy may be treated as having an adverse impact and yet of relatively little weight. At the same time, the decision-maker may consider that compliance with other policies designed to secure that development in general takes place without causing significant harm to a range of environmental factors, does involve a greater degree of compliance with the development plan than the non-compliance. The decision-maker is entitled to regard compliance with those policy considerations (even in the sense of simply avoiding harm) as having a greater priority or importance than the non-compliance with a policy designed to protect one other aspect, such as the landscape. The Claimant’s argument is inconsistent with [the principles Rochdale], not least because it fails to allow any proper room for the decision-maker to assess the importance or weight to be attached to any compliance or non-compliance with a particular policy or policies”.
As for the alleged failure to consider alternative sites, in this case the LPA was notified of the Claimant’s alternative site by letter a few days prior to planning committee; that included details of the location of the alternative site and an indicative masterplan. Such last minute submissions are, of course, not uncommon. Members were informed that details of an alternative site were provided, but that there was insufficient information to assess this further and consequently “limited weight” should be attached to it.
The Judge - quite rightly - rejected any criticism that the LPA or members discounted this alternative or failed to consider the alternative at all. The LPA clearly did, and the Judge held that the LPA rationally concluded that reduced weight should be attached to the alternative due to the level of information before them at the time of the decision. This was a lawful exercise of the LPA’s planning judgment.
For completeness, the Judge also considered whether there was a legal duty for the LPA to consider alternatives, arising from legislation or planning policy. The Judge - again quite rightly - rejected any contention from the Claimant that planning policies which, for example, required harm to be “minimised”, implied a duty for alternative sites to be considered to see if the level of harm could be more acceptable. This is, of course, quite different to the clear duties under paragraph 118 of the NPPF for example which specifically requires alternative sites to be considered if “significant harm” is found, although this was not applicable in this case.
For all the above reasons, the Judge rejected the claim on all grounds and upheld the planning permission.
Implications and Lessons Learnt
Over many years, Howes Percival has successfully acted on behalf of developers and local planning authorities to defend challenges to planning decisions. Whether the increase of such challenges by local objectors, residents groups or competing developers have arisen from the introduction of the cost capping regime, or due to the level of development required to meet demand, is uncertain. Whatever the reason, there is a clear upward trend in challenges, and objectors to new developments are becoming increasingly willing, and wiser on how, to engage the Courts to try and stifle new developments.
It is therefore important for developers and local planning authorities to stay ahead of the game and ensure that the planning permissions issued are robust and least susceptible to successful challenge.
Such an approach was adopted by Breckland Council, and Thornalley (with our support), throughout the planning application process to ensure that the consultations; notification duties; decision making process; screening documents; and committee reports, were legally robust. This approach ensured that, whilst it was impossible to avoid a claim being lodged by a third party objector, there are best prospects of a claim being thrown out by the Court and the permission upheld.
Environmental Impact Assessment continues to be a popular area of challenge and the implications of the new regulations. In addition, the drafting of the authorities’ committee report remains of paramount importance. Whilst the Courts have continuously advocated that these reports are not to be read like legal contracts or statute, each word and sentence of a committee report is nonetheless always scrutinised by an objector trying to convince a Court that an LPA has failed to properly discharge its s.38 (6) duty, or failed to follow due process.
It is therefore crucial for delegated officer or committee reports to fully, accurately and robustly assess each and every policy and material consideration, before deciding whether planning permission should be granted pursuant to the s.38 (6) exercise. Any objections or late representations must also be given proper and careful consideration. As Dignity Funerals has confirmed, it is not necessary to find compliance with each and every strand of a development plan policy to find compliance with the development plan on the whole. In addition, and in any event, many criticisms or uncertainties about interpretation of policies may be avoided through foresight and careful drafting.
This case also provides a salutary reminder of the benefits of applicants joining and assisting the local planning authority in defending challenges to their planning permissions. There is, after all, a common cause in defending the consent. An applicant who joins as an Interested Party also stands best prospects of persuading a Court to determine the case expeditiously within a matter of months (not years as we have historically experienced) to enable the permission to be upheld and development to proceed without delay. This is particularly so when faced with contractual deadlines to purchase the site, or seasonal restrictions to commence works, where delayed litigation could be fatal to a project.
It therefore continues to be important for developers and LPAs to work together to ensure their planning applications and decision making are robust. Early legal advice is therefore always beneficial and valuable to help protect against successful challenge.
A link to the judgment may be found here.