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Cornerstone Barristers Planning Bulletin - Issue 3

17.04.2020

Welcome to the third edition of the Cornerstone Barristers Planning Bulletin, a digestible summary of planning law and practice to help all those with an interest in the planning system to keep up to date with changes made necessary by the coronavirus pandemic.

Legislation

There is no new legislation to report this week.
The Government's review of lockdown (required by Reg 3(2) of SI 2020/350) has resulted in an extension of at least three weeks (see Dominic Raab on the Daily Briefing 16 April 2020). As before, therefore, the main provisions to keep in mind are:

  • The restrictions on movement [SI 2020/350 in England and 353 in Wales].
  • The ability of LPAs to hold remote meetings [SI 2020/392 in England and Wales].
  • The new PD rights for emergency development by local authorities and local health bodies [SI 2020/412 in England and 367 in Wales].

A group of members of Cornerstone Barristers presented a webinar on 8 April 2020 on remote meetings held in public. They are presenting a second webinar on Monday 20 April focusing on natural justice and practical problems. Please register here.

Courts and Tribunals

Richard Ground QC, Ben Du Feu and Ashley Bowes presented a webinar on remote planning appeals and court hearings on 16 April 2020. The slides are available on our website and the recording on request.

In Corbett v Cornwall Council [2020] EWCA Civ 508, the Court of Appeal allowed the planning authority's appeal against the initially successful application for judicial review of a decision to grant planning permission for the extension of a holiday park in an area of great landscape value. Lindblom LJ could find no fault with the Council's conclusion that the proposal was in accordance with the development plan: while it was in conflict with AGLV policy, it was compliant with other relevant policies, including that encouraging development for tourism. James Findlay QC (for the Council) and Ashley Bowes (for Mr Corbett) share their summary of its implications here.

PINS

The Planning Inspectorate Coronavirus (COVID-19) Update of 16 April 2020 provides some encouraging signs for those with appeals in the pipeline, or intending to appeal. Equally, you may think it is short on detail – I do. The main points to note are:

  • Inspectors will continue to avoid non-essential travel.
  • They have been trialling telephone and video conferencing and expect to hold the first digital pilot case end of April or early May. Further updates on this to follow asap.
  • They have started a trial of "virtual site visits" using digital images with a small group of Inspectors.
  • They have carried out some remote liaison with those in LPAs with inquiries or local plan submissions in the new future.

See the full version here. The more detailed guidance you may be familiar with has not been updated since 1 April 2020.

As reported in Planning Magazine on 15 April 2020, an Inspector sought written comments on the impact of covid-19 on housebuilding from the two main parties after the close of the Inquiry (which took place in February). The full decision, dated 9 April 2020, can be found here. For ease of reference, the relevant conclusions were:

109. The Covid-19 pandemic is likely to have implications for the housebuilding industry as with other sectors of the economy. The evidence indicates that a number of developers are temporarily closing their construction sites to protect employee and customer welfare. For those remaining open, the lock- down will impact on the availability of support services. Customer confidence is also likely to be reduced with a consequent effect on the buying and selling of property.
110. The Appellant has concluded that the effects would be felt for a 3 to 6 month period, which does not seem unreasonable. On that basis the conclusion is that a further 168 dwellings should be removed from the trajectory to take these factors into account. Whilst it is contended that this is an optimistic assessment, it is equally possible that a bounce back will occur once the crisis ends. Indeed, it is reasonable to surmise that housebuilders and their suppliers will be keen to rectify losses if it is possible to do so.
111. At this stage the economic effects of Covid-19 cannot be known. However, even if all of the impacts suggested by the Appellant are accepted, the Council would still be able to demonstrate about 5.2 years supply of deliverable sites.

Commentary – Corbett v Cornwall CC

Corbett establishes no new principle, but it does underline the high hurdle facing those who seek to argue that a planning authority has misinterpreted its own policies and unlawfully concluded that development accords with its development plan. The Judge's mistake in granting the Claimant's judicial review, in the Court of Appeal's judgment, was to find that conflict with one (albeit important) policy required the Council to find conflict with the development plan as a whole. In other words it emphasises again the courts' resistance to an allegedly "overly" legalistic approach.

Lindblom LJ focused on the analysis of the officer in her report. She had understood the policies, and the legal parameters of the task she undertook. The decision whether the particular proposal was in conflict with the plan as a whole was then a matter of planning judgment [see paragraphs 44-47]. It was those two essential factors which enabled the court to leave the matter to her judgment: she had in fact recognised the conflict with the AGLV policy and then considered what weight it should be given bearing in mind the degree of harm it caused and the other policies supportive of development.

In my view the outcome may well have been different (both in terms of the Council's judgment and the court's respect for it) if the policy with which there was conflict had been more directly relevant to the proposal and more significant in terms of the delivery of the plan's strategic objectives.

Forthcoming webinars

This edition of the Bulletin has been prepared by Harriet Townsend.