New application forms - planning permission and listed building and conservation areas
The Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2008
The procedures connected with planning applications, appeals to the Secretary of State and related matters so far as these are not laid down in the Town and Country Planning Act 1990 are set out in The Town and Country Planning (General Development Procedure) Order 1995. This amendment order amends the 1995 Order in relation to England as from 6 April 2008. In particular it provides for a new standard application form that must be used for all applications for planning permission from 6 April 2008. It also specifies to whom the application should be made and varies some of the procedures and timing. "The changes are designed to streamline and provide more certainty for the planning application process."
Planning (Listed Buildings and Conservation Areas) (Amendment) Regulations 2008 - There are similar changes in relation to listed building and conservation area consents - also in force on 6 April 2008.
Guidance on the changes and on how to use the standard application forms is contained in Circular 02/2008 published by The Department for Communities and Local Government
Power of local authority to impose its own requirements
Newcastle Upon Tyne City Council v Secretary of State for Communities and Local Government
 EWHC 3469 (Admin)
This is an important decision as it is the first case to interpret the recent legislative provisions (see above) regarding the validity of planning applications and the power of local authorities to impose their own requirements as to what is necessary for an application to be valid. The two key provisions are s62, as amended, of the Town and Country Planning Act 1990 which came into force in April 2006; and Article 20 of Town and Country Planning (General Development Procedure) Order 1995, which was amended in April 2008.
The local planning authority had not accepted the planning application as it did not meet the requirements of s63(3) of the Town and Country Planning Act 1990, as it failed to contain certain requirements that the local authority considered necessary. There was then an appeal to the planning inspectorate under s78 of the Town and Country Planning Act 1990. The local planning authority asserted that the Secretary of State had no jurisdiction to determine the appeal as there was no valid application. The Secretary of State contended that it could itself determine what was necessary for the application to be valid.
The key issue before the court was whether the Secretary of State was entitled to substitute its own view for that of the local planning authority as to what was necessary for the validity of the application having regard to s62(3)(a) of the 1990 Act for there to be “such particulars as the local planning authority think necessary”.
Section s78 of the 1990 Act has to be read consistently with s62(3) of the Act and with Article 20 of the Town and Country Planning (General Development Procedure) Order 1995. Article 20 of the GDPO defines a valid application and states that an application is only valid if it contains those matters considered necessary by the local planning authority under s62(3) provided those matters were consistent with Article 20(3A).
The Court was clear that the Secretary of State was limited to determining whether the appellant had acted sufficiently so as to comply with the requirements of the local planning authority. It could not seek to determine whether the requirements themselves were necessary. Any challenge to the local planning authority’s decision to impose requirements had to be brought by judicial review and there was no power to appeal to the Secretary of State on this point.
The key passages of the Court’s judgement are as follows:
35. Whatever the position may have been in Bath and in Gill, since the statutory changes there is in my view no room here for doubt as to what is or what is not a valid application in principle. That is defined by Article 20 which refers to s62(3). In particular it seems to me that Article 20 means that an application is valid if it contains in part the particulars or evidence required by an authority under Section 62(3), and therefore it is invalid if it does not. And Section 62(3), containing as it does the words that the local planning authority may require that an application must include “such particulars as they think necessary”, is making the local planning authority the arbiter of what is necessary. The wording is not, as it might otherwise have been, “as are necessary” or for instance some such longer phrase as “such particulars as are items chosen from a local list by the local authority as may be necessary”. That would leave the question of what is necessary for the determination of others but that is not what the statute says.Comment
36. The Secretary of State may therefore ask if the applicant has acted sufficiently so as to comply with the requirements of the local planning authority: he may assert that he has, and the local planning authority may assert that he has not, but what is not in issue in my view is the requirement itself, merely whether it has been satisfied by what the applicant has done. There is no provision for an appeal from the Secretary of State against the local authority’s decision to impose the requirement as to what they consider necessary. Any appeal in that respect is in my view properly to be brought by judicial review by someone in a position such as the interested party in this case and not by the reference of the planning application or purported application by someone in such a position to the Secretary of State under the Section 78 appeal procedure.
37. What the Act does not say is that the Secretary of State on appeal may determine whether the local planning authority reasonably required the items which they have thought necessary or further, as the Secretary of State asserts, he may hear whether it was in the circumstances of any case necessary for the local planning authority to make the requirement. The Secretary of State is not given the powers of the court in that respect. Indeed it seems to me that the whole point of the way in which Section 72 has been redrafted together with Article 20 of the GDPO is to provide that the Secretary of State may make certain provisions for the whole country as to the contents of a planning application in the standard form planning application which was introduced at the time of these provisions, but that the local planning authority will have regard to local conditions which necessarily the Secretary of State cannot be so familiar with. The local planning authority is responsible to a local electorate for whom the Secretary of State has no specific responsibility since his responsibilities are, instead, national. It is difficult for the Secretary of State to put himself into the shoes of a local planning authority in determining what is necessary in the light of local conditions when the Secretary of State does not have specific local perspective, and that may well be one reason why the Act is drafted as it is, so as to provide for the input of the local planning authority into that which is it is necessary to provide to make valid an application for planning permission.”
The Court was clear that the Secretary of State had no power to usurp the role of the local planning authority to determine the requirements necessary to validate a planning application. Any challenge to the local list of requirements would need to be made by way of judicial review. However, this will be difficult where the local list was adopted some time ago and the time for challenge has generally expired. It does mean that applicants for planning permission are likely to have to provide a wide variety of documents to support their applications as necessary and run the risk of any appeal being rejected due to lack of jurisdiction is those requirements are not met.
Using the wrong name on application form
R (On the application of Park Pharmacy Trust) v Plymouth City Council and Emeris Coolart Ltd (Interested Party)
 EWHC 445 (Admin)
A mistake in identifying the correct applicant for planning permission on the application form did not invalidate the application.
The claimant applied for judicial review of the Council's decision to grant planning permission for a residential development. The ground of challenge was that the application form did not correctly identify the applicant. It was identified as being "Emeris Coolart Ltd" whereas in fact the interested party consisted of two individual companies, "Emeris Ltd" and "Coolart Ltd", acting in a joint venture for the purpose of the housing development.
C contended that there had been no properly constituted application for planning permission as the application form did not properly identify the applicant.
The court held that it was important that an application for planning permission correctly identified the applicant so that the relevant local authority knew with whom it had to deal. This was primarily for purely practical matters such as being able to communicate with an applicant through correspondence.
However, it was noted that as a matter of principle, the identification of an applicant for planning permission could be regarded as irrelevant except, for example, where a personal planning permission had been sought.
The reason for this is because the task of a local authority is to consider the merits of the planning application before it. In the present case no issue in relation to the identity of the applicant for planning permission arose and in any event the application form clearly identified the interested party's agent. Therefore he could have been contacted to clarify any uncertainties that arose.
The court rejected this challenge as the Council had considered the merits of the application and on the facts of the case no-one had been prejudiced by the name that had been stated on the application form.
Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Amendment) (England) Regulations 2009
These regulations amend the 1997 regulations of the same name and give planning inspectors, in England, the power to determine certain additional classes of appeal instead of the Secretary of State. In force on 6 April 2009.
Expiry of time limit
R (On the application of Wembley Fields Ltd) v Brent London Borough Council
29 November 2005, Crane J
The local authority considered a planning application at committee on the last evening of the last day on which representations to the local authority could be made. The claimants challenged the decision to grant permission on the grounds that the consultation period had not expired until midnight of the last day of the consultation period.
Held: That although the local authority had not complied with the exact letter of the regulations, this was not necessarily fatal to the local authority's decision to grant planning permission. As there had been no prejudice caused to the claimants in this case and the regulations had been substantially complied with the decision to grant planning permission was upheld.
Planning Application - s70A - Gyspies
R (On the application of Jeeves) v Gravesham Borough Council
 EWHC 1249 (Admin)
This is an interesting case in that it considers the revised section 70 A of the Town and Country Planning Act 1990. This section allows a local authority to refuse to determine a planning application on the fulfilment of certain conditions. In this case the local authority refused to determine an application for residential gypsy accommodation on a green belt site on the basis that it had been submitted within two years from the date on which a planning inspector had dismissed an appeal against the refusal of planning permission for a similar application, and that no significant change had occurred since that decision.
The Court held that the local authority had not acted in accordance with the guidance in circular 14/91 which although relating to the previous section 70A was pertinent to the revised section 70A. The guidance issued in circular 14/91 stated that the purpose of s.70A of the Act was to prevent repetitive planning applications from being used to wear down the resistance of local communities and that local authorities should use the power only where they believed that an applicant was intending to abuse planning procedure by submitting repeated, similar applications.
The Court held that although it could not be said that the local authority had, on the evidence that was before it, acted unlawfully in thinking that there had been no significant change, as was required by s.70A of the Act, in the circumstances of this case it was clear that the local authority had misconstrued the guidance and failed properly to take the guidance into account. Accordingly, the local authority had breached the appellant's legitimate expectation that it would do so.
There was no evidence in the Court's view to support the contention that this applicant had made the application with the intention of wearing down the local authority by submitting repeat applications. A different applicant had made the previous application. The Court considered that the link that the local authority had relied upon between this applicant's application and the previous owners' application was not an obvious one and it was not possible to conclude that the appellant was misusing the planning applications procedure.
Chichester District Council v (1) First Secretary Of State (2) Green
 EWHC 1876 (Admin)
An inspector's decision letter was quashed on procedural grounds on the basis that he should have made an accompanied site visit. The local authority had argued that a building was tantamount to a new dwelling and while the inspector had seen photographs of the interior, had he undertaken a site visit and gone inside the building, he might have reached a different decision.
The Court held:
"It was part of the Council's written case to the Inspector that 'the scale, form and composition of the building gives the strong appearance of a building used for residential rather than agricultural use.' To decide the validity of this argument, the Inspector would or might have been materially assisted by actually going inside the building and thereby getting a first hand feel for it and whether it was tantamount to, or in essence, a dwelling house rather than a building designed for agricultural purposes. A visit to the interior of the building would have been relevant for that purpose. While plans and photographs can to some extent convey similar information, as Ms Archer put it, 'actually seeing the building' can have a more powerful effect in forming a judgment on these issues. The Inspector's witness statement says that he had enough information from the documents 'to question the design of the building', but the Council's case depended not only on the design being questioned, but on them making good their case that this building was tantamount to a dwelling. I do not read the Inspector 's decision as going so far and, indeed, if he had, it is difficult to see how he could have allowed the appeal since he did not purport to find the construction of a dwelling to be compatible with the various planning policies."
Role of the inspector
Change in local plans - human rights
Jefferson v (1) National Assembly for Wales (2) Newport City Council
QBD (Admin) (Judge Hickinbottom)
 EWHC 3351 (Admin)
It is clear from the wording of section 79(1) of the Town and Country Planning Act 1990 that the inspector does not merely review the authority's decision but that it is a de novo hearing. He is bound to take into account changes in any material consideration, including any change to the development plan that occurred between the date of the authority's decision and the date of the inspector's own decision.
A challenge was brought to a decision of an inspector appointed by the National Assembly for Wales dismissing the Claimant's appeal against a refusal of planning permission by the second respondent local authority.
The Claimant had applied for planning permission for an extension to a house at a time when the current development plan for the relevant area was the Gwent Structure Plan. A draft Newport Unitary Development Plan had been deposited. When making the decision to refuse planning permission the authority took into account both the structure plan and the draft Newport plan. This decision was appealed to the assembly, which transferred authority to decide the appeal to an inspector.
Before the inquiry was held, the authority adopted the Newport plan. The inspector rejected the Claimant's submission that s 79 (1) of the Town and Country Planning Act 1990 required him to deal with the matter as though the appeal application had been made to the Assembly at the same time that it had been made to the authority. This would have been before the Newport plan had been adopted and when it therefore carried less weight.
The inspector therefore determined the appeal on the basis of the adopted Newport plan as the development plan policy at the date of his decision. He dismissed the appeal. The Claimant contended that the inspector had been bound to consider the appeal upon the material considerations as they stood at the time of the authority's decision and that he had erred by taking into account the adopted Newport plan.
He also contended that the inspector's decision on that issue contravened the rules of natural justice and the European Convention on Human Rights 1950 Art.6 and that the inspector's reasons had been inadequate.
The Court rejected the claim and held that the wording of section 79(1) of the 1990 Act was clear that the inspector did not merely review the authority's decision but that it was a de novo hearing. He was bound to take into account changes in any material consideration, including any change to the development plan that occurred between the date of the authority's decision and the date of the inspector's own decision. To do otherwise would be inconsistent with policy and irrational. The Court rejected the contention that the inspector had acted unlawfully or breached either the rules of natural justice or the right to a fair hearing under Art.6 of the Convention. The court also considered that the inspector's reasons had been adequate.
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