Plan-it Law

Material considerations - healthy eating

There has been a very interesting case which confirms the materiality of wellbeing/public health issues in development management decisions. It is the case of R (oao Copeland) v Tower Hamlets LBC, a case decided in the Admin Court on 11 June.

Here there was an application for a hot food takeaway in close proximity to a secondary school. C objected to the application since it worked against the school's healthy eating programme. The planning officer advised, however, that this was not a material consideration. Planning permission was granted, C brought an action in Judicial Review and succeeded in having the permission quashed.

The Court found that social objectives like healthy eating could be material considerations for planning determinations so that the planning officer had fallen into error in the advice given to members on this point.

There was also some discussion as to whether the decision would have been the same even if the advice had been correct (which might suggest the Court would not exercise its discretion to quash). On this point the Court found that it was not enough to show that the decision maker probably would have made the same decision - the Court would need to be satisfied that the decision would  inevitably have been the same. In this case, it was not put any higher than the decision might have been the same which was insufficient.

Judicial review - the effect of Uniplex

There is much current discussion in planning circles about the case of Uniplex v NHS Business Services Authority a case from the European Court of Justice reported in January 2010. Although the case, challenging an NHS procurement decision, was brought under the Public Contracts Regulations 2006, the requirement for an action to be brought "promptly and in any event within three months" applied.

The case found that the requirement for such actions to be brought "promptly" did not ensure that the relevant Directive had been properly  transposed into UK law. This was because the "promptly" requirement made the period, in which a challenge should be brought, uncertain. A claimant should be given the full 3 months.

This clearly has implications for cases of JR challenges to grants of planning permission. Although there is no "6 week rule" as such, advisers have tended to advise that actions brought after 6 weeks have gone by from the relevant decision (but still within 3 months) are at real risk of failing on promptness and the Courts have often sought to set the bar at a high level in planning cases because of the impact of a challenge on the rights of those with the benefit of the relevant planning permission.

However, note also the more recent case of R (on the application of Pampisford Estate Farms Ltd) v SSCLG. Here, the Court considered Uniplex and observed that it was not a case where the lack of promptness could have a significant adverse effect on other parties. In Pampisford, the Court came to the view that Uniplex "cannot as a matter of EC law overturn on its own the statutory basis of CPR 54.5" and found that the action, brought within 3 months, had not under the circumstances of that case, been brought promptly.

There is a further point of note in Uniplex which relates to the time when the 3 month period begins to run. In Uniplex the Court favoured the time when the claimant knew or ought to have known about the decision rather than the actual decision. This is at odds with the current position (which following the clarification in Burkett is that it is the actual grant of permission which sets the clock ticking) and, if it were to be seen as relevant in planning decisions, the point could have serious consequences.

December's conundrum

The conundrum set out this month in our e-bulletin, Future Perfect?, reads as follows....what do you think?

We have been considering whether works required pursuant to a condition on a planning permission (but not forming part of the application), require a further planning consent to be granted. We have seen a number of cases which suggests that they don't and that the condition is effectively an implied grant of planning consent for those works (see Irlam Brick Co for example). However, there does not seem to be any statutory basis for this stance. Have you ever come across it in practice or been required to obtain a separate consent for such works?