Key Planning Decisions in 2024
As 2025 unfolds, it is worth reflecting on some of the most important decisions in 2024 and their implications.
Finch1: This long running saga, addressing the assessment of “downstream” greenhouse gas emissions from new oil development in the context of environmental impact assessment (EIA), finally reached the Supreme Court in June. Surprisingly for many, a majority of the Supreme Court held that EIA must assess downstream effects (i.e. the environmental effects of greenhouse gas emissions arising from the combustion of oil once refined) as a likely significant effect of the project.
The Supreme Court held that in the majority of cases, the question of whether something is an “effect” of a project has only one answer and is a question of causation, not a matter of evaluative judgement. In terms of causation, in Finch, it was held not just likely, but inevitable, that the extracted oil would be refined and the product combusted resulting in emissions.
The Supreme Court noted that the decision should not open the floodgates in terms of additional assessment requirements in other scenarios. Other products may have many different uses and end products, making it impossible to identify whether effects are likely or to assess them. However, the case means that practitioners must take care in considering what downstream effects are caused by a project and whether they can and should be assessed for EIA purposes. The causation test will no doubt be explored further in cases to come.
Fiske2: This judgement in December by the Court of Appeal was the latest in a line of (not entirely consistent) cases exploring the limits on the use of section 73 of the Town & Country Planning Act 1990 to amend planning permissions. The potential for an appeal to the Supreme Court remains at the time of writing.
It is well established that section 73 cannot be used to amend the description of development so as to alter the original grant of planning permission. The Court of Appeal confirmed that new or amended conditions cannot be materially inconsistent with that grant. The Court helpfully rejected the concept of a second restriction i.e. that even where no inconsistency arises, the power still cannot be used where the outcome is a “fundamental alteration” to the original grant. No such restriction applies.
The case does highlight however the need to be alert to different forms of permissions and particularly the potential for difficulty where the grant of permission itself (rather than a condition) refers to a list of approved plans or incorporates the planning application.
M&S3: On 5 December 2024, Marks and Spencer (M&S) was finally granted planning permission by the Secretary of State, to demolish its Oxford Street flagship store and replace it with a 9 storey mixed use development. The route to obtaining this consent involved a call-in inquiry, a refusal by the previous Secretary of State and a successful High Court challenge quashing the refusal, before final redetermination by the current Secretary of State, Angela Rayner.
Issues relating to heritage and sustainability were given considerable attention by both the High Court and the Secretary of State in making their respective determinations. The Secretary of State concluded that there were no viable alternatives involving the re-use of the existing store on Oxford Street and that as such, full scale redevelopment (rather than a retrofit option) was appropriate, notwithstanding the harm to heritage and other harms that could be caused.
Although this Government has made it very clear it is generally supportive of new development, each decision turns on its own facts. How the Secretary of State (on recovered appeals) and inspectors balance the need for development with competing pressures including sustainability and preserving heritage assets is an area to watch in 2025.
C. G. Fry4: This judgement in June by the Court of Appeal relates to nutrient neutrality in the context of a residential scheme for which the Somerset Council had granted both outline planning permission and reserved matters approval.
The fundamental question for the Court was whether, in light of the Habitats Regulations and the precautionary principle, the Council could refuse to discharge pre-commencement conditions in the absence of appropriate assessment demonstrating that a development would not adversely affect the integrity of a Habitats Site.
The Court of Appeal held that appropriate assessment was required before an “implementing decision”. In other words, the Council was entitled to withhold consent for approval of conditions which required discharge at the pre-commencement stage. Although the expectation is that appropriate assessment is undertaken at the initial determination of the planning application, the Court concluded that there was nothing to prevent this being required at a later stage – and that given the precautionary approach, this was the intention of the legislation.
The Supreme Court has granted C.G. Fry & Son Limited permission to appeal this decision and the hearing is set for February 2025 – so it is quite possible the position could change.
[1] R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others (Respondents) [2024] UKSC 20
[2] Test Valley Borough Council v Fiske [2024] EWCA Civ 1541
[3] APP/X5990/V/22/3301508
[4] C. G. Fry & Son Ltd. -v- Secretary of State for Levelling Up, Housing and Communities and another [2024] EWCA Civ 730
