Planning analysis: In joined decisions on the Vistry and Fairfax cases, it was re-enforced that the court’s role is only to review issues of law and not matters concerning the weight of material considerations within the balancing exercise of the decision maker’s planning judgement, other than on Wednesbury irrationality. The judge confirmed that biodiversity net gain (BNG) provision for development, the economic benefits derived from development and the existence of Previously Developed Land were all material considerations in these cases. Written by Brendon Lee, legal director at HCR Hewitsons.

Planning analysis: In R (Atwill) v New Forest National Park Authority, the High Court allowed a judicial review challenge against a decision to grant permission ppursuant to section 73 of the Town and Country Planning Act 1990 (TCPA 1990) for an amended dwelling, in the face of an enforcement action against an existing one. The decision provides a useful overview of the case law on when ‘development’ commences, confirmation that a section 73 application cannot be granted after a planning permission has lapsed. It also offers an application of the principles from Finney and Armstrong, that a section 73 application cannot be used to change the operative part of an earlier permission. Written by Christopher Moss, a barrister at 39 Essex Chambers.

TMT analysis: The claimant, a naturalist, campaigner and television presenter, was awarded £90,000 in damages by the High Court in respect of allegations published by the first and second defendants in articles in Country Squire Magazine (CSM) and on Twitter. The case provides rare authority on the interpretation and application of the term ‘editor’ for the purposes of establishing liability for publication under section 1 of the Defamation Act 1996 (DeA 1996). It also provides useful insight into the court’s approach to fixing damages in circumstances where a defendant’s conduct has been highly aggravating. Written by Percy Preston, legal assistant at Brett Wilson LLP.

Public Law analysis: The High Court quashed the Parole Board’s decisions refusing Darren Hewitson, a substantially post-tariff indeterminate sentence prisoner, an oral hearing. Applying R (Osborn) v Parole Board, the court held that the Board had failed to subject his case to the required anxious scrutiny, particularly in relation to his mental health, vulnerability and their bearing on risk assessment and management. The judgment endorses a rebuttable presumption in favour of an oral hearing for substantially post-tariff indeterminate sentence prisoners. Practitioners should therefore scrutinise whether the Board has adequately addressed vulnerability, continuing dangerousness and the need for an oral hearing when advising on challenges based on procedural fairness and Article 5(4) ECHR. Produced in partnership with Rowena Wisniewska of 4-5 Gray’s Inn Square Chambers.

Planning analysis: In Lidl Great Britain v East Lindsey DC, the court had to consider the approach to the determination by East Lindsey District Council (‘the Council’) of two planning applications for food stores which cumulatively were considered to cause an adverse impact on the vitality and viability of the town centre. The High Court held that if there are two competing planning applications which meet the same need being determined at a similar time, the decision maker will in most cases, be required to take into account the merit of the other scheme as a material consideration in the determination of each application. A failure to do so by a local planning authority will give rise to an error of law, meaning the decision may be challengeable by way of judicial review. This is most likely to be relevant to retail applications but may also apply to other sectors where there is considered to be a finite capacity for the development applied for. Written by Elizabeth Dunn, partner, and Sarah Sutherland, practice development lawyer at Burges Salmon LLP.

Local Government analysis: The claim arose following allegations of anti-social behavior in a building owned by the defendant. The claimant’s case was that he should be provided with emergency housing by the defendant, because of the effect the ASB of his neighbours was having on him and his family. The claimant sought emergency housing assistance, but this was refused. The claimant argued that the decision was unlawful on several grounds, including procedural unfairness and irrationality as the decision was based on an old and outdated allocation policy from 2017, rather than the defendant’s current policy issued in 2022. However, the defendant upon subsequently realising its error, withdrew that decision. The claimant was invited to submit a fresh application to the Housing Register. The judgment highlights the importance of procedural fairness and reasonableness in decision-making by public authorities. Written by Clive Adams, head of Housing Management at Birketts LLP.

Planning analysis: In Weston Homes the High Court granted an application for statutory review of an inspector’s decision refusing Weston Homes plc’s planning application on grounds related to consideration of biodoversity net gain (BNG), consistency in decision-making, failure to take into account an obviously material consideration and a failure to provide legally adequate reasons. This case is the most comprehensive consideration of the section 62A of the Town and Country Planning Act 1990 (TCPA 1990) regime, and some lessons can be drawn from it, particularly given that there is no right of appeal from a s 62A decision. In circumstances where the procedure is intended to be efficient and avoid unnecessary delay, the judge warned the Planning Inspectorate (PINS) of the risk of cases being conducted with more haste and less speed. Written by Joel Semakula, barrister at Landmark Chambers and junior counsel for the claimant.

Planning analysis: In a challenge to the decision of a local planning authority (LPA) to grant planning permission for housing on a longstanding sports field, the judge, Mr Justice Eyre, held that the LPA had erred in law by failing to have regard to a development plan policy which restricted the development of playing pitches, notwithstanding that the site was allocated for housing and that the LPA had considered paragraph 99 of the National Planning Policy Framework (NPPF). The judge said that the development plan policy was clearly of relevance and that there were relevant differences in substance between the policy and NPPF paragraph 99. He further declined to refuse relief under section 31(2A) of the Senior Courts Act 1981 (SCA 1981) as he was not satisfied that it was highly likely that the outcome would not have been substantially different if the LPA had considered the policy. Written by Howard Leithead, barrister at No5 Barristers’ Chambers.

Local Government analysis: The High Court upheld the decision of the Vice President of the Valuation Tribunal for England, affirming the decision of a Listing Officer that each of the six bedrooms in a house in multiple occupation (HMO) should be assessed as a separate dwelling in the council tax valuation list, rather than as merely parts within a single property. The judgment emphasises the significance of individual rateable occupation and exclusivity of possession, in the identification of a hereditament for the purposes of defining a dwelling under section 3 of the Local Government Finance Act 1992 (LGFA 1992) and reviewed the application of the principles of geographical and functional tests, set out in Woolway v Mazars (Supreme Court). The case marks a reversal of the High Court judgment in a previous appeal by the appellant, Stanuszek v Bunyan [2023], which remitted the case back to the VTE for fresh consideration on the basis the first VTE panel had wrongly conflated the tests for rateable occupation and the identification of a hereditament. Written by Alan Murdie, Nucleus Legal Advice and Council Tax Legal Services.

Pensions analysis: The High Court has used rectification as an innovative way to overcome the trustees’ failure to validly execute various historic and detrimental amendments to their scheme rules. Emphasising the significant volume of evidence to support the trustees’ intentions to bring the relevant amendments into effect, the High Court exercised its power to rectify a signature block which a trustee had, on the face of the document, signed on behalf of the principal employer, rather than in his capacity as trustee. Although the judge described it as a ‘cautionary tale’ as to the time and cost involved in seeking rectification, the case may pave the way for trustees to pursue rectification as a way of overcoming defective execution in addition to or as an alternative to construction where there is sufficient evidence of the parties’ intentions. Written by Catrin Young, senior PSL, and Emma Lewis, trainee solicitor at Slaughter and May.

Financial Services analysis: The High Court has refused an application for a Group Litigation Order (GLO) made pursuant to CPR 19.11 by two groups of claimants who said that their claims, and those of other prospective claimants, against Link Fund Solutions Ltd (Link), gave rise to common or related issues of fact or law. Link was the authorised corporate director of an open-ended investment company which had a sub-fund (in which UK retail investors invested), and was therefore required to comply with the FCA’s Collective Investment Scheme Sourcebook 2 (COLL). The court stated that it was necessary for it to determine whether a GLO was required in furtherance of the overriding objective, having regard to other procedural means available for achieving a similar or identical result. The court held that it did not see why the same result could not be achieved by way of bespoke case management directions without the introduction of a group register. It therefore declined to grant the GLO. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square.

Public Law analysis: Judicial review—the High Court refused permission to bring judicial review proceedings in respect of the government’s decision to exclude licences for the export of components for F-35 combat aircraft which could not be identified as destined for Israel (the F-35 exclusion). On 2 September 2024, the defendant, the Secretary of State for Business and Trade (the SSBT), decided to suspend licences authorising the export of items that might be used in carrying out or facilitating Israeli military operations in the conflict in Gaza. The SSBT did so explicitly because the government had formed the view that Israel was not committed to compliance with international humanitarian law in the conflict in Gaza and that there was therefore a clear risk that such items might be used in that conflict to commit or facilitate a serious violation of international humanitarian law. The claimant, supported by the interveners, challenged the lawfulness of the F-35 exclusion, which was referred to in the judgment as the ‘F-35 Carve Out’. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square Chambers.