Legal Beagle – April 2020 edition

There are 10 Legal Beagle Planning Cases in this edition.

1. Oxford City Council Approved Major Mixed-Use Development with up to 480 Homes and Nearly 90,000 Square Metres of Employment Space on Greenfield Site to the North of Oxford.

Oxford City Council has resolved to approve a hybrid application for the Oxford North scheme that forms part of the wider Northern Gateway project that is proposed for an area of farmland just inside the city’s ring road at Wolvercote.

The application was for the development of up to 480 homes and landscaping and associated works, including the erection of up to 87,300 square metres of employment space, up to 550 square metres of community space, up to 2,500 square metres retail spaces and a hotel. Full permission was sought for the first phase of the scheme including 5,850 square metres of employment space, access, open space, landscaping and drainage.

A 35% affordable housing was sought against the Local policy requirement of 50%, however, the findings of a viability assessment supported the officer recommendation to approve the application with a level of affordable housing at 35%. The Council recommended the scheme for approval due to urgent need for more homes and limited supply in Oxford which is well documented and understood, hence the 35% affordable contribution on an employment-led development would be significant in addressing the shortfall in housing and of the social benefit, including the sustainable transports with hugely improved cycle and bus infrastructure on stretches of the A40 and A44 within the application site that the development would bring.

2. Appeal for 240 Home Scheme Dismissed by Planning Inspector Due to Traffic Concerns

The planning application appeal for 240 homes. on an eleven hectares arable site on the edge of Mansfield District Council, with 20% affordable housing including public open space home by the developer Glademan over traffic concerns. The application for the proposed development was brought to appeal against the failure of the local authority to determine the outline application.

The Inspector Katie Mc Donald in her report said that she gave “extreme substantial weight” to the harm that the development could caused to highway safety and free flow of traffic. She further stated that she found it entirely appropriate to apply precautionary principle as she was not satisfied that there would not be an unacceptable effect upon highway safety or a severe residual cumulative impact on the road network.

She noted that the development proposals were in conflict with council local plan and the NPPF. Also, she further stated that the weight given to the issue outweighed the benefits in favour of the proposal, which include the provision of new market and affordable housing.

The presumption in favour of sustainable development in the NPPF, the Inspector stated should be apply to this case due to the council inability to demonstrate that it had the required five years supply of housing land based on existing policies. Hence, she decided to reject the developer’s argument.

3. An Appeal for 74 Housing Scheme Rejected by Planning Inspector Despite Council’s 2.6 Year Land Supply

An Appeal against East Sussex council has been dismissed by a planning inspector for failure to determine a 74 home application, despite the council having only 2.6 year housing land supply, after concluding that the presumption in favour of sustainable development did not apply as a result of the proposed site proximity to protected habitats.

The developer, Crest Homes Ltd had appealed against Wealden Council’s failure to decide on its application within the prescribed timescales. The planning application sought was for the development of 74 homes on land south of South Street, East Hoathly. Wealden Council rounds  or the refusal of the application related to the location of the proposed development beyond the adopted and emerging development boundaries which would have consequential effect upon the Ashdown Forest which has European environment designations and the effect of the proposal on biodiversity and protected species.

However, the inspector noted that the council could only demonstrate a 2.62 years supply of housing land, which he considers to be a significant shortfall. The inspector further stated that due to the given position on the council housing supply, whilst the proposal is contrary to the development plan taken as a whole, the appellant considers that paragraph 11 d (ii) of the NPPF which states that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, will apply when assessed against the policies in the NPPF taken as a whole. This he said is known as the ‘tilted balance’ in consideration towards housing supply.

The inspector concluded that there would be “significant benefits to housing supply from 74 homes, especially given the current levels of supply”. However, he noted that given the uncertainty of the effects on Ashdown Forest and Lewes Downs Special Area of Conservation (SAC), and precautionary principle to such matters he was more convinced by the council’s position that the ‘tilted balance’ does not currently apply. Consequently, the inspector refused the appeal and also rejected developer application for an award of cost against the council.

4. Appeal Court Restrain Developer Scope to Alter Planning Permission

An Appeal Court Judge had recently ruled against a developer ability to alter existing planning permission without making a fresh application via s73 of the Town and Country Planning Act 1990.

The Act allows developers to apply to alter a condition attached to a planning permission without incurring the expense and risk of submitting a new full application. An earlier High Court ruling in the case between Finney vs Welsh Minister, last year approved the use of s73 applications to vary not just planning conditions, but also the description of the permission itself. However, the recent decision by this Appeal Court has overturns that, with very significant implications for developers.

The applicant in this case was Energiekontor who proposed the development for a 100 metre-high wind turbine in Wales. The developer made a s73 application to increase the turbine height to 125m, despite this requiring not only alteration to a planning condition, but also to the description of the development in its permission, which had specified “a tip height of up to 100 metres”.

Following a challenge to the approval last year, the High Court ruled that alterations to the permission itself were allowable under s73, as long as they didn’t represent a “fundamental alteration” of the original permission. However, Lord Justice Lewison on the 5 th of November 2019 ruled that there is no statutory power under s73 to alter the description of a planning permission, meaning any applications seeking to do this cannot be approved. The Court ruled that under s73 “the planning authority must consider only the question of conditions”. The judge said: “The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development”.

The ruling in this case have generated great deal of controversy. The lawyer who represented the developer stated that the ruling was a “hard-line interpretation” of s73, which “will have a real impact on the delivery of housing and complex projects which are abound to include alterations”.

However, the ruling does not stop s73 applications being used to make “minor material alterations to planning permissions, but it makes clear those changes are only possible where they don’t entail changing the description of the development. Lord Justice Lewison in his ruling said that developers affected by the judgement could make Section 96A applications to change a permission’s description. However, many developers are not convince by this, largely because s96A only covers mon-material changes, whereas s73 allows for minor material changes. In practice, this implies that s73 applications have mostly been used to change the number of homes or quantum of commercial space in an application, s96A applications to change the same details in a permission’s description are unlikely to be accepted.

5. Refusal for 1,100 Homes, Urban Extension in Essex Overturned by Inspector

The plan for the development of 1,100-homes Essex urban extension that had been refused by the council has been overturned by Planning Inspector on flood risk ground after he concluded that the developer’s approach to surface water drainage was in “full compliance with the development plan”.

The application was hybrid application for a full permission for a new road, plus outline application for the hi for the homes, a local centre, residential care home, primary school, childcare facilities and playing fields in a 76 hectare greenfield site to the north of the village of Heybridge.

The Inspector allowed the developer’s Countryside’s appeal against the refusal of the planning application by Maldon District Council and ruled that the appellants’ approach to mitigation flood risk was a perfectly reasonable one. The initial reasons for the refusal by the Council stated “Insufficient evidence has been submitted with the application to demonstrate that the proposed development would be able to incorporate adequate surface water drainage infrastructure and that the infrastructure that would be proposed would be maintained in a manner that would ensure that the development would not cause increased flood risk within the vicinity of the site and the catchment area of the watercourses that are within the site”.

Some of the measures the developer had proposed is for a management company to maintain the site’s sustainable urban drainage scheme (SuDS) features through estate charge. The inspector stated that the proposal meets all the requirement of the council’s local plan, which requires that development must not increase flood risk on site and elsewhere and that such development must demonstrate how opportunities to reduce the causes and impacts of flooding have been maximised through sustainable urban drainage schemes, and other measures.

The inspector concluded that “the developer has proceeded in a reasonable manner throughout and the approach the proposal takes to surface water drainage is in full compliance with the development plan.” Consequently, the Council has approved another application for an identical scheme on the site in October ahead of the appeal decision being issued.

6. Supreme Court Ruling Could Allow Village Green Designation be Removed

Existing registrations of town and village greens on public land could now be removed where such registrations conflict with the site’s “statutory purposes” following the recent Supreme Court ruling, according to legal experts.

This comes as a result of the culmination of marathon litigation concerning the status of plots of land owned by the NHS and local authorities in Lancashire and Surrey. The Surrey Case concerned woodland beside Leatherhead Hospital which have been used for recreation by local people for many years. The Lancashire case involved a local campaigner, Janine Bebbington, who had applied to register fields adjoining Mooreside Primary School, Lancashire since 2010.

The Court of Appeal had ruled in favour of registration in both cases, however, the Supreme Court last week overturned those decisions. The Court ruled that where land is acquired and held for defined statutory purposes by a public authority, the act does not permit registration where that would be incompatible with those statutory purpose.

Registration was resisted by Lancashire County Council and NHS Property Service Ltd which owns the two relevant sites respectively. They argued that registration under the commons Act 2006 (the Act) was basically incompatible with the public purposes for which the sites were held.

The ruling provides a statement of law which refutes all those who considered that a narrow  view should be taken of the scope of the Newhaven case. It is now likely that local authorities and public bodies may wish to ask whether the registration of land originally held for particular purposes has been erroneously registered.

This case confirms that in a situation where there is conflict between the use for which the land is held by a public body and the registration of a village or town green, the public authority’s purpose will prevail. This case enables public authorities to review those cases where there land has been registered as a village green with a view to removing the registration and equally can be more robust in resisting applications made on land when it satisfies the criteria.

R(Lancashire CC) v Secretary of State for Environment Food and Rural Affairs and R(NHS
Property Services Ltd) v Surrey County Council and Jones {2019} UKSC 59.

7. Councillors Reject ‘Policy Compliant’ Plans in Hertfordshire for 270 Housing Mixed-use Scheme

The proposed development for 268 homes and 1,405 square metres of office space in Hemel Hempstead, Hertfordshire have been rejected by the Councillors despite the planning officer’s advice that the proposed scheme was policy compliant hence should be approved.

The developer Kier Property sought full planning application from Decorum Borough Council to develop the proposed scheme on a one hectare site designated as employment land in the 2013 Dacorum Core Strategy. The planning officer report to committee had advised that there would be “no significant loss of daylight or sunlight to neighbouring residents.” The proposed scheme would rise to 12 storeys and includes 35% of affordable housing contribution.

The scheme proposed 334 parking spaces, below the 340 required by the Council Local Plan. However, in a committee report considered by Councillors, noted that, “given the push for more sustainable form of transport”, this was considered acceptable.

The Planning Officer stated that the proposed development would “make a significant contribution to the Council’s housing target, prevent further green belt land from being released for development and make a large contribution to affordable housing.”

The current limited demand for B1 office use in borough was giving by the officer as one of the
reason for recommending the proposed development to be granted permission. The officer also stated that a “flexible approach to the mix in use of the site for residential and commercial is considered acceptable”. The officer recommended the application for approval and stated that “on balance, the proposal is considered policy compliant”. However, the development management committee refused the application on the grounds of poor daylight and sunlight levels, inadequate parking, overdevelopment, and lack of architectural merit.

8. MHCLG Publish the Authorities at Risk of Special Measures for Having the Most Decisions Overturned at Appeal

Six local planning authorities are over the ‘special measures’ threshold for the proportion of decisions that are overturned at appeal, according to the latest statistics from the Ministry of Housing, Communities and Local Government (MHCLG).

Under the ‘special measures’ regime, local planning authorities can be designated as poorly- performing if they fail to meet criteria for either speed or quality of decision-making, allowing developers to submit applications directly to the Planning Inspectorate. Any authority that has more than ten per cent of either major or non-major applications overturned at appeal over a two- year period is at risk of designation.

The MHCLG’s latest planning statistics, published at the end of last month, reveal provisional data on English authorities’ performance in terms of quality of decison-making over the two years from October 2016 to September 2018, including figures for six of the eight quarters over which councils are due to be assessed before the 2020 special measures designations.

The data shows that six authorities are now at or above the threshold – five for the quality of major district-level decisions and one for the quality of major county-level decisions. No planning authorities exceeded the 10 per cent threshold in relation to non-major decisions. Dartmoor National Park Authority saw just one major district-level decision overturned but, with a total of only seven such decisions over the two-year period, recorded the highest percentage of decisions reversed at appeal at 14.3 per cent.

Bromley Council, Castle Point Borough Council, Epsom and Ewell Council, and South Bucks Council (now part of Buckinghamshire Council) were all also at or above the 10 per cent threshold for quality of major district-level decisions.

Of the 23 LPAs with the highest percentage of major district-level decisions overturned at appeal up to September 2018, 5 of the LPAs have the highest number of the major decisions and non- determined cases including major decisions overturned at appeal. These LPAs are:

Bromley with the highest number of 71 major decisions and non-determined cases of which 10 of the major decisions overturned at appeal; Dartmoor National Park 7 major decisions and 1 overturned at appeal; Castle Point had 33 major decision of which 4 were overturned at appeal; Epsom and Edwell had 28 major decisions of which 3 were overturned at appeal and South Bucks had 40 major decisions of which 4 of the decisions were overturned at appeal.

The other LPAs are; Redbridge; South Lakeland; Tandridge; New Forest National Park, North Warwickshire; North East Derbyshire; West Devon; Arun; Enfield; Chiltern; Hart; Wirral; Barnet; Haringey and Guildford.

The only local authority to exceed the threshold for quality of major county-level decisions, after seeing one of four such decisions reversed at appeal was the London Borough of Barking and Dagenham The nine local planning authorities with the highest percentage of major county matters decisions overturned at appeal during the two years assessment period are; Barking and Dagenham; East Sussex; Derbyshire; Oxfordshire; West Sussex; Somerset; Surrey; Norfolk and Lincolnshire.

9. High Court upholds the Approval of 760 Housing Scheme, Despite Incoherent Planning Report

The High Court has upheld the planning consent granted for construction of 760 new homes on farmland near Bridport, Dorset, despite ruling that councillors had based their decision on a planning report that failed to “meet the bare minimum standard” for such documents.

The Site lies within the Dorset Area of Outstanding Natural Beauty (AONB) and is immediately to the west of the Bridport Conservation Area, which embraces the whole of the seaside market town. The Toll House, also known as Magdalene Farmhouse, which is a Grade II-listed building and a heritage asset is nearby The planning permission granted was for 760 homes, including a 60-unit care home, a mixed-use local centre and a primary school on Vearse Farm. The planning permission also included playing fields, allotments and open space and four hectares would be set aside for employment purposes.

Advearse, a local campaign group had challenged the permission at the High Court in Cardiff and two of its members argued that councillors failed to have ‘special regard’ to the development’s impact on the listed building. They argued that the Councillors had shown a failure to give ‘great weight’ to conserving the heritage assets in accordance with the NPPF. The appellant further submitted that Councillors were significantly mislead by, amongst other things, a “mis-statement” in a planning officer’s report that the development would have no adverse impact on the character and appearance of the conservation area.The Judge, Mr Justice Swift ruled that, although he accepted that the officer’s report was “at the very least unclear” on issues concerning the conservation area and failure to inform the councillors of the test they needed to apply under the NPPF.

The Judge said that the report had erroneously stated that the development would have no adverse impact on the conservation area’s character and appearance whilst, at the same time, it would have some effect on its setting and views. He also stated that the report’s approach to conservation of the Toll House was flawed, and that, although it was not appropriate to treat the report as if it were statute. He ruled that the report had failed in certain respect to meet the bare minimum standard of coherence required.

The Judge considered the officer’s report inadequate as it did not address matters in a coherent way as a report must meet some basic standards of good public administration. Although the judge accepted that had the officer’s report perfect, it was highly likely that councillors would have reach the same conclusion.

Justice Swift stated that the development was considered to be significant to the council’s future housing strategy and its benefits were “clearly apparent” from the report of a local inspector who explained why it was necessary allocate the Site for house-building. He added that the development impact of the Site to both the Conservation area and the Toll House was assessed as falling into the less than substantial bracket.

The Judge also noted that even were the planning application was sent back for reconsideration, the realistic outcome as he puts it, was that the councillors would conclude again that the public benefits of the development would outweigh any harm that may be caused to the Toll House or the conservation area.

The full case citation: R on the application of Advearse & Ors v Dorset Council Case Number; CO/2277/2019

10. High Court Rejects Developer’s Bid to Avoid Paying Entire CIL Bill for Phased Housing Development

A high Court Judge has refused a developer’s bid to avoid paying the entire Community Infrastructure Levy (CIL) bill for its 81 housing development for a former factory Site (Brownfield Site) in Somerset in one go. The Court rejected the developer’s argument that it was entitled to pay only for the scheme’s first phase that had commenced development.

Outline planning permission had been granted by Bath and North East Somerset Council to developer Oval Estates (St Peter’s) Ltd in March 2016. The Council had issued liability and demand notices under the Community Infrastructure Levy Regulation 2010 requiring the developer to pay £874,283 and for the whole sum to be paid at a go, because the development had commenced in October 2018.

Oval Estate argued that CIL should have been assessed on the basis that the development was taking place pursuant to a phased planning permission and that only the first phase of the development had commenced, hence the CIL was only payable in respect of that phase of development.

The Judge in his ruling stated that the company had submitted a form to the council in April 2017, by which it formally assumed responsibility to pay CIL. However, the developer had asserted that each phase of the project was a separate chargeable development. Consequently, he dismissed the developer’s argument and found that, having assumed responsibility to pay CIL, the company became liable to pay the whole sum demanded by the council on the date the development commenced.

As at that date, the chargeable development was the development permitted by the March 2016 Outline consent, which was not a phased permission.

The Judge ruled that was the commencement of the development, rather than the issue of the liability notice, that gave rise to the liability to pay CIL. A non-material change to the permission, approved by the council in February 2019, could not affect that conclusion as it post-dated the commencement of the scheme.


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