Monthly Archives: April 2020

 

Planning Inspector Provides Detailed Feedback on St Albans’ Draft Local Plan

 

St Albans

Planning Inspectors have now provided detailed feedback to St Albans City and District Council following concerns expressed earlier in the year over its draft Local Plan. The letter is overall highly critical of Council’s approach and very largely seems to accept many of the objections put forward during the first few days of the Examination in Public in January.

The planning inspector had earlier in January 2020 written to the Council having serious concerns in terms of legal compliance and soundness of the draft local plan, following initial hearing sessions earlier this year. Consequently, the inspectors in their letter dated 14th of April 2020 cited six areas of main concern. The key issue that the inspectors felt was the Council failing to ‘engage constructively and actively’ with the neighbouring local authorities on Radlett Strategic Rail Freight Interchange proposal in drawing up the draft Local Plan that was submitted in March 2019.

As we are aware that Local Plans set out a blueprint for development in an area over a specific period, and concerning St Albans City and District Council’s emerging Local Plan, the planning period is for 2020 – 2036. The draft Local Plan dealt with issues such as housing, and jobs, as well as the kind of infrastructure that is required like schools and medical facilities.

The then Secretary of State for Communities and Local Government now referred to as (Housing, Communities and Local Government) Local) granted planning permission for a Strategic rail freight terminal at a site near Park Street to the South of St Albans. The site is the location of one of the areas identified for housing in the St Albans draft Local Plan.

The Inspectors in their feedback letter noted what they considered to be the Duty to Cooperate under Section 33A and 33A(4) of the Planning and Compulsory Purchase Act 2004.“in order to safeguard the Strategic Rail Freight Interchange (Planning) permission”. The Inspectors had expected the Council to have done more in seeking that the neighbouring local authorities accommodate either the Strategic Rail Freight Interchange, or the housing proposed for the site in line with Section in line with Paragraph 25 and 26 of the NPPF.

The Duty to Cooperate (DtC) under Paragraph 25 and 26 of the NPPF, requires the Council to engage constructively, actively and on an on-going basis in relation to the preparation of Local Plan documents so far as relating to a strategic matter (in order to maximise the effectiveness of plan preparation). In particular, joint working should help to determine where additional infrastructure is necessary, and whether development needs that cannot be met wholly within a particular plan area could be met elsewhere.

The letter noted that, although a large site in the district (the Radlett site) had secured planning permission for a Strategic Rail Freight Interchange , but it is proposed for housing in the draft local plan as Park Street Garden Village Broad Location and not identified as a strategic matter by the Council, thus, not included in the draft Local Plan. Ultimately the proposed development (Park Street Garden Village) has the effect of precluding the permission for the Strategic Rail Freight Interchange. As a result, the Council considers that it did not need to cooperate in relation to this matter, since the policy on the Strategic Rail Freight Interchange ceased to be a strategic site promoted under the plan, it was no longer required to engage in the Duty to Cooperate discussions.

The argument by the Council that the Duty to Cooperate applies only to proposals in the plan, since by their very nature, approaches to unmet needs will not be included in the plan (since there is no provision to address them there) was found to be unreasonable by the Inspectors. They found the use of the land in Radlett site, whether as a Strategic Rail Freight Interchange site or a housing allocation to be a strategic matter which the Council should have been engaging and cooperating with neighbouring authorities about.

There is also the concern of the inspectors that the draft Local Plan had not complied with the Council’s Statement of Community Involvement which fails to meet objectively assessed needs and that the absence of key pieces of supporting evidence for the plan, such as demonstrating that other nearby authorities have been approached in terms of the possibilities of accommodating either the Strategic Rail Freight Interchange, or the housing that is proposed on site.

The Inspectors submitted that whilst the Council’s decision not to pursue the allocation of the Strategic Rail Freight Interchange in the plan does not in itself indicate a failure to comply with the Duty to Cooperate, however, the Council had not engaged or cooperated with other bodies (including other LPAs) with regard to this issue. This includes in relation to the reasons as to why it had not considered to include the Strategic Rail Freight Interchange as an allocation in the plan, or why housing is now proposed there. Consequently, they concluded that the effectiveness of the Council’s plan preparation has not been maximised in this regard.

The Council’s approach to the Green Belt Studies was another area of concern to the Inspectors as the Council had received warnings in 2017 and 2018 that, it would face Central Government intervention if it failed to deliver its Local Plan in a timely manner. Hence, the Green Belt Studies was rapidly completed. The Plan proposes substantial Green Belt boundary alterations to enable land to come forward for development.

Paragraph 137 of the NPPF requires that before concluding that exceptional circumstances exist to justify changes to Green Belt boundaries, the strategic planning authority should be able to demonstrate that it has examined fully all other reasonable options for meeting its identified need for development. The Inspectors noted that the Council had not demonstrated that their approach to the Green Belt had been informed by discussions with neighbouring authorities on whether they could accommodate some of the identified need for development, as demonstrated through a Statement of Common Ground  (SoCG) in accordance with Paragraph 137(c) of the NPPF.

The Inspectors express doubt as to whether adequate studies have been undertaken and evidence produced to justify that exceptional circumstances exist to alter the Green Belt boundaries. In particular Paragraph 58 of their letter states that “if the examination is to continue, a new Green Belt Review would need to be undertaken……” something for which we have strongly pressed. They submitted that, whilst their concerns are substantial, they will not make an absolute final decision as to whether or not the Duty to Cooperate has been met until the Council has had the chance to respond to their letter.

Reference was made to the Council’s Statement of Community Involvement (SCI) which had set up reasonable expectation that the Council would undertake a Preferred Options Consultation on the Plan prior to its submission. However, this did not take place, rather the Plan had commenced from Issues and Options in January/February of 2018 with no Preferred Option Stage. Thus, the Plan was not prepared in compliance with the SCI and there has been a breach of Section 19(3) of the Planning and Compulsory Purchase Act 2004.

The Inspectors submitted that the plan had not been prepared in accordance with the Council’s Statement of Community Involvement (SCI), that it “fails to meet objectively assessed needs and that key pieces of supporting evidence are absent.” In other words, they suggest the Council consultation process was flawed.

On the question of whether the Plan meets the required tests for soundness, the Inspector’s question the wisdom of Council relying on a number of major strategic sites to meet their housing need whilst arbitrarily rejecting any site which would yield fewer than 500 dwellings. The Inspectors express concerns about the narrow focus that has been placed on relying only on the larger sites, which has effectively “ruled out an important potential source of housing.”

The letter also indicates that the Inspectors do not accept that Council has given first consideration to Previously Developed Land (i.e. “Brownfield sites”) which they are required to do before contemplating the release of Green Belt.

In relation to the issues set out above, the Inspectors stated that they have substantial soundness concerns with elements of the plan and have found legal compliance issues with the consultation process.

The Inspectors concluded by informing the Council that they “will not reach an absolute or final position until St Albans City and District Council have the chance to consider and respond to the letter.” No timescale for this is specified. They state however that “we consider it a very strong likelihood that there will be no other option other than that the plan be withdrawn from examination or that we write a final report recommending the plan’s non adoption…”

St Albans City District Council Councillor, Jamie Day, a portfolio holder for Planning in the Council stated the importance of the need to progress the Local Plan in order to manage the District’s growth in a sustainable and positive way. He expressed that the Council is keen to deliver the much-needed housing in sustainable locations but, stated that their efforts to do so are curtailed somewhat by the complexities involved.

Concerning the Freight Interchange, the Councillor noted that it is in a unique position of having a Government-permitted strategic rail freight terminal site actively promoted by landowner for alternative housing use. He noted that Council have over recent years made effort with the neighbouring Local Councils and the County Council to demonstrate its commitment to cooperating with them, hence, found it disappointing for the Inspectors to call out the Council on this point.

The Councillor stated that the council would respond to the Inspector’s letter in order to address the concerns raised and that they had already engaged with the Local Government Association to review the way that their Planning Department works and to benchmark it against other local authorities so as to strengthen it for the future. He however noted that the review has been unavoidably delayed by the ongoing Coronavirus Control measures put in place by the Central Government.

Councillor Richard Curthoys, Conservative Group spokesperson on the Planning Policy Committee disclosed the Council displeasure with the Inspectors Letter by stating that: “many of the iterations of the duty to cooperate (DtC) meetings between 2017 and 2019 had not been recognised by the Inspectors”.

Furthermore, the Councillor referred to the Inspectors statement that: “a lack of objections to the plan is not an indication that the duty to cooperate has been complied with”, to be particularly confusing, as the plan was discussed and presented to all statutory consultees who were then asked both verbally and in writing if they had any objections and whether the DtC had been complied with. He also considered the Inspectors conclusions on the Duty to cooperate and the Strategic Rail Freight Interchange site to be completely baffling, giving the topographical nature of the  requirements of this kind of site.

Councillor Malachy Pakenham, Labour Group spokeperson said: “The Rail Freight Interchange Site (Radlett site) was always going to be difficult to incorporate into the Local Plan as Park Street Garden Village”. 

The implication of the Planning Inspector’s letter in my view is that, St Albans City and District Council options are limited,  the withdrawal of the draft Plan  seems the best option and  the planning process should start all over again. However, the Council would urgently need to look at all its options to consider the best way forward.

In progressing the Local Plan, there is the need for the Council to grasp the Central Government current position on intervention in complex situations such as those in St Albans City and District Council. There is also the need for the Council to consider the forthcoming Housing White Paper of the Government and lower demographic growth projections than previously.

The full text of the Planning Inspectors letter is available on St Albans City District Council Website below:

https://www.stalbans.gov.uk/sites/default/files/attachments/ED40%20%20Inspectors%20Post%20Hearings%20Letter%2014.4.20.pdf

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Ways to prevent planning permissions expiring via non primary legislation

 

“Eight suggestions have been made by the Law Society of England and Wales Planning & Environmental Law Committee and the City of London Law Society Planning & Environmental Law Committee in writing to the housing secretary Robert Jenrick. They include measures to ensure delivery in the housing sector in planning for recovery from the current crisis.

The measure include expiring routes for temporary development changes via secondary or non-legislative guidance to ensure the expiry of planning permissions and NSIP projects are abated whilst MP’s are working under restrictions making the use of primary legislation challenging. Measures addressed, remote council meetings, hot food take aways, temporary development the appeal process, determination periods s106 and CIL matters”

View the letter here (PDF)

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Legal Beagle – April 2020 edition

 

Legal Beagle

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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Stafford New Local Plan 2020 – 2040

 

Map image of Stafford

Stafford Borough Council is currently consulting on its issues and options document for the new Local Plan which will cover the period 2020 – 2040. Given the COV 19 outbreak the deadline had been extended and was due to expire at 12 noon on 21st April 2020. The document includes the level of housing and employment land that will be required for the Borough over the next 20 years. The purpose of the new Local Plan is as follows:

  • Set out a refreshed vision for the development of Stafford
  • Highlight the key issues to be addressed;
  • Provide objectives to guide continued growth and policies so that new development meets local needs in line with national policy set out through the National Planning Policy Framework (NPPF);
  • Provide a strategy and policy framework for the delivery of development and the decision-making process for future planning applications in the Borough;
  • Identify the scale and location of development;
  • Describe how the development will be implemented.

When complete the new plan will update the existing plan for Stafford Borough which runs from 2011 -2031. The plan will include policies for the development and protection of land and will provide site allocations for new development. It is currently anticipated that following the consultation period, the information gathered will be considered and reflected upon with a preferred options report being available by 2021. The timescales moving forward as set out in the Council’s local development scheme are as follows:

  • Preferred Options Report – January 2021
  • Formal Publication of the Proposed New Plan – June 2021
  • Submission of the proposed new plan to the planning inspectorate – December 2021
  • Examination of the proposed new plan – March 2022
  • Adoption of the new local plan – October 2022

Whilst the new Local Plan is being prepared planning decisions will be taken on the basis of existing statutory development plan documents i.e. the Plan for Stafford Borough 2011-2031 (June 2014) the Plan for Stafford Borough Part 2 (January 2017) and relevant neighbourhood plans within the borough.

The issues and options document recognises the importance of introducing measures to combat climate change and includes options as follows:

  • Energy Efficiency – it is recognised that there is an increased requirement for buildings to be more energy efficient, the document asks if the Local Plan should require development to built to a standard in excess of the current statutory building regulations and asks what further policies could be introduced
  • Renewable Energy – it is identified that the Local Plan should make suitable provision for the transition to a low carbon and renewable energy network. Significantly the document asks which renewable energy technologies should be utilised? And also whether the Council should introduce a policy requiring larger developments to source a certain percentage of their energy supply from on-site renewables
  • Water Efficiency – the document asks the question as to if the Council should implement a higher water standard than the Building Regulations standard of  a maximum 110 litres a day consumption

The documents also raises significant questions in respect of the Development Strategy for the borough significantly which of the annual housing requirement figures best meets Stafford housing need and if the proposed settlement hierarchy is suitable.  Detailed sections on Economic prosperity, the delivery of town centres, housing delivery, the quality of development, environmental quality, and health and wellbeing are all included within the document with opportunities to comment upon the suitability of identified proposals.

The full document is available at (PDF):  https://www.staffordbc.gov.uk/sites/default/files/cme/DocMan1/Planning%20Policy/New%20Stafford%20Borough%20Local%20Plan%202020-2040/Issues_and_Options_Consultation_Document_Feb2020.pdf

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