Author Archives: Akeem Iginla

 

Build, Build, Build….let’s hope so!

 

Build, build, build blog article featured image

Culminating in Prime Minister Boris Johnson’s announcements on 30 June 2020 to launch the most radical changes to the planning system since the Second World War, we thought it might be helpful to provide a  recap on all that has been happening as we start to ease (spring) out of lockdown….

The key changes we look at below include:

  • Changes to Permitted Development Rights – 24 June 2020
  • Business and Planning Bill – 25 June 2020
  • Planning Reform – 30tJune 2020

Permitted Development Rights

Statutory Instrument 2020 No 632 entitled The Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 was laid before Parliament on 24 June. Principal provisions become effective on  1 August 2020. Read more: http://www.legislation.gov.uk/uksi/2020/632/made/data.pdf?pk_campaign=newsletter_3351

The House Builder Federation (HBF) summarise the changes to include:

  • “The changes to regulations introduce a new provision to require local planning authorities to take into account the provision of natural light in dwellings created through the use of various permitted development rights for conversion of existing buildings. This was as a response to a number of criticisms of conversions (mostly under Class O of the General Permitted Development Order 2015) creating poor living conditions over which Local Planning Authorities (LPAs) had no control. 
  • The new order also introduces a new permitted development right to allow work for the construction of up to two storeys to create new flats on the topmost residential storey of a building which is an existing, purpose built, detached block of flats. The new right contains certain limitations and conditions as set out in the new Part 20, Class A of the GPDO 2015. In short, the PRD[should this be PDR?] follows the prior approval application to the local planning authority process in a similar way to other permitted development rights for building conversions to residential use.”

Business and Planning Bill

The Rt. Hon. Alok Sharma MP, Business Secretary, laid the Business and Planning Bill before Parliament on 25 June 2020.

Read article here: http://www.legislation.gov.uk/uksi/2020/632/made/data.pdf?pk_campaign=newsletter_3351

This Bill introduced  a host of measures relating to a range of aspects associated with outdoor food and drink consumption (Part 1); Other measures relating to Business (Part 2) and planning measures are set out in Part 3 of the Bill.

Part 1 – Consumption of Food and Drink Outdoors

  • Pavement licences
  • Alcohol licensing

Part 2 – Other measures relating to Business

  • Bounce Back Loan Scheme
  • Goods, passenger and public service vehicles

Part 3 – Planning

  • Construction working hours
  • Extension of certain permissions and consents
  • Procedure for certain planning proceedings
  • Electronic inspection of spatial development strategy

The Bill sets out that the Town and Country Planning Act 1990 has effect as if it were subject to the modifications inserting section 74(B) and (C) relating to construction working hours, setting our measures as to who and how applications to extend working hours can be made, giving Local Authorities 14 days within which to make a decision, otherwise consent is deemed to have been given. Any application is temporary and for a period up to  1 April 2021.

Additional Government Guidance is provided

Announcement here: https://www.gov.uk/government/publications/construction-working-hours-draft-guidance?pk_campaign=newsletter_3351

These provisions come into force 28 days after the Bill has passed.

With regards to extension of planning permissions, the Town and Country Planning Act 1990 is modified at section 93A which states that permissions that expire by  31 December 2020 will be automatically extended to  1 April 2021. Section 93(B) states that in permissions that expired since 23 March 2020  an application for an ‘additional environmental approval’ can be secured (with suitable justification) also extending the permission to the 1 April 2021. The LPA has 28 days in which to make a decision, otherwise approval is deemed to have been given.

These provisions come into force 6 days after the Bill has passed

Further details are provided in relation to amendments to the 2015 Order, including:

  • Class BA – additional temporary use of land during the relevant period
  • Class BA – holding of a market by or on behalf of a local authority
  • Class A – new dwelling houses on detached blocks of flats
  • Amendments to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007
  • Amendments to the Town and Country Planning (Compensation) (England) Regulations 2015

With regards to transitional arrangements, and the passing of the Bill, the HBF explains that: “The Bill completed its progress through the House of Commons using expedited procedures on Monday 2h June. This meant that it received its second reading, committee stage and third reading in consecutive sessions. There was little debate on the planning provisions in the Bill, but MPs were concerned about the apparent lack of public consultation on the extension of working hours and received assurances from the Business Minister that there was no intention to reduce the level of public engagement and consultation on planning applications more generally. 

The Bill now passes to the House of Lords where it will be similarly processed using expedited procedures on Monday 6 July 2020.”

Radical Planning Reform….again…?

Prime Minster Boris Johnson announced on  30 June 2020:  “the most radical reforms to our planning system since the Second World War, making it easier to build better homes where people want to live”

Original article here: https://www.gov.uk/government/news/pm-build-build-build

In his ‘Build, Build, Build’ Speech, he announced the following changes  are to come into effect via changes to the law, in September 2020:

  • More types of commercial premises having total flexibility to be repurposed through reform of the Use Classes Order. A building used for retail, for instance, would be able to be permanently used as a café or office without requiring a planning application and local authority approval. Pubs, libraries, village shops and other types of uses essential to the lifeblood of communities will not be covered by these flexibilities.
  • A wider range of commercial buildings will be allowed to change to residential use without the need for a planning application.
  • Builders will no longer need a normal planning application to demolish and rebuild vacant and redundant residential and commercial buildings if they are rebuilt as homes.
  • Property owners will be able to build additional space above their properties via a fast track approval process, subject to neighbour consultation.”

The proposed changes  look to focus upon repurposing commercial buildings that are vacant to reduce pressure on greenfield land, and at Government land assets to determine how these could be better utilised and accounted with the following further package of measures.

  • “A £12bn affordable homes programme that will support up to 180,000 new affordable homes for ownership and rent over the next 8 years, confirmed today.
  • Included in the affordable homes programme will be a 1,500 unit pilot of ‘First Homes’: houses that will be sold to first time buyers at a 30% discount which will remain in perpetuity, keeping them affordable for generations of families to own.
  • Funds from the £400m Brownfield Land Fund have today been allocated to the West Midlands, Greater Manchester, West Yorkshire, Liverpool City Region, Sheffield City Region, and North of Tyne and Tees Valley to support around 24,000 homes.
  • The Home Builders Fund to help smaller developers access finance for new housing developments will receive additional £450m boost. This is expected to support delivery of around 7,200 new homes.”

He also (re)announced that the Planning Policy Paper will be launched in July 2020, which will ‘plan for comprehensive reform of England’s seven-decade old planning system, to introduce a new approach that works better for our modern economy and society’… and a Local Recovery White Paper later in 2020, looking at sustainable economic recovery.

Interesting times, no doubt to be continued…

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New Planning Principal Joins Urbanissta Team

 

EllenWe are delighted to welcome Ellen Nicholson, who joins our team as Planning Principal.  Ellen joins us following a two-year spell in Australia, where she worked in Sydney as a Planner in local and state Government, as well as in a planning consultancy.

Ellen comes predominantly from a local Government background having worked for the London Borough of Newham for six years in enforcement, regeneration, and major developments.  Her focus in the Majors Team was on large-scale residential schemes in and around Royal Docks, and some unique applications including the Secret Cinema site in Canning Town.

Ellen says:  “On my return to the UK I was keen to explore options in the private sector, and was thrilled to be offered a job at Urbanissta.  I’m really looking forward to developing my planning knowledge and experience in this role.”

As part of her working holiday, Ellen spent three months in rural Western Australia picking strawberries and pruning vines.  She says it is safe to say she is more suited to office work!  In her spare time, like the rest of the team, Ellen is currently daydreaming of holidays and the pubs reopening.  She continues to keep active with home workouts and walks around the Essex countryside to counteract her dangerous chocolate addiction.

Jo Hanslip, Urbanissta Founder and Director, commented:  “We’re really pleased to welcome Ellen to our growing team.  Her experience in a local authority working on large scale schemes will be really useful as we continue to deliver these projects for our clients.”

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Judicial Review Against Planning Inspectors Granted to Sevenoaks Council

 

Judicial Review Against Planning Inspectors Granted to Sevenoaks Council

Judicial review has been granted to Sevenoaks District Council against the decision of a Planning Inspector to reject its emerging Local Plan over failure of the Council to meet the duty to cooperate.

The Inspector’s final report on the draft plan, issued on 2 March 2020, followed an examination of the Council’s draft Local Plan which had taken place in September and October 2019.  It had asked Sevenoaks Council to withdraw its Local Plan and concluded that the Plan was not legally complaint with regard to the duty to cooperate, because the Council had not satisfactorily worked with neighbouring authorities to accommodate homes it could not plan for as a result of the green belt and other restrictions.

The Inspector, Karen Baker, accepted that the Council had prepared a joint evidence base with other local authorities, including a Strategic Housing Market Assessment (SHMA) with neighbouring Turnbridge Wells Borough Council. However, she stated that the assessment of housing did not include any specific provision for meeting unmet needs of adjoining areas, which the SHMA stipulate need to be considered through the duty to cooperate.

Sevenoaks District Council in their response vehemently refused to withdraw the documents, consequently in April they issued a legal challenge to the Inspector’s decision in the High Court. The Court had issued a notification granting permission for review.

The High Court Judge, Honourable Mr Justice Swift, concluded that “all grounds for the Council’s claim are arguable, hence permission for judicial review was granted, thus clearing the first hurdle of the process”.

The Judge noted more than 800 pages of evidence setting out how the Council had worked with its neighbouring Councils during the production of the plan, whilst these neighbouring Councils supported Sevenoaks Council’s evidence and approach on this matter.

The Council’s Cabinet Member for Development and Conservation, Julia Thornton, noted that “This is great news as it means the High Court believes our position that the Planning Inspectorate may have a case to answer”. She further noted that the Council had followed the relevant guidance when they developed the Plan and the evidence, they had provided to the Planning Inspector justified their position.

The Council insisted that they had no choice but to take a legal route to demonstrate how serious and committed they are to their residents, against what they believe is a fundamental failure by the Planning Inspectorate to take account of the weight of evidence in front of them.

The Council strongly believe that the Inspector had erroneously interpreted key parts of the Local Plan requirements. The Council noted that their Local Plan was the “first in the country” to be assessed under the revised 2018 National Planning Policy Framework.

We will keep you informed of the Court decision concerning this case when the ruling is made.

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Buckinghamshire Becomes a Unitary Authority

 

Buckinghamshire Council became a unitary authority on 1 April 2020, with the four district councils – Aylesbury Vale District Council, Chiltern District Council, South Bucks District Council and Wycombe District Council with the Buckinghamshire County Council area now ceasing to exist. This is a result of the announcement on 1 November 2018 by the then Secretary of State for Housing Communities and Local Government, James Brokenshire.

The implementation of Buckinghamshire Council was overseen by the shadow Authority to ensure the smooth transition to the new Council. A total of 202 councillors make up the new Buckinghamshire Council, whose key responsibilities include setting a budget for the Council and appointing members to committees.

The new Buckinghamshire Council leader, Martin Tett, reiterated the readiness of his team across the Council amidst the challenges of the current Covid 19 emergency to work together to deal with an unprecedented national emergency situation in protecting, supporting and informing the residents and businesses in Buckinghamshire.

In a related development, Buckinghamshire Council had criticised the Planning Inspectors decision that the former Chiltern and South Bucks emerging Local Plan failed to satisfy the duty to cooperate by finding significant weaknesses and shortcomings in the proposed Local Plan. The emerging Local Plan was submitted for examination in September 2019.

The Planning Inspectors warned that there is a strong likelihood that the strategy would have to be withdrawn, since the Councils preparing the strategy had failed to engage sufficiently with regards to the unmet need of around 8,000 homes in neighbouring Slough.

The Head of Planning and Environment for Buckinghamshire Council had written to the Council on 12 May 2020 to point out the “significant shortcomings” and an “inadequacy of reasoning” in the Inspectors findings, and called for further examination hearing to address criticism of the plan. The Head of the Council’s Planning and Environment noted in the letter that:

“…Your letter correctly anticipated that the Council is disappointed with your initial findings but, having considered the substance of your letter, the Council is equally disappointed with the inadequacy of the reasoning which has led you to your initial findings…”

The Council’s letter also noted that the Inspector had failed to correctly apply the duty to cooperate, a legal requirement. Consequently, the Council stated that it would address the “significant shortcoming” in the Inspectors’ letter in due course.

Concerning the initial finding of the Inspectors on “the significant weakness”, the Council noted that the Inspectors had demonstrated that this was not an issue which can be dealt with appropriately exclusively on paper, hence, they require that the matter and the substance of the Inspectors response be dealt with at a hearing. Thus, the Inspectors responded in their letter to the Council dated 20 May 2020 that they acquiesce to that request.

However, the Inspectors reacted to the Council’s preference to have discussion in person with them rather than  a virtual event online, but stated that it may be many weeks or months before they can hold a hearing of the type envisaged by the Council.

We hope that residents, communities, and businesses will start to see more and more benefits of having a unitary council. More joined up local services, one single organisation serving them, more investment in local priorities and a stronger, louder unified voice to champion the Council at a national level.

It is not clear when the Council would adopt a unified Local Plan or whether the existing Local Plans and emerging plans of the former district councils, like that of the former Chiltern and South Bucks presently under examination will for the meantime serve as their development plans, until the Council is able to evolve a unitary development plan.

 

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Rumination 1 – Starting to Plan for Recovery

 

Construction site face mask must be worn sign

As the nation is starting to come back into circulation, we have all been starting to reflect on how we plan for recovery – both professionally and in managing our businesses.

Inevitably the construction industry has been significantly impacted upon by event and will take some time to recover, however it is also true that it is a vital element of the nation’s economic recovery and as such must be at the forefront of leading the charge. In our collective time of reflection, it is obvious that whilst our confinements have been enforced and at times frustrating, there is also the opportunity for space for inspiration, innovation and change in work practices to emerge as better versions of our pre-COVID selves, with working practices and lifestyles which are potentially healthier for us, our spaces and places as well as the wider environment and economy.

With daily press conferences, constant news bulletins and policy formulation coming by the day, it is at times hard to keep up with the way our worlds and working practices will be changed, but we’ve consolidated a few of the key elements for you.

London

On 15 May, the Mayor of London, Sadiq Khan, and Transport for London (TfL) announced plans to transform parts of central London into one of the largest car-free zones in any world capital city. At the start of  the lockdown,  road activity fell by almost 60 per cent and emission of nitrogen dioxide was reduced by circa 50 per cent on some London roads. The Congestion Charge and Ultra Low Emission Zone (ULEZ) was reintroduced on 18 May.

On the same day, affordable housing delivery statistics showed 17,256 affordable homes were started by 31 March 2020.  This exceeded the Mayors 17,000 dwelling target.

Robert Jenrick, Secretary of State (SoS) for Housing, Communities and Local Government published two written ministerial statements on construction and planning on 13 May. This guidance included temporary measures to make the planning system easier to operate.

Construction Hours

Some useful and interesting matters were highlighted by the SoS, principally that:

  • Greater flexibility in working hours on construction sites to enable social distancing requirements, including, varied start/finish times
  • Planning conditions should not prevent the safe operation of construction sites
  • Council’s should act proportionately in responding to suspected breaches of planning control and also act positively to requests for flexibility on site working hours
  • Any temporary changes to construction working hours conditions granted by local planning authorities should not extend beyond 13 May 2021

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-05-13/HCWS234/

CiL/S106 Guidance Review

  • The Government will introduce amendments to the Community Infrastructure Levy Regulations 2010 to allow charging authorities to defer payments, to temporarily remove the late payment interest mechanisms
  • A discretion to return interest already charged where appropriate for developers that have an annual turnover of less than £45 million will be allowed.

https://www.gov.uk/guidance/coronavirus-covid-19-community-infrastructure-levy-guidance?pk_campaign=newsletter_3039

Sales

Initiatives on  13 May 2020, sought to:

  • Enable Councils and developers to publicise planning applications via social media instead of site posters and leaflets; and
  • Provide a range of initiatives for sales centres, agents and purchasers to follow to comply with social distancing whilst allowing the sales market to continue.

Appeals & Examinations

Inspectorate announcements were issued on 24 March 2020 regarding:

  • Video conferencing
  • Webcast/recording
  • Electronic bundles

PINs is moving towards a more electronic based system in the knowledge that there will be at least six months of restrictions on gathering and as such they have started looking at elements of:

  • Virtual inquiries
  • Statements of common ground
  • Proofs of Evidence
  • Cross Examination procedures, and
  • Roundtable

The new guidance seeks a more frontload evidence base restriction on documents size and extent of appendices. The Rosewell Review (February 2019), highlighted that the Inquiry process delivers about 20,000 dwellings per annum and acknowledged that it takes on average, about 1 year for an appeal to be determined.

The Inspectorate had just started to introduce case management conferences when the COVID crisis hit, the idea of this was to:

  • Speed up process – 16 weeks plus six weeks for a decision
  • Usual element of cross examinations, but also roundtable sessions lead by the Inspector
  • Case management conferences – new to the planning system but is familiar to other aspects of the courts, providing the opportunity to consider the inquiry structure

The planning bar are set to support PINS to trial inquiries by video conference. As we know, planning committees are now continuing in a virtual manner, some with greater success than others.

On 13 May 2020, the Inspectorate also announced that it was to recommence site visits and would be holding more digital case events.  Site visits would only take place if the Inspector could attend safely and the case required a site visit.

With regards to digital events, the guidance is that:

  • “hearings and inquiries for different types of casework (e.g. planning appeals, national infrastructure, local plans etc) [be] held via telephone or video conferencing the Inspector may need to ask questions or hear cross examination for complex issues
  • there is high level of public interest and a public event needs to be held
  • where the legislation governing casework requires, such an event can be held in given circumstances (e.g. national infrastructure and local plan examinations)

We understand that the first fully digital hearing took place on 11 May 2020 as a pilot, and there are a further 20 examinations, hearings and inquiries proposed for May and June 2020. There are also two Local Authorities for who trial Local Plan hearing sessions are being considered.  If successful, this will be rolled out for all examinations.

We have to question whether this is a sign of the new way as the Inspectorate acknowledge that any changes made will need to be sustainable in the longer term…. It will be interesting to see how the process evolves.

https://www.gov.uk/government/news/site-visits-to-recommence-and-more-digital-case-events-planned?pk_campaign=newsletter_3040

RTPI

The RTPI has launched papers to guide the planning profession on its response to the pandemic:

When Local Authorities like St Albans have failed to produce a sound local plan since 1994, it is sometimes hard to think that the planning system can be quickly responsive to need.  With the breadth and scope of positive initiatives that have been implemented in the past couple of months, there are however seemingly reasons to be optimistic.

Whilst there are a lot of strategic initiatives taking place to ensure that the planning systems adapts quickly to the current pandemic, (and is perhaps sufficiently versatile to cope with any future pandemics),  there are a number of issues closer to home that we will also have reflect upon. For example,  will our homes (and gardens) need to be designed to facilitate greater homework and recreating? Have we realised that our gym membership really is a waste of money when we can use our home gym or enjoy a run around our local park for free?  Do we need the daily commute? Do we need to work from offices daily arriving at set hours and leaving at set hours? Can we integrate flexibility into our working lives to ensure productivity/enhance productivity in some instances – whilst also ensuring that the office environment and ‘buzz’ is and can be retained? Will flexible hours be increased to manage rush hour queues? Can our lifestyles and environments improve as we travel by car less and utilise virtual means for connecting? All these such issues will affect how we plan for future new development…

With  us all being used to a new way of interacting, the development sector starting to gear back up again,  and  the sales market being progressed in line with social distancing measures, we have to hope that these seedlings of a return to our new normal develop and grow into green shoots and prosper….strange but interesting time to come….

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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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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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The Liberal Democrat Manifesto 2019

 

As part of our election series, with the General Election just around the corner, the Liberal Democratic Party published its manifesto in November 2019. The key pledges made which are of most significance to the planning profession are set out below:

Environment

  • Require all companies registered in the UK and listed on UK stock exchanges to set targets consistent with the Paris Agreement on climate change and to report on their implementation, and establish a general corporate duty of care for the environment and human rights
  • Establish a Department for Climate Change and Natural Resources, appoint a cabinet-level Chief Secretary for Sustainability in the Treasury to coordinate government-wide action to make the economy sustainable resource-efficient and zero-carbon, and require every government agency to account for its contribution towards meeting climate targets
  • Establish UK and local Citizens’ Climate Assemblies to engage the public in tackling the climate emergency
  • Create a statutory duty on all local authorities to produce a Zero Carbon Strategy, including plans for local energy, transport and land use, and devolve powers and funding to enable every council to implement it
  • Guarantee an Office of Environmental Protection that is fully independent of government and possesses powers and resources to enforce compliance with climate and environmental targets
  • Increase government expenditure on climate and environmental objectives, reaching at least five per cent of the total within five years
  • Support investment and innovation in zero-carbon and resource-efficient infrastructure and technologies by creating a new Green Investment Bank and increasing funding for Innovate UK and new Catapult innovation and technology centres on farming and land use and on carbon dioxide removal
  • Implement the UK’s G7 pledge to end fossil fuel subsidies by 2025 and provide Just Transition funding for areas and communities negatively affected by the transition to net-zero greenhouse gas emissions
  • Introduce a Nature Act to restore the natural environment through setting legally binding near-term and long-term targets for improving water, air, soil and biodiversity, and supported by funding streams of at least £18 billion over five years
  • Combat climate change, and benefit nature and people by coordinating the planting of 60 million trees a year and introducing requirements for the greater use of sustainably harvested wood in construction
  • Invest in large scale restoration of peatlands, heathland, native woodlands, salt marshes, wetlands and coastal waters, helping to absorb carbon, protect against floods, improve water quality and protect habitats, including through piloting ‘rewilding’ approaches
  • Reduce basic agricultural support payments to the larger recipients and redeploy the savings to support the public goods that come from effective land management, including restoring nature and protecting the countryside, preventing flooding and combating climate change through measures to increase soil carbon and expand native woodland
  • Introduce a National Food Strategy, including the use of public procurement policy, to promote the production and consumption of healthy, sustainable and affordable food and cut down on food waste
  • Support producers by broadening the remit of the Groceries Code Adjudicator and supporting them with access to markets
  • Significantly increase the amount of accessible green space, including protecting up to a million acres, completing the coastal path, exploring a ‘right to roam’ for waterways and creating a new designation of National Nature Parks
  • Give the Local Green Space designation the force of law

Housing

  • Promote longer tenancies of three years or more with an inflation-linked annual rent increase built-in, to give tenants security and limit rent hikes
  • Improve protections against rogue landlords through mandatory licensing
  • Allow local authorities to increase council tax by up to 500 per cent where homes are being bought as second homes with a stamp duty surcharge on overseas residents purchasing such properties
  • Build new houses to zero-carbon standards and cut fuel bills through a ten-year programme to reduce energy consumption from all the UK’s buildings
  • Devolve full control of Right to Buy to local councils
  • Help young people into the rental market by establishing a new Help to Rent scheme to provide government-backed tenancy deposit loans for all first-time renters under 30
  • Promote longer tenancies of three years or more with an inflation-linked annual rent increase built-in, to give tenants security and limit rent hikes

Affordable Housing

  • Build at least 100,000 homes for social rent each year and ensure that total housebuilding increases to 300,000 each year
  • Help finance the large increase in the building of social homes with investment from our £130 billion capital infrastructure budget
  • Help people who cannot afford a deposit by introducing a new Rent to Own model for social housing where rent payments give tenants an increasing stake in the property-owning it outright after 30 years
  • Set clearer standards for homes that are socially rented
  • Require complaints to be dealt with in a timely manner
  • Proactively enforce the regulations that are intended to protect social renters
  • Fully recognise tenant panels so that renters have a voice in landlord governance

Renewable Energy

  • Accelerate the deployment of renewable power, providing more funding, removing the Conservatives’ restrictions on solar and wind and building more interconnectors to guarantee security of supply; we aim to reach at least 80 per cent renewable electricity in the UK by 2030
  • Expand community and decentralised energy, support councils to develop local electricity generation and require all new homes to be fitted with solar panels
  • Ban fracking because of its negative impacts on climate change, the energy mix and the local environment
  • Support investment and innovation in cutting-edge energy technologies, including tidal and wave power, energy storage, demand response, smart grids and hydrogen
  • Provide an additional £12 billion over five years to support these commitments, and ensure that the National Infrastructure Commission, National Grid, the energy regulator Ofgem, and the Crown Estate work together to deliver our net-zero climate objective

Lower Energy Bills

  • Cut energy bills, end fuel poverty by 2025 and reduce emissions from buildings, including by providing free retrofits for low-income homes, piloting a new subsidised Energy-Saving Homes scheme, graduating Stamp Duty Land Tax by the energy rating of the property and reducing VAT on home insulation
  • Empower councils to develop community energy-saving projects, including delivering housing energy efficiency improvements street by street, which cuts costs
  • Require all new homes and non-domestic buildings to be built to a zero-carbon standard (whereas much energy is generated on-site, through renewable sources, as is used), by 2021, rising to a more ambitious (‘Passivhaus’) standard by 2025
  • Increase minimum energy efficiency standards for privately rented properties and remove the cost cap on improvements
  • Adopt a Zero-Carbon Heat Strategy, including reforming the Renewable Heat Incentive, requiring the phased installation of heat pumps in homes and businesses off the gas grid, and piloting projects to determine the best future mix of zero-carbon heating solutions

Transport

  • Investing in public transport, buses, trams and railways to enable people to travel more easily while reducing their impact on the environment
  • Placing a far higher priority on encouraging walking and cycling – the healthiest forms of transport
  • Accelerating the transition to ultra-low-emission transport – cars, buses and trains – through taxation, subsidy and regulation
  • Committed to completing HS2
  • Freeze train fares, with a fare-freeze for all peak times and season tickets

Reduce the Need for Car Travel

  • Give new powers to local authorities and communities to improve transport in their areas, including the ability to introduce network-wide ticketing, like in London
  • Implement, in cooperation with local authorities, light rail schemes for trams and tram-trains where these are appropriate solutions to public transport requirements
  • Restore bus routes and add new routes where there is local need; we will provide £4.5 billion over five years for this programme
  • Introduce a nationwide strategy to promote walking and cycling, including the creation of dedicated safe cycling lanes, increasing spending per head five-fold to reach 10 per cent of the transport budget
  • Build on the successful Local Sustainable Transport Fund established by the Liberal Democrats when in government, and workplace travel plans, to reduce the number of cars – particularly single-occupancy cars – used for commuting and encourage the development of car-sharing schemes and car clubs and autonomous vehicles for public use
  • Amend planning rules to promote sustainable transport and land use

Infrastructure

  • Investment in infrastructure in rural and coastal communities by providing the following:
  • Set up a £2 billion Rural Services Fund to enable the co-location of services in local hubs around existing local infrastructure
  • Invest in bus services by:
  • Substantially increasing funding for buses, enabling local authorities to restore old routes and open new ones
  • Supporting rural bus services and encouraging alternatives to conventional bus services where they are not viable
  • Encouraging local authorities to use their new powers under the Bus Services Act, including franchising powers and repealing the rule preventing local councils from running their own bus companies
  • Providing funding to accelerate the transition to electric buses
  • Ensure that all households and businesses have access to superfast broadband (30Mbps download and 6Mbps upload)
  • Invest £2 billion in innovative solutions to ensure the provision of high-speed broadband across the UK, working with local authorities and providing grants to help areas replicate the success of existing community-led projects
  • Invest in mobile data infrastructure and expand it to cover all homes
  • Launch a National Fund for Coastal Change, to enable local authorities to properly manage their changing coastlines
  • Reform planning to ensure developers are required to provide essential local infrastructure from affordable homes to schools, surgeries and roads alongside new homes.

Read our key points from the Conservative and Labour Manifesto.

Visit our blog again soon when we will give our opinion of the General Election results.

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Legal Beagle – August 2019 edition

 

11 casework reviews – Allowed or Dismissed?

Welcome to the Urbanissta Legal Beagle’s casework reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgements and decisions that might be useful to you, day-to-day.

Here are 11 recent planning appeals, giving you insights into the latest precedents:

Case 1:

LB Lambeth v SoS for Housing Communities and Local Government and Others
[2019] UKSC 33

This is an unusual but interesting case about planning permission granted under
section 73, that is without complying with conditions imposed by an earlier
permission.

Despite going all the way to the Supreme Court it is not possible to say precisely how the law in this area has been developed by this case. The case concerns a Homebase in Streatham.

Permission was originally granted for its erection in 1985 and that permission had a condition, number 6 attached which restricted the use to the sale of DIY goods only and no other purposes, including any purpose in Class I of the 1972 Use Classes Order then in force. The effect of this was to restrict food sales, amongst other things. The reason given was because of the greater traffic likely to be attracted to a large retail store without such a restriction.

In 2010 permission was granted for a variation of condition 6 (1985) so as to allow for the sale of a wider range of goods but still not including food. The new restrictions were set out in condition 1 (2010). The reason for the condition was again the concern about traffic generation.

In 2014 the Council granted permission under section 73 for what it intended to be a further loosening of restrictions on what may be sold from the store whilst still preventing the sale of food. However, it sought to do this not by imposing a condition on the 2014 permission restricting the goods that may be sold but by specifying the goods that may be sold in the description of the development in the body of the decision, in these terms:

The retail unit hereby permitted shall be used for the sale and display of non- food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking or re-enacting that Order with or without modification), for no other goods.

There were only 3 conditions attached to this permission (that development must be begun within 3 years; details of the staff car parking, and requiring a traffic survey within 12 months). Crucially, the 2014 permission did not repeat Condition 1 or any of the other conditions from the 2010 permission. Spotting that there was, therefore, no condition restricting what may be sold from the store, the developer applied for a CLOPUD under section 192 TCPA for unrestricted use of the store. The Council refused the application but an appeal to the Secretary of State was allowed. The SoS granted a certificate of lawfulness of proposed use for:

The use of the premises … for purposes within Use Class A1 of the Town and Country Planning (Use Classes) Order 1987 (as amended) without restriction on the goods that may be sold.

The reason given by the SoS was that no condition had been imposed on 2014 permission to restrict the nature of the retail use to specific uses in Class A1. The problem for Lambeth arose because of the effect of sections 171A and 55(2)(f) TCPA 1990. The former defines a breach of planning control as either carrying out development without planning permission or failing to comply with a condition or the limitation imposed; the latter provides that use of land or buildings for a different purpose within the same Use Class is not development. The consequence of this is that, so long as the change from one retail use to another remained within the same Use Class (A1), it would not amount to development and, because the purported restrictions on what may be sold in the 2014 permission were not included within a condition, nor would it amount to a breach of condition.

The Council’s challenges to the Secretary of State’s award of the certificate were unsuccessful in the High Court and the Court of Appeal. An interesting feature of this case is that, throughout its passage through these courts, it was clear that everybody knew what Lambeth was trying to do, to restrict sales from the store, particularly of food. But it was held that because they had not sought to achieve that aim by the conventionally accepted way of imposing a condition on the section 73 permission their intention had not been articulated so as to have legal effect. In short, the faulty drafting of the 2014 permission had allowed unrestricted permission to arise and there was nothing the courts could do about it. The Supreme Court did do something about it, however.

Lord Carnwath, with whose judgment the other Law Lords and Lady agreed, began by noting that section 73 applications are often made and granted for development that has already taken place, as in this case. What section 73 does not do is to say what is to happen if an LPA wishes with the grant of new permission to change some conditions but to leave others in place, although there is guidance (and common practice – not followed by Lambeth in this case) that the LPA should repeat the relevant conditions from the original permission.

Under the heading ‘Principles of interpretation,’ Lord Carnwath found that whatever the legal character of the document in question the starting point is to find the ‘natural and ordinary meaning’ of the words used in that document in their context and in light of common sense. With this in mind, he found essentially that the 2014 planning permission has to be read at face value. When this is done it is ‘clear and unambiguous’ that what the council was approving was the ‘variation of one condition from the original wording to the proposed wording, in effect substituting one for the other’. There was nothing, he went on, to indicate an intention to remove the restriction on the sale of other than non- food goods.

Lord Carnwath also noted that the suggested difficulties of interpretation did not arise from any ambiguity in the 2014 permission itself, rather from the supposed inconsistencies, firstly with the statutory context of section 73, and secondly with the treatment of the other conditions in the remainder of the permission document. Addressing the first difficulty, the Court found that since it was common ground that the 2014 permission was for something, it never having been suggested otherwise, the permission must be taken as it is (ie how it was written without a separate condition restricting use). Any reasonable reader, mindful of the common but legally inaccurate understanding of section 73 as conferring a power to ‘vary’ or ‘amend’ the condition would see no conflict with section 73, notwithstanding the absence of a reason for the condition.
In respect of the second difficulty, Lord Carnwath did acknowledge some ‘internal inconsistencies’ in the way the 2014 permission had been worded, particularly the second part of it, but found that reading the document as a whole it could be given sensible meaning without undue distortion.

In short, the Court held that a reasonable reader would read the 2014 permission as simply varying the original permission subject to the additional 3 conditions. The fact that the main change in what may be sold was articulated in the description of development rather than by being controlled by a condition ultimately did not matter, in the SC’s judgment. The Judgment then goes on to give some comment on the other relevant 2010 conditions which had not been repeated in the 2014 permission. It was argued that, although these had not been incorporated into the new permission, they continued to have an effect so far as they were not inconsistent with anything in the 2014 permission. The Court accepted this as correct, although noting that it was always a matter of construction whether later permission is compatible with the continued effect of the earlier permission for the same piece of land. Lord Carnwath put it this way: Accordingly, they would remain valid and binding – not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation. It is possible that these remarks may cause difficulties in the future where, for example, there are a number of permissions for a site and it may be difficult to ascertain which of the former conditions still apply. I also consider that this undermines the view that a section 73 permission, like any other permission, must be capable of being understood on its own terms without the reader having to undertake extensive planning detective work to be clear about what conditions still apply. That said, and this is what in my opinion is unusual about this case, Lord Carnwath then repeats the advice as currently set out in the PPG that when issuing a fresh permission under section 73 all relevant former conditions from the earlier permission should be repeated in the new.

Download Decision here: LB Lambeth v SoS for Housing and Communities and Local Government

Case notes provided by our guest barrister, Giles Atkinson of 6 Pump Court.

Case 2:

Case re: CO/2135/2018
Decision date: 13th December 2018
Claimant: Giodarno Ltd
Defendant: London Borough of Camden

The claimant, Giordano Limited, is the owner of a six-storey building used for offices and warehousing in Windmill Street in the London Borough of Camden had obtained planning permission to convert it into six flats back in 2011. At that point, Camden Council did not require a CIL payment, the court heard.

The planning permission was implemented and remained extant, but this had not been completed and the building remained vacant and uninhabitable. The owner later decided to apply for a planning application to develop three larger flats, rather than six smaller ones and was granted planning permission for that development in June last year.

However, the council then issued a formal liability notice in January this year demanding a CIL payment of £547,419.09.

In challenging the bill by way of judicial review in the High Court, the owner argued that it was exempt from having to pay CIL by operation of Regulation 40(7)(ii) of the CIL Regulations 2010 because the property was already in residential use.

The issue in the claim is whether, on a proper interpretation and application of regulation 40(7) of the Community Infrastructure Levy Regulations 2010 as amended ‘CIL Regulations’, the Claimant is liable for CIL.

According to the judgement, regulation 40(7)(ii) excludes CIL liability where a development’s existing use is ‘able to be carried on lawfully and permanently without further planning permission’.

The developer claimed that although the works permitted by the six-flat permission had not been completed, it had been validly implemented and the residential use of the building had thus been established.

However, Camden Council argued that the building was not in residential use at the time of the 2017 permission, so no exemption could be made.

The court held that the Council was correct to conclude that the claimant did not satisfy the conditions in regulation 40(7)(ii) for a statutory deduction, despite the confusing wording of its letter.

In dismissing the claimant’s arguments, however, Mrs Justice Lang noted that, at the time that the permission for the three-flat was granted, the building was a ‘mere shell’ without any of the facilities required to make it fit for habitation.

The fact that no actual residential use had by then occurred was the very reason why the owner had to apply for planning consent in respect of the three-flat development, the judge said, rather than relying on permitted development rights allowing offices and warehouses to be converted into housing.

The Court ruled that the development could not have been carried through lawfully without further planning permission and therefore the local authority was entitled to charge CIL.

 

Download Decision here: Giordano v London Borough of Camden

Case 3:

PINS Appeal ref: APP/E590685
SGC Planning ref: PA/17/01920
Decision date: 10th June 2019
Appellant: Sainsburys Supermarket Ltd
Respondent: London Borough of Tower Hamlets

Housing secretary James Brokenshire has used his ministerial powers to refuse planning permission for a 471-home redevelopment of a supermarket site in east London – against the advice of his planning inspector. The findings of a planning inquiry into Sainsbury’s proposals for its 3.1 ha site at Whitechapel recommended Brokenshire to approve the proposed scheme.

The housing Secretary said the scheme – which in addition to the homes would also have delivered a replacement supermarket, an energy centre and an educational facility – would have an unacceptable impact on light to existing homes and on neighbouring heritage buildings.

The appeal was recovered for the Secretary of State’s determination on 14th December 2017, in pursuant of Section 79, and paragraph 3 of Schedule 6 of Town and Country Planning Act 1990. The Inspector had recommended that the appeal be allowed, and planning permission be granted for the proposed scheme.

The original proposals for the Sainsbury’s Whitechapel site included a 33-storey tower and would have delivered 559 new homes. The tower was subsequently reduced to 28 storeys, however, Tower Hamlets council rejected the development proposal in 2017. The reasons for the refusal included the “substantial harm” the development will cause to the setting of the nearby Grade 1 Listed Trinity Green Alms-houses.

The subsequent version of the eight-block scheme reduced the height of the tallest element to 14 storeys and trimmed the number of homes. Sainsbury’s appealed Tower Hamlets’ non-determination of this application and planning inspector David Nicholson took evidence on it at an inquiry last October.

The report of the planning inspector stated that the public benefits of the scheme outweighed impacts on local heritage assets, however, had accepted that the scheme would result in an “appreciable reduction in daylight and some significant loss of sunlight” for neighbouring homes.

The Secretary of State in reaching its decision has had to give regard to Section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires that development proposals be determined in accordance with the development plan unless material planning considerations indicate otherwise. As a result, Housing Secretary held that, many existing neighbours would experience “a gloomier outlook than they do at present”, and that a large number of windows would be affected, and this would result in the harmful impact that carried “substantial weight” against the application. He further ruled that, whilst the scheme’s design and public-realm improvements tipped the balance in favour of approval, the heritage impacts and daylight issues will be in conflict with the Borough council development plan and the government’s National Planning Policy Framework (NPPF).

Download Decision here: Sainsbury’s v London of Tower Hamlets

Case 4:

Case re: CO/3276/2018
Decision date: 20th January 2019
Claimant: Gladman Developments Ltd
Defendant: Secretary of State for Housing & Central Bedfordshire Council

A High Court judge has overturned a dismissal at the appeal of land promoter Gladman Development’s plans to build 135 homes in Bedfordshire, ruling that a planning inspector had not given ‘anything like adequate’ reasons for his decision.

The Claimants made an application for planning permission to Central Bedfordshire Council for the development of up to 135 residential dwellings (including up to 35% affordable housing) the
introduction of structural planting and landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation, vehicular access points and other ancillary works at Langford Road, Henlow, Bedfordshire.

The claimants planning application was refused by the Council in October 2016. The Claimants then appealed under Section 78 of the Town and Country Planning Act 1990 and, after a public inquiry, a planning inspector dismissed the company’s appeal against that decision in 2018.

The Claimant made an application to the High Court to challenge the inspector’s decision. As a result, the High Court Judge, Mr Justice Dove has ordered the government to look at the planning application again. The case hinged on a local planning policy – known as ‘DM4’ which strictly limits developments outside existing settlement boundaries.

Gladman contended that there were a number of reasons why policy DM4, and other relevant policy in the Council Core Strategy conflicts with the National Planning Policy Framework, hence, should be afforded less weight or treated less irrelevant to the merits of the development proposal. However, the inspector ruled that the policy was not out of date and that its ‘underlying objectives still hold good’. He gave moderate weight to policy DM4 and declined to apply a ’tilted balance’ in favour of the development.

Overturning that decision, Mr Justice Dove ruled the inspector had not given ‘anything like adequate’ reasons for refusing planning consent and made reference to an earlier planning appeal, concerning a proposed housing development in Meppershall, where another inspector had ruled policy DM4 out of date. The inspector in the Henlow case was obliged to explain why he had reached a different conclusion on ‘precisely the same issue’. He had stated that ‘Where there is a basis for the earlier decision to be distinguished or departed from, then that reason must be identified.’

The Judge found that the inspector did provide ‘anything like adequate’ reasoning to explain why he was distinguishing or departing from the Meppershall decision.

‘He simply did not grapple’ with the issue of whether strict adherence to DM4 would frustrate the council’s ability to achieve a five-year supply of new housing sites.

In overturning the inspector’s decision, the judge also pointed to inconsistencies between policy DM4 and the National Planning Policy Framework.

The ruling means that the Ministry for Housing, Communities and Local Government will have to consider Gladman’s planning application afresh.

Download Decision here: Gladman v Secretary of State for Housing – Central Bedfordshire

Case 5:

Case re: C1/2018/1755
Decision date: 16th May 2019
Appellant: Wiltshire Council
Respondent: Cooper Estates Strategic Land Ltd & Richard Gosnell Royal Wootton Bassett Town Council

The Court of Appeal 6 has overturned the registration of a site in Royal Wootton Bassett in Wiltshire as a town or village green (TVG) after a judge decided that the land had been identified for development in the council’s local plan and was therefore not entitled to the protected status.

The ruling was a victory for the landowner, Cooper Estates Strategic Land, and a costly defeat for Wiltshire Council.

The essentials of a Town and Village Green (TVC) is defined in Section 15 of the Commons Act 2006 are that it consists of land where:  ‘a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years’.

In April 2016, a local campaigner, Mr Richard Gosnell, applied to register the 380 square metre plot, off Vowley View and Highfold, Royal Wootton Bassett as a TVG in 2016. However, Cooper Estates Strategic Land Ltd who owns the land objected to the application on the ground that it was precluded by Section 15C of the Commons Act 2006. However, the council agreed and approved the application.

The grounds for the objection was that the land had been identified for potential development in an adopted development plan document. Accordingly, a trigger event as defined in paragraph 4 of the table had occurred, and there had been no terminating event in relation to that trigger event.

The Council decision was overturned by planning judge, David Elvin QC, in 2018 and the Court of Appeal has now finally overturned the registration.

Having lost its appeal, the court ordered Wiltshire Council to pay £43,000 of legal costs accrued by Cooper Estates in fighting the registration. The case hinged on whether the plot had been identified for potential development in the local development plan, which, under the Growth and Infrastructure Act 2013, would prevent its recognition as a TVG.

Lord Justice Lewison said the plot was not one of 16 strategically important sites specifically
earmarked for housing development in Wiltshire Council’s adopted core strategy. However, the local plan set a target for more than 1,000 new homes to be built within the boundaries of Royal Wootton Basset by 2026. There was ‘a presumption in favour of sustainable development’ within the town, added the judge, who was sitting with Lords Justice Floyd and Henderson.

A map showed the plot lying ‘on the edge of the settlement boundary’ but an adjacent site, outside the boundary, had already been developed for housing.

Dismissing the council’s appeal, the judge concluded ‘In the present case, the development plan
document does show that the land is identified for potential development.’  The plan stated in clear terms that suitable sites within the town would be developed, and that ‘necessarily implied’ that they had been identified for potential development. It is clear from the development plan that the planning authority envisaged that, during the currency of the development plan, over 1,000 new homes would be needed in Royal Wootton Bassett.

The Judge held that to allow the registration of a TVG within the settlement boundary would frustrate the broad objectives of the plan.

This case is believed to be the first in which new rules relating to TVG registrations that were
introduced by the Growth and Infrastructure Act 2013 have come under judicial analysis.

Download Decision here: Wiltshire Council v Cooper Estates Strategic Land Ltd

Case 6:

PINS Appeal ref: APP/P0119/W/17/3189592
SGC Planning ref: PT17/2006/O
Appellant: Bovis Homes
Respondent: South Gloucestershire Council

Permission for 370 homes in the open countryside near Thornbury in Gloucestershire has been
refused by an inspector who ruled that likely harm to nearby listed buildings put the development at odds with the National Planning Policy Framework (NPPF).

Housebuilder, Bovis Homes submitted outline plans to South Gloucestershire Council in April 2017 for the demolition of agricultural buildings and the development of the homes plus a 460 square metre community facility, public open space and associated infrastructure.

The developer subsequently lodged an appeal against non-determination by the local authority. The appeal was held in January and February of 2019 and has now been dismissed by Planning inspector George Baird. South Gloucestershire Council has since indicated to planning inspector George Baird that the application would have been refused.

The reasons given by the Council included: conflict with the council’s core strategy; the scheme’s
potential to undermine growth proposed by the draft West of England joint spatial plan; impact on heritage assets; landscape character and visual amenity; and the walking distance to local facilities.

Bovis had argued that the NPPF’s ‘tilted balance’ in favour of sustainable development applied
because the council’s strategic housing policies were out of date and the NPPF’s policies on
protecting heritage assets do not provide a reason for the refusal.

However, the inspector advised that if harm to a designated heritage asset outweighs the benefits of an application, the NPPF states that its tilted balance would not be engaged, and ‘relevant judgements reiterate that a finding of harm to the setting of a listed building gives rise to a strong presumption against planning permission being granted’.

South Gloucestershire Council had raised concerns about impact on the significance of four listed buildings. The inspector found the scheme would result in varying degrees of less than substantial harm to these buildings and ‘would materially and significantly alter the relationship of these buildings’ with the surrounding area.

The inspector acknowledged the proposal ‘would provide public benefits, particularly in the provision of market and affordable housing, to which I attach significant weight.’

However, the inspector concluded that ‘on balance, the weight that attaches to those benefits does not outweigh the strong presumption against permission being granted and the great weight afforded to the conservation of Morton Grange, Yew Tree Farmhouse, Old Malthouse, Malt Cottage and Manor Farmhouse. Thus, as this scheme fails the Framework paragraph 196 test this disengages the … tilted balance.’

Download Decision here: Bovis Homes v South Gloucestershire Council

Case 7:

Case re: CO/975/2018
Decision date: 16th January 2019
Claimant: Bright Horizons Family Solutions Ltd
Defendant: Secretary of State for Communities and Local Government
Interested Party: Watford Borough Council

A children’ s nursery has failed in its bid to overturn a refusal of consent for two portable buildings on its site after a judge ruled that the premises are not a ‘school’ and therefore does not benefit from permitted development (PD) rights allowing it to expand.

Bright Horizons Family Solutions runs the nursery in a detached former home at 3 Park Avenue,
Watford, where its premises, which have been in use as a nursery since 1997, are a three-storey
former dwelling house in a suburban development of similar houses, mostly Edwardian in date.

The company had previously applied to Watford Borough Council (the interested party) for a
Certificate of Lawful Development in respect of a proposed development by the installation of two linked portable cabins in the garden of the premises, to increase the indoor space available for the nursery. However, Bright Horizons did not wait for a decision before putting the portable buildings in place.

In March 2017, the council refused to grant a certificate and that decision was upheld by planning inspector, Paul Dignan, in January last 2018 and ruled that the nursery is not a school and that provisions within the General Permitted Development Order (GPDO) which enable schools to expand into their grounds without the need for planning permission did not apply to the portacabins.

Bright Horizons challenged that decision at the High Court, insisting that the nursery is
‘predominantly used for education’ and should be categorised as a school.

The High Court Judge, Mark Ockelton dismissed the Claimant appeal and found that the inspector had correctly interpreted the GPDO. He stated that the word ‘school’ in common parlance, indicates an institution where children receive a general education on a considerable number of days a year. He held that the provision of education does not necessarily make an institution a school.  The judge also noted that ‘although riding elephants may be educational, that does not mean that a zoo is a school.’

The commonly used phrase ‘school-age’ encompasses the period of a child’s life when he or she is required by law to attend school. Similarly, the phrase ‘pre-school’ is frequently applied to nurseries and other institutions which provide for children below compulsory school age. He observed that, if an estate agent told a house hunter that at the end of the road there was a good school, the latter would not expect to find a nursery school, however good.

In his judgment, the Judge held that the unqualified use of the word ‘school’ does not in its ordinary meaning include a nursery and rejects the claimant appeal.

The proposition that PD rights that benefit schools apply to all nurseries, or even all registered
nurseries were misplaced.

The rejection of Bright Horizons’s appeal means that the portable buildings were installed in breach of planning control. It will now be for the council to decide whether to grant retrospective planning consent or to take action to enforce the portacabin’s removal.

Download Decision here: Bright Horizons Family Solutions Ltd v Secretary of State for Communities and Local Government

Case 8:

Case re: C1/2017/2947
Decision date: 25th January 2019
Appellants: Emily Shirley and Michael Rundell
Respondent: Secretary of State for Housing, Communities and Local Government
Interested Parties: Canterbury City Council & Corinthian Mountfield Ltd.

The Court of Appeal 8 has ruled that the housing secretary is under no general duty to exercise his planning powers to ensure that particular developments do not breach European air quality standards, opening the way for construction of 4,000 new homes on the outskirts of Canterbury. Canterbury City Council in Kent resolved to grant planning permission for the development off New Dover Road.

This was in the light of a pressing need for more homes in the area and after developers, Corinthian Mountfield Ltd had agreed to spend £3.7 million on air quality measures, including an air monitoring regime, the installation of electric vehicle charging points and the provision of one electric bicycle per dwelling.

The appellants were local campaigners and had appealed against an order dated 23rd
September 2017, dismissing their claim for judicial review of the decision of the respondent, the
Secretary of State, on 29th December 2016, not to call in under section 77 of the Town and Country Planning Act 1990 an application for planning permission for 4,000 dwellings and other development on land at New Dover Road, to the south-east of the city. The interested parties are the local planning authority, Canterbury City Council, and the applicant for planning permission, Corinthian Mountfield Ltd.

They had challenged the secretary of state’s refusal to call in the planning application for central government determination. They argued that the decision not to call it in, was irrational and a breach of his obligations under European Union Directive 2008/50/EC, known as the Air Quality Directive (AQD), and the Air Quality Regulations, known as the regulations, which places a duty on member states to achieve nitrogen dioxide reduction targets in as short a time as possible.
A judicial challenge brought by appellants was, however, dismissed by the High Court. In rejecting their challenge to that ruling, Lord Justice Lindblom noted that air quality is a material planning consideration and can in some cases prove decisive.

However, the Judge held that there was no authority to support the view that the secretary of state was constrained to exercise his very wide discretion in favour of calling in the planning application. Neither the AQD nor the regulations had the effect of narrowing that discretion or transforming it into a duty.

The judge, sitting with Lords Justice Singh and Coulson, also rejected arguments that, as the ‘competent authority’ tasked with enforcing the AQD, the secretary of state owed a general duty to use his powers in respect of individual planning applications to avoid the worsening or prolongation of breaches of prescribed nitrogen oxide limits. His principal duty under the AQD was to prepare and implement a compliant air quality plan.

In addition, the court ruled, the secretary of state’s decision was neither irrational nor perverse, in that he was aware that the council could reconsider the planning application, taking into account any further representations made to it by objectors.

The council had confirmed that it would carry out such reconsideration and would pay particular attention to the likely effects of the development on air quality.

The judge noted that the court’s interpretation of the AQD was clear and that it was thus not necessary to refer the case to the European Court of Justice.

Download Decision here: Shirley & Anor v Secretary of State for Housing, Communities and Local Government

Case 9:

Case re: CO/3140/2018
Decision date: 8th February 2019
Claimant: Mark Jopling
Defendant: Richmond-Upon-Thames London Borough Council and Secretary of State for
Communities and Local Government
Interested Party: Quantum Teddington LLP

Campaigners have scored a High Court 9 victory against a council’s decision not to designate playing fields in west London as a local green space, after a judge ruled that the authority had carried out a ‘plainly inadequate’ and ‘manifestly unfair’ public consultation on the matter.

The Claimant, Mr Mark Jopling challenged the adoption by the First Defendant, Richmond upon Thames London Borough Council (‘the Council’) on 3rd  July 2018 of a Local Plan (‘the Plan’) on the principal ground that a procedural requirement was not complied with, pursuant to s 113 (3)(b) of the Planning and Compulsory Purchase Act 2004 (‘the Act’). The Council does not defend the claim nor does the Second Defendant the Secretary of State for Housing, Communities and Local Government, whose inspector (‘the Inspector’) carried out the statutory examination of the Plan prior to adoption. That examination led to his report dated 26th April 2018 (‘the report’).

The five hectares Udney Park Playing Fields (UPPF) at Teddington were donated to St Mary’s Hospital Medical School by press baron, Lord Beaverbrook, in 1937, but have been owned by a property developer, Quantum Teddington LLP, since 2015, the High Court in London heard. Whilst preserving much of the fields for sporting activities, the company hopes to build 107 flats and a doctor’s surgery on the site. However, the development was opposed by the London Borough of Richmond Upon Thames.

The central issue, in this case, relates to the putative designation by the Council of the Site as Local Green Space (LGS) at a Cabinet Meeting on 13th December 2016. That followed an application for such a designation made by Claimant on behalf of the Teddington Society and the Friends of UPPF (‘FUPP’) which latter organisation he represents in these proceedings. That designation was incorporated into the draft local plan to be submitted thereafter for examination by the Inspector.

At the behest of the campaign group, Friends of UPPF, the council had proposed to designate the playing fields as a local green space in its draft local plan. However, the inspector who carried out the statutory examination of the plan put forward a number of modifications in his April 2018 report to the council.

One of which rejected the field’s designation as a local green space and, whilst disagreeing with him on that point, the council considered itself bound by the report. The end result was that, when the plan was adopted in July last year, the fields were not designated as such. Hence, the Claimant, a member of friends of UPPF Challenged the plan and argued that a procedural requirement had not been complied with.

The modifications proposed by the inspector, which was later circulated for public consultation, did not make clear that they included the de-designation of the fields as a local green space and as a result, the Claimant and other objectors to the proposed development claim that they were not given a proper opportunity to make representations on the point.

The High Court Judge upheld the Claimant’s arguments and held that the public consultation exercise was ‘plainly inadequate’ mainly because it was not clear what was being consulted upon and that, Friends of UPFF had only ‘a very limited opportunity to comment’ on the designation issue. The Judge ruled that ‘The process was manifestly unfair’. He also added that it was ‘certainly conceivable’  that the outcome would have been different had the Claimant been given a proper opportunity to take part in the consultation.

The judge said he would hear further argument as to the relief that Claimant should be granted in the light of his ruling.

Download Decision here: Mark Jopling v Richmond Upon Thames London Borough Council & Secretary of State for Housing, Communities and Local Government

Case: 10

Case re: CO/1279/2018
Decision date: 16th November 2018
Claimant: David Smith-Ryland
Defendant: Warwick District Council

A Warwickshire farmer has failed in a High Court effort to overturn a council’s decision to
discharge a planning condition stipulating that the developer of a neighbouring barn conversion must install acoustic fencing to prevent possible noise complaints from future residents of the property.

Alan Murdoch was granted planning permission for conversion of the barn into residential units in April 2016, subject to a condition that required him to install acoustic fencing to meet the concerns of neighbour David Smith-Ryland, (Claimant) of Plestowes Farm, Barford. The Claimant concern is that any residential occupiers of one of the Barn could bring noise nuisance claims in relation to the use of Its farming tools (dryers) and that the local planning authorities could serve noise abatement notices.

An application for judicial review was brought by the claimant, against the decision of the defendant, Warwick District Council to discharge condition 3 imposed on the planning permission granted on 26th April 2016 which stipulates that acoustic fencing had to be sound-proof enough to ensure that new residents of the barn would not suffer ‘unacceptable disturbance’.

The claimant owns a mixed organic farm involving cattle and grain in Barford, Warwick. On the farm is a shed for 120 cattle, a grain store and a fan shed. The neighbouring property belongs to Alan Murdoch (the interested party) and on the land are three Barns, namely Barn 1, Barn 2 and the long Barn. Barn 1 was used as offices but has planning permission to develop for residential use, subject to condition 3 which is the subject matter for the judicial challenge. The claimant farm operates two dryers both internally and externally, for the drying of grain.

Council planners discharged the condition after Alan Murdoch said (interested party) he would install a fence recommended by acoustic experts. Officers found that the proposed fence would deliver ‘an acceptable acoustic environment’. At the High Court, Smith-Ryland’s lawyers argued that the fence proposed by Murdoch would have been ‘non-compliant’ with the condition had it remained in place. The lifting of the condition meant he would still be exposed to noise nuisance complaints, said his barrister, Paul Cairnes QC.

But dismissing the farmer’s challenge, Mr Justice Jay said that it is clear law that a decision-maker must have regard to relevant considerations and the weight to be given to such considerations is for the planning authority. In this case, a council environmental health officer who approved the fence had clearly taken noise levels into account.

The Judge was quick to remind himself that this was an application for judicial review and not a
Wednesbury challenge in the sense of being a pure irrationality challenge. The Court held that the issue of what would or would not be an ‘unacceptable disturbance is a contextual one involving the application of a planning judgement that cannot be conceptualised in purely mechanistic or numerical terms’.

The council’s decision to lift the condition had not been attacked as irrational and the judge could detect no legal flaw in its conclusions, hence, the Claimant judicial review application was dismissed.

Download Decision here:  David Smith-Ryland v Warwick District Council

 

Case 11:

Appeal re: C1/2018/2122
Appeal Decision date: 24th May 2019
Appellant: Ms Nicola Squire
Council: Shropshire Council

The recent Court of Appeal decision in Squire v Shropshire Council on appeal from the
Administrative Court, Planning Court and Mr Rhodri Price Q.C sitting as a deputy judge of the High Court is an interesting case. It emphasised the need for LPA to properly assess the
environmental effects of odour and dust that would be generated by a development proposal on third parties land.

This case involves the development proposal for the erection of four poultry buildings and associated development at Footbridge Farm, Tasley, near Bridgnorth. Mr Bower was the owner and the applicant for the planning permission and intends to erect the buildings and use them for intensive rearing of poultry. An environmental permit was granted by the Environmental Agency in April 2017.

The development proposal was objected to by Ms Squire a local resident, whose primary concern was that the large quantities of manure from the poultry buildings when stored and spread on agricultural land, would cause an unacceptable level of odour and dust. The farm was capable of producing more than 150,000 broiler chickens annually, together with more than 2,300 tonnes of manure to which half would be spread on third-party land, including fields close to residential areas on the outskirts of Bridgnorth.

The development was granted planning permission in 2017. The planning officers commented that the spreading of manure is a common agricultural practice. Although it was likely to cause odour, it would be temporary if the manure was plough in, including the obnoxious smells that would emanate from manure that has been stockpiled would all have been lost once crust had formed.

The terms of the environmental permit that was issued in respect of the development by the
Environmental Agency was stated to be sufficient in addressing odour issues and was reported to the council.

The appellant, Nicola Squire – who lives nearby to one of the fields on which the manure would be spread – mounted a judicial review challenge to the planning permission. A High Court Judge, Rhodri Price Lewis QC, dismissed the case last year.

In upholding the appellant’s appeal against that decision, Lord Justice Lindblom found that Local
Planning Officers who recommended the grant of planning consent had misunderstood the terms of an Environment Agency letter.

The Environment Agency had made clear that an environmental permit in respect of the farm, related only to Bower’s land, and not to any other land on which manure would be spread. Noise and dust external to the boundaries of the chicken farm would not be covered by the environmental permit and it was clearly stated by the Environmental Agency that they would play no role in policing the storage and spreading of manure outside the boundary of the farm.

The primary concern of the Environmental Agency was to ensure the reduction of the risk of manure permeating into ground or surface water and there was no guarantee that the terms of the permit would control odour and dust pollution on third-party land.

The Master of the Rolls, Lady Justice King, held that there had been a failure to adequately assess the environmental impact of the storage and spreading of manure as an indirect effect of the development.

Also, the failure of the officers to expressly recognise the need for meaningful assessment of the likely effect of odour from the disposal of a huge amount of manure that a farm such as this on unidentified, third-party land. Lord Justice Lindblom quashed the planning permission and urged the Council to ensure that, when Bower’s application is to be reconsidered, thorough compliance with environmental law, especially environmental impact assessment is achieved.

Download Decision here: Squire v Shropshire Council

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