Category Archives: Legal

 

COVID-19 Encourages Virtual Planning

 

Quick planning (ish) legal test – do some or all the following mean anything to you – S73, S106, S25, S78?

S73 – develop without compliance with conditions (TCPA – Town & Country Planning Act)

S106 – legal agreement (T&CPA)

S25 – councillors can vote on an application upon which they have expressed a view (Localism Act)

Good (ish) going so far?  What about S78?  Well keen planners out there, S78 (T&CPA) does allow an appeal to be made in relation to an application, but another more recent S78 has far different implications.

S78 of the Coronavirus Act 2020 (1) came into force on the 4th April 2020.  Regulation 5 of said legislation allows local authorities (amongst others) to meet, consider and decide matters away from a single location in person (say the Council Chamber) and effectively convert the time tested tradition of planning applications being determined in the Council chamber,  in person to, wait for it – an online accessible medium.

The single most important benefit for planning is that in this lockdown stay at home environment, planning applications can still be determined by committee and an important end game in the planning system, determination, is not obstructed.

Many planning authorities have been webcasting planning committee meetings prior to the Virus Act, benefits amongst others being:

  • Interested parties including members of the public can observe committee dealings without physical attendance, particularly when committee times vary (2pm, 6pm, 7pm) and may not be conducive to travelling to X or Y Town Hall and having to actually be there.
  • Committee Member’s behaviour can be observed prior to the determination of an applicants’ own application. Spot the silent majority/minority, Cllr A who adores Policy Res1.2 so much that all applications are tied to it, or Cllr B who always seems to reiterate/repeat what Cllr C says.
  • Officer’s behaviour can also be observed. From the methodical, steady presenting officer to the officer who politely reminds the Chair that precedent has been set elsewhere, right through to an officer who was observed being unable weather the storm which many Cllrs brought to home on numerous applications (not helped by a weak Chair).
  • Agent’s behaviour can be observed and critiqued

Now the key difference is that all planning committees are being dragged into reality and being forced to conduct planning business in public over the web in real time.  I have observed a Hertfordshire planning authority conduct their affairs extremely well (and this was their first online attempt).  The Chair assumed his normal controlling authority, the presenting, questioning, determining format was scrupulously deployed and third parties were very fairly dealt with and in one case questioned by Members.

I have, however, also observed a Kent planning authority where webcasting has been in operation way before the Virus legislation came along and where Members who were unable to come to a view on a particular aspect of an application decided to down (online) tools, halt the meeting and retire to another (non-onlined) room without officers “to discuss” and then return with an answer.

In the future, with online working increasing other staples of Council meetings should/could be shelved.  What about the 60-odd, 100 sometimes +300 page paper agendas which are churned out of the Council’s print section a week in advance of meetings, to be followed by 10, 20, 30+ paper addendum in the run up to the meetings?  Hardly sustainable, especially when said Councillors may extol the virtues of their own Local Plan policy Sus2.1 which seeks to ensure developments install Electric Vehicle charging points.

One note of caution which I learned (the hard way) prior to online committee meetings being mandatory, remember, if you are acting on behalf of the applicant and are speaking before committee, you may be being recorded and webcast.  Having been asked at the last minute to substitute a colleague who was ill, I turned up to a planning committee trying to assimilate the bare essentials (and more) before the coveted 3 minute speaking slot.  3 minutes done and dusted, relatively easy ride from Member’s questions, planning permission granted, leave Chamber at 9.30, pm, home just before midnight – job done!

Next morning (9.30ish) the project’s architect called to congratulate on getting permission.  I was somewhat perplexed as I had only informed the client the night before.  This particularly keen and assiduous relatively junior architect had viewed the committee proceedings online and seen and heard my inclusion wanted or not!  One other slightly irritating feature of the online webcasting is that anyone (client, colleague, boss, junior team members, even family and you yourself (!!), can observe and mark out of ten your efforts!

Overall, this is a welcome temporary measure which should be made permanent, post virus conditions.  Indeed, many local authorities have already introduced successful webcam recording conditions.  Having spoken to officers and Members any initial hiccups have been swiftly remedied.  One officer (and indeed mine with two authorities) is that fewer items are being put on the agenda as many applications (with one authority) seemed to be taking longer to determine.  No fault of Members or officers just time-lag, repetition being needed, some contributor’s (Members, speakers, applicant, etc) online presence not there when required. From a practical and procedural perspective one officer stated that agenda setting and preparation for the committee meeting was “smarter and more effective.”  For that authority, a result has been the faithful monthly committee meetings now occurring weekly.

A great way in which to prepare for committee meetings noting officer and Member traits in the expectation that when it is your turn to be under the virtual microscope you can also “perform” efficiently, calmly and authoritatively – all resulting in – “planning permission granted” !!!

 

 

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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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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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Legal Beagle November Edition

 

Welcome to the Urbanissta Legal Beagle’s case work 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.

We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. We’ll be giving you an updated every other month so remember to keep any eye out for our updates.

Our guest barrister, Giles Atkinson of 6 Pump Court provides a commentary on a recent decision; Catesby Estates Ltd v Peter Steer.

Here are 10 recent planning appeals, giving you insights into the latest precedents:

1. Reasons for Planning Approvals

Appeal Ref: C1/2017/1840 and C1/2017/1934
Appeal Decision Date: 18th July 2018
Appellant: Catesby Estates Ltd
Council: Amber Valley District Council

The recent decision of the Court of Appeal in Catesby Estates[1] is an interesting and important one about how to determine the extent of the ‘setting’ of a heritage asset.

‘Setting’ is defined in the glossary to the NPPF, July 2018, although the definition is unchanged from the 2012 version:

Setting of a heritage asset:  The surroundings in which a heritage asset is experienced.  Its extent is not fixed and may change as the asset and its surroundings evolve.  Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral.

The development at the heart of the case is a proposed 400 homes in Allestree, Derbyshire.  The application was refused by the LPA (Amber Valley) essentially because of harm to the setting of the nearby Grade 1 listed Kedlestone Hall.  The land on which the housing was proposed had formerly formed part of the estate for the Hall.  Catesby appealed successfully to the Secretary of State, the Inspector deciding that the development was not within the setting of the Hall because there was no visual connection between the development site and the Hall, but the Inspector’s decision granting outline permission for the development was quashed in the High Court following a section 288 challenge.

The Inspector was found by the High Court to have wrongly assessed the impact of the proposal on the setting of Kedlestone Hall as being determined by the absence of physical or visual connection between the Hall and the land on which the housing was proposed to be built, notwithstanding the historic, social and economic connections between them.  The Inspector had found that without a physical or visual connection the appeal site was not within the setting of the Hall; in the Inspector’s judgment it was necessary for there to be a physical or visual connection for the development site to come within the setting of the Hall.

Lang J concluded that the Inspector’s interpretation of setting, requiring there to be a physical or visual connection between heritage asset and development, was too narrow.

The reason why this decision raised so many eyebrows was that it appeared to be at odds with a CA decision in Williams[2] made a few weeks before Lang J’s judgment in which Lindblom LJ (like the Inspector at Kedleston Hall) appeared to rely on the need for there to be a distinct visual relationship between heritage asset and development for the latter to affect the setting of the former.

Catesby appealed to the Court of Appeal against the judgment of Lang J and the case came before LJs McFarlane, Asplin and Lindblom who, not surprisingly, gave the leading judgment with which the others agreed.

Essentially it was argued in the CA on behalf of Catesby and the Secretary of State that the Inspector had not disregarded the other non-visual and physical considerations necessary to consider when identifying the extent of the setting of the Hall.  On behalf of Mr Steer and Heritage England, it was said, on the contrary, that the Inspector had indeed taken too narrow a view, focusing on views and visual impacts alone and that a visual connection is not necessary in every case.

In his judgment, Lindblom LJ reminded us first that ‘setting’ is not statutorily defined and does not lend itself to precise definition but it is implicit in section 66 of the Listed Buildings Act[3] that the setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside.

Importantly, and in accordance with much of what the CA has been saying recently, he went on to make clear that the identification of the extent of the setting of a heritage asset is always a matter of fact and planning judgment for the decision maker, not the court.

Addressing the apparent conflict with his own decision in Williams Lindblom J followed what he had said in that case to the effect that for a proposed development to affect the setting of a listed building there must be a distinct visual relationship between the two which is more than remote or ephemeral and which bears on one’s experience of the asset in its surroundings.  However, that does not mean that when considering the extent of an asset’s setting the decision maker should ignore the factors other than the visual or physical, such as the economic, social and historical.

Noting that the CA in another case had acknowledged that smell could harm the setting of a listed building, Lindblom drew together three general points.

First, that it is important that the decision maker understand what the setting of a listed building is, otherwise it would be difficult for an assessment to be made of how development affects it.  Second, although this is never a purely subjective exercise there is not, and nor could there be, a single approach which would apply to every case; this must always be a matter of applying planning judgment to the particular facts of a case with relevant policy, guidance and advice in mind.  Third, the effect of a particular development on the setting of a listed building is a matter for the decision maker.

In light of these points Lindblom agreed with the submissions made on behalf of Catesby and the SoS that the Inspector had not taken too narrow a view of setting, and had not concentrated on the visual and physical effect of the development, to the exclusion of all else.  The Inspector, as a matter of planning judgment, was not saying that land could only fall within the setting of the Hall if there was a physical or visual connection, he was saying the extent of the setting in this case could not be determined by the historical, social and economic connections.

The appeal was therefore allowed and the decision of the High Court overturned.

That may not be the end of the matter however.  At the time of writing Mr Steer has applied to the Supreme Court for permission to appeal against Lindblom LJ’s decision, that permission having been refused by the CA itself[4].  The appeal is essentially on the basis that there is confusion still about the correct approach because of the Willia

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[1] In fact 2 appeals joined: Catesby Estates Ltd v Peter Steer, Historic England and SoS for CLG v Peter Steer, Historic England [2018] EWCA Civ 1697

[2] R (oao Williams) v Powys CC [2017] EWCA Civ 427

[3] In considering whether to grant planning permission…for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

[4] On the 22nd August 2018

 

2. Benefits of the proposal are insufficient to outweigh the impact on Landscape and Setting of Listed Building.

Appeal ref: APP/X1545/W/17/3185429
Appeal Decision Date: 29 August 2018
Appellant: Endurance Estates Strategic Land Ltd
Council: Maldon District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. The applicant appealed against the refusal of for planning permission for an outline application for the construction of up to 45 dwellings with associated garaging, parking, public open space, landscaping, access, highways drainage and infrastructure works.

Background
An appeal was made by Endurance Estates Strategic Land Ltd against the decision to refuse planning permission for 45 dwellings and associated works by Maldon District Council

 In dismissing the appeal the Inspector gave consideration to the following main issues.

  • Whether the Council demonstrates a suitable supply of housing land;
  • The effects of the proposal on the landscape/visual character of the area; and
  • The effects of the proposal on the setting of the nearby listed building.

 Land Supply
The Inspector decided that the Council can be considered to have a five year supply of housing sites, with an appropriate buffer, for the purposes of this appeal.

Landscape/Visual Character
The Inspector acknowledged that the land is not covered by any specific landscape designation. However its value is derived from the fact that it would form the immediate rural setting at the edge of the Garden Suburb; its intrinsic value is its openness.  As such, the proposed development would undermine the Policy S4 which places emphasis on the protection of open space.

Setting of the Listed Building
Taking account of the low level of contribution to the significance of the historic asset that the appeal site makes, The Inspector considered that it would result in ‘less than substantial harm’ to its significance, as set out in paragraph 196 of the NPPF.  Within this level of harm the Council suggested that it should be seen as ‘moderate’ and the appellant suggests that it would be ‘minor’. The Inspector decided that minor harm that would arise.

 Conclusion
The proposal put forward a number of benefits which is considered to carry significant weight. However, the due to the harm identified in respect of landscape and visual character and the impact on the setting of the listed building, the benefits of the proposal are insufficient to outweigh this conflict and the harm arising.

In light of the above, the Inspector refused planning permission.

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3. Proposal for 2,600 units refused permission by SoS due to the less than substantial harm to the significance of a Scheduled Ancient Monument.

Appeal Ref: APP/U3935/W/16/3154437
Appeal Decision Date: 13 June 2018
Appellant: Ainscough Strategic Land Ltd
Council: Swindon Borough Council

The appeal was recommended dismissal by the Inspector. On 19th August 2016 , the appeal was recovered for the Secretary of State’s determination. The applicant appealed against the refusal of for planning permission for an outline application (with all matters reserved save the detailed access off Wanborough Road) for demolition and/or conversion of the existing buildings on the site and redevelopment to provide:

  • “Up to 2,600 residential units (Use Class C3); – Up to 1,765 sq m of community/retail uses (Use Classes D1/D2/A1/A2/A3/A4)
  • Up to 3,000 sq m of business/employment use (Use Class B1);
  • A Primary School (2.2 ha); – Open space, strategic landscaping and other green infrastructure (including SUDs and areas for nature conservation);
  • Other associated road and drainage infrastructure;
  • Indicative primary access road corridors to the A420; and
  • Improvements and widening of existing route off Wanborough Road to provide pedestrian, cycle and bus access. In accordance with application ref: S/OUT/15/0753/KICO dated 30 April 2015 (“the masterplan scheme”)”

Background
An appeal was made by Ainscough Strategic Land Ltd against the decision to refuse planning permission for 2,600 dwellings and associated works by Swindon Borough Council.

In dismissing the appeal the SoS gave consideration to the following main issues.

Heritage;
Open space;
Trees;
Transport; and
Sustainable Development

Heritage
The SoS has carefully analysed the impact on the Schedule Ancient Monument and agreed with the Inspector that to achieve development of the Masterplan Site inevitably, this would involve the permanent loss of much of the remaining rural setting to the SM. The identified harm to the SM has considerable importance and weight. He further agrees that in the terms of the Framework, the proposal would lead to less than substantial harm to the significance of the SM and, as required by paragraph 134, this harm should be weighed against the public benefits of the proposal. The proposal puts forward significant public benefits such as affordable housing, employment and biodiversity gains, however the less than substantial harm to the significance of the SM is not outweighed by the public benefits of the proposal.

Open Space
The SoS agreed with the Inspector that “the proposals do not demonstrate the quantity and quality of open space sought by the open space standards would be achievable within the proposed parameters and environmental constraints of the site. He further agrees that the GI parameter plans are not of a standard to be approved. He further agrees that to leave all matters to be resolved through planning condition(s) and/or a planning obligation would not be reasonable taking into account the inadequacy of the GI parameter plans. As such the masterplan proposals fail to comply with Policy EN3”.

Trees
The scheme proposed the removal of protected trees on the western side of the internal road in order to widen the access route to serve the development Site. The SoS considered that the scheme is not in accordance with a requirement of Policy EN1 criterion (a).

Transport
The SoS agreed with the Inspector in that the proposals would not achieve good connectivity within the development and to the surrounding area and not provide highway infrastructure in accordance with an acceptable strategy. He further agrees that the proposal conflicts with Policies TR1(a), DE1 and NC3(b).

Sustainable development
The SoS agreed with the Inspector that the development of the site is in accordance with the sustainable development strategy of Policy SD2 and would secure a better balance between housing demand and supply. However, the proposals do not meet a range of principles in Policy SD1 to ensure the creation of a high quality and sustainable community. As such, for the reasons given above, the Secretary of State concludes that the scheme is not sustainable development and is not supported by Policy SD3”

Conclusion
It was considered that the proposal conflicts with a number of policies, namely, Policies NC3, EN10, CM1, EN1, TR1, DE1, EN3, EN4, EN6, EN11, SD1 and SD3 of the development plan, and is not in accordance with the development plan overall.

The proposal puts forward a number of benefits including affordable housing, as such this carries significant weight in favour of the proposal. However, the proposal would lead to less than substantial harm to the significance of the SM. He considers that the proposal would not conserve the setting to Lotmead Farmhouse and would adversely affect the significance of this non-designated heritage asset.  Having regard to s66(1) of the LBCA he affords these harms substantial weight.

In light of the above, the SOS refused planning permission.

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4.SoS disagrees with Inspector and rejects proposal for 120 dwellings due to conflict with Neighbourhood Plan

Appeal Ref: APP/Q3115/W/17/3180400
Appeal Decision Date: 20 July 2018
Appellant: R J & S STYLES
Council: South Oxfordshire District Council

The appeal was recommended approval by the Inspector. On 26th February 2018 , the appeal was recovered for the Secretary of State’s determination. The applicant appealed against the refusal of for planning permission for up to 120 dwellings (40% affordable) with associated access, public open space, landscaping and play space, in accordance with application ref: P16/S3441/O, dated 14 October 2016.

Background
An appeal was made by RJ & S Styles against the decision to refuse planning permission for 120 dwellings and associated works by Oxford District Council

In dismissing the appeal the Inspector gave consideration to the following main issues.

  • Housing land supply;
  • Whether tilted balance applies;
  • Location of housing;
  • Effects on character and appearance;
  • Integration with Benson village
  • Loss of agricultural land

Housing Land Supply
The Council and the Appellant agreed in their Statement of Common Ground that the Council had 4.1 years of deliverable housing, based on the Council’s published assessment dated May 2017. In April 2018 the Council published a revised housing land supply figure of 5.4 years, this figure was disputed by the Appellant and it was argued that there would only be a 4.8 year housing supply based on a recent appeal decision. The SoS accepted the appellants argument and decided the calculation should be based on 2017 and 2018 midpoint figure. As such, it was decided that the Council can demonstrate a 5 year land supply.

Whether tilted balance applies
As the Council could demonstrate a 5-year land supply, it was considered by the the Secretary of State that the relevant policies in the development plan were not silent or absent or out of date on the matter of housing allocations in respect of Benson. A such, the tilted balance did not apply.

Location of housing
The SoS agreed with the Inspector in that the proposals would not protect the countryside. Policy NP1 seeks to resists development where a site is not allocated and outside a built-up area. It was further agreed that SOCS policies CSS1, CSH1 and CSR1 do not rule out allocations being made on sites outside existing villages, nor does it allow development on an ad hoc basis. It was decided that the appeal proposal would not accord with the development plan, considered as a whole. The conflict with Policy NP1 was given significant weight.

 Effects on character and appearance
With regards to the character and appearance of the village, the SoS agreed with the inspector that the proposed development would not cause any significant harm to the character or appearance of the landscape, or to the village setting.

Integration with Benson village
The SoS agreed with the Inspector in that the proposed development would be a natural extension of the village and would be accessible for pedestrians, cyclist and motor vehicles. It was decided that there would be no conflict with any relevant policies, including SOLP Policy T1 or BNhP Policies NP10 and NP11.

Loss of agricultural land
The development proposals do not conflict with the advice in NPPF paragraphs 109 and 112 relating to the protection of agricultural land and soils, or with any other national or local policies.

Conclusion
It was considered that the proposal carries many benefits, particularly the provision of additional housing, including affordable housing, which carries significant weight in favour of the development. Moderate weight was given to the benefits to the local economy that would come from the proposal and limited weight was given to the provision of on-site open space and play areas, and the enhancement to the public transport facilities. The proposal however conflicts with Policies G2, G4 and NP1 of the development plan, and is not in accordance with the development plan overall.

As such, when taking into account the advice in paragraph 198 of the Framework that where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted, the SoS gave very significant weight to the conflict with the BNhP.

In light of the above, the SOS refused planning permission.

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5. Housing figures in Emerging Local Plan (Regulation 22) given limited weight

Appeal Ref: APP/P0240/W/16/3164961 Appeal Decision Date: 16 August 2018
Appellant: Gladman Developments Limited
Council: Central Bedfordshire

Land between 103 and 27 Langford Road, Henlow, Bedfordshire SG16 6AF
The appeal was mad under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. The Inspector dismissed the appeal on 16 August 2018.

Background
An appeal was made by Gladman Developments against the decision to refuse 135 residential dwellings (including up to 35% affordable housing), introduction of structural planting and landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation, vehicular access points from Langford Road and associated ancillary works.

Preliminary Matters
When refusing permission, the Council originally put forward two reasons for refusal.  One of these reasons related to the absence of a legal agreement which  was later supplied prior to the Inquiry as such, the second refusal had been overcome.  The remaining issue relates to the effect of the proposed development on the character and appearance of the area.

In dismissing the Appeal the Inspector gave consideration to the following main issue:

  • The effect of the proposed development on the character and appearance of the area

Landscape
The Site lies within the Bedfordshire and Cambridge Claylands National Character Area (CCNCA).  The local character the site falls within Landscape Character Type 4C, the Upper Ivel Clay Valley. The characteristics are mixed land use predominately of arable farmland and large and medium scale geometric arable fields bounded by hedgerows. The submitted LVIA concludes that the impact would be negligible which the inspector agreed with. The proposed development would replace an open arable field with built development as such, would be completely different nature to that which currently exists this was considered a major effect.

Visual
The Inspector analysed each view point and stated that views of the site would also be available from several nearby properties.  In terms of views of the Site, the most affected residents would be those living in the dwelling directly to the south of the Site.  At present they have a rural view from the first floor windows over an arable field to the woods to the north.  This would be replaced by a view of a housing estate.  Neighbouring properties would have more oblique views of the Site. The LVA rates the overall effect of this for the properties south of the site at ten years as major adverse to minor adverse and the Inspector agreed with this and considered that residents of the two northernmost properties would

suffer the major adverse effect. The inspector concluded that the development would have a major adverse landscape effect on the Site and its immediate context as well as major adverse effects on several visual receptors as well as moderate adverse on others.

Five year land supply
It was agreed by both parties that the Council have a five-year land supply. However, the Council submitted Draft Local Plan (DLP) for examination and the housing need figure of 1967 dpa is put forward.  If this figure is taken as the housing need then the appellant considers that the Council would be unable to demonstrate a five-year housing land supply. However, as the DLP is yet to be examined and has significant objections it was agreed between the parties that the emerging policies in the DLP should be given limited weight. However, the Appellant argued that the Housing figure of 1967 should be given material weight as the DLP has now been submitted for examination. The Inspector disagreed with this approach as the policies and figures should not be treated differently and states that until the DLP becomes adopted, the figure within the SHMA of 1600 dpa should be taken as the Council’s housing need.  Therefore the Council can demonstrate a five-year land supply.

Conclusion
The inspector concluded that the development would have an adverse impact on the landscape and its immediate context as well as major adverse effects on several visual receptors and moderate adverse on others.  The proposed development could also be seen as a small incremental change that if continued, could result in the blurring of the identities of Henlow, Clifton and Langford. Despite the economic and social benefits of the proposals, they were not individually or in combination enough to outweigh the harm that identified to the character and appearance of the area

In light of the above, the SOS refused planning permission.

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6.140 dwelling allowed in a village of around 700 dwellings.

Appeal Ref: APP/P0240/W/17/3190584 Appeal Decision Date: 22 May 2018
Appellant: Gladman Developments Limited
Council: Central Bedfordshire

The appeal is allowed and outline planning permission is granted for demolition of 59 Shefford Road and associated buildings and the erection of up to 145 dwellings with public open space, landscaping and sustainable drainage system (SuDS) and vehicle access from Shefford Road at 59 Shefford Road, Meppershall, Shefford SG17 5LL.

Background
A
n appeal was made by Gladman Developments against the decision to refuse outline planning permission for 145 dwellings and associated works by Central Bedfordshire Council. All maters except for access were reserved for future consideration.

Preliminary Matters
The application was refused for two reasons including development located outside of the settlement boundary and with the absence of a completed legal agreement securing financial contributions to offset infrastructure impact, including education, recreation and the provision of affordable housing, the development would have an unmitigated and unacceptable impact on existing local infrastructure. The development would therefore not amount to sustainable development

At the inquiry, the appellant questioned the validity of the council’s evidence to suggest a five year supply of land and suggested a 20% buffer should be applied. However recent case law suggested that there was not a persistent under delivery and a 5% buffer should be applied. The Inspector concluded that a 5 year HLS has been demonstrated using an OAN of 32,000 homes over a 20 year period from 2015 and a 5% buffer and that the Luton unmet need should not be included in the supply calculation.

The Inspector also referenced that a new local plan was being prepared and at an early stage of preparation and had limited bearing on his consideration of the appeal.

In allowing the appeal and granting permission the Inspector gave consideration to the following main issues

  • The suitability of the site for the development proposed in terms of its relationship with the existing settlement of Meppershall and its accessibility to shops and services; and
  • The effect on the character and appearance of the site and its surroundings.

Suitability of The Site For The Development
The Inspector referred to other decisions including Gladman v Daventry that revolved around Policy DM4 that seeks to protect the countryside for its own sake and this blanket protection applies to all areas outside of settlement envelopes irrespective of their landscape value or sensitivity.

The Inspector identified a conflict between Policy DM4 and the NPPF and identified that policy DM4 would frustrate the Council’s ability to achieve a 5 year HLS and that the policy is, therefore, not consistent with paragraph 47 of the Framework.

The inspector identified that a development of 150 dwellings would result in a material increase in the size of the existing village of around 700 homes. However, other than in respect of the effect on character and appearance, the Council has not identified any harm that would flow from that increase. No substantive evidence was submitted to show an unacceptable impact on local services. Accordingly, the Inspector found find no reason to conclude that the site would be unsuitable for the form or level of development proposed and find no conflict with the development plan in this regard.

Character and Appearance
The Inspector found that there is no risk that the proposal would lead to the village merging with any other settlement. The proposed areas of built development indicated on the Development Framework Plan would be some distance from the unsettled hill slopes and, in this respect, the proposal can be distinguished from new development being built. There were only limited views of the site from a distance and the proposal was identified as in keeping with landscape character guidelines.

The Planning Balance
The inspector concluded that the appeal site was not in an unsustainable location and there would not be a conflict with policies CS16 or SADP Policies DM3 or DM14. A conflict with Policy DM4 was identified but this was only given limited weight. the site does not fall within an designated area and the inspector identified a number of benefits arising from the provision of additional market housing including 51 affordable homes.

Conclusion
The inspector concluded that the adverse impacts of development on the landscape do not significantly and demonstrably outweigh the benefits identified and that the tilted balance in favour of a grant of planning permission therefore applies.

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7. Lack of 5-year land supply has lead to the approval of 123 houses in Longridge.

Appeal Ref: APP/T2350/W/17/3186969 Appeal Decision Date: 22nd May 2018
Appellant: VH Land Partnership
Council: Ribble Valley Borough Council

Background
An appeal was made by VH Land Partnership against the decision to refuse outline permission for up to 123 houses; demolition of an existing house (74 Higher Road) and formation of access to Higher Road at Land at Higher Road, Longridge.

In granting permission, the Inspector gave consideration to the main issue being whether the development proposed would be consistent with the objectives of policies relating to the location and supply of housing.

Housing Land Supply in Ribble Valley
During the course of the Inquiry, it was identified that there were a number of disputed sites within the Council’s land supply, reducing the council’s figures by 136 dwellings. This reduction led to the Council’s supply amounting to 4.5 years including a 20% buffer. The Inspector identified that even if the Council’s predictions relating to some of the sites prove to be more accurate, it would not significantly alter the housing land supply position and would only marginally reduce the shortfall within the range of 4.5 years and a maximum of 4.7 years of deliverable housing land supply. In that respect, to conclude on the compliance of the proposal with the development plan and the Framework as a whole as part of the planning balance, it is necessary to firstly consider any other matters that are relevant to the proposal. The other matters are set out below:

Highway and Pedestrian Safety
The development would not increase the demand for on-street parking or increase traffic flows on Higher Road to an extent that existing highway conditions and parking arrangements would be significantly altered or worsened. The development would not have a detrimental impact upon highway safety or preclude access for emergency vehicles.

Living Conditions
The masterplan and illustrative material submitted with the planning application demonstrate that adequate separation distances to neighbouring properties

The Inspector did not consider that the extent of those effects would result in significant harm or disturbance to their existing living conditions.

Ecology, Trees and Open Space
The Inspector was satisfied that detailed submissions could suitably incorporate existing high and moderate quality trees within the site, together with the trees and hedgerows along the site boundary and those located on neighbouring land with crown overhangs or root protection areas within the site. Public open space within the site, including useable spaces, natural play spaces, pedestrian footpath links and cycle routes, can be secured as part of the reserved matters and conditions in accordance with the illustrative details within the masterplan

Drainage and Flood Risk
The development would not be at unacceptable risk of flooding or increase the risk of flooding to surrounding properties, subject to the suitability of the detailed site layout as part of the reserved matters.

Conclusion
For the reasons given above, the Inspector concluded that the appeal should be allowed and planning permission granted subject to the conditions set out in the attached schedule.

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8. Compliance with Extant Code for Sustainable Homes Condition Removed

Appeal Ref: APP/E5900/W/18/3199690 Appeal Decision Date: 17 August 2018
A
ppellant: Mr Peter Magri
Council: London Borough of Tower Hamlets

 The appeal was made under Section 78 of the TCPA 1990 against a refusal to grant permission under Section 73.

Background
An appeal was made by Mr Peter Magri against the decision to refuse permission for a variation to the Code for Sustainable Homes condition attached to a permission PA/11/01818 granted on the 5th July 2013 for 57 apartments and 970sqm of commercial space for A1, B1/D1 use as a part 7, part 8 storey development without complying with a condition attached to planning permission Ref PA/11/01818, dated 5 July 2013.

In allowing the appeal, the Inspector gave consideration to:

  • Whether the condition is reasonable and necessary in the interests of addressing climate change and achieving sustainable development.

Changes to the planning practice guidance in 2015 saw the removal of Code for Sustainable Homes(CSH)from national policy with the exception of legacy cases. The Council contended that the withdrawal of the CSH relates to planning conditions for new approvals only and that the development  in this case was a legacy case. Legacy cases are defined as residential development that are legally contracted to apply a code policy such as affordable housing through the National Affordable Housing Programme 2015 to 2018 or earlier programme, or where planning permission has been granted subject to a condition stipulating discharge of a code level which a developer is not appealing or seeking to have removed or varied.

.As the developer is appealing the condition and seeking to have it removed, it cannot be considered a legacy case.

The inspector noted that Based on the PPG, the proposal would not be required to be built to zero carbon. Nonetheless, there would be an element of conflict with development plan policies. However, in the context of Section 38 (6) of the Planning and Compulsory Purchase Act and Section 70 (2) of the Act, the great weight I attribute to the PPG outweighs the weight I afford to the conflict with the above noted development plan policies. The inspector also recognised that owing to Building Regulations Part L (2013) requirements, despite the removal of the condition, the proposal would still address climate change and achieve sustainable development.

Other Matters
The Inspector also noted that the PPG makes it clear that decision notices for the grant of planning permission under section 73 of the Act should also repeat the relevant conditions from the original planning permission, unless they have already been discharged.

It was also cited that Section 73 (5) the Act and the PPG5 are clear that planning permission cannot be granted under this section of the Act to extend the time limit within which a development must be started or an application for approval of reserved matters must be made.

Conclusion
The Inspector concluded that the condition is not reasonable or necessary in the interests of addressing climate change and achieving sustainable development. Condition 11 was subsequently removed and the appeal succeeded.

Download Decision here.

9. 5-year housing supply shortfall lead to successful Appeal for 100 dwellings.

Appeal Ref: APP/U3935/W/17/3192234 Appeal Decision Date: 18th October 2018
Appellant: Ainscough Strategic Land Limited
Council: Swindon Borough Council

Background
An appeal was made by Ainscough Strategic Land Limited against the decision of Swindon Borough Council to refuse “outline planning application (with means of access off Ermin Street/Blunsdon Hill not reserved) for the demolition of the existing Hill Cottage for the development of approximately 100 dwellings (Use Class C3), on-site recreational space, landscaping and associated road and drainage infrastructure.”.

In allowing the appeal, the Inspector considered the following main issues:

  • The relationship of the proposal to the development plan for the area;
  • The effect on the character and appearance of the area;
  • Whether the location of the site is such that the need to travel would be minimised and the use of sustainable transport modes maximised;
  • Whether the proposal makes appropriate provision for affordable housing, infrastructure and similar matters; and
  • Whether there are any other material considerations, including the housing land supply situation and benefits of the proposals, which would indicate that the proposals should be determined otherwise than in accordance with the terms of the development plan

Development plan for the area
In summary, Policy SD2 of the Local Plan notes that development in rural and in countryside locations outside of rural settlement boundaries will be permitted if it is in accordance with the other policies in the Local Plan which permitted specific development in the countryside. No other policies were identified to justify why development outside a settlement boundary should be permitted. Therefore, for the purposes of assessing the proposal against the terms of the development plan, as the proposal lies in the countryside it would be contrary to this part of Policy SD2 of the Local Plan.

It was considered common ground that the Council cannot demonstrate a five-year land supply and that relevant policies were therefore out of date. Although the appeal site lies outside the settlement boundary of Broad Blunsdon the Council conceded that it considered that this, of itself, was not a reason to dismiss the appeal due to the land supply position.

Character and Appearance
The Site lies within Upper Thames Clay Vale National Character Area. The Inspector identified the proposals would result in a landscape harm rather than heritage harm. As the Site has a reasonable separation distance from Lower Blunsdon and the Conservation Area, it would therefore be preserved.

In terms of harm to the landscape and visual qualities of the area, it would be contrary to Policy EN5 of the Local Plan.  It would also be contrary to Policy SD1 of the Local Plan in that it would not respect, conserve or enhance the natural environment and the unavoidable impacts would not be wholly mitigated as such would be contrary to paragraph 170 of the Framework

Overall, it was concluded that the Site would be harmful to the landscape and would have harmful visual effects.  The impacts however would be limited and would be mitigated to some extent, but not wholly, by the additional planting that would form part of this development.

Accessible location
The Site was not considered as being well related for the use of non-car modes, however is not poorly located given the proximity to the main built up area of Swindon.

Due to the location of the Site, the need for travel will not be minimised and the use of sustainable transport modes maximised when compared with sites with better access for non-car modes. This is contrary to Policy TR2 and to paragraph 103 of the Framework as there would not be a genuine choice of transport modes.  This weighs against the development, but as there are alternatives that may be used by residents which gives some choice, although less likely than not, this was given limited weight.

Affordable housing
Policy HA2 of the Local Plan indicates that all developments of 15 homes or more should provide 30% of the dwellings as affordable housing.  The Planning Obligation provides this proportion and would thus complies with development plan policy.  However, the proposal would only provide 9% of the dwellings for affordable home ownership rather than the 10% set out in paragraph 64 of the Framework. Significant weight was attached to the provision of AH.

5YHLS
The appellants and the Council set out various figures as to the land supply that could be demonstrated, given an agreed base date of 1 April 2017.  These varied from between 1.9 years and 2.1 years for the appellants and 2.5 years and 2.7 years for the Council depending on the varying analyses of deliverability and the appropriate buffer. The inspector decided that which ever the figure, the shortfall is significant.

Conclusion
In bringing all the above together in the final balance, the Inspector considered that the adverse impacts of the development would not significantly or demonstrably outweigh the benefits. The Inspector attached significant weight to the fact that the Site fell outside of the development boundary. Furthermore, the proposals would have harmful visual effect on Broad Blunsdon and would result in the loss of a golf course and community facility – these were all given limited weight. The inspector highlighted that there are significant benefits of the proposal from the provision of the additional dwellings both themselves and through the provision of affordable housing.

The 5YHLS was considered a serious matter which resulted in the Policies for the supply of housing in the development plan to be considered to be out-of-date. The factors above provide the material considerations to grant planning permission other than in accordance with the development plan.

Based on the above, the appeal was allowed.
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10. Improvements to affordable housing leads to approval by Secretary of State

Appeal Ref: APPJ2210/W/15/3141444 Appeal Decision Date: 6th August 2018
Appellant: Hollamby Estates Ltd
Respondent: Canterbury City Council

 Background
An appeal was made by Hollamby Estates against the non determination of a hybrid application by Canterbury City Council.

The hybrid application sought in detail the demolition of existing dwelling house in conservation area and two other dwellings, change of use of lagoon to allotments, ecological habitat and footpath link and improvements along Bullockstone Road. The outline elements were related to provision of 800 dwellings commercial and community development with pedestrian and cycle links, drainage sustainable drainage and open space as well as highways infrastructure.

The Council confirmed on 1st March that they would have refused the application for seven reasons comprising severe adverse impact on the highway, inadequate and unsafe works, absence of planning obligations to mitigate the impacts on the local highway network, failure to justify the 4% affordable housing provision, failure to demonstrate an acceptable impact on air quality, conflict with the Habitat Regulations and non-compliance with the development plan.

The appeal was recovered by the secretary of State on the 27th June 2016 on the basis that the appeal involves proposals for residential development of over 150 units or on sites of over 5 hectares.

The inquiry was held in January and April 2017 with the inquiry closed in writing on the 31st July 2017.

The site is subject to EIA with an ES submitted with the application in 2015. In March 2017, three addendums were submitted and in May 2017 the EIA regulations 2017 came into force. Regulation 76 of the EIA regulations allow for transitional arrangements which the inspector considered this site would fall within.

The main areas of concern were affordable housing and highways impacts. In March 2016, the appellants submitted a varied highways improvement scheme which was granted permission in April 2017.

On the matter of affordable housing the application proposed 4% affordable housing, which was contrary to the emerging 30% requirement. At the start of the inquiry, the appellant proposed an increase of affordable housing to 15% with a split of 30% rent and 70% shared ownership. This was contrary to policy which required 70% rent and 30% shared ownership.

The matters as agreed were:

  • The Kent BRIS would provide an appropriate technical solution to the requirement to improve Bullockstone Road
  • Air Quality. The ES Addendum No 2 included further assessment using updated traffic data flow.
  • The appellant agreed that the requested contribution towards strategic access management at the Thanet Coast and Sandwich Bay SPA would be met in full.
  • The appellant agreed to provide obligations to secure additional secondary education capacity
  • All parties agreed that using the Liverpool method of calculating 5 year supply, there is a surplus of land whereas there is a deficit using the Sedgefield approach.
  • There were no outstanding technical highways and transportation issues that would prevent a grant of outline permission. However there was disagreement regarding the timing of completion of the Spine Road which KCC contended should be completed and available for use prior to the completion of the 410th

The main matters in dispute were development viability and affordable housing.

In January 2018, a revised viability assessment was submitted showing that 30% affordable housing could be provided with a 30% rent and 70% shared ownership mix. The tenure remained unacceptable.

In March 2018, the secretary of state wrote to the appellants confirming that the main issue was meeting local housing needs and that the scheme was not in accordance with Policy SP3, that the proposal would not deliver the Herne Relief Road at the appropriate time, the proposed land use content would not meet the primary objective for the SSA, there would be a net gain in biodiversity/nature conservation, the loss of some 15ha of BMV land does not weight significantly against the development, there would be less than substantial harm to the Herne Conservation Area.

The Secretary of State advised that before making his final decision he would give the appellants six weeks to address the concerns on affordable housing and highways via submission of a revised and agreed planning conditions.

The appellants confirmed that a bi-lateral agreement between all parties addresses affordable housing provision and a unilateral undertaking with Kent County council secures developer contributions towards the Kent Bullockstone Road Improvement Scheme.

Based on the above, the appeal was subsequently allowed by the secretary of State.

Download Decision here.

 

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Here’s what you need to know about viability in the revised NPPG

 

Viability is not dealt within the NPPF, it is dealt with separately in the NPPG.
The draft NPPF stated that “where proposals for development accord with all the relevant policies in an up-to-date development plan, no viability assessment should be required to accompany the application”. The revised 2018 Framework removes this measure and states at paragraph 57: “Where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable. It is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage”

Viability should be Assessed at Plan Making Stage.
Previously discussions and considerations of viability were undertaken at the decision-making stage which may have led to delays and local authorities not securing the level of affordable housing and infrastructure they required.

The responsibility has now shifted towards local authorities to undertake viability earlier in the process to ensure that they set appropriate levels of infrastructure requirements. This will require greater co-operation between landowners, developers and local authorities to undertake meaningful discussions and agree what is considered viable. At decision making stage, where matters have already been agreed there may be less delays in agreeing matters of viability which wont slow down the determination of applications.

Costs and Requirements for Affordable Housing and Infrastructure Should be Set At A Level That Does Not Require Further Assessment At Decision Making Stage.
There may need to be more negotiation between landowners, developers and local authorities earlier in the plan making process to ensure that requirements for affordable housing and infrastructure are set at a level that does not undermine overall delivery of the site.

The Council may set out within their plans when a viability assessment may be required.
The PPG sets out that viability should be addressed at plan making stage, but states that local authorities can set out when viability assessments may be required to support planning applications.

The Price Paid for Land is not a Justification for Failing to Accord With the Relevant Policies in a Development Plan.
This played out in Parkhurst Road Limited v Secretary of State for Housing Communities and Local Government & London Borough of Islington. Case No: CO/3528/2017. We discuss this below:

Parkhurst Road Limited v Secretary of State for Housing Communities and Local Government & London Borough of Islington
The key consideration within the High Court was the price paid by the developers and the approach taken to assessing viability to justify the minimal amount of affordable housing. The appellants and the Council disagreed on the benchmark land value as the appellants used the purchase price as an acquisition cost leading to profit levels being below normal target values.

Islington disagreed with this using the same methodology excluding the site acquisition cost. The Council carried out a series of residual valuations inputting alternative affordable housing proportions of 50%, 40% and 32% which produced residual land valuations for the site of £4.98m, £7.32m and £9.35m respectively. They contended that the price which Parkhurst Road Ltd had paid for the site was excessive since it did not properly reflect the policy requirement to maximise the affordable housing component.

The viability assessment of the site has never been made public, but it is of direct relevance as its part of the weight applied to the development proposals.

When reading Justice Holgate’s decision, there are criticisms of the wider approach taken to viability:
“where an applicant seeking planning permission for residential development in Islington proposes that the “maximum reasonable amount of affordable housing” is lower than the borough-wide 50% target on viability grounds, it is his responsibility to demonstrate that that is so

Justice Holgate also recognised the inherent tension between decision makers and developers stating that:
“According to the basic principles set out in the NPPF and the NPPG, it is understandable why a decision-maker may, as a matter of judgment, attach little or no weight to a developer’s analysis which claims to show a “market norm” for BLV by doing little more than averaging land values obtained from a large number of transactions within a district…

…On the other hand, it is understandable why developers and landowners may argue against local policy statements that BLV should simply conform to an “EUV plus a percentage” basis of valuation, especially where the document has not been subjected to independent statutory examination prior to adoption. Some adherents appear to be promoting a formulaic application of “EUV plus.”

Justice Holgate suggests that RICS could consider revisiting the 2012 Guidance Note, perhaps in conjunction with MHCLG and the RTPI, to address any misunderstandings about market valuation concepts and techniques to address the “circularity” issue and any other problems encountered in practice over the last 6 years, to help avoid protracted disputes.

The Guidance Removes Flexibility in Considering Policy Requirements
The previous Guidance stated that ‘where the viability of a development is in question, local planning authorities should look to be flexible in applying policy requirements wherever possible.

This hard-line approach allows decision makers to decide an application on whether it achieves the full policy requirements or not.

A Standard Approach to Viability where Previously it was Accepted there was no Standard Answer to Viability
Again the flexible approach to viability has been removed in favour of a standard approach to be taken across all sites. The intention is probably to speed up delivery as all matters will be assessed, although the same approach cannot be used for different site characteristics such as brownfield and greenfield sites. If the standardised approach doesn’t work for a site, the Council may have to look at alternatives until one fits the approach.

Land Value Calculated on Existing Use Value plus a Premium
The Guidance sets out the approach to be taken to Benchmark Land Value, again to give decision makers more support in assessing development viability.

Premium is described in broad terms as the minimum price a rational landowner would be willing to sell their land, although there is likely to be further debate over what a premium should be and this debate is likely to delay the overall Local Plan process. .

A Return of 15-20% of Gross Development Value
The Draft PPG referred to 20 per cent return which has been the accepted level of return.

The PPG states that a lower figure:
may be more appropriate in consideration of delivery of affordable housing in circumstances where this guarantees an end sale at a known value and reduces the risk

Viability Assessments to be Publicly Available.
A Viability Assessment will only be kept confidential in exceptional circumstances, and it will be down to the applicant to justify the case for confidentiality. Within the Parkhurst case, the decision refers to the Viability Assessment never being provided.

Conclusions
The revised approach to viability whilst potentially aiming to speed up the decision making process, may have the unintended consequences of delaying the plan making process as Local Authorities, developers and landowners grapple with the revised approach to infrastructure costs and negotiate the best scenarios for all parties.

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12 things you need to know about the Revised NPPF

 

As you may be aware, the government published the revised National Planning Policy Framework on 24th July 2018. This means that the NPPF 2018 is a material consideration in determining planning applications. If you have not had a chance to read the document, you can download the NPPF 2018 here. We have analysed the changes made since the draft was consulted upon in Spring and here are 12 things you need to know:

  • Implementation
  • Viability
  • Design standards
  • Green Belt
  • Housing delivery test
  • Standardised method of calculating housing need
  • Inclusion of social rent in definition of affordable housing
  • Small sites
  • Neighbourhood development plans
  • Voluntary PPAs
  • Storage and distribution operations
  • Ancient Woodland and veteran trees

Implementation
NPPF 2018 is now a material consideration which means that the policies come into effect straight away. However, the NPPF 2018 states that, Local Plans submitted before 24 January 2018 will be Examined against the 2012 NPPF. Any Plans submitted after this date will be examined under the new 2018 policies. This could mean that part of a Council’s newly prepared Plan could be immediately out of date which may contribute to penalties/interventions.

Viability
There is a significant shift in the role of viability assessments. The 2018 Framework now requires viability to be dealt with at the plan making stage, thus shifting responsibility on LPAs as opposed to developers. Essentially, LPAs will now be required to set strategic site allocations, infrastructure requirements and a minimum level of affordable housing which they consider viable. The draft NPPF stated  that “where proposals for development accord with all the relevant policies in an up-to-date development plan, no viability assessment should be required to accompany the application”. The revised 2018 Framework removes this measure and states at paragraph 57: “Where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable. It is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage”. This provides decision makers more power in deciding whether a viability assessment is required.

Design Standards
The 2018 Framework places emphasis on the importance of design standards and contains requirements that planning policies set out clear design and vision expectations in SPDs and design codes. It states that “being clear about design expectations, and how these will be tested, is essential for achieving this. So too is effective engagement between applicants, communities, local planning authorities and other interests throughout the process…” Councils should try to “ensure that the quality of approved development is not materially diminished between permission and completion, as a result of changes being made to the permitted scheme”. The policies should however be flexible and allow variety, however, as with design there may be an element of subjectivity.

Green Belt
The draft Framework published in March 2018 stated that “once established, green belt boundaries should only be altered in exceptional circumstances, through the preparation or updating of plans.” The 2018 Framework however requires greenbelt reviews to be ‘fully evidenced and justified’. Paragraph 136 of the 2018 Framework states that “Once established, green belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans“. LPA are required to fully examine all reasonable options to meet its identified need for development. However, this amendment appears to tighten the already restrictive Green Belt release policy.

Housing Delivery Test
No significant amendments have been made to the government’s new Housing Delivery Test. Where delivery is below 75% of the housing requirement from 2020, the Government intends to apply the presumption in favour of sustainable development

Standardised Method of Calculating Housing Need
The 2018 Framework implements a standard methodology for assessing housing need. This method is intended to simplify Objectively Assessed Need (OAN) calculations to provide a centrally-based figure. This is done by taking the Government’s household growth projections and applying an affordability ratio, and comparing local house prices with workplace earnings to identify a need figure. The 2018 Framework states that “strategic policies should, as a minimum, provide for objectively assessed needs for housing and other uses, as well as any needs that cannot be met within neighbouring areas , unless the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area… ; or  any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole”. This strengthens the requirement for LPAs to cooperate with each other in meeting unmet housing requirements.

Social Rent in Definition of Affordable Housing
The term which had been omitted from March’s draft version prompting concerns from some sector bodies has now been reinstated.

Small Sites
The policy encouraging the use of small sites has now been altered to include sites of up to 1ha and medium sized sites. Development plans are now required to identify land to accommodate at least 10% of housing requirement on small sites.

Neighbourhood Development Plans
Paragraph 14 of the 2018 Framework states that presumption in favour of sustainable would apply in the absence of an up to date plan – however by allowing housing schemes that conflict with NDP it is likely to “significantly and demonstrably outweigh the benefits“. It is suggested that where a plan has been adopted two years or less before the decision, it contains policies and allocations to meet its identified housing requirement. As such, the LPA would have at least a three-year supply of deliverable housing sites against its five-year requirement.

Voluntary PPAs
Paragraph 46 of the 2018 Framework states that Planning Performance Agreements (PPAs) are likely to be needed for applications which are large or complex to determine. The suggestion of potential of voluntary PPAs were excluded from the March draft NPPF.

Storage and distribution operations
Paragraph 82 of the 2018 Framework refers to the provision for storage and distribution operations “at a variety of scales and in suitably accessible locations“. This provision requires the specific locational requirements of storage operations to be recognised in planning policies and decisions.  This was omitted from the March 2018 draft.

Ancient Woodland and veteran trees
Paragraph 175(c) offers protection to woodland and ancient veteran trees. It states that development which result in the loss or deterioration of irreplaceable habitats such as ancient woodland and veteran trees should be refused unless there are exceptional reasons and mitigation in place. Veteran trees in the ancient woodland were excluded from the definition of ‘irreplaceable habitat’ in the draft Framework published in March 2018.

What do we think about the NPPF?
As highlighted in James Brockenshire’s Written Ministerial Statement, 85 of the proposals set out in the housing white paper and the Budget, are implemented in the new National Planning Policy Framework. The new rules require greater responsibility, transparency and accountability from both LPAs and developers. The amendments to Viability Assessments are ambitious and only time will how successful this approach will be. We are also disappointed to see the amendment to the already restrictive Green Belt Release Policy appears being tightened. The Housing Crisis is multifaceted in nature, exacerbated by other factors such as the shortage of construction workers, reduced LPA powers, a lack of transparency, increased demand brought on by decades of deregulation, and lax policies – the revisions to the NPPF alone cannot solve the Housing Crisis and therefore, other central government reforms will be necessary.

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Local Plan Updates and Progression August 2018

 

Local Plan Updates – Tracking and Progression

We have been tracking and following the progress of Local Plans in the different regions of England.

A Local Plan sets out planning policies and identifies how land is used – determining what will be built where. We’ve developed this Local Plan Schedule which we hope will keep you up to date on what Local Authorities are doing on their Plans and if you have any questions contact us today.

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Urbanissta’s Legal Beagle is on the Case – April 18

 

Welcome to the Urbanissta Legal Beagle’s case work reviews – we’re still tracking decisions to see what useful precedents have been set in judgements and decisions that might be useful to you, day to day.

Our summary of recent decisions is below and via the links you can download more details of the full decision letters should you wish.

As you may be aware, Mid Sussex District Council have now adopted their new Local Plan (28th March 2018) and interestingly, prior to adoption, 5 appeals were decided by the Secretary of State; 4 of which were granted permission.  We provide a summary of these in this month’s edition so it’s a bit of a Mid Sussex special edition, but we have lots of other interesting cases for you to review too, so we hope the following is informative!

Furthermore, our guest barrister, Giles Atkinson of 6 Pump Court provides commentaries on three recent decisions; Dover DC v CPRE (Kent); Braintree DC v SoS for CLG; and Samuel Smith v North Yorkshire CC.

 

 

 

 

Here are 10 recent planning appeals, giving you insights into the latest precedents:

1. Reasons for Planning Approvals

Ref: [2017] UKSC 79
Appeal Decision Date: 06 December 2017
Appellant: Dover DC
Respondent: CPRE Kent

Readers will remember that I have previously summarised the case of Oakley v South Cambs DC[1] in which the circumstances under which an LPA may be expected to give reasons for granting permission were examined.  The matter has now been definitively determined by the Supreme Court, in Dover DC v CPRE (Kent)[2].

The Supreme Court, in a unanimous decision, endorsed the Court of Appeal’s approach in Oakley establishing a common law duty to give reasons in certain circumstances.

The application in the Dover case was for a major development including over 500 houses, a conference centre, hotel and museum, partly on AONB.  The officer recommendation was for approval for an amended, reduced, development of 365 houses, the reduction intended to protect a particularly vulnerable part of the site from landscape harm.  The applicants objected to the reduction essentially arguing that it would render the scheme unviable but the officer recommendation remained to approve the lesser number.

The committee members however, voted to approve the scheme as applied for with over 500 houses.

In due course, following negotiations about the section 106 agreement, the decision notice was issued without any statement of the reasons for grant.

The question of reasons was raised in challenges to the grant of permission, eventually finding its way to the Supreme Court which indicated that it wished to consider generally the sources, nature and extent of an LPA’s duty to give reasons for the grant of planning permission.

The SC considers first the statutory sources of a duty to give reasons, noting that LPAs are no longer required to give reasons for grants of permission as they were for a period under the GPDO[3], although there is still a general duty on local authority officers making a decision involving the ‘grant of a permission or licence’, which includes the grant of planning permission[4] and for EIA development (which the development in the Dover case was) and under the Aarhus Convention.

The standard of reasons was then considered by the SC, finding essentially that what is needed is an adequate explanation of the ultimate decision, the essence of the duty being whether the information provided by the LPA leaves room for genuine doubt as to what it has decided and why.

Importantly the SC found that the remedy for a breach of the duty to give reasons, which in the Dover case it was accepted had occurred there being a breach of the duty imposed by the proposals being EIA development, was the quashing of the decision rather than just, as had been argued, the retrospective provision of reasons.

Although it didn’t need to be determined in the Dover case because it was accepted that reasons should have been provided under the EIA legislation, the SC went on to consider the common law duty to give reasons and this is probably the part of the decision of widest application and therefore of greatest interest.

The SC endorsed the finding of the CA in Oakley, where particular circumstances gave rise to a common law duty to give reasons for the grant of planning permission based, essentially, on fairness, itself a common law principle.

Without wishing to be over-prescriptive the SC helpfully set out the circumstances in which the common law duty to give reasons arises:

 “However, it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements.  Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the ‘specific policies identified in the NPPF…).  Such decision call for public explanation, not just because of their immediate impact, but also because…they are likely to have lasting relevance for the application of policy in future cases.”

 So, for cases where there is a great deal of public opposition and a member overturn, development is a major departure from the DP or contrary to polices of recognised importance, including those specified at FN 9 of NPPF14[5], LPAs may now be expected to provide reasons for the grant of planning permission.  If they are found to have failed in this duty, the remedy is to quash the decision.

This decision amounts to an important new requirement placed upon LPAs which might be expected to arise not infrequently.

[1] [2017] EWCA Civ 71

[2] Dover Dc v CPRE (Kent) CPRE (Kent) v China Gateway International Limited [2017] UKSC 79

[3] Between 2003 and 2013.  GPDO now replaced with the DMPO.

[4] This under the little known Openness of Local Government Bodies Regulations 2014, SI 2014/2095

[5] FN 9 of NPPF14 is now (in the March 2018 consultation draft of the replacement NPPF) FN 7 of paragraph 11.

Download the decision here.

2. New Isolated Homes in Countryside

Case No: CO/1207/2017
Appeal Decision Date: 15 November 2017
Appellant: Braintree DC
Respondent: Secretary of State for Communities and Local Government

The interpretation of this phrase, from NPPF 55, was considered by the CA recently in Braintree DC v SoS for CLG[1].  Paragraph 55 is as follows:

“55. To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements, development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as:

  • the essential need for a rural worker to live permanently at or near their place of work in the countryside; or
  • where such development would represent the optimal viable use of a heritage asset or would be appropriate enabling development to secure the future of heritage assets; or
  • where the development would re-use redundant or disused buildings and lead to an enhancement to the immediate setting; or
  • the exceptional quality or innovative nature of the design of the dwelling. Such a design should: be truly outstanding or innovative, helping to raise standards of design more generally in rural areas; reflect the highest standards in architecture; – significantly enhance its immediate setting; and – be sensitive to the defining characteristics of the local area.”

An inspector, in combined section 78 and section 174 appeals on the same site, had granted permission for 2 single storey dwellings and quashed an EN alleging, amongst other things, the partial erection of a single storey building (one of the dwellings).  The site lay close to but outside the settlement boundary of the village of Blackmore End.

The Inspector had noted in respect of the development:

 “It would not accord with the development plan’s approach of concentrating development in towns and in village envelopes.  On the other hand there are a number of dwellings nearby and the development would not result in new isolated homes in the countryside to which Framework paragraph 55 refers.”

The Inspector went on to observe that there was a very limited range of facilities in the village of Blackmore End and that the occupiers of the dwellings were likely to rely heavily on the private car to access facilities further afield.

The Council challenged the Inspector’s decision and argued unsuccessfully in the High Court that paragraph 55 NPPF was concerned not literally with the proximity of a proposed dwelling to other residential dwellings, but rather with proximity to services and facilities so as to maintain or enhance the vitality of the rural community.

In the CA the Council adopted a slightly different argument, that in order to comply with NPPF 55 a development must be neither physically isolated relative to settlements and other developments, nor functionally isolated relative to services and facilities.

This argument was rejected in the CA; ‘isolated’ meant physically isolated from a settlement, not isolated from services and facilities.

Lindblom LJ found that the requirement for LPAs to avoid ‘new isolated homes in the countryside’ was a geographical distinction between places.  In the context of the preceding two sentences of NPPF 55, this meant a distinction between development of housing within a settlement or village, and new dwellings which would be ‘isolated’ in the sense of being separate or remote from a settlement.

In short, it was said by Lindblom LJ, settlements are the preferred location for new housing development in rural areas.  That, in effect, is what the policy says.

He went on to endorse the High Court’s finding that the word ‘isolated’ should be given its ordinary dictionary definition, so that in the context of NPPF 55 it connotes a dwelling that is physically separate or remote from a settlement.  In any particular case, this will be a matter of fact and planning judgment for the decision maker.

Similarly, what is a ‘settlement’ or ‘village’ as referred to by NPPF 55 will also be a matter of fact and planning judgment for the decision maker.  Lindblom LJ found that to qualify as a settlement or village, in the absence of any definition of these phrases, there is no specified minimum number of dwellings or population required; a settlement boundary does not have to have been fixed in the local plan; nor does there have to be any specified services, or indeed any services.

The Judgment of Lindblom concludes that this ‘common sense’, ‘literal and natural construction’ of NPPF 55 is in accordance with the broader context of policies for sustainable development in the Framework as a whole.  By seeking to maintain and enhance the ‘vitality’ of rural communities through the location of housing, as para 55 does, is a policy which embraces the social dimension of sustainable development, and to restrict the concept of ‘isolated homes’ to meaning isolated from services (as was argued by the Council) would be to deny this policy’s support for dwellings which did contribute to social sustainability.

It should be noted finally, that paragraph 55 of the NPPF is currently (in the consultation draft March 2018) proposed to be replaced with paragraphs 80 and 81 which are in substantially, but not exactly, the same terms.

[1] [2018] EWCA Civ 610

Download the decision here.

3. Visual Impact and Openness of the Greenbelt

Case No: C1/2017/0829
Appeal Decision Date: 16 March 2018
Appellant: Samuel Smith Old Brewery
Respondent: North Yorkshire County Council

In Samuel Smith v North Yorkshire CC[1] the CA have confirmed Turner[2], itself quite a recent CA decision, to the effect that visual impact is potentially relevant to the consideration of the effect of a development on the openness of the Green Belt.

The development at issue in Samuel Smith was an extension of a limestone quarry over approximately 6 hectares in the West Yorkshire Green Belt south west of Tadcaster. The LPA (North Yorks) granted permission and a JR challenge was unsuccessful but permission to appeal to the CA was granted.

In her report to committee the officer determined that the proposed development preserves the openness of the GB and did not conflict with the purposes of including land within it. She noted that openness is not defined but is commonly taken to be the absence of built development, and that because the application site immediately abuts the existing quarry, it would not introduce development into the area so as to conflict with the aims of preserving the openness of the Green Belt.

Overall, she recommended approval of the proposals which she found did not materially harm the character and openness of the GB.

The claimants’ challenge was based on a misdirection about para 90 NPPF.  Paragraphs 87-90 are as follows:

“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

 When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

  1. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
  • buildings for agriculture and forestry;
  • provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
  • the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;
  • the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;
  • limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or
  • limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.
  1. Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:
  • mineral extraction;
  • engineering operations;
  • local transport infrastructure which can demonstrate a requirement for a Green Belt location;
  • the re-use of buildings provided that the buildings are of permanent and substantial construction; and
  • development brought forward under a Community Right to Build Order.”

Inappropriate development may only be approved if there are VSCs (NPPF 87).  A quarry is capable of not being inappropriate development provided it preserves the openness of the GB (NPPF 90).

It was said by way of challenge, essentially, that by failing to refer specifically to the visual impact of the proposed development on openness, the officer had misdirected the committee so that it approached its decision, wrongly, on the basis that the proposal was not for inappropriate development in the GB and did not have to be justified by VSCs.

Members, guided by the officer advice, assumed that the effect of the development on the visual openness of the GB was not and could not be a relevant consideration in establishing whether the proposal was for inappropriate development; plainly relevant, it was said, in the context of a 6 hectare extension of a quarry.  Had the visual impacts been considered the only conclusion of the committee would have been that the development would not preserve the openness of the GB, would therefore be inappropriate and would therefore have had to be justified by VSCs.

The CA accepted these arguments.  Lindblom LJ giving the leading judgment, notes that NPPF 90 sets out 5 forms of categories, all subject to the proviso that they preserve the openness of the GB and do not conflict with the purposes of including land within it.  Whilst openness is not defined he agreed with the finding of Turner that the word must take its meaning from the specific context in which it falls to be applied and that different factors are capable of being relevant to the concept when applied to the particular facts of a case; visual impact as well as spatial impact is implicitly a part of openness.

He went on:
“38 As a general proposition, however, it seems to me that the policy in paragraph 90 makes it necessary to consider whether the effect of a particular development on the openness of the Green Belt can properly be gauged merely by its two-dimensional or three-dimensional presence on the site in question – the very fact of its being there – without taking into account the effects it will have on the openness of the Green Belt in the eyes of the viewer. To exclude visual impact, as a matter of principle, from a consideration of the likely effects of development on the openness of the Green Belt would be artificial and unrealistic. The policy in paragraph 90 does not do that. A realistic assessment will often have to include the likely perceived effects on openness, if any, as well as the spatial effects. Whether, in the individual circumstances of a particular case, there are likely to be visual as well as spatial effects on the openness of the Green Belt, and, if so, whether those effects are likely to be harmful or benign, will be for the decision-maker to judge. But the need for those judgments to be exercised is, in my view, inherent in the policy.”

This paragraph provides a useful resume of the distinction between the spatial impact (the simple presence of something on land) and its visual impact, and the reality that the two are often closely related.

In the Samuel Smiths case the Court found that the Council had fallen into error by not considering whether it was likely the development proposed would have a visual impact nor how those visual impacts would bear on the question of whether the development would ‘preserve the openness of the GB’.  The officer’s observation that openness is ‘commonly taken to be the absence of built development’ appeared to lead the assessment away from visual impact and narrow it down to consideration of spatial impact alone.

This decision confirms the CA’s finding in Turner which was itself notable for disproving the decision in a case called Timmins[3] which had stated a clear conceptual distinction between openness and visual impact, such that it was wrong in principle to reach a conclusion on openness by reference to visual impact.  As should be clear now that distinction is incorrect and visual impact is potentially relevant and potentially significant in reaching decisions about openness of the GB.

[1] Samuel Smith Old Brewery (Tadcaster) and Oxton Farm v North Yorkshire CC and Darrington Quarries Led [2018] EWCA Civ 489

[2] Turner v SoS for CLG [2017] 2 P.&C.R.1

[3] Timmins and Another v Gedling BC [2014] EWHC 654 (Admin)

Download the decision here

4Under supply of housing leads to two applications being allowed by SoS – Mid Sussex

Appeal Ref: APP/D3830/V/16/3149579 & APP/D3830/W/16//3145499
Appeal Decision Date: 01 March 2018
Appellant: Wates Development Limited
Council: Mid Sussex District Council

Application A (ref: DM/15/3979) was dealt with in pursuance of Section 77 of the Town and Country Planning Act 1990 (Direction). The appeal (DM/15/3614) was recovered by the Secretary of State (SoS) in pursuance of Section 79 of the Town and Country Planning Act 1990.

Background
An appeal was made by Wates Development Limited against the decision to refuse planning permission for:

Application A: Outline consent for 30 dwellings, of which 30% will be affordable, with only access to be determined at this stage, with landscaping, open space and car parking, in accordance with application ref: DM/15/3979, dated 5 October 2015; and

Appeal: Outline consent for 44 dwellings, of which 30% will be affordable, with only access to be determined at this stage, landscaping, open space and car parking, in accordance with application DM/15/3614, dated 7 September 2015

In allowing the appeal and granting permission for both applications the SoS considered the following main issues:

  • Five-year land supply
  • The effect on the character and appearance of the area
  • The effect on the areas of ancient woodland
  • Potential coalescence with nearby settlements
  • Housing mix
  • Safety and convenience of users to adjacent highway network

Five-year Land Supply
Limited weight was given to Mid Sussex Local Plan 2004 (MSLP 2004) Policies C1 and C2 as the Council was unable to demonstrate a 5-year housing land supply. It was considered that the relevant housing policies conflicted with the aims and objectives of the Framework were therefore not up-to-date. The Crawley Down Neighbourhood Plan (CDNP) Policy CDNP05 and CDNP08 were also not considered up to date, as such, they were given moderate weight. The emerging MSDP was only be given limited weight.

Effect on the Character and Appearance of the Area
Both applications lie immediately west of existing residential development on Turners Hill Road with the eastern part of the northern boundary adjoining the new Wychwood residential area. It was considered that although the development would result in adverse changes to the character and appearance of the application site itself, the impacts on the character of the wider landscape would not be significant. There are no public viewpoints from the north and views from the eastern side of Bushy Wood would not harmfully impact on the proposed development especially once the proposed buffer planting on the western boundary has matured.

Effect on the Areas of Ancient Woodland
Both application sites adjoin areas of ancient woodland, with Pescotts Wood to the north and Kiln Wood to the south. A 15m wide buffer zone was proposed. With the proposed buffers and appropriate planning conditions, the Council were satisfied with the proposals. The Parish Council argued that the buffers should be increased to 30m wide, however, provided no evidence to justify this request. It was considered that there would be no conflict with development plan policies and the Framework guidance in terms of impact on the areas of ancient woodland.

Potential Coalescence with Nearby Settlements
It was considered that neither of the schemes under consideration would result in any real or perceived coalescence of Crawley Down with any neighbouring settlement. Policy CDNP08 of the CDNP seeks to prevent coalescence by not permitting development outside of the village boundary unless 3 criteria are met. The first being that the development should not detract from the openness and character of the landscape – neither applications were seen to conflict with this criterion. In respect of criterion b, the applications were not seen to contribute to “ribbon development. In terms of criterion c, the Parish Council argued that the proposals would reduce gaps neighbouring settlements. It was concluded that, none of the application proposals would result in any real or perceived coalescence of Crawley Down with any neighbouring settlement.

 Housing Mix
The affordable housing mix proposed for each scheme is set out within the S106 agreements and fall short of the 80% figure for 2-3 bedroom units, however the Inspector considered it to be acceptably close and the mix was acceptable to the Councils Housing Officer.  It was concluded thatthe mix would perform satisfactorily when assessed against the requirements of paragraph 50 of the Framework, and all would be capable of delivering an appropriate and acceptable mix of market and affordable housing”.

Highways
The Secretary of State agreed with the Inspector that, “subject to the imposition of his proposed conditions and the provisions of the S106 Agreements, neither of the two schemes under consideration would have any unacceptable impacts on the safety or convenience of the user of the adjacent highway network and thus no material conflict with MSLP Policy T4 or CDNP Policy CDNP10”

Conclusion
In the absence of a 5-year supply, Paragraph 14 of the NNPF indicates that where relevant policies are out of date permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken. It was concluded that on balance, the adverse impacts identified did not significantly and demonstrably outweigh the benefits of the proposal.

Based on the above, the both the appeal and called in application were granted permission.

Download Decision here.

5. Under Supply of Housing leads to Two Applications Allowed by SoS – Mid Sussex

Appeal Ref: APP/D3830/V/16/3149575 & APP/D3830/V/16/3161086
Appeal Decision Date: 01 March 2018
Appellant: Gleeson Development Limited
Council: Mid Sussex District Council

 In pursuance of Section 77 of the Town and Country Planning Act 1990 application B (ref: DM/15/4094) and application C (ref DM/16/233) were referred to the SoS.

Background
An appeal was made by Gleeson Development Limited against the decision to refuse planning permission for:

Application B: outline consent for up to 60 dwellings, of which up to 30% will be affordable, with only the principle means of access to be determined at this stage, along with associated landscaping, open space and car parking, in accordance with application ref: DM/15/4094, dated 9 October 2015; and

Application C: outline consent for up to 30 dwellings, of which up to 30% will be affordable, with only the principle means of access to be determined at this stage, along with associated landscaping, open space and car parking, in accordance with application DM/16/2330, dated 27 May 2016.

In granting permission for both applications the SoS considered the following main issues:

  • Five-year land supply
  • The effect on the character and appearance of the area
  • The effect on the areas of ancient woodland
  • Potential coalescence with nearby settlements
  • Housing mix
  • Safety and convenience of users to adjacent highway network

Five-year Land Supply
Limited weight was given to Mid Sussex Local Plan 2004 (MSLP 2004) Policies C1 and C2 as the Council was unable to demonstrate a 5-year housing land supply. It was considered that the relevant housing policies conflicted with the aims and objectives of the Framework were therefore not up-to-date. The Crawley Down Neighbourhood Plan (CDNP) Policy CDNP05 and CDNP08 were also not considered up to date, as such, they were given moderate weight. The emerging MSDP was only be given limited weight at this stage.

Effect on the Character and Appearance of the Area
In the Council’s SHLAA the Site was assessed as unsuitable for residential development. The Site was seen to have a distinct rural character with a lack of defensible boundary to the east and south. When assessed against CDNP Policy CDN05, the development was seen to harm the character of the area and would detract from the openness and character of the landscape. It was acknowledged that this was an inevitable consequence of developing any greenfield site and not always unacceptable in the overall planning balance. It was concluded the proposed densities would be acceptable. No firm, specific evidence was put before the Inspector to demonstrate what harm would arise from the Gleeson 60 scheme. In light of this, there was no unacceptable conflict with criteria (a) or (b) of CDNP Policy CDNP05 or the first criterion of CDNP05.

Effect on the areas of Ancient Woodland
Both application sites adjoin areas of ancient woodland, with Burleigh Wood to the west and Rushetts Wood to the east. A 15m wide buffer zone was proposed. With the proposed buffers and appropriate planning conditions, the Council were satisfied with the proposals. The submitted ecology statement confirmed that the proposals would not result in the loss of any ancient woodland habitats, nor the loss of any trees or woodland. It was considered that there would be no conflict with development plan policies and the Framework guidance in terms of impact on the areas of ancient woodland.

Potential Coalescence with Nearby Settlements
It was considered that neither of the schemes under consideration would result in any real or perceived coalescence of Crawley Down with any neighbouring settlement. The broad extent of Rushetts Wood lies generally between the Gleeson site and East Grinstead.  In these circumstances, the Inspector was not persuaded that any of the proposed developments would result in any lessening of the separate identity and amenity of Crawley Down, nor lead to any significant perception of coalescence with nearby built-up areas.  As such, found no conflict with policy C2.

 Housing Mix
The affordable housing mix proposed for each scheme is set out within the S106 agreements and fall short of the 80% figure for 2-3 bedroom units, however the Inspector considered it to be acceptably close and the mix was acceptable to the Councils Housing Officer.

Highways
The Parish Council raised concerns regarding the use of Hazel Close and Hazel Way to serve a major development. The Secretary of State agreed with the Inspector that, subject to the imposition of his proposed conditions and the provisions of the S106 Agreements, the schemes would not have any unacceptable impacts on the safety or convenience of the user of the adjacent highway network and thus no material conflict with MSLP Policy T4 or CDNP Policy CDNP10.

Conclusion
In the absence of a 5-year supply, Paragraph 14 of the NNPF indicates that where relevant policies are out of date permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken. It was concluded that on balance, the adverse impacts identified did not significantly and demonstrably outweigh the benefits of the proposal.

Based on the above, both applications were granted permission.
Download Decision here.

6. Site Located within 4.3km from Ashdown Forest granted Permission for up to 200 dwellings – East Grinstead, Mid Sussex

Appeal Ref: APP/D3830/W/16/3142487
Appeal Decision Date: 01 March 2018
Appellant: Linden Limited
Council: Mid Sussex District Council

 This appeal was recovered for the Secretary of State’s determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
An appeal was made by Linden Limited against the decision to refuse planning permission for “for outline planning permission for up to 200 dwellings, provision of new internal access roads and footpaths, landscaping, open space, sustainable drainage system, earthworks and associated infrastructure and for full permission for the provision of Suitable Alternative Natural Green Spaces (SANGS) in, accordance with application ref: DM/15/0429 dated 2 February 2015”.

In allowing the appeal, the SoS considered the following main issues:

  • Supply and delivery of housing
  • The effect on the character and appearance of the area
  • Effect on transport
  • Effect of biodiversity
  • Effect on historic environment

Supply and Delivery of Housing
The proposals would bring forward 140 market houses with 60 units of affordable housing. The material contribution of the provision of housing in the district was given significant weight. The scheme would also bring substantial economic and environmental benefits.

Effect on the character and appearance of the area
The Site is divided into two parcels. Parcel A lies to the south east of the railway and to the southern western edge of the built-up area of East Grinstead. Parcel B lies north west of Parcel A and is entirely in SANGS land. The Site adjoins the AONB. It was considered that Parcel A has very limited inter-visibility with the AONB and did not pass the threshold of ‘valued’ as used in the NPPF. However, Parcel B was more representative of Landscape of High Weald due to its extensive views of the ancient woodland. The Inspector concluded that the visual impacts would be localised, with the most significant visual impacts experienced by the occupiers of those houses closest to the site. Moderate impacts would be views from Turners Hill Road, Garden Wood Road and the public footpath to the south of the site. Other visual impacts were described as relatively minor.

Effect on Transport
The Council’s refusal based on highways matters was withdrawn before the enquiry. Rule 6 party however maintained their objection on highways grounds and criticised the Council for accepting a Transport Assessment (TA) which did not include an assessment on A22 junctions. The Inspector disagreed and stated that there has been a robust assessment of transport impacts. Furthermore, the appeal Site enhances opportunities for sustainable transport modes and the proposal and highways contributions would enable two key junctions to be improved. He also noted that the traffic generated by the appeal scheme would be minimal in relation to traffic passing through the junction. As such, the appeal scheme accords with paragraph 32 of the Framework.

Effect on Biodiversity
The Site is located approximately 4.3km from Ashdown Forest. The HRA concluded that the appeal scheme is not likely to have a significant effect on the Ashdown Forest SPA/SAC. The Inspector therefore considered that the proposals were unlikely to have a significant effect on Ashdown Forest SPA, SAC or SSSI and there would be no harmful effects on biodiversity in general.

 Effect on Historic Environment
The Inspector considered that there would be no direct impact on either of the Grade II listed buildings; Hill Place Farm House and Imberhorne Viaduct. The setting of Hill Place Farmhouse was seen to make very little contribution to its significance as a designated heritage asset. As the Site has already been diminished by modern agricultural buildings, the appeal scheme would not pose any harm. Furthermore, the harm to Bluebell Railways would be negligible. With respect to Inborne Viaduct, although the impact on views was considered as less than substantial, the inspector felt that the new public footpath passing close to the foot of the viaduct would be an important public benefit as it would provide excellent views – this benefit outweighed the harm.

Conclusion
The appeal scheme was seen to make a meaningful contribution to housing without significant harm to the transport network and biodiversity. Although the appeal scheme would fail to preserve the listed viaduct, the harm would be minor. In light of these material considerations, the Inspector expressed that the benefits of the scheme outweighed the impacts and recommended that the appeal is allowed which the SoS agreed.

Based on the above, the appeal was allowed
Download Decision here.

7. SoS goes against Inspector’s Recommendation to Refuse Planning Permission and Grants Permission for 200- Mid Sussex

Appeal Ref: APP/D3830/W/16/3152641
Appeal Decision Date: 01 March 2018
Appellant: Wates Development Ltd
Council: Mid Sussex District Council

 This appeal was recovered for the Secretary of State’s determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
An appeal was made by Wates Development Ltd against the decision of Mid Sussex District Council to refuse “outline planning permission for 200 dwellings, a 9.54ha Country Park and land for a ½ Form Entry Primary School, together with associated access road, car parking, landscaping and open space at land south of Scamps Hill/Scaynes Hill Road, Lindfield, West Sussex, in accordance with application ref:  DM/15/4457, dated 4 November 2015.”.

In allowing the appeal, the SoS considered the following main issues:

  • Character and Appearance
  • Sustainable Development
  • Development Plan

Character and Appearance
The SoS agreed with the Inspector that although there would be harm to the landscape due to residential development, this should be overcome at reserved matters stage. Furthermore, the effect of the proposals on the character and appearance of Walstead should not be a bar to development, and as such this was given limited weight.

Sustainable Development
The Secretary of State agreed with the Inspector’s conclusion that the proposed scheme would recognise the intrinsic character and beauty of the countryside, secure high quality and inclusive design and would not harm any valued landscape. The Secretary of State therefore gave moderate weight to these benefits.

Development Plan
As the Council holds less than a 5-year housing land supply, limited weight was given to MSLP Policy C1 and NP Policy 1. Full weight was given to LP Policy B1(a) which supports the scheme.

Conclusion
The SoS concluded that the scheme conflicted with MSLP Policies C1 and NP Policy 1 – however, the policies were seen to be inconsistent with the Framework and therefore considered as out of date. In the absence of a 5-year land supply, para 14 of the Framework indicates that permissions should be granted unless there are adverse impacts that significantly and demonstrably outweigh the benefits. The housing benefits were seen to carry substantial weight and the economic, social and environmental benefits each carry moderate weight. Due to these reasons, the SoS allowed the appeal.

Based on the above, the appeal was allowed.
Download Decision here.

8. Application of up to 130 Dwellings Refused due to Unacceptable Risk to Safety of Future Occupiers from Unmanned Railway Crossing- Hassocks, Mid Sussex

Appeal Ref: APP/D3830/V/17/3166992
Appeal Decision Date: 01 March 2018
Appellant: Roydon Homes Ltd
Respondent: Mid Sussex District Council

 Pursuant to Section 77 of the Town and Country Planning Act 1990, the application was referred to SoS instead of being dealt with by the local planning authority.

Background
The application was made by Roydon Homes Ltd for residential development of up to “130 dwellings, consisting of 12 No. 1 bed apartments, 27 No. 2 bed houses, 47 No. 3 bed houses, and associated access, together with full permission for change of use of part of the land to form country open space in accordance with application ref:  DM/15/0626, dated 13 February 2015”

In refusing the application, the SoS considered the following main issues:

  • The supply and delivery of housing in Mid Sussex
  • Effects on flood risk
  • Effects on air quality
  • Safety of future occupiers in relation to the railway crossing

Supply and Delivery
The Inspector stated that “Hassocks is the most sustainable of the District’s Category 2 settlements, and is therefore a natural location for a large part of the extra houses that will be needed.” As such, the proposed development was seen to boost the local housing supply.

Flood Risk
Part of the Site is located within flood zone 2 and 3. It was contended by the applicant that residential development will only be located in zone 1 and open space will be located in zones 2 and 3. This type of disaggregation is accepted by NPPG.

Air Quality
The proposed development was seen to not give rise to any unacceptable impacts on air quality and therefore conformed with MSLP Policy CS22, which seeks to avoid unacceptable pollution in any form.

Future Occupiers
The Inspector identified potential implications for public safety.  In the absence of any measures to improve the safety of the unmanned railway crossing, permitting the proposed development in such close proximity, it was considered as an unacceptable risk to the safety of future occupiers, contrary to the aims of NPPF paragraph 32. The SoS agreed with the Inspector’s view.

Conclusion
The SoS concluded that, “despite the benefits that would flow from the proposal, the unacceptable risk to the safety of future occupiers from the unmanned railway crossing represents a sufficiently substantial material consideration to outweigh the benefits, so that the application should be refused”.

Based on the above, the application was refused.
Download Decision here.

9. Sainsburys Development Approved for 683 Homes Allowed with 4% Affordable Housing Ilford, Redbridge

 Appeal Ref: APP/W5780/W/16/3164036
Appeal Decision Date: 14 March 2018
Appellant: Sainsburys Supermarket Ltd
Council: London Borough of Redbridge

 The appeal was recovered for the Secretary of State’s determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
The appeal was made by Sainsburys Supermarket Ltd against the decision of the Council of the London Borough of Redbridge (“Council”) to refuse planning permission for “demolition of existing buildings and structures and development of a replacement Sainsbury’s store (Use Class A1) of 4,745 sqm (net sales area), 951 sqm (GIA) of flexible commercial floorspace (Use Class A1/A2/A3/B1/D1) and 683 residential units (Use Class C3) arranged in 9 blocks including 2 terraces of mews and town houses.  An energy centre and plant is provided at basement and lower ground level, along with 410 retail car parking spaces and 42 residential car parking spaces. Associated highways and landscaping works, in accordance with application ref: 4499/15, dated 13 November 2015.”

In allowing the appeal, the SoS gave consideration to the following main issues:

  • Housing need
  • Density
  • Design
  • Impact on local infrastructure
  • Impact on neighbouring residents
  • Impact on future residents
  • Impact on traffic
  • Effect on the retail function
  • Effect on heritage assets
  • Affordable Housing

Conclusion
“The SoS considered that the public benefits arising from the proposals would significantly outweigh the low level of ‘less than substantial’ harm to the significance of the Grade II* listed Hospital Chapel and its associated buildings. Furthermore the adverse impacts of the proposals do not significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. Overall he considered that there are therefore material considerations which indicate that the proposal should be determined other than in accordance with the development plan”

Based on the above, the application was allowed.
Download Decision here

 

10.Benefits Outweighed harm to the Green Belt by Reason of Inappropriateness and any Other Harm– Effingham, Guildford

Appeal Ref: APP/Y3615/W/16/3151098
Appeal Decision Date: 21 March 2018
Appellant: Berkley Homes
Council: Guildford Borough Council

The appeal was recovered for the Secretary of State’s determination, in pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

Background
The appeal was made by Berkley Homes against the decision of Guildford Borough Council (“Council”) to refuse planning permission for “hybrid planning application for outline permission (only access to be considered) for the erection of a replacement secondary school for Howard of Effingham and up to 258 residential dwellings with means of access to Howard of Effingham School and Lodge Farm, Lower Road following demolition of all existing buildings; and full permission for the erection of 37 dwellings, with access, parking and landscape works on land at Brown’s Field, Brown’s Lane, Effingham, in accordance with application ref:  14/P/02109, dated 17 October 2014.”

In allowing the appeal, the SoS considered the following main issues:

  • Green Belt
  • Character and appearance of conservation area
  • Heritage assets
  • Ecology
  • Playing pitch
  • Housing supply

Green Belt
The Inspector and SoS agreed that the proposal would represent inappropriate development in the Green Belt as such substantial weight was attached to the harm to the openness of the Green Belt.

Character and appearance of conservation area
It was concluded that the scheme proposes limited extent of erosion of local character and the mitigating effects of the development, the harm is limited in extent, and carried medium weight

Ecology
The Secretary of State agreed with the Inspector that sufficient mitigation can be secured by condition to overcome concerns over ecological matters in relation to the local Site of Nature Conservation Importance and protected species. He further agreed that the legitimate concerns over the efficacy of the wildlife corridor can in good measure be addressed, and that these matters are neutral in terms of weight.

Playing pitch
The SoS agreed with the Inspector that the proposed replacement school’s facilities would result in a change to the functions of the club, the benefits on offer outweigh the loss.

Housing supply
The Council falls significantly below the 5-year housing land supply (2.1years). The Inspector attached substantial weight to the delivery of 295 dwellings with 20% affordable housing.

Conclusion
The SoS considered that the benefits outweighed harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist. The SoS concluded that there are no specific policies in the Framework that indicate that this development should be restricted and that there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

Based on the above, the application was allowed./
Download Decision here

 

Any questions? Ask our Legal Beagle – fetching facts and sitting down to analyse and advise.
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Latest GDPO amendments to Agricultural Permitted Development Rights

 

On Monday 5th March 2018, the Housing Minister, Dominic Raab announced changes to Permitted Development Rights which enable flexibility for rural sites to be converted from three to up to five family homes (Class Use C3) to better meet local housing need without the need to apply for Planning Permission.  You can read his statement here.

Amendments to the General Permitted Development Order (GDPO) were approved by Parliament on 12th March 2018 and have come into force today, 6th April 2018.

The amendments allow buildings which currently are/were in ‘active agricultural use’ on or before 20th March 2013 to be redeveloped for up to 5 dwellings. This will allow for the following:

  • Up to 3 larger homes within a maximum of 465 sq. m. (5005.2sqf)
  • Up to 5 smaller homes, each no larger than 100 sq. m. (1076.4sqf)
  • Combination of both above options – no more than 5 homes (no more than 3 being larger homes).

The permitted floor area has marginally increased from 450 sqm (4,843 sqft) to 465sqm (5005.2sqf). As set out above, the provisions can be combined to provide up to 5 dwellings per agricultural unit subject to the floor space limitations, with no more than 3 dwellings as larger dwellings.

Permitted Development Rights are subject to obtaining approval from the LPA first. This means that you must notify the relevant LPA and submit a prior approval application before starting any work. If the Council do not issue a decision within the time frame of 56 days, then development can begin.

Restrictions
It must be noted that permitted development rights are generally more restricted in the following designated areas:

  • Conservation Area
  • National Park
  • Area of Outstanding Natural Beauty or
  • The Norfolk or Suffolk Broads

Criteria
The following criteria will need to be met before a development can be considered as permitted development:

  • Buildings must have been used solely for agricultural use on or before 20 March 2013.
  • The new rights are not afforded to those who have used PD rights to build or extend buildings since 20 March 2013.

Please note that once the new PD rights have been exercised, there will be no opportunity to construct or extend an agricultural building for a period of 10 years.

Urbanissta welcome these amendments to the legislation, though its not a silver bullet, are hopeful that these changes will boost the number of homes created through the conversions of agricultural buildings which will assist in meeting local housing needs across the country.

The explanatory memorandum can be read here.

The amendments to the Legislation can be read here.

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The GDPR and planning applications

 

In 2015 a Council breached the Data Protection Act (DPA) when it published the information in planning application documents which it made publicly available online.

The Council was fined £150,000 by the Information Commissioner’s Office (ICO).

The ICO is an independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

When the ICO did an investigation, they found that on the 16th July 2015, the Council received a written statement in support of a householder’s planning application for proposed works in a green belt.

The statement contained sensitive personal data relating to a static traveller family who had been living on the site for many years. In particular, it referred to the family’s disability requirements, including mental health issues, the names of all the family members, their ages and the location of their home.

The Council published the statement in full on its online planning portal later that day.

The ICO investigation found that this was due to failings in data protection procedures and training. An inexperienced Council officer did not notice the personal information in the statement, and there was no procedure in place for a second person to check it before the personal data was inadvertently published online.

The information was only removed on the 4th September 2015 when the concerns came to light.

The General Data Protection Regulation (GDPR)

If the same data breach was to happen after the 25th May of this year, the Council could have faced a fine of £17,000,000!

There is a new data protection law coming into force and anyone who handles data about ‘people’ has to be compliant.

Currently, the maximum fine the ICO can issue is £0.5m. After this May, larger fines of up to £17m (€20m) or 4% of global turnover will be allowed, enabling the ICO to respond in a proportionate manner to the most serious data breaches.

The GDPR is based on a set of common-sense principles:

  • A “right to be forgotten”: When an individual no longer wants her/his data to be processed and provided that there are no legitimate grounds for retaining it, the data will be deleted. This is about protecting the privacy of individuals, not about erasing past events or restricting freedom of the press
  • Easier access to your data: Individuals will have more information on how their data is processed and this information should be available in a clear and understandable way. A right to data portability will make it easier for individuals to transmit personal data between service providers
  • The right to know when your data has been hacked: Companies and organisations must notify the national supervisory authority of data breaches which put individuals at risk and communicate to the data subject all high-risk breaches as soon as possible so that users can take appropriate measures
  • Data protection by design and by default:‘Data protection by design’ and ‘Data protection by default’ is now essential elements in EU data protection rules. Data protection safeguards will be built into products and services from the earliest stage of development, and privacy-friendly default settings will be the norm – for example on social networks or mobile apps
  • Stronger enforcement of the rules: Data protection authorities will be able to fine companies who do not comply with EU rules up to 4% of their global annual turnover or £17,000,000 – whichever is more

If you are an organization that handles data about people, you should note the following…
Identify where you or your company are storing data, for example:

  • Your website
  • Telesales – do you store names and numbers for your agents to call?
  • Direct mail – do you have completed order forms stored away with contact details?
  • Customer service departments – calls taken from potential customers and those recorded details
  • Personal contact with people – the exchange of business cards from a tradeshow or exhibition

Prepare yourself and your staff, make them well aware of the changes that are coming.

  • Make sure that they understand the principles of good data protection and that they don’t write down details of people on a piece of paper that could go astray, end up in the bin or taken home on computers or memory sticks where information could get stolen
  • Evaluate your environment and how you document personal data – where did it come from, who have you shared it with?
  • How will you audit the data? Review current policy notices and put a plan in place – procedures and timescales
  • Be compliant, review your practices and make sure that, to the best of your ability, you look after the data as if it were your own
  • Make sure your organisation’s privacy policy of how you handle data is compliant with the new rules and is up to date
  • Decide how you will be able to prove that your data is secured safely and how to seek consent moving forwards.

Do you need a Data Officer?
A data protection officer (DPO) is an enterprise security leadership role required by the General Data Protection Regulation (GDPR). Data protection officers are responsible for overseeing data protection strategy and implementation to ensure compliance with GDPR requirements. A DPO would be recommended for any organization that processes or stores large amounts of personal data, whether for employees, individuals outside the organization, or both. Seek advice as to whether your company should employ a DPO.

The GDPR is a very hot topic at the moment and we will be keeping you up to date with any developments.
Read more about the ICO and the GDPR  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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