Category Archives: Planning

 

Rumination 1 – Starting to Plan for Recovery

 

Construction site face mask must be worn sign

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

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

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

London

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

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

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

Construction Hours

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

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

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

CiL/S106 Guidance Review

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

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

Sales

Initiatives on  13 May 2020, sought to:

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

Appeals & Examinations

Inspectorate announcements were issued on 24 March 2020 regarding:

  • Video conferencing
  • Webcast/recording
  • Electronic bundles

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

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

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

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

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

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

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

With regards to digital events, the guidance is that:

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

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

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

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

RTPI

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

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

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

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

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

 

St Albans

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Ways to prevent planning permissions expiring via non primary legislation

 

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

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

View the letter here (PDF)

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Stafford New Local Plan 2020 – 2040

 

Map image of Stafford

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

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

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

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

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

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

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

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

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

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Community Infrastructure Levy Changes Following Review

 

Following a Community Infrastructure Levy review which began in late 2015, with the findings being published in a report in early 2017, the Government have now made changes to the CIL regulations via The Community Infrastructure Levy (Amendment) (England) (No2) Regulations 2019 implemented on 1st September 2019.

The Community Infrastructure Levy (CIL) is a planning charge first introduced by the Planning Act 2008 which came into force in April 2010 via the Community Infrastructure Regulations 2010, it is an important tool for local authorities to enable them to deliver their infrastructure requirements to support development within their local area. A local authority must consult on any proposed levy rates and these must be approved and a charging schedule be published before the levy is formally in place.

Development is potentially liable for CIL if it would create a net additional floor space of 100 square metres or more, or creates a new dwelling. There is an opportunity to claim relief or exemption from the levy but set criteria must be met and procedures followed for this to occur.

CIL Review Group

In November 2015 the CIL review group was set up with a specific purpose to:

“Assess the extent to which CIL does or can provide an effective mechanism for funding infrastructure, and to recommend changes that would improve its operation in support of the Government’s wider housing and growth objectives”.

In summary, the remit of the group was to look at the following:

(i) The relationship between CIL and Section 106 agreements in delivering infrastructure.

(ii) The impact of CIL on development viability.

(iii) The exemptions and reliefs from CIL.

(iv) The administration and governance associated with charging, collecting and spending CIL.

(v) The ability of CIL to deliver infrastructure in a timely and transparent way.

(vi) The impact of the neighbourhood portion on local communities’ receptiveness to developmental.

(vii) The geographical scale at which CIL is collected and charged.

Following examination and in consideration of the consultation responses received the key issues were identified in a report published in February 2017 as follows:

(i)  A number of local authorities had decided not to introduce CIL at all with the outcome being a heavier reliance on Section. 106 than originally expected. This has also resulted in a number of smaller developers who could afford to make some contribution not being required to pay.

(ii) The amount of CIL raised overall has been much less than originally anticipated and hasn’t been helped by exemptions.

(iii) Where CIL has been produced it had not necessarily worked well for larger sites with complex site-specific mitigation requirements.

(iv) The burden and risk of providing CIL lay with local authorities who may not be well placed to deliver infrastructure in a timely manner.

(v) Necessary infrastructure has not been provided upfront when it is needed to support the earlier stages of development because further CIL money was awaited.

(vi) Where developers were continuing to make traditional S.106 payments difficulty was caused by pooling restrictions for large items of infrastructure that needed to be funded by more than five planning obligations.

Overall, the report concluded that the adoption of CIL did not meet the initial intention of a faster, fairer, simpler more certain and more transparent means of ensuring that all development contributed towards infrastructure need. It was also found that CIL did not compliment S.106 arrangements but rather caused complications and disruptions to them.

The CIL Regulations 2019

The Community Infrastructure Levy (Amendment) (England) (No2) Regulations 2019 which came into effect on the 1 September 2019 is not wholly responsive to the findings of the review group but does make some notable changes summarised as follows:

(i) The removal of Pooling restrictions has occurred which no longer limits the number of contributions from Section 106 agreements to five.

(ii) Monitoring fees have been reviewed and a monitoring fee can be included if it is fairly and reasonably related in scale and kind to the development and does not exceed the local authority’s estimate of its cost of monitoring the development over the lifetime of the related planning obligations.

(iii) The loss of exemption due to failure to serve a commencement notice has now been replaced with a surcharge.

(iv)  In the interests of transparency, there is now a requirement for local authorities to publish an annual ‘infrastructure funding statement’ these will replace existing 123 lists. These should include details of money raised by developer agreements for both CIL and S.106 agreements.

(v) Due to uncertainty in how charges should be applied further to a Section 73 permission, amendments have been made to clarify in essence only additional floor space will now be charged at the latest index rate with the previous floor space charged at the rate in place when the original development was first permitted.

(vi) A requirement has also been introduced to undertake consultation if a local authority is considering ceasing CIL charges.

A link to the CIL Regulations can be found here.

Contact us today if you wish to discuss any of our articles or need more information about our services.

 

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Planning fee refunds for delayed decisions

 

Yesterday, Esther McVey, the Minister of State for Housing and Planning, told the Evening Standard that property firms would receive planning application fee refunds if councils took too long to determine planning applications.

This means, in her words, that planning departments “are held to account.” In addition, she stated that “we are looking at some of the things we can do to make planning smoother, faster, more effective.”

Ministerial Statement one thing, translation into reality another, detail to follow, if so when?

Watch this space…

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British Housebuilding Industry – House of Commons Debate

 

On Thursday (5th September 2019) the House of Commons was subject of a Backbench debate on the British housebuilding industry.

Called by Siobhain McDonagh, Labour MP for Mitcham and Morden, a background of housing supply, affordability and homelessness was presented to MPs. Thereafter, a detailed expose of the10 housebuilders in the FTSE 350 index was highlighted, concentrating heavily on the 4 housebuilders who are also in the FTSE 100 index. Matters such as landbanks, Chief Executive pay/bonuses, housing completions, and affordable housing provision were discussed.

Siobhain McDonagh MP opened the debate by looking at the current housing crisis, the record of the FTSE 350 companies and their contribution to solving this crisis. Pay inequality issues which she believes are rife across the industry were also raised.

Housing completions and supply at FTSE housebuilders

Source: Debate on a motion on the British housebuilding industry, page 5 – download PDF

The MP bemoaned the fact that between 2017 and 2018 only 6,464 new social homes were built, the second-lowest on record and referred back to the 1950s and 1960s when 150,000 and 203,000 council homes were delivered by Governments. With a current target of 300,000 new builds a year which has not yet been reached she focused on the 4 housebuilding companies who are in the FTSE 100 index, Barratt, Persimmon, Taylor Wimpey and Berkeley. She highlighted Persimmon who had completed 16,449 homes and posted profits of £1.1 billion, half of which were subsidy through the Government’s Help to Buy scheme. Overall, she stated that together, these 4 companies collected a pre-tax profit of £3.68 billion despite completing only 53,198 homes, less than 18% of the Government’s build target.

Short-term land banks at FTSE 350 housebuilders

Source: Debate on a motion on the British housebuilding industry, page 7 – download PDF

The question was then posed that maybe volume housebuilders could not build out due to lack of developable land. This then turned to land banking with the extent to which the 10 housebuilders did this.

Several studies have considered whether land banking takes place. For example, a report by
Molior for the London Mayor in 2012 found that of the 210,000 existing planning permissions
for new homes in London, 55% were in the control of building firms while 45% were in the
control of non-building firms such as investment funds, historic landowners, government and
‘developers’ who do not build. Molior concluded that accusations of land banking directed at
builders were ‘misplaced.’ An updated report in 2014 found a smaller percentage of planning permissions held by non-developers.

It is acknowledged that developers retain stocks of land with planning permission as a strategy for managing pipelines and ‘smoothing out peaks and troughs in resource allocation.’ There are also holdings of ‘strategic land banks’ which are sites without planning permission which is generally held ‘under option,’ i.e. not recorded as in the developer’s ownership. Shelter and KPMG conclude that incentives to get strategic land through planning are “very high.” The MP highlighted that these 10 companies had a collective land bank of 470,068 yet only completed 86,685 homes between them.

If land banking is not the main problem, there does appear to be a case for ensuring that most of the suitable land for development is held by firms who intend to build on it.

Pay made to Chief Executives and ratios to staff employed in their firm was also a focus drawing on research from the High Pay Centre.

CEO pay ratio at FTSE housebuilders

Source: Debate on a motion on the British housebuilding industry, page 9 – download PDF

Whilst it was stated that it is in no doubt the CEOs worked hard, particular attention was paid to
Persimmon who after a Dispatches investigation and their then Chief Executive refusing, when on camera, to answer questions, had already been in the spotlight. MPs felt it wrong for Jeff Fairburn to be awarded a £75 million bonus despite, in their view, a substandard number of homes being built. In addition, it was highlighted that the median pay for an FTSE 100 house building CEOs is 228 times that of the typical worker, with Persimmon soaring to 964.
In terms of town planning, matters were raised but not extensively discussed during the debate,
these focused on:

– In Siohban McDongh MPs view (and experience at Connect House on a south London industrial
estate) the use of Permitted Development rights to convert office buildings into residential
resulting in poor living quality conditions
– The use of viability assessments at the planning application stage to lessen or not produce any
affordable housing when viewed against policy – the practice should be investigated
– Making it easier for self-build homes to be constructed for both market and social tenure. Here it was alleged by Richard Bacon MP that for
– Calls for further debate on the Town Planning system generally, Help to Buy, planning law and
building on the Green Belt Unsurprisingly, MPs highlighted particular constituency matters which practically leant weight to their arguments:
– George Howarth MP referred to a development in Summerhill Park which has had ongoing
leasehold issues.  When trying to meet to discuss, the MP informed the house that Redrow
Homes refused to and referred to Redrow as “arrogant.”
– Mark Francois MP referred to 3 housebuilders working in close proximity to each other in
Rayleigh each having contra-flow traffic lanes. When the schools went back last week, this
resulted in gridlock. When the MP contacted all 3 to seek resolution he found the smallest,
Silver City finished works within a week, Countryside shutting the lanes in the rush hours with
Barratt David Wilson offering him a wholly unsatisfactory response. Criticism was levelled at
the Highways authority for not anticipating the cumulative impact
– Many MPs lamented the 30% loss of SME housebuilders during the recession and wished to put matters in train to assist them in “standing up” to the 10 volume housebuilders subject of this debate. Here it was alleged by Richard Bacon MP that for SMEs “It is a very risky enterprise, and actually local planning authorities prefer dealing with a small number of large companies because it is easier for them.

There was little time left for the debate to seek the views of Shadow and Government Ministers:

– The Shadow housing Minister reeled off statistics to try to prove the Government were not
delivering and pointed to Labours plans if elected to sort this
– The Minister, Esther McVay, also did the usual political numbers scoring, “300,000 new homes
by the mid-2020s” and political acceptance, “the market is not working” and “there are not
enough homes built.”   It appears the only “new” thing she stated was establishing a new
“Centre for Excellence” in the north for construction and housebuilding.  Not much else was said

A short parting shot from Siobhan McDonagh MP was to seek clarity when discussing affordable housing:

“I want to ask that we ban the word “affordable” in the context of housing. “Affordable” means 80% of market rent, but the vast proportion of our constituents could never afford 80% of market rent. Let us talk about social housing rent and owner-occupation, but let us also clearly address the question of what is affordable, because the “affordable housing” is not affordable.”
A question was then put and agreed by the House. They resolved:
“That this House notes with concern the ongoing shortage of housing and the housing crisis across England; further notes with concern the number of families in temporary accommodation and the number of people rough sleeping; acknowledges that there are over one million households on housing waiting lists; recognises the Government’s target to build 300,000 new homes each year; acknowledges that this target has been missed in each year that the Government has been in office and that the number of homes constructed by housebuilding companies that are deemed affordable is insufficient; notes the pay ratios between executives and employees in FTSE 350 housebuilding companies; and calls on the Government to tackle the housing crisis as an urgent priority.”

For reference:
– House of Commons Research Briefing Paper …
https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CDP-2019-0205
– Hansard transcript details … https://hansard.parliament.uk/commons/2019-09-
05/debates/40C1B81A-B890-47D4-BE94-F2B12444A20D/BritishHouseBuildingIndustry
– Parliament TV coverage of the debate … https://parliamentlive.tv/Event/Index/de8c2a28-4dd2-
47e5-9283-7411a0abff01 Debate commences at 1545.

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Must planning committees follow officers advice in reaching decisions?

 

 

In the news…

The House of Commons research team has issued a document to help answer this question.  Whilst most in the development industry will be aware of the machinations, suspense and in some cases surprising manner in which planning committees reach their decisions, this document offers a step by step guide to those in this industry and the wider public.  In addition, it rolls out many facts and statements such as:

  • In the year ending March 2019, 94% of planning applications in England were delegated to officers
  • For councillors and officers in local authorities, reference is made to the Local Government Association/Planning Advisory Service “Probity in Planning” guide
  • Whilst some may speculate that applications determined against officers recommendations are more likely to be allowed on appeal, Lichfields’ 2018 research demonstrates just that https://lichfields.uk/media/ 4419/refused-for-good-reason- when-councillors-go-against- officer-recommendations.pdf

If you want to discuss any of the topics that we cover in our blog articles, we’d be happy to have a chat. Contact us today.

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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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