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Articles Planning 6th Aug 2018

Planning Update – July 2018

A new Minister of Housing, along with a significant case on the relevance of the public sector equality duty to planning, publication of the Airports NPS and a continuation of the steady stream of Government consultations should make for an interesting summer. We update below on recent planning changes.

Legislation, Law or PolicySummary
Consultation – The government has begun a consultation on banning the use of combustible cladding in high-rise residential buildings in EnglandThe consultation looks at strengthening the approach to the use of combustible cladding by amending the Building Regulations to include an express prohibition of these materials for high-rise residential buildings in England.

A breach of Building Regulations can be prosecuted in the magistrates’ court which can impose unlimited fines.

The consultation closes on 14 August 2018.
Consultation - The Welsh Government consults on continuing the ban of onshore oil and gas extraction.A consultation opened on the Welsh Government’s draft policy on onshore petroleum and gas extraction (including shale gas) on 3 July.

The draft policy proposes that:

• no new petroleum licences will be granted in Wales;
• the WG will not support hydraulic fracturing petroleum licence applications in Wales

The draft policy is consistent with the Welsh Government’s precautionary approach to minerals planning applications in preparation for them becoming responsible for licensing onshore petroleum extraction in Wales on 1 October 2018.

The consultation closes on 25 September 2018.
Consultation – The Welsh Government published the consultation – Achieving our low carbon pathway to 2030The Environment (Wales) Act 2016 sets a target for Wales to reduce its carbon emissions by 80% by 2050.

The consultation seeks views on ideas for actions for Wales to achieve its interim target of a 45% reduction in carbon emissions by 2030 covering power, buildings, transport, agriculture, land use and forestry, industry, the public sector and waste.

The responses will be used to develop Wales’ Low Carbon Delivery Plan for its first carbon budget (2016-20) which is due in March 2019.

The consultation closes on 4 October 2018.
Consultation – The Government is consulting on the criteria and timing for shale gas production projects to be included in the nationally significant infrastructure projects (NSIP) regimeOn 19 July 2018 an early consultation was published on whether individual applications for shale gas production projects should be determined by the NSIP regime proposing the following criteria for determination;

• Quantity of wells
• Estimated gas production
• Local or National Grid Connection

Secondary legislation will be needed if major shale gas production projects are to be included in the NSIP regime.

The consultation closes on 25 October 2018.
Consultation – Department for Transport published the Road to Zero StrategyOn 9 July 2018 the Office for Low Emission Vehicles published the Road to Zero Strategy, setting out:

• a requirement for all new homes to have a vehicle charge point available (look out for the upcoming consultation on this);
• an announcement that the government will consult on requiring charging provision on new non-residential buildings through Building Regulations;
• electric vehicle infrastructure;
• measures for cleaner road transport;
• the UK at the forefront of design and manufacture of zero emission vehicles;
• driver uptake of cleaner new cars and vans.
Consultation – BEIS published the government’s response to its consultation on a new nuclear power National Policy Statement (NPS) for new nuclear power stations above 1GW post 2025On 20 July 2018 BEIS published the government’s response to its December 2017 consultation, on a new nuclear National Policy Statement (NPS) in respect of new nuclear power stations which have a single reactor capacity above 1 gigawatt (GW), to begin generating electricity between 2026 and 2035.

The proposed NPS will set out the government's proposed process and criteria for designating potentially suitable sites. Which will include a timeline outlining the designation steps of the new NPS which will encompass site appraisals of their suitability and sustainability.

In Spring 2020 a final list of the potential sites will be published and the final NPS will be put before Parliament.
HS2 Limited updates their safeguarding guidance for property ownersHS2 Limited has published updated guidance for property owners who require further information on HS2 safeguarding and the process of serving a blight notice.
Planning appeal inquiries process – call for evidence.The Ministry of Housing Communities and Local Government (MHCLG) has published a call for evidence for the review of the planning appeal inquiries process and how it can be improved.

The review will examine the rules and processes surrounding inquiries, focusing on major housing schemes and the behaviour of parties.

The call for evidence will close on 18 September 2018.
New Towns Act 1981 (Local Authority Oversight) Regulations 2018The New Towns Act 1981 (Local Authority Oversight) Regulations 2018 came into force on 24 July 2018.

The Regulations provide for local involvement of new town development corporations (NTDC) in England.

One or more local authority will be appointed as an oversight authority to oversee the development of an areas as a new town including the approval of plans, land acquisitions and disposals and borrowing.

The MHCLG published guidance in June 2018 on the then draft New Towns Act 1981 (Local Authority Oversight) Regulations 2018 to support readers’ understanding of the 2018 Regulations, and how the NTDC will work.
The government declared that Local Enterprise Partnerships will form a new body to drive the economic growth for the north of EnglandOn 6 July 2018 the MHCLG declared the formation of a new body to support the government’s ambitious Northern Powerhouse policy.

The new body encompasses 11 Local Enterprise Partnerships (LEPs) in the North of England. The Chairs of the LEPs will sit on the NP11 government-funded board, which will report quarterly to MHCLG and advises the government on regional issues, productivity, and helping to reduce the north-south economic divide.
Kit Malthouse MP appointed as Minister for State of HousingMr Malthouse MP has long experience of local government and is a strong advocate of local control over planning matters.
Case law – PINS Appeal Decision APP/P0119/W/18/3195171 -¬ the removal of an agricultural occupation condition (ag tag).A planning inspector concluded that a lack of interest in purchasing a large four-bedroomed chalet bungalow with an agricultural occupancy condition (ag tag) was more likely to reflect a lack of demand or need for this type of dwelling than as a result of the inflated price or low level of discount applied in the marketing exercise.

In addition, no robust evidence was put forward which would indicate that there was an unmet need for a dwelling of this size and type in the locality.

In view of the lack of need or demand the appeal was allowed and the ag tag was removed.

This decision is symptomatic of the rise in property prices meaning that the majority of rural workers will not be able to afford property even with a significant discount as a result of the imposition of an ag tag.
Case law – Waterstone Estates Ltd v Welsh Ministers [2018] EWCA Civ 1571The Court of Appeal considered whether planning policy is the same in Wales as in England in the consideration of a planning application for retail development outside a settlement area and the approach to “need”.

It was held that whether or not policy is the same depends on the proper construction of the relevant Welsh policy as a matter of law and practitioners should not assume that it is the same.
Case law – London and Ilford Ltd v Sovereign Property Holdings Ltd [2018] EWCA CivA developer was required to pay an overage sum if prior approval was obtained to convert offices to residential use under the Town and Country Planning (General Permitted Development) (England) Order 2015 during the overage period.

Even though prior approval was obtained, the units would have breached building regulations were they to be constructed, consequently the developer argued that the overage payment was not due as they were unable to develop the property in the intended way.

The court rejected the developer’s argument based on the drafting of the document. It may therefore be more appropriate for the overage to be triggered by implementation of the planning permission or the disposal of the completed units.
Case law – Chesterton Commercial (Bucks) Limited v Wokingham District Council [2018] EWHC 1795 (Admin)The High Court has dismissed a judicial review challenge that the local planning authority’s (LPA) decision was unlawful. The LPA declined to determine a retrospective planning application under section 70C of the Town and Country Planning Act 1990 as it related to matters specified in an enforcement notice (a first-floor balcony between a barrage and boathouse).

Rodger M QC held that as the proposed development involved part of the matters specified in an enforcement notice the LPA could rely on section 70C in respect of the similarities between two developments not their differences.
The Town and Country Planning and Infrastructure Planning (Environmental Impact Assessment) (Amendment) Regulations 2018On 6 June 2018 the following changes were made in relation to the environmental impact assessment (EIA) regime of various regulations:

• The correction of minor and technical drafting errors;
• Amending references in the Town and Country Planning (Brownfield Land Register) Regulations 2017 to refer to the Town and Country Planning (Environmental Impact Assessment) Regulations 2017;
• The assessment of environmental effects under the EIA regime of certain special consenting processes, such as modification orders, discontinuance orders and purchase notices, under the Town and Country Planning Act 1990.

The changes will come into effect on 1 October 2018
Airports National Policy StatementExplains why the government believes that the need for additional airport capacity in the south-east of England is best met by a north-west airport at Heathrow Airport.

Additional documents were published by the DfT regarding compensation and sustainability on 5 June 2018.
The Welsh Government published development guidance for areas without a public sewerage systemOn 3 July 2018 Circular 008/2018: Planning requirement in respect of the use of private sewerage in new development, incorporating septic tanks and small sewage treatment plants was published.

This updates the information and guidance to be considered by LPA’s when considering proposals for new developments in areas without the benefit of a public sewerage system and advises on the controls that can be imposed.
Revised National Planning Policy Framework (NPPF) was publishedThe long awaited revised National Planning Policy Framework (NPPF) was published on 24 July 2018 and takes effect from that date subject to transitional arrangements in respect of plan making.
Key issues include:
• The need to read the NPPF as a whole (including footnotes and annexes).
• Clarification of the weight to be given to emerging plan documents.
• More intensive use of existing land and buildings is supported.
• The planning policy consequences of not meeting the Housing Delivery Test.
• Executive summaries of viability assessments should be made publicly available.
• Green belt boundaries should only be altered where exceptional circumstances are "fully evidenced and justified".
• Social rented homes are re-introduced into the definition of "affordable housing".
• The inclusion of Starter Homes to reflect the meaning of the statute – as the statute is not yet in force it remains to be seen when this will take effect.
Hydraulic fracturing consent grantedOn 24 July 2018, despite much local opposition, the first hydraulic fracturing consent (HFC) was granted to Cuadrilla Bowland Ltd, subject to certain conditions, for its Preston New Road site in Lancashire.

The need for the additional HFC consent was inserted into the Petroleum Act 1998 by section 50 of the Infrastructure Act 2015 to reassure the public that shale gas fracking was adequately regulated in respect of a fracking well at a depth of 1,000 metres or more. The Secretary of State must be content that all of the 11 safeguards relating to environmental impacts and health and safety specified in section 4A of the Petroleum Act 1998 are achieved before granting a HFC.
Government begins implementing Hackitt recommendationsThe government has launched a consultation on clarifying the wording of the statutory guidance in Approved Document B for fire safety. This provides the official guidance on complying with Building Regulations. Approved Document B and will be subject to a full technical review which will begin with a call for evidence in Autumn 2018.

The consultation closes on 11 October 2018
The Welsh Government has published a call for evidence on how the planning system can assist in the delivery of new homes in sustainable locationsThe call for evidence began on the 18 July 2018 and has asked for evidence to explore the ways in which the planning system can assist in the delivery of new homes taking into account the following principals:-
• Planning decisions must be based on a plan-led approach.
• Housing requirements should be evidence-based and all relevant sites must meet the requirement and demonstrate that they are deliverable.
• Monitoring arrangements are to be put in place and any associated actions must support the plan-led approach to development management.
In support of the review the Welsh has disapplied paragraph 6.2 of Technical Advice Note 1, Joint Housing Land Availability Studies from 18 July.

The call for evidence will end on 10 October 2018.
National Infrastructure Assessment 2018 publishedThe National Infrastructure Commission (NIC) has published its first national infrastructure assessment for the infrastructure needs of the United Kingdom looking ahead to 2050. The NIC is required to publish an assessment once every five years.

A range of recommendations are included within the assessment in respect of :

• Low carbon and renewable energy
• Digital technology
• The future of the nation’s highways
• City expansion, which includes: Crossrail 2 and the Northern Powerhouse Rail
• Flood risk strategy
• Waste reduction

Broad guidance is provided on the selection and funding of infrastructure projects.

Unfortunately the NIC doesn’t have the power to implement its assessment and as such the Government has committed to respond to the report within 6 months identifying which recommendations it supports.

For any further details or advice, please contact a member of our Planning & Environment Group: Planning Team or Environment Team


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

Author: Robert Bruce

Partner

Author: Zoë Walker

Associate

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