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Articles Planning 21st Jun 2018

Planning update June 2018

The Court and Government have been busy over recent months. We update below on recent planning legislation, law and policy changes. The recent cases on failures by Councils to include intended planning conditions are of interest and can lead to valuable planning consents.

Legislation, law or policySummary
Neighbourhood Planning Act 2017 (Commencement No.5) Regulations 2018 (“NPACR 2018”) and The Town and Country Planning (Pre-Commencement Conditions) Regulations 2018 (“2018 Regs”)Together these regulations provide that planning permission may be granted subject to pre-commencement condition without the applicant’s written agreement if the applicant has been notified of the intention to impose a pre-commencement condition and has not given a substantive response by the date specified in the notice.
Consultation – Department for Environment, Food and Rural Affairs (“DEFRA”)DEFRA published a consultation on proposals for a new Environmental Principles and Governance Bill setting out proposals for a new statutory and independent environmental body to hold the government to account on environmental matters and objectives after Brexit and a new policy statement that will guide the government’s policy-making.

The consultation closes on 2 August 2018.
DEFRA announced plans to review national parks and areas of outstanding natural beautyDEFRA has announced plans for a review and potential expansion of the network of national parks and areas of outstanding natural beauty.

An independent panel will look at how the current provision meets the needs of the 21st Century and see if there is scope to expand.
Case law: Sumner v Colborne and others [2018] EWCA Civ 1009The Court of Appeal affirmed a decision that the authorities did not owe users of the highway a duty of care in respect of overgrown vegetation on land at a junction.
Case law: R (Charlesworth) v Crossrail Ltd and another [2018] EWHC 915 (Admin)The High Court dismissed a former tenant’s judicial review challenge that they should have the first opportunity to repurchase land compulsorily acquired for Crossrail by applying the C10 Land Disposal Policy and the Crichel Down Rules as the land had been transferred to a third party before being purchased by Crossrail.

The court held that Crossrail had lawfully applied the C10 policy.
Case law: PINS Appeal:
CIL Appeal decision - Where a person is liable to pay an amount under the CIL Regulations 2010 and the amount is not received in full within 30 days beginning with the date on which payment of the CIL is due, the collecting authority may impose a surcharge equal to 5% of the amount or £200, whichever is greater (Regulation 85(1), CIL Regulations 2010). The payment does not need to have cleared.
Case law: PINS Appeal:
CIL Appeal decision – Appeal of surcharge was dismissed. The charging authority were entitled to impose the surcharge due to not receiving the assumption of liability notice and the commencement notice, as the appellant had sent it by email to an incorrect address.

PINS advised that appellants should ensure that their assumption of liability notices and commencement notices are sent to the correct address.
Case law: PINS Appeal:
CIL Appeal decision – An appeal was made under Regulation 117(1)(b) of the Community Infrastructure Regulations 2010 for an alleged breach of the failure to assume liability for CIL.

The appellant stated that the Liability Notice was never received from the Charging Authority and as a result they did not assume liability for CIL.

The Inspector confirmed that it is ultimately the charging authority’s responsibility for ensuring a liability notice is correctly served and should therefore consider sending liability notices by registered post.

The surcharge for the failure to assume liability was quashed.
Case law: London Borough of Lambeth v Secretary of State for Communities and Local Government and others [2018] EWCA Civ 844A varied planning permission did not incorporate the conditions from the original permission which required the unit only to be used for the sale of non-food goods where the conditions were not expressly set out in the decision notice.

Freeths then successfully defended a challenge against a valuable certificate of lawful use for unrestricted retail use on behalf of the interested party (the owner) in the High Court and Court of Appeal. The Council has lodged an application in the Supreme Court and Freeths continues to defend the claim.
Case law: R (Thornton Hall Hotel) v Wirral Metropolitan Borough Council [2018] EWHC 560 (Admin)A planning permission granted in 2011 was quashed after an error by the local planning authority granted permanent consent, rather than a temporary 5 year period, due to the failure to impose a condition limiting the permission to a 5 year period.

A judicial review claim brought in 2017 (5-6 years late), the High Court decided on the facts of the case that an extension of time to bring the claim should be granted.

The High Court considered that the permission was flawed by the erroneous absence of the conditions and should be quashed.

Claims for judicial review can be brought out of time in certain circumstances.
Government response to consultation on NPS for water resources and further consultation on Planning Act 2008 definitions of nationally significant water infrastructureThe government published its response to its November 2017 consultation on developing a National Policy Statement (NPS) for water resources and on proposals to amend the definition of nationally significant water infrastructure in the Planning Act 2008 on 5 April.

The consultation response confirms that the government will develop the NPS using the three principles outlined in the consultation and will consult on the draft NPS later in 2018.

This further consultation closed on 26 April 2018.
Consultation on powers for dealing with unauthorised development and encampments publishedThe government has published a consultation on powers for dealing with unauthorised development and encampments for travellers, including:

• Local authority and police powers
• Court processes
• Trespass

The consultation closed on 15 June 2018.
Case law: People Over Wind and another v Coillte Teoranta (Case C-323/17) EU:C:2018:244The European Court of Justice decided that Article 6(3) of the Habitats Directive (Council Directive 92/43/EEC) should be interpreted to mean that mitigation measures should not be considered at the screening stage when determining whether it was necessary to carry out an appropriate assessment of the impact of a proposed plan or project on a protected site. If mitigation measures are required it follows that an appropriate assessment should take place.
PINS Appeal -
Importance of documentary evidence when seeking clarification about the Community Infrastructure Levy (CIL). In the absence of documentary evidence the inspector was only able to consider the appeal on the known facts, which was that the appellant did not submit an assumption of liability notice or a commencement notice rather than their assertion that they were advised by the LPA that they didn’t need to submit the documents at that time.
PINS Appeal -
Demolition works triggered payment of Community Infrastructure Levy.

The description of development granted by the planning permission clearly included demolition.

Section 56(2) of the Town and Country Planning Act 1990 states that development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out and under section 56(4) “material operation” means and includes “any work of demolition of a building”.
London Environment Strategy – published by the Mayor of London On 31 May 2018, the Mayor of London published the London Environment Strategy, setting out the Mayor’s proposals on seven key environmental issues (air quality, green infrastructure, climate change mitigation and energy, waste, adapting to climate change, ambient noise and building a low carbon circular economy).

The Strategy includes key targets for London by 2050:

• To be a zero carbon city
• To be a zero waste city. By 2026 no biodegradable or recyclable waste will be sent to landfill. By 2030, 65% of London’s municipal waste will be recycled
• To have the best air quality of any major world city, going beyond legal requirements
• To be the world’s first National Park City, where more than half of its area is green
Government response to consultation on the New Towns Act 1981 (Local Authority Oversight) RegulationsOn 4 June 2018 the Ministry of Housing, Communities and Local Government published its response to its December 2017 consultation on the draft regulations made under Section 16 of the Neighbourhood Planning Act 2017. Section 16 of the Neighbourhood Planning Act 2017 details the provisions which would enable the creation of New Town Development Corporations (“NTDC”) to be overseen by the local authority covering the area designated for the new town.

The update highlights the government’s response to the planning and compulsory purchase powers of the NTDC.
Case law – Provectus Remediation Limited v Derbyshire County Council [2018] EWHC 1412A planning fee paid by an applicant did not fall to be refunded under Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits)(England) Regulations 2012, if the parties had agreed in writing that the 26-week period for determining the application was to be extended, even if the local planning authority failed to determine the application within the extended period.

For advice on any of these matters please contact a member of our planning team.

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

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