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Articles Planning 6th Sep 2018

Planning Update – August 2018

This month saw the publication of the long-awaited government’s social housing Green Paper as well as a continuous refinement of planning law by way of judicial decisions including the further strengthening of protection for landowners against applications to register land as a Town of Village Green.

We update below on recent planning changes.

Legislation, Law or PolicySummary
Consultation – The Ministry of Housing, Communities and Local Government has published the social housing Green PaperOn 14 August 2018 the long-awaited social housing Green Paper was published which sets out the government’s plans for social housing reform.

There were five key principles:

• creating safe and decent homes;
• effective resolution of complaints;
• empowering residents and strengthening the Regulator;
• tackling stigma and celebrating thriving communities; and
• expanding the supply and supporting home ownership.

Critics of the Green Paper have commented that there is no mention of additional funding to support the proposals and that that the measures do not appear to go far enough in terms of the scale of the UK’s housing crisis and the lack of housing supply.

More details are expected over the coming weeks to provide clarity on the government’s plans for reform.
Case law – PINS appeal APP/A2470/W/17/3188539Whilst an appeal was allowed regarding the removal of a planning permission condition for holiday dwelling accommodation due to the condition’s lack of precision, the inspector concluded that the restriction of the use to holiday accommodation was reasonable and necessary and replaced it with an amended more comprehensive condition.

The main issues were whether the condition was:
• reasonable and necessary having regard to local and national policies concerning the location of new housing; and
• precise and enforceable.

This shows that when reviewing an existing planning condition careful consideration should be given to planning policy in addition to the wording of the condition. In this case, whilst the appellant won the appeal the resulting permission was easier for the Local Planning Authority to enforce.
Case law – North Norfolk District Council v Secretary of State for Housing Communities and Local Government [2018] EWHC 2076 (Admin)The High Court have dismissed a judicial review challenge that the decision of the Secretary of State to re-determine a planning appeal by written representations was unlawful after the original determination was quashed.

Section 319(A) of the Town and Country Planning Act 1990 sets out the procedure of appeal (either inquiry, hearing or written representation) as determined by the Secretary of State.

The relevant criteria provides for:

• written representation – appropriate for clearly understood issues, the issues are uncomplicated and the inspector is unlikely to need further clarification of the evidence
• a hearing is appropriate if there is a lot of local interest in the case
• an inquiry is appropriate if the evidence needs further clarification and testing by an advocate, the issues are complex or there is substantial local interest in the case

The judgment held that the Planning Inspectorate had considered matters on a proper basis, with sufficient reasons for its decision, and that an inquiry was not required.

Although there was extensive local interest written representations would be adequate, public interest does not render an inquiry mandatory even where the application was previously decided by a planning inquiry.

This case is a timely reminder that it is the discretion of the Secretary of State when deciding the procedure for the determination of a planning appeal.
Case law - Squire v Shropshire Council [2018] EWHC 1730 (Admin)The claimant applied for judicial review of a local authority’s grant of planning permission for a farmer to build premises on his land to house the intensive rearing of poultry, along with the spreading of manure as fertiliser on his and a neighbouring farmer’s agricultural land.

The claimant was concerned about the impact of odour and dust on the neighbourhood and that the environmental impact assessment had not been properly assessed regarding the indirect, off-site effects of the manure spreading.

The judge held that the planning committee had properly assessed both the on-site and off-site effects of the proposed development, which included the site’s operation, which was to be controlled by the Environment Agency’s (EA) Environmental Permitting regime.

Significantly the manure management plan, which would cover the control of the on-site and off-site dust and odours on the residential amenity, had to accord with the Code of Good Agricultural Practice, and upon the EA’s satisfaction a permit would be granted.

This case highlights how the management of manure is a material planning consideration but subject to control under the Environmental Permitting regime.
Case law – Cooper Estates Strategic Land Ltd v Wiltshire Council and others [2018] EWHC 1704 (Admin)The High Court concluded that key policies in an adopted Core Strategy precluded an application for the identified land to be registered as a town or village green (TVG) being considered.

The land is identified in the Wiltshire Core Strategy as within the settlement boundary of a market town to which development is to be directed pursuant to the following policies:

• A settlement strategy that identified settlements where sustainable development would take place
• A delivery strategy that contained a presumption in favour of sustainable development within defined plan boundaries of specific settlements.

The Deputy High Court Judge held that this was sufficient to identify the land for potential development and therefore excluded the land from the right to apply for registration as a TVG under section 15(C) of the Commons Act 2006.
Case law – R (Mansfield District Council) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 1794 (Admin)The High Court upheld a judicial review challenge and quashed the planning inspector’s decision in respect of whether a planning obligation regarding a highway costs contribution could be discharged pursuant to section 106(A) of the Town and Country Planning Act 1990 (TCPA 1990) by modifying the existing Section 106 Agreement.

An obligation secured by a s106 Agreement can be discharged if it no longer serves “a useful purpose” (s106(A) TCPA 1990).

The High Court found that the inspector had erred in law in failing to identify what useful purpose the planning obligation served and whether that purpose still remained and duly quashed the planning inspector’s decision.

Mr Justice Garnham went on to conclude in that a useful purpose for the purpose of s106A does not have to be a “planning purpose” and in this case the recovering of public money to facilitate the development was a “useful purpose”.
Case law - R (on the application of Langton) v Secretary of State for Environment, Food and Rural Affairs [2018] EWHC 2190 (Admin)The High Court considered the application of the CJEU’s judgment in People Over Wind. Sir Ross Cranston found that conditions on badger cull licences preventing culling near SPA interest features were NOT mitigation measures for the purpose of Environmental Impact Assessments but integral parts of the project and therefore could be relied on at the screening stage. He thought it would be contrary to common sense for the competent authority to assume that culling would take place where it was proposed not to take place under agreed licence conditions.

Importantly, in so finding he was accepting Natural England’s submissions as to the effect of People Over Wind. This might signal a departure from the cautious approach to People Over Wind encouraged by many, including PINS, in recent months.
Case law – Grace and Sweetman v An Bord Pleanala - [2018] EUECJ C-164/17The CJEU considered Article 6 of the Habitats Directive (92/43/EEC) on the conservation of natural habitats and wild fauna and flora at the request of the Supreme Court (Ireland).

The case involved the construction of a wind farm in an SPA which hosts the natural habitat of the hen harrier (a protected species of bird) and the proposal contained measures to replace lost habitat.

The Court held that it is only, when it is sufficiently certain, that a measure will make an effective contribution to avoiding harm can such a measure be taken into consideration when deciding that a project will not adversely affect the integrity of the site concerned. Where the results are highly difficult to forecast with any degree of certainty the measures can only be taken into account when considering whether there are imperative reasons for overriding public interest which justify the project.

This judgment should be read in conjunction with the Langton judgment referred to above in order to assess the stage at which environmental measures may be taken into account.
Case law – PINS appeal APP/L5240/L/18/1200176The development was not completed in accordance with the original planning permission and subsequently retrospective permission was granted. Whilst there was no Community Infrastructure Levy Charging Schedule in place as at the date of the original grant (and therefore that development was not subject to CIL) a Charging Schedule had been adopted before the grant of the retrospective permission. As such the development then became subject to CIL and the applicant should have submitted a Commencement Notice before starting works.

This is a cautionary tale, had the development not been completed it may have been possible to vary the permission pursuant to s73 of the Town and Country Planning Act 1990 and avoid/reduce the CIL liability.
The Home Loss Payments (Prescribed Amounts)(England) Regulations 2018The Home Loss Payments (Prescribed Amounts) (England) Regulations 2018 (2018 Regulations) have been made and are due to come into force on 1 October 2018.

Any person who occupies a dwelling who is displaced from that dwelling by a compulsory purchase order is due compensation under section 29 of the Land Compensation Act 1973.

The 2018 Regulations set the amount of compensation payable in respect of displacements which occur on or after 1 October 2018.

Payments will increase in line with house price inflation to a minimum of £6,300 and a maximum of £63,000. The prescribed amount is increased to £6,300.

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 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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