Planning Update – September 2018

This month saw HM Treasury using Twitter to announce the Autumn Budget and there was a challenge in the High Court of the revised NPPF, together with significant and important changes to the PPG that supports the new NPPF, July 2018. The changes to the housing needs assessment in the PPG have a caused a recent stir, with its new standard methodology based in part on the ONS population growth figures that have subsequently been reduced in many areas by around 25%.

We update below on recent planning changes.

Legislation, Law or Policy	Summary
Friends of the Earth file claim at the High Court challenging the National Planning Policy Framework (NPPF)	On 4 September 2018 Friends of the Earth confirmed that they had filed a claim at the High Court over the revised NPPF. Friends of the Earth are seeking a court order that a strategic environmental assessment should have undertaken and its findings taken into account by the revised NPPF. The NPPF sets out the national planning policy for England and it must be taken into account when a local planning authority prepares a local plan and when determining a planning application. On 24 July 2018 the government published the first revision of the NPPF. This revised NPPF brought together previous consultations from the Housing White Paper, Planning for the right homes in the right places and the draft revised NPPF consultation and implemented approximately 85 reforms. The main concerns from Friends of the Earth over the revised NPPF are: • Local planning authorities will have to plan positively for shale gas extraction and thus making it difficult to refuse fracking applications • No ban on new coal power plants • Difficulty in starting wind power projects It is clear from the concerns of Friends of the Earth that they are seeking to strengthen environmental protections.
Case law – PINS appeal APP/B9506/C/3187537	In September 2017 the New Forest National Park Authority served an enforcement notice requiring a conservatory / garden room to be demolished. They considered that the structure did not fall within the permitted development criteria under class A of Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development)(England) Order 2015 (GPDO 2015), which includes development within the curtilage of a dwelling house. An appeal was lodged on a number of grounds. The appellants stated that the garden room complied with the provisions under class E of Part 1 of Schedule 2 to the GPDO 2015, although the gap is a finger-width, it is a free-standing structure and not attached to the Dwellinghouse. The GDPO 2015 does not indicate any minimum distance from a dwelling. As the structure was not physically ‘attached’ to the dwellinghouse it was not dependent on the Dwellinghouse for support. The inspector concluded that on the balance of probability the garden room represented a class E building. The appeal was allowed and the enforcement was quashed.
Ministry of Housing, Communities and Local Government (MHCLG) publishes new Planning Practice Guidance on plan-making.	On 13 September 2018 the MHCLG published its revised Planning Practice Guidance. Areas of significant change and particular interest are: • Build to rent – Confirmation that affordable housing requirements apply (contrary to the early thought of some in the industry), but on a lesser scale. • Housing needs assessment – Introduction of the standard methodology. Recent ONS population growth figures on which the methodology is based have caused a stir, which significant reductions in many areas (circa 25%). • Housing and economic land availability assessment • Local Plans & Plan Making revisions
Case law - R (City of Westminster) v Transport for London [2018] EWHC 2402 (Admin)	The claimant, the City of Westminster, applied for judicial review regarding the decision of Transport for London (TfL) to progress with a cycle superhighway scheme despite having not received consent to all of the scheme. The City of Westminster had requested from TfL traffic modelling and mitigation measures. The High Court upheld the judicial review claim, as it had no evidence that TfL had considered the risk of the City of Westminster maintaining its refusal of consent. The material factor for TfL’s flawed decision-making is that they had assumed that the City of Westminster would eventually “fall into line”. Tfl’s cost-benefit analysis did not consider: • The prospect of some parts of the superhighway not being delivered • A phased approach, pending City of Westminster eventually consenting • The likelihood of the City of Westminster consenting to the proposal This case is an important reminder of a public authority having comprehensive and documented reasoning behind their decision.
Royal Institute of British Architects (RIBA) publishes a consultation of a draft Plan of Work for Fire Safety	RIBA has published a draft Plan of Work for Fire Safety for consultation which ends on 15 October 2018. The Hackitt review of Building Regulations and fire safety and subsequent recommendations will be incorporated into the new plan of work, and thereby creating a “golden thread” of fire safety information throughout the construction project and into the building maintenance.
Local Government and Social Care Ombudsman (LGSCO) publishes guidance on recording planning decisions.	On 18 September 2018 the LGSCO published Recording Planning Decisions. The guidance which came about due to the number of complaints and enquiries regarding local planning authorities that he LGSCO received in the previous year. The purpose of the guidance is to assist local planning authorities in making robust planning decisions. There were three key themes within the guidance: • Consideration of material planning conditions • Information taken into account • Clear records of a decision and reasons The guidance focussed on: • Good practice • Complaint handling and the resources available from the LGSCO • Openness • Planning committee decisions
Case law – PINS Appeal – APP/W0340/L/18/1200177	An appeal regarding the risk of relying on a third party to submit a Community Infrastructure Levy (CIL) notice. Under Regulation 80 of the Community Infrastructure Levy Regulations 2010 a collecting authority may impose a surcharge of £50 on each person liable to pay the CIL of a chargeable development, if development has commenced and nobody has assumed liability. Under Regulation 83 if a chargeable development has commenced before a collecting authority has received a valid commencement notice a surcharge may be imposed which is equal to the chargeable amount payable or £2,500, whichever is lower. In this particular case the architect was conducting the planning matters on their behalf and the appellants had assumed that they would submit the relevant commencement notice on time. The inspector however considered the actual facts of the case and concluded that it was “inescapable” that the relevant forms were not submitted to the charging authority before the works commenced. The appeal was dismissed and the surcharges upheld.
Autumn Budget - HM Treasury announcement	HM Treasury is getting into the swing of using social media by using Twitter as the platform in which to announce that the Autumn Budget will be delivered by the Chancellor, Phillip Hammond on Monday 29 October 2018. We take this as a sign that the government is increasingly keeping up with modern forms of communication and we look forward to hearing the Chancellor’s speech.

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

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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.