Planning Update – October 2018

This month saw the government introducing a new Shale Environmental Regulator Group to help resolve regulatory issues on fracking sites, with Caudrilla Bowland Ltd commencing fracking on its Lancashire site. In addition they have introduced further planning reform to make the planning system more efficient to provide more homes and improve building safety.

We update below on recent planning changes:

Legislation, Law or Policy	Summary
The Department for Business, Energy and Industrial Strategy (BEIS) published an updated version of its regulatory roadmap for onshore oil and gas (including shale gas) and confirmed that power to approve fracking will be devolved to the Welsh Ministers’.	On 2 October 2018 BEIS published an updated version of its regulatory roadmap for onshore oil and gas (including shale gas). This revised version confirms that the powers relating to onshore oil and gas licensing have been devolved to the Welsh Ministers from 1 October 2018. The Welsh Government has issued a Notification Direction to local authorities that Welsh Ministers approval is needed to approve planning applications for unconventional oil and gas, including fracking. This regulatory roadmap has been updated from the December 2013 version and provides an overview of the permitting and permissions processes for onshore oil and gas exploration, including shale gas and coal bed methane. Key legislation is identified along with the required actions and the best practice that applies to exploration and appraisal phases for onshore oil and gas. Production and decommissioning is not covered. The regulatory differences between the jurisdictions of England, Scotland, Wales and Northern Ireland were provided in separate documents, however since the devolution of onshore oil and gas licensing to the Scottish and Welsh ministers, their respective documents have been removed and replaced with contact details for the Scottish and Welsh administrations. The Welsh Government consultation on the continuation of the existing ban on onshore petroleum extraction closed on 25 September 2018. They are due to confirm their policy by the end of 2018.
The government announces a series of measures relating to the housing sector	On 1st October 2018 the government has announced new measures to support homebuyers, build more homes and improve building safety. There will be a New Homes Ombudsman to support homebuyers when facing problems with new builds and to hold developers to account when things go wrong. There are further planning reforms planned to make the planning system more efficient in order to deliver 300,000 homes a year by the mid-2020s. The government will consult on measures to speed up the planning system in order to make better use of land and vacant buildings, this will include more flexibility to extend upward on existing blocks of flats, shops and offices which will make efficient use of the space and increase housing density. Following previous consultation the government has now introduced a ban on using combustible materials on the external walls of all high-rise buildings (above 18 metres) that contain flats, including hospitals, residential care premises and student accommodation to improve the safety.
Judicial review challenge is set for the Airport National Policy Statement and the Heathrow expansion.	On 4 October 2018 Justice Holgate in the High Court ordered a full hearing of the judicial review challenges by Plan B and Friends of the Earth relating to the Airports National Policy Statement and the Heathrow Airport expansion, to take place in March 2019. The claimants argue that the Heathrow expansion proposal is inconsistent with the UK government’s greenhouse gas reduction commitments under the UNFCC Paris Agreement on Climate Change and the Climate Change Act 2008. They seek to quash the Airport National Policy Statement setting out the policy framework for the third runway at Heathrow, arguing that it was based on a strategic environmental assessment that failed to take into account the Paris Agreement.
Department for Business, Energy and Industrial Strategy (BEIS) set up the new Shale Environmental Regulator Group (SERG)	On 5 October 2018 BEIS announced that a new virtual body of environmental regulators over shale gas exploration would be brought together under SERG, which is part of a government measure to support fracking. The following bodies become one body designed to help resolve regulatory issues on sites and ensure that best practice is shared with local authorities when they are considering shale gas applications: - Oil and Gas Authority - Health and Safety Executive - Environment Agency
Case law - R (Network Rail Infrastructure Ltd) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ 2069	This case confirmed that the stopping-up merit test must be considered even in cases where the Grampian condition allowed the development irrespective of the stopping up order decision. The Secretary of State appealed against an order upholding a claim for judicial review by which the respondent had challenged a planning inspector’s refusal to confirm a stopping-up order which was part of a planning condition aimed at safeguarding public safety on the highway in proximity to a railway. The local planning authority made a stopping-up order on the basis it was necessary to stop up the footpath to enable the development to be carried out in accordance with the planning permission for the construction of 142 dwellings. The Grampian condition restricted the development to 64 dwellings unless either of the two exceptions should occur. The first being that a stopping-up order which diverted the footpath had been made and confirmed and the second that the Secretary of State did not confirm the order. The inspector, who was instructed by the Secretary of State, had concluded that a condition of the planning permission was that the whole development had to be carried out, regardless of whether the order was confirmed and therefore it was not necessary to divert the footpath (one of the two tests to be satisfied to confirm a stopping up order pursuant to s257 of the TCPA). It was held that the inspector had misunderstood the relationship between the planning condition and the provisions of sections 257 (Footpaths, bridleways and restricted byways affected by development: orders by other authorities) and 259 (Confirmation of orders made by other authorities) of the Town and Country Planning Act. That decision was quashed by the Court of Appeal who considered that the inspector had erred in reading the two exceptions in the condition, as he had read, them in isolation from one another. The condition should, where possible, be read in a way that does not defeat the obvious purpose of the condition. The appeal was dismissed.
PINS Appeal - APP/V5570/X/17/3185234	An appeal regarding whether section 191(1) of the Town and Country Planning Act 1990 (TCPA 1990) can be used to confirm that a site has a “nil use”. A lawful development certificate is a certificate issued by a local planning authority which certifies either that: • an existing use of a building or land, or operations carried out in, on, over or under land, or the failure to comply with any condition or limitation attached to a planning permission is lawful, (section 191 of the TCPA 1990), known as a Certificate of lawfulness of existing use or development (CLEUD); or • the proposed use of buildings or land, or any proposed operations to be carried out in, on, over or under the land is lawful (section 192(1) of the TCPA 1990, known as a Certificate of lawfulness of proposed use or development (CLOPUD). The appellant appealed to the Secretary of State when the local planning authority refused to grant a CLEUD for a site which was unused and had had a nil use for more than ten years. The appeal was dismissed on the balance of probabilities as there was no lawful existing use of the land for which a CLEUD could be granted in accordance with section 191(1)(a) of the TCPA 1990. The inspector considered that the term “nil use” is not an existing use but a shorthand phrase to describe the situation where there is no actual use of the land that is lawful. The inspector took the wording of the statute in its ordinary meaning and ruled it must denote that a use actually existed and a Certificate could not be granted for the absence of any use at all.
PINS Appeal – APP/Z4718/C/18/3199806	A planning inspector held that a wooden shelter used by smokers in the grounds of a public house constituted a building notwithstanding that it was “made of timber with no foundations for fixing to the floor” after applying section 336 of the TCPA 1990. The inspector therefore upheld the enforcement notice requiring the removal of the public house.
High Court refuses an application for an interim injunction to prevent Caudrilla Bowland Ltd proceeding with fracking.	On 12 October 2018 the High Court refused an application for an interim injunction to prevent Caudrilla proceeding with fracking at its site in Lancashire. Caudrilla has confirmed, amongst much local opposition and controversy, it will commence with its first fracking operation by sinking two exploratory wells. The results are expected in 2019.

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.