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Articles Planning 14th Dec 2018

Planning Update – November 2018

This month saw the government make various draft legislation to ensure that UK legislation is amended and will continue to function correctly post-Brexit by removing references to comply with EU legislation or obligations and reflects that the UK will no longer be a member state.

The government has plenty of planning reform proposals in the pipeline which sees increasing housing supply, and types of housing being proposed by developers as well as better use of land allocation and CPO powers. A very important Court of Appeal decision in the Faraday case has also been issued on procurement law for development agreements that will dramatically change the way development agreements will be produced or procurement procedures will apply.

We update below on recent planning changes:

Legislation, law or policySummary
Equality and Human Right Commission (EHRC) publishes guidance for local authorities and their responsibility towards people with disabilitiesThe EHRC published guidance for local authorities which set out their responsibilities towards people with disabilities and housing.

The guidance provides the following:

• Sharing of best practices
• Scrutinising their housing policies and practices
• The strategies and plans in place which take into consideration the housing for people with disabilities, and to ensure that they are meaningfully involved.
• Guidance is included for people with disabilities regarding their rights to accessible and adaptable housing
Principles of Selection for Listed BuildingsOn 29 November 2018 the Department for Digital, Culture, Media and Sport published a revision of the Principles of Selection for Listed Buildings document setting out the statutory criteria applied by the Secretary of State when deciding whether a building should be listed.
Case Law – Putney Bridge Approach Ltd v Secretary of State for Communities and Local Government and others [2018] EWCA Civ 2137This is a useful reminder that when issuing a discontinuance notice in respect of a deemed advertisement consent the LPA does not have to take into account whether any other hypothetical advertisement that would benefit from the deemed consent would also cause substantial injury.

The decision could be made on the basis of the advertisement in situ causing substantial injury to the amenity of the area.
Case Law – R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government and others [2018] EWCA Civ 2137Whilst there is no statutory duty on the Secretary of State to give reasons for not calling in a planning application for determination by it, the Secretary of State had created a legitimate expectation that reasons would be given as it had promised in 2001 to give reasons and had not updated its guidance to withdraw or modify this promise.
Changes to UK legislation to ensure continued operation post-Brexit.The government has been busy publishing various draft regulations to ensure that the United Kingdom’s legislation continues to function correctly after Brexit by removing references to comply with EU legislation or obligations, and to reflect that the UK will no longer be a member state.

• draft Pipe-lines, Petroleum, Electricity Works and Oil Stocking (Miscellaneous Amendments) (EU Exit) Regulations 2018 together with a draft explanatory memorandum, which will implement;

- the Environmental Impact Assessment (EIA) Directive (2011/92/EU),
- Industrial Emissions Directive (IED) (2010/75/EU)
- relevant provisions of the Medium Combustion Plant Directive (MCPD) ((EU) 2015/2193)
- Hydrocarbons Licensing Directive (94/22/EEC), and
- Oil Stocks Directive (2009/119/EC)

• draft Control of Mercury (Amendment) (EU Exit) Regulations 2018, together with a draft explanatory memorandum.

• draft Planning (Hazardous Substances and Miscellaneous Amendments) (EU Exit) Regulations 2018, together with a draft explanatory memorandum.

• draft Environment, Food and Rural Affairs (Environmental Impact Assessment) (Amendment) (EU Exit) Regulations 2018, together with a draft explanatory memorandum.

• draft Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2018, together with a draft explanatory memorandum.
The Home Loss Payments (Prescribed Amounts) (Wales) Regulations 2018 have been made and came into force on 3 December 2018The new Regulations increase the amount of compensation (home loss payment) payable in Wales, under the Land Compensation Act 1973 (LCA 1973), to a person whose home is acquired by compulsory purchase.

For a person occupying a dwelling pursuant to an "owner's interest", the home loss payment is 10% of the market value of the interest, subject to a minimum of £5,900 and a maximum of £59,000 for any displacement occurring on or after 3 December 2018.

All other occupier interests will be compensated at a flat rates of £5,900 from the same date.

These regulations revoke the Home Loss Payments (Prescribed Amounts) (Wales) Regulations 2017 (SI 2017/996) in respect of any displacement occurring on or after 3 December 2018.
Government response to supporting housing delivery through developer contributions consultationOn 29 October the Ministry of Housing, Communities and Local Government set out how it plans to take forward changes to developer contributions via draft regulations which are expected later this year.

The proposals are as follows:-

• To simplify the procedure for adopting Community Infrastructure Levy (“CIL”) Charging Schedules.
• Lifting the restriction on the number of 106 obligations which can be pooled to fund a single infrastructure project (currently 5).
• Introduce a two month grace period for developers to submit a commencement notice before they lose any exemption that could be claimed.
• Possible changes to the Indexation on CIL to follow changes in house prices.
• New reporting standards in respect of the use of CIL receipts.
• Possible introduction of Strategic Infrastructure Tariff powers for combined authorities with strategic planning powers
• Technical clarifications in respect of the existing CIL regime.
Case law - In R (City of York Council) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 2699 (Admin)The High Court held that a developer had acquired the right to modify or discharge a section 106 affordable housing payment obligation as the developer had made the application before the repeal date of sections 106BA to 106BC of the Town and Country Planning Act 1990.

The court also decided that the development could be economically unviable even though it had been completed.
The Ministry of Housing, Communities and Local Government (MHCLG) publishes – Technical consultation on updates to national planning policy and guidanceMHCLG publishes the technical consultation which relates only to England and closes on 7 December 2018. The public and private sectors and general public are invited to give their views on the following areas:
• Changes to planning practice guidance and the assessment of local housing need using the standard method
• National planning policy on housing land supply.
• Paragraph 73 of the National Planning Policy Framework (NPPF) and its definition of deliverable.
• Paragraph 177 of the revised NPPF amendments to include the ruling of the ECJ case - People Over Wind and another v Coillte Teoranta (Case C-323/17) EU:C:2018:244.
Consultation – Planning Reform: Supporting the high street and increasing the delivery of new homes.The proposed reforms, which the government would like to hear from both the public and private sectors as well as the general public, include:

• Changing permitted development rights (including some changes of use) to allow upward extensions which would create additional homes and the demolition of existing commercial buildings for residential redevelopment.
• Extending the freedom of local authorities to dispose of surplus land at less than best consideration without seeking consent from the Secretary of State.
• Compulsory purchase powers draft guidance of new town development corporations, which includes the factors ministers will use when making a decision to confirm new town compulsory purchase orders.

The government is seeking views on the first draft of the listed building consent order, which grants listed building consent for works altering or extending a waterway structure which will be executed by the Canal and River Trust.

The consultation closes on 14 January 2019 and relates to England.
The Independent Review of Build Out: final report is publishedThis report provides recommendations regarding the gap between the number of housing completions and land allocation or permissioned on sites of a substantial size for areas with high housing demand, which include:

• introduction of new planning rules requiring homebuilders offer different types of properties on large sites to prevent the market being flooded (initially sites over 1,500 units)
• a new National Expert Committee (NEC) which will advise councils regarding the different types of properties for sites of a substantial size. The NEC will handle appeals between developers and local authorities in respect of disagreements over diversity across the development.
• Homebuilder’s incentives to change plans for existing large sites to ensure a variety of property types are made immediately available and remain viable for the existing builder.
• Councils being given a stronger role guiding major housebuilding projects.
• Councils being given statutory powers to purchase land designated for large sites along with the power to purchase undeveloped land for a value which would produce a maximum residual development value of around ten times its existing use value based on a greater diversity in properties.

The government aims to respond to the report in full in February 2019.
Consultation – Ministry of Housing, Communities and Local Government (MHCLG) on compulsory community pre-application consultation for shale gas developmentA follow-up to two previous consultations in July 2018 MHLCG has issued a consultation on compulsory community pre-application consultation for shale gas (fracking) development.

This proposal could mean that the shale gas developers would have to consult with the affected local communities before submission of the planning application. It is hoped that this early involvement with the community will enable a more collaborative working partnership at an early stage of the development to identify and resolve associated issues.

The consultation closes on 7 January 2019.
MHCLG announces a Parliamentary Order devolving powers and funding as part of the North Tyne devolution dealOn 2 November 2018, MHCLG announced that the Parliamentary Order devolving powers and funding as part of the North of Tyne devolution deal was made. There is a commitment from the government that over £600 million of funding will be spent over the next 30 years to the deal.

This follows from a government announcement that it was "minded to agree" to a devolution deal between three councils (Newcastle City Council, North Tyneside Council and Northumberland County Council) in the 2017 Budget. On 1 November 2018, the Newcastle Upon Tyne, North Tyneside and Northumberland Combined Authority (Establishment and Functions) Order 2018 (SI 2018/1133) was made.

There is an expected £1.1 billion for the local economy from the deal and there will be a creation of a new combined authority and directly-elected mayor (with the election planned for May 2019).
Building Better, Building Beautiful Commission is establishedOn 3 November 2018, the Communities Secretary, James Brokenshire, announced the establishment of the Building Better, Building Beautiful Commission.

The purpose of the Commission is to develop a vision and practical measures to ensure new developments meet the needs and expectations of communities. Including how the planning system can expand, encourage and incentivise a greater emphasis on design, style and community consent.

The Commissions main aims are:
• Promoting and making better design and style of homes, villages, towns and high streets.
• Explore how new settlements can be developed with greater community consent.
The final report is due in December 2019.
Local Government (Boundary Changes) Regulations 2018 (SI 2018/1128) (LGBCR 2018) came into force on 26 November 2018The LGBCR 2018 makes provisions for boundary changes and transfers of all functions and property, rights and liabilities of predecessor councils to successor councils.
PINS: APP/H1840/W/17/3188250 An appeal decision regarding the application of vacant building credit (VBC) to buildings on agricultural land.

The appellant considered the land was "brownfield land" and therefore VBC applied; the local planning authority considered the land to be "previously developed land" which specifically excluded land occupied by agricultural buildings, and therefore VBC did not apply.

The inspector in coming to his conclusion considered the revised National Planning Policy Framework and brownfield land which is now considered as previously developed land, and that "suitable previously developed land should be that not expressly excluded in the definition", therefore buildings on agricultural land did not qualify for VBC.
The Environment, Planning and Rural Affairs (Miscellaneous Amendments) (Wales) Regulations 2018 (SI 2018/1216) (EPRA(MA)W Regs 2018) The EPRA(MA)W Regs 2018 come into force on 17 December 2018.

The Regulations make minor amendments to environmental protection, agricultural and planning legislation and in particular amend out of date references to European legislation in domestic legislation.

Regulation 5 ends the application of section 53 of the Freedom of Information Act 2000 to the Environmental Information Regulations 2004 (SI 2004/3391) (exception from duty to comply with decision notice or enforcement notice). Which gives credence to the ruling of the Supreme Court in R (Evans and another) v Attorney General [2015] UKSC 21 (26 March 2015) that the issuing of any certificate under regulation 18(6) in respect of environmental information is incompatible with Article 6 of Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information.
Case law - (Faraday Development Ltd v West Berkshire Council and another [2018] EWCA Civ 2532.) The Court of Appeal allowed an appeal against the dismissal of a judicial review application of a local authority's decision to enter into a development agreement for the disposal of land to the developer (SMDL).

The council had not followed the procurement process under Directive 2004/18/EC (Public Procurement Directive) or the Public Contracts Regulations 2006 (SI 2006/5) (PCR 2006) (the procurement rules in force at the time of the agreement) when they entered into the development agreement with SMDL.

The Council issued a voluntary ex ante transparency (VEAT) notice on the understanding that the agreement was outside the procurement regime.

The Court of Appeal allowed the appeal on the grounds that:
• The development agreement was not a "public works contract" on signing however, its provisions would see that the council would be agreeing to act unlawfully in the future when a "public works contract" came into existence at the moment SMDL proceeded to draw down the land. This would be an unlawful breach of the requirements for lawful procurement under the Directive and the PCR 2006.
• The VEAT notice did not comply with the requirements in regulations 47K(4)(a) (ii) and (iii) of the PCR 2006; and there was not an adequate justification for the council's decision to proceed.
Important clarification was provided for when projects are considered to be "public works contracts" and therefore subject to the public procurement regime.

The Court of Appeal stated that contracting authorities should always consider whether they will be triggering the public procurement regime and its requirements when they enter into development agreements and although it was unintended by the Council, the ultimate effect of the Council’s decision was one of wrongdoing and a circumvention of the procurement regime.
Case law - PINS: APP/U1105/Q/18/3202380 A planning inspector has discharged a unilateral undertaking, completed in 2011, which secured an open space contribution of £8,665.60 (index-linked), which was the local planning authority’s costs of maintaining open space. This related to the change of use of two floors above a shop to three residential flats.

The Planning Inspector decided that the LPA had not shown that the contribution would serve a useful purpose as it had not defined what the contribution would be spent on or which areas would be harmed by the proposed development. The inspector concluded that it would be unsound to insist on the contribution being paid on the basis of convincing evidence to justify it and commented that "financial contributions should not be sought on the basis of vague or generalised assertions by LPAs".
Case Law - Dill v Secretary of State for Communities and Local Government and another [2018] EWCA Civ 2619On 26 November 2018 the Court of Appeal dismissed an appeal against the refusal of retrospective listed buildings consent (LBC) and the service of a listed building enforcement notice.

Dill had sold the limestone piers with lead urns unaware that they were listed under Planning (Listed Buildings and Conservation Areas) Act 1990 (LBA 1990). He consequently applied for a retrospective LBC, which the local planning authority (LPA) refused and instead the LPA issued a listed buildings enforcement notice.

The Court of Appeal confirmed that the limestone piers with lead urns on the list under the Planning (Listed Buildings and Conservation) Areas Act 1990 (LBA 1990) was determinative of their listed building status notwithstanding whether they constitute a “building” in other contexts and therefore came under the protection of the statutory scheme.

This case sets out a useful overview of the LBA 1990 and relevant case law.
Consultation on proposed changes to planning practice guidance and the NPPFDespite the long-awaited revised National Planning Policy Framework being published in July the Ministry of Housing, Communities and Local Government have already published another consultation entitled “Technical consultation on update to national planning policy and guidance”.

The consultation proposes changes to the definitions “local housing need” and “deliverable” in respect of assessing housing land supply.

Consultation closes on 7 December 2018
Consultation on planning reforms to support the high street and increase the delivery of new homesThe Government has published a consultation on proposed reforms including:-
• a change to permitted development rights to allow upward extensions to create additional homes/offices in some areas;
• new permitted development rights for the demolition of existing commercial buildings to enable residential development;
• introducing a new use class incorporating what is now A1(shops), A2 (professional services and A3 (restaurants and cafes);
• changes in the powers for Local Authorities to dispose of land.

Consultation closes on 14 January 2019
Beauty in the built environment debate pack publishedAgainst a background of the revised NPPF placing more importance on good design, the House of Commons Library have published on 26 October a debate pack ahead of a debate on the importance of beauty in the built environment.

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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