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Articles Planning 22nd Jan 2019

Planning Update – December 2018

December saw the Supreme Court holding that the definition of “highway” should be wide when assessing the transfer of roads to the Greater London Authority and the High Court considering and re-stating the law regarding whether work in breach of a planning condition can be valid implementation, along with a steady stream of new subordinate legislation and Government consultants including addressing anomalies resulting from the People Over Wind habitats case.

We update below on recent planning changes:

Legislation, Law or PolicySummary
New Building (Amendment) Regulations 2018 (SI 2018/1230) regarding combustible cladding materialsNew regulations came into force on 21 December 2018 which ban the use of combustible cladding materials in external walls of high-rise buildings. These Regulations follow the Grenfell Tower tragedy and a government consultation which closed on 14 August 2018. The new Regulations apply to:

• All new residential buildings which exceed 18 metres in height
• Student accommodation, boarding school dormitories, registered care homes and hospitals which exceed 18 metres in height

The Regulations will also apply where there is a "material change of use" of a building that converts into a building within one of the above categories.

Where a building notice or initial notice has been given before 21 December 2018, transitional provisions have been put in place so that the ban does not apply. However, this is only the case if the building work has already started or starts within two months of that date.

In order to enable local authorities to undertake emergency work on buildings now regarded as unsafe, such as private residential buildings with aluminium composite, financial help will be offered by the Government. Although, it is expected that the local authorities will be able to claim back the costs from the building owners for the works carried out. This is not stated in the Regulations but does indicate support for local authorities in using their existing powers relating to unsafe buildings (Building Act 1984).
Consultation on the government's proposals to require a biodiversity net gain for new housing and commercial development in EnglandIn response to the 25 year biodiversity net gain plan published in January 2018 by the Government, on 02 December the Department for Environment, Food and Rural Affairs (Defra) and the Ministry of Housing, Communities and Local Government (MHCLG) published a consultation on the government's proposals to require a biodiversity net gain for new housing and commercial development in England.

This plan proposed to strengthen the position of local planning authorities when assessing the environmental impact of new developments. The effect of this consultation could require developers to submit information on ‘biodiversity net gain’ when making planning applications. What this means is that the surrounding environment such as wildlife habitats must be left in a measurably better state than before the development began. It will be mandatory to for the developer to submit how their project will have a positive impact on the environment.

The consultation proposes a minimum 10% net gain in biodiversity for development and where it is not possible to achieve a compensatory tariff of between £9,000 and £15,000 per biodiversity unit is proposed.

The consultation includes a proposed updated biodiversity metric.

It is hoped that this new mandatory approach will go hand in hand with the countrywide proposal to build 300,000 homes a year by the mid-2020’s by ensuring that all new developments improve the area and have a focus on environmental importance whilst still reaching the Government’s housing goals.

In July 2018, Chapter 15 of the NPPF was updated to align with the 25 year plan's aims for biodiversity.

The consultation closes on 10 February 2019.
The Local Government (Structural and Boundary Changes) (Amendment) Regulations 2018 (SI 2018/1296) (Amendment Regulations)These regulations came into force on 2 January 2019.

They allow local authorities to make changes to the boundary area including abolishing existing local government areas and the replacement of a new council. S.10 of the Local Government and Public Involvement in Health Act 2007 (LGPIHA 2007) enables this change.

The new Amendment Regulations make the following changes under s.14 LGPIHA 2007:

• Local Government (Structural Changes) (Finance) Regulations 2008 (SI 2008/3022) (2008 Regulations) are extended to include areas subject to a boundary change under s.10 where a council has been abolished.

• A local authority can continue to set and adjust council tax for the predecessor area for a further 2 years. However, the tax must balance out between the new and predecessor areas by the 8th year.

• Local Government (Structural Changes) (Transitional Arrangements) (No. 2) Regulations 2008 (SI 2008/2867) now take account of the Localism Act 2011 and the Local Government and Housing Act 1989 which concerns housing finance.
The Conservation of Habitats and Species and Planning (Various Amendments) (England and Wales) Regulations 2018 (SI 2018/1307)The Conservation of Habitats and Species and Planning (Various Amendments) (England and Wales) Regulations 2018 (SI 2018/1307) came into force on 28 December 2018. They are intended to reflect and address confusion arising from the ECJ’s decision in the heavily recorded People Over Wind judgment - People Over Wind and another v Coillte Teoranta (Case C-323/17) EU:C:2018:244.

The Regulations:
• Extend the remit of regulation 63 of the Habitats Regulations 2017 (HR17) to include special development orders, local development orders, neighbourhood development orders, simplified planning zones, enterprise zones and cycle tracks (the Planning Tools) and permission in principle in respect of development where, when assessed, no adverse effects on the integrity of the proposed site are found.

• Dis-apply regulation 64 of HR17 to the Planning Tools and permission in principle as it exceeds the policy intent, and applying regulation 63.

• Apply observations made in review of regulations 65 and 66 HR17 to ensure that new designated sites are treated the same way as existing ones.

• Amend the Neighbourhood Planning (General) Regulations 2012 so that Habitats Regulations assessment process must be followed when creating neighbourhood plans.

• Amend the Town and Country Planning (Permission in Principle) Order 2017 and the Town and Country Planning (Brownfield Land Register) Regulations 2017 – to ensure that the permission in principle and inclusion on part 2 of the brownfield land register must be authorised in line with regulation 63 HR17.
Consultation on draft NPS by Department for Environment, Food and Rural Affairs (Defra) regarding water resources infrastructure projectsThe consultation explores amending the Planning Act 2008 in regards to the definition of nationally significant water infrastructure and includes a draft National Planning Statement (NPS) for Water Resources Infrastructure which it is hoped will streamline and simplify the process when acquiring planning consent for a large water infrastructure project.

The reason behind making the process more efficient follows the increased demand in water due to a higher population as well as climate change which has made drought more likely.

In related news, the government is expected to publish a water conservation report shortly which will outline further actions for dealing with the increase in demand for water.

The consultation will close on 31 January 2019.
The Law Commission published Planning Law in Wales: final reportThe Welsh Government invited the Law Commission to consider the codification of planning law in Wales, as it acknowledged that planning law in Wales is complicated and in certain parts difficult to understand.

The Planning Law in Wales: final report makes recommendations in respect of:

- The formulation of development plans.
- The need for planning applications to both the local planning authority and Welsh Ministers
- The provision of infrastructure and other improvements
- Planning appeals
- Unauthorised development
- Works affecting listed buildings and conservation areas
- Advertisements
- Protected trees and woodlands
- Improvement regeneration and renewal
- High Court challenges

An interim response to the report will be provided by the Welsh Government by the end of May 2019, and a more detailed response by the end of November 2019.
Case law – St John Ambulance v Teignbridge District Council (2018) (CR/2018/003)The First-tier Tribunal (FTT) held that a claim for compensation can be made for loss or expenses which has arisen from the listing as an asset of community value (ACV) and any which arises from compliance with the procedural requirements of the assets of community value regime pursuant to the Localism Act 2011.

In St John Ambulance v Teignbridge District Council (2018) (SJ) a hall had been put up for sale with a bid of £135,000, which had been received and accepted. The hall was subsequently included on the local authority’s list of ACVs which resulted in the bidder withdrawing from the sale.

The hall was then sold at auction for £80,000 and SJ sought to recover the £55,000 loss (which they claimed represented the diminution in the hall’s value as a result of listing) as compensation under regulation 14 of the Assets of Community Value (England) Regulations 2012 (SI 2012/2421). The local authority refused the claim for compensation and SJ appealed to the FTT.

The FTT held that:
• Although there is no binding authority regarding this point, whilst Chadwick v Rossendale BC [2015] UKFTT (CR/2015/0006) held obiter that a claim for the diminution in value of the asset could not be recovered, the current case could be distinguished on its facts.
• The wording of Regulation 14(2) is wide enough to include loss or expense which arises as a result of an asset acquiring the status of an ACV, as well as loss or expense arising from compliance of the procedural requirements of the statutory regime.
• There was insufficient evidence for SJ to definitively establish the £55,000 loss, as the auction price was not good evidence of the listing date value and there had been no formal valuation before and after the listing existed.
• Compensation was awarded in the sum of £5,042.

Owners should therefore consider formal valuations as a necessity in these types of cases and not seek to rely on the actual sale price. In addition, listing authorities should be aware of the potential for an increase in claims for compensation under regulation 14.
Ministry of Housing, Communities and Local Government (MHCLG) has issued draft revised criteria for putting local planning authorities into special measuresThe MHCLG has laid before Parliament draft revised criteria for putting local planning authorities (LPA) into special measures.

In accordance with section 62B(1)(b) of the Town and Country Planning Act 1990 an LPA is only designated into special measures if the Secretary of State considers that the LPA is not adequately performing its functions of determining applications.

When an LPA is in special measures developers have the option of submitting planning applications including for reserved matters consent and certain connected applications (including listed building consent and conservation area consent) for “major development” and/or “non-major development” directly to the Secretary of State.

The criteria used for designation are set out in the Improving Planning Performance: Criteria for designation and are as follows:

• The speed applications are dealt with during the specified assessment period
• The quality of decisions made during the specified assessment period i.e. the proportion overturned on appeal

The Secretary of State will make a decision once a year whether any designations should be lifted.
Case law – Southwark LBC and another v Transport for London [2018] UKSC 63An appeal by Transport for London (TfL) concerning the extent of the interest transferred as “the highway, in so far as it is vested in the former highway authority” under art. 2(1)(a) of the GLA Roads and Side Roads (Transfer to Property etc.) Order 2000, on the designation of the first tranche of GLA Roads under the amendments made to the Highway Act 1980 by the Greater London Authority Act 1999.

The main issue of the appeal was whether the entire of the Council’s interest in the vertical plane of the land on which the highway ran, or only the surface and sufficient sub-soil as was necessary for the use and operation of the highway under the “Baird Principle” from Tunbridge Wells Corp v Baird [1896].

It was held by Lord Briggs that the Baird principle did not apply to art 2, but that the true meaning of the phrase “the highway, in so far as it is vested in the former highway authority” is the extent of the vertical plane of the highway in the Council’s ownership .

As the rights held by the Council were not held in its capacity as highway authority, those rights therefore do not pass under art. 2(1)(a).

This decision reminds us that “highway” has no single meaning and how it is interpreted can depend on the background surrounding that specific legislation and its purpose and not the statute as a whole.
The government has launched its “Building a Safer Future” policy in order to implement policy following the Grenfell tragedy. Following on from the Hackitt review of Building Regulations and fire safety the government has launched its “Building a Safer Future” policy with the aim of implementing those recommendations.

These include a series of measures designed to improve building safety, includes the establishment of:
• A new Standards Committee which will advise on construction product and systems standards and regulations
• A Joint Regulators’ Group to trial elements of the new regulatory system before any proposed new legislation.

The government will canvas for other views, which will include statutory bodies, developers and building owners.

There will also be changes to Approved Document B from 21 January 2019, which will clarify how work should be carried out to comply with the Building Regulations.

There is a call for evidence entitled “Good practice on how residents and landlords work together to keep their home and building safe”, the call for evidence closes on 12 February 2019.
Welsh Government publishes the tenth edition of Planning Policy Wales (PPW)On the 5th December 2018 the Welsh Government published its tenth edition of the PPW, the national land-use planning policy document for Wales. Local authorities use it to inform policies and land-use allocations in local development plans and it is a material consideration for decision-makers in determining individual planning applications.

The key changes to planning policy include:

• A focus on placemaking
• Promotion of active travel, such as walking and cycling
• A new policy on ultra-low emission vehicles and charging points
• Promoting renewable energy developments
• Restricting extraction and use of fossil fuels including fracking
Case law – R (Howell) v Waveney District Council [2018] The High Court considered whether a development was unlawful due to breaches of a number of planning conditions as part of an application for judicial review of Waveney District Council’s decision to approve decisions pursuant to the planning conditions imposed in respect of the erection of a wind turbine.

Although the requirements of the conditions had not been met the High Court held that the Council had been entitled to discharge the planning conditions which related to aviation safety and archaeological work. On the reading of the conditions, they were not “conditions precedent” and did not go to the heart of the development, and therefore any breach of them would not render the development unlawful. As such the judicial review claim was dismissed.

This case is a reminder that conditions have to go to the heart of the permission in order for non-compliance to render the implementation of a planning permission unlawful.
Case law – UKI (Kingsway) Limited v Westminster City Council [2018] UKSC 67The Supreme Court has held that a statutory completion notice was validly served even though it was received by the recipient after it had been scanned and attached to an email which was sent from an unauthorised third party. The notice stated the date on which a building would be deemed to have been completed for the purpose of non-domestic rates.

The notice had been passed to the building owner by the receptionist who was employed by the building’s management company. The pertinent issue was whether the council had “caused” the notice to be given. A requirement to ‘give’ notice does not necessarily exclude the indirect giving of a notice.

Although the notice had been hand-delivered by the Council to the receptionist, the receptionist had scanned and emailed a copy to the building owner.

Lord Carnwath of the Supreme Court heldthat there was actual receipt of the notice and the chain of causation had not been broken by the receptionist. The requirement to give notice did not necessarily preclude the indirect giving of notice.

Previous authorities recognised the validity of serving notices by fax and there was no logical reason why this could not be applied to services of notices by email.

This decision may be applicable to commercial contracts and therefore serves as a reminder to consider whether a notice clause should expressly permits service by email.
Case law – Anixter Ltd v Secretary of State for Transport [2018] UKUT 405 (LC) The Upper Tribunal (Lands Chamber) has held that the 28-day period specified in paragraph 5, Schedule 2A of the Compulsory Purchase Act 1965 is absolute and cannot not be extended for the landowner’s counter-notice.

In this case a notice to treat was served in respect of the HS2 railway and the landowner’s counter-notice was served 3 days after the expiry of the statutory time limit (28 days beginning with the day the notice to treat was served). This was fatal to the landowner’s claim that all of its buildings should be acquired rather than the one building referred to in the notice to treat.

The clear and unqualified statutory time limit could not be extended, the main factors which make the time limit inflexible are:

• The time limit is generous
• The procedural step is simple and there is no power to dispense with the time limit
• If the counter-notice could be served late, the authority could not, after 28 days, plan its works or estimate its compensation liability
• The landowner has no independent right to refer the counter-notice to the Upper Tribunal.

The consequences of failing to give a counter-notice are mitigated by the right to compensation (where there is total extinguishment of a business) and as such do not merit the granting of power for the Upper Tribunal to dispense with the time limit.

This case serves as an important reminder to adhere to statutory deadlines and to implement appropriate procedures for relaying notices to the appropriate advisors without delay.
Department for Business, Energy and Industrial Strategy (BEIS) publishes final policy document on proposed geological disposal facility (GDF) for high-level radioactive waste. On 19 December 2018 BEIS published Implementing geological disposal: working with communities. This policy document updates and replaces the government’s 2014 white paper on the GDF in England and sets out the:

• Government’s policy framework for managing high-level radioactive waste (HLW) in the GDF
• Working in partnership and in a consent-based approach with local communities to find suitable locations for the GDF
• Context for the siting process, the planning regime and regulatory landscape for the GDF

BEIS published the government’s response to the January 2018 consultation on the draft potential host communities’ policy, in England. The Welsh Government’s response to the consultation will be published shortly.

Radioactive Waste Management (the body will implement the GDF) also published guidance on how it will work with communities to select the GDF and a consultation on how it will evaluate sites in England (this consultation closes on 31 March 2019).

The draft GDF National Policy Statement (NPS) for the GDF infrastructure has also been published as part of this consultation and is expected to be designated during 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.

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