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Articles Planning 19th Feb 2019

Planning Update – January 2019

January saw new infrastructure planning legislation coming into force regarding changes to definitions for nationally significant infrastructure projects for water supply infrastructure. Further court cases on the matters of: CIL regulations, DIY builders, lawful development certificates for outbuildings as annexes, as well as the High Court concluding that a nursery is not a school. In addition several Government consultations are taking place during the early part of 2019 and the Government announced of when the Spring Statement will take place. Once again, a busy time in planning.

We update below on recent planning changes:

Legislation, law or policySummary
Legislation - The Infrastructure Planning (Water Resources) (England) Order 2019 (SI 2019/12) (IP(WR)England Order)Following the DEFRA consultation which was published in April 2018 new regulations came into force on 8 January 2019 which amended the nationally significant water infrastructure definition under the Planning Act 2008 by the IP(WR)England Order.

The changes widen the nationally significant infrastructure projects (NSIPs) definition by making significant changes to the types and sizes of new water supply infrastructure (reservoirs, water transfer and desalination projects) in England.

The government estimate that this will increase the number of water resource schemes qualifying as NSIPs which is intended to streamline the process of gaining planning consents for the projects.

A further consultation closed on 31 January 2019, regarding the draft National Policy Statement (NPS) and the government’s policies for development of NSIPs that are relevant to water resources (reservoirs, water transfer and desalination projects) in England, which is expected to be designated later this year.
Case law - Tabb v HMRC [2018] UKFTT 737 (TC)The First-tier Tribunal allowed an appeal to consider the scope of the VAT refund scheme under section 35 of the Value Added Tax Act 1994 for DIY builders.

The taxpayer had completely demolished the annexe part of a single-storey dwelling with internal access to an adjoining barn. He had then gone on to build a new two-storey dwelling without internal access to (or a shared wall with) the barn.

Under Note 18 to Group 5 of Schedule 8 of the Value Added Tax Act 1994 which determined when a building ceases to be an existing building for the purposes set out in Note 16 to Group 5 and in this case was not satisfied. The internal access meant that cessation of the existing building required demolition of the adjoining barn. As such the existing building remained. The tribunal held that the upper storey constituted an extension or enlargement, and the new building was a new dwelling (as it stood alone) for the purposes of Note 16 to Group 5. The tribunal considered that it would have viewed the entire expenditure as being for the purposes of the additional dwelling and as such would have been impossible to separate the single project into constituent parts.

This case highlights that when considering “DIY builders” scheme it is important to consider the specifics of the particular facts for the purposes of the VAT rules.
Trail Riders v Wiltshire County Council [2018] EWHC 3600 (Admin)The High Court quashed an experimental traffic regulation order (ETRO) which was made by Wiltshire County Council under the Road Traffic Regulation Act 1984.

The High Court’s reason for quashing the ETRO was that the County Council had failed to consult, under Regulation 6 of the Local Authorities’ Traffic Orders (Procedure)(England and Wales) Regulations 1996. Mr Justice Swift said that;

“The decision taken by the council not to consult was not a rational decision. It took account of an irrelevant consideration; the reasons relied on in [the director’s] evidence are not logically connected to the question posed by the requirement at line 7(c) of the table in regulation 6 of the 1996 Regulations; and to the extent that the council is contending that the decision to make the 2018 Order had to be taken so quickly that there was no time to consult, those circumstances were entirely self-induced.”

This is a reminder for local authorities to ensure that they follow the correct procedure when making decisions and to give proper consideration to whether consultation is required.
PINS Appeal Decision – APP/R5510/X/18/3206551Facts:
An appeal regarding the conversion of part of an ancillary outbuilding to an annex for elderly parents (within a residential curtilage) and whether it constituted a material change of use.

An application for a lawful development certificate (LDC) which sought confirmation that the proposed use of part of an outbuilding for residential annex was lawful. The purpose of the outbuilding was to provide for a bedroom, living area, kitchen and bathroom. The local planning authority refused the application and the applicants appealed.

The Inspector granted the LDC for the following reasons:-
- in these particular circumstances a separate planning unit would not be formed
- whilst the annex is not ancillary to the main dwelling as it consists of new primary accommodation within the curtilage (and is therefore not “incidental” to the dwelling) it does not automatically follow that a material change of use would occur.

Whilst this case turned on the facts it shows that care should be taken when dealing with Lawful Development Certificates and all of the circumstance should be taken into account.
PINS: APP/J9497/X/18/3208279:
Using a large dwellinghouse for short stay lets will constitute a material change of use
Large property (six bedrooms plus swimming pool in garden) was being used as family accommodation with staff accommodation on the upper floors. The appellants had the intention of letting the property for periods of time between 2-14 nights for no more than 90 days in the year, with 17 guests being the maximum at any one time. A stipulation was that the groups had to be part of the same family within the “single household” definition set out in the Housing Act 2004.

The proposed use would go beyond the use within class C3 (Town and Country Planning (Use Classes) Order 1987. The reasons for this decision include the current activity levels at the property; by increasing the number of adult occupiers, the number of vehicles would increase as well as the noise levels at the accommodation both inside and outside.

With the increased occupation in the dwelling, the live-in house keeper would not only assist with domestic needs (as before) but would also enforce house rules and the staff accommodation would become more of a separate entity.

Consequently, it was concluded that the cumulative amount of change in the activity and accommodation levels compared to its current low use would be significant enough to constitute to a material change.

This case serves as a useful reminder of what can be taken into account when considering whether a change of use of a dwelling house for short term letting is material and that each case must be considered on its own facts.
Court of Appeal – R (on the application of Shirley) v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 22Facts:
The claimant lives in Canterbury, Kent, which in 2006 was designated as an air quality management area (AQMA) by the Canterbury City Council due to the high levels of NO2 pollution. The City Council proposed to grant planning permission for a residential development of 4,000 new houses and new hospital in accordance with the local plan.

The planning application made by Corinthian Mountfield Ltd included the required environmental statement and air quality assessment. The assessments concluded that the development would not lead to significantly increased NO2 levels but this was subsequently criticised by the claimant’s expert for not being an accurate calculation of the overall impact. However, the Council conducted a report which arrived at a similar conclusion so the permission was granted.

In December 2016, the Secretary of State for Communities and Local Government refused to call in the planning application and so the Council was allowed to grant permission.

The claimant applied to the High Court for judicial review of the decision made by the Secretary of State by claiming it was “irrational” to not call in the planning application, but this was soon dismissed. The claimant appealed.

The Court of Appeal dismissed the case once again on 25 January 2019 finding that it was correct of the High Court to dismiss the judicial review and highlights the sufficiency of preparation and subsequent implementation of the assessments completed by Corinthian Mountfield Ltd and the Council.

Article 23 of the Air Quality Directive 2008 was complied with the Council as they sufficiently exercised their planning powers and duties. Furthermore, the Secretary of State did not make an error in leaving the decision to the LPA as he was aware that his own powers were the same of the LPA and could use his discretion.

It was noted that there is no general duty under the air quality legislation to use planning powers to avoid worsening or prolonging breaches of limit values.

Permission to appeal to the Court of Justice of the EU was refused.
R (Shropshire Council) v Secretary of State for Communities and Local Government and another [2019] EWHC 16 (Admin)As a rule, self-build housing (person lives in the dwelling they built) is eligible for an exemption to pay a community infrastructure levy. In order to benefit from this exemption, a person must submit a claim to the collecting authority – in accordance with reg. 54B CIL Regulations 2010. If granted exemption, this can cease if the required commencement notice is not submitted in time to the collecting authority before the development has started.

Mr Jones received a certificate of exemption from CIL as a self-builder of his dwelling and garage after obtaining obtained planning permission from Shropshire Council.

An email was sent to the council from Mr Jones who confirmed “site clearance works will begin on site tomorrow 11 July 2015” and also referred to the S.106 agreement and the confirmation of timings for the £9000 payment required. The Council replied “comments have been noted and our records updated”. Mr Jones viewed this as giving sufficient notice.

In August 2015 the Council demanded CIL plus a “£2500 surcharge due to work starting without submitting a commencement notice. The Council confirmed the CIL process was “controlled by national regulations” and therefore no discretion could be used. In January 2017, Mr Jones was issued a new demand notice which he appealed to the Planning Inspectorate.

- The Inspector allowed the appeal as whilst the email did not include the particulars required by the CIL Regulations for all intents and purposes the requirement to serve notice had been “satisfied in spirit at least” and there had been no prejudice to the Council.

The Council then appealed the Inspectors decision to the High Court who held that the conclusion that the breach (commencement without a commencement notice) did not occur, could not stand. The notice must comply with the statutory requirements.

R (Winchester College and another) v Hampshire County Council and another [2008] EWCA Civ 431 was followed as the vital authority which requires the notice to be submitted on the ‘proper’ form and other documents.

This case serves as a reminder to ensure strict compliance when submitting a commencement notice – the requirements of a the notice and the need to serve the notice on the correct department. Mr Jones had emailed the team dealing with the s.106 agreement rather than the CIL team.
Bright Horizons Family Solutions Ltd v Secretary of State for Communities and Local Government [2019] EWHC 14 (Admin)Bright Horizons brought an appeal against the refusal of Watford Borough Council for a certificate of lawfulness of proposed use or development (CLOPUD) for the installation of two linked portable cabins to increase the size of its nursery.

The Council had concluded that a nursery was not a school under the Town and Country Planning (General Permitted Development) (England) (Order) 2015 (SI 2015/596) (GPDO 2015) and therefore the cabins were not permitted.

The High Court dismissed the appeal finding that under Class M, Part 7 of Schedule GPDO 2015 the ordinary use of the word “school” does not include a nursery.
ICO Decision Notice – FS50718158The complainant NR requested information from South Gloucestershire Council (SGC) in connection with himself, Whale Wharf, his various companies and a number of planning applications under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (SI 2004/3391) (EIR).

SGC had provided some of the information, but had withheld or redacted other parts under Sections 41 and 43(2) of FOIA and Regulations 12(4)(e) (internal communications) and 12(5)(b) of EIR.

The Information Commissioner required that the remaining information be disclosed to NR, and found the following:

• They were not persuaded that it would constitute an actionable breach of confidence or would prejudice SGC’s commercial interests to disclose email chains about a possible development opportunity (Section 43(2) FOIA).
• Under the EIR –
- Regulation 12(5)(b) as the information did not indicate concern regarding planning breaches and it could not be inferred that disclosure of such information would prejudice the course of justice.
- Regulation 12(4)(e) it was considered that the public interest weighed in favour of disclosure – given the causal link between the information and any negative consequences associated with disclosure.
• They were critical of the way SGC had disclosed the information in a piecemeal way, but were satisfied that SGC had identified all information held. The ICO referred to the Lord Chancellor’s Code of Practice on records management under section 26 of FOIA.

The ICO has clarified that the EIR will only apply where the information is sufficiently specific to an environmental measure or factor under regulation 2. Information regarding development opportunity in general terms would fall under FOIA.
Consultation - Ministry of Housing, Communities and Local Government (MHCLG) has announced a consultation on developer contribution rulesThe Government is looking at amending the Community Infrastructure Levy Regulations 2010 (SI 2010/948) regarding changes to developer contributions to fund essential infrastructure and S106 planning obligations. They are requesting views on the relevant proposed changes .

The consultation’s main proposals are:

• A new strategic infrastructure tariff designed to fund large-scale projects for the benefit of multiple communities which come under a combined local authority
• More options for Councils in how their contributions benefit residents for local priorities
• Increase certainty and transparency over Council’s collected funds and spending by introducing a way of publishing details so communities can understand how the development has benefitted them,
• CIL will mirror changes in land values, which ensures that the CIL contributions from the grant of planning permissions will go to the towns and villages

The proposals were first announced in the 2018 Autumn Budget with the aim to reduce delays caused by the negotiations between developers and councils.

The CIL exemption for starter homes will also be introduced.

The consultation closed on 31 January 2019 and relates only to England.
The Department for Business, Energy & Industrial Strategy (BEIS) has announced consultation on changes to the treatment of electricity storage within the planning system.BEIS has announced a consultation on changes to the treatment of electricity storage within the planning system and seeks views on the proposals which will:

• Retain the 50 megawatt nationally significant infrastructure projects (NSIPs) threshold that applies to standalone electricity storage projects.
• Establish a new NSIP capacity threshold for composite projects including electricity storage and another form of generation when a there is either a storage element capacity of more than 50megawatt; or the capacity excluding any electricity storage is more than 50megawatt

The consultation closes on 25 March 2019 and relates to England only.
Welsh government publishes final policy on geological disposal of radioactive waste and Hitachi suspends new nuclear plant at Wylfa NewyddOn 16 January 2019 the Welsh Government published its final policy document on the proposed disposal facility for radioactive waste and its response to it’s and the UK government’s January 2018 consultation.

This policy outlines the engagement process for communities in Wales who wish to discuss potentially hosting a geological disposal facility.

BEIS published its final policy document on the proposed geological disposal facility for England in December 2018 and confirmed its expected designation of the draft National Policy Statement for the geological disposal infrastructure in 2019.

On 17 January 2019 the Welsh Government began a consultation on how it will evaluate geological disposal facility sites in Wales, this consultation will close on 14 April 2019.
Managing Natura 2000 sites: The provisions of Article 6 of the Habitats Directive 92/43/EECGuidance on restricting development in European sites published by the European Commission under Article 6 of Habitats Directive.

The above guidance, published on 25 January 2019, sets out the importance of safeguarding conservation interests. It explains the meaning of the key concepts under Article 6 which limits development in Special Protection Areas (SPAs) and Special Areas of Conservation (SACs). Article 6 sets out the assessment which must take place before a project is undertaken which considers the potential impact to be had on the surrounding environment and reflects the considerable case law on the subject.

Focus is given to certain phrases in the document which include “appropriate assessment” and “likely to have a significant effect”.
Spring Statement will be announced on 13 March 2019Philip Hammond, the Chancellor of the Exchequer, has announced the release date of the Spring Statement in March later this year.

As it was previously declared in the 2016 Autumn Statement there would only be one major fiscal event every year, it is not expected that the Spring Statement will contain any substantial economic announcements that will affect the sector. Consultations, however, may be published for any longer term tax policy issues.
Overhaul of the housing complaints system announced by the MHCLGThe Ministry of Housing, Communities and Local Government confirmed that both the private rented sector and new build homeowners will be provided with a new streamlined system; the Housing Complaints Resolution Service. This follows a consultation on the housing market in 2018.

This has been introduced to combat the current issue of various bodies which deal with problems encountered by tenants which can become confusing and a drawn-out process.

If private landlords do not comply with becoming members of a redress scheme, they could face up to £5,000 of fines. Moreover, a New Homes Ombudsman will be established to ensure quality of new build homes. Alongside this, by 2012 all new developers will have to be the New Homes Ombudsman and the Help to Buy Scheme will only be available to developers who have joined the Ombudsman.

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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