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Articles Planning 18th Apr 2019

Planning Law Update – March 2019

Whilst further preparatory legislation for Brexit is passed this month, the Courts continue to recognise deficiencies in consultations and to give rulings which remind us of the importance of properly drafted enforcement notices.  Meanwhile planning inspectors rule on what constitutes a change of use and apply the provisions of the NPPF rigidly against further updated National Planning Policy Guidance.

We update below on recent planning law changes:

Legislation, law or policySummary
The Housing and Planning Act 2016 (Commencement No.10 and Transitional Provision) Regulations 2019 (SI 2019/427)Section 181 of the Housing and Planning Act 2016 were brought into force on 04 March by the Housing and Planning Act 2016 (Commencement No.10 and Transitional Provision) Regulations 2019 (SI 2019/427).

This section is responsible for adding the new section 14D into the Acquisition of Land Act 1981 (ALA 1981) and allows Welsh Ministers to appoint an inspector to act instead of them in respect of the confirmation of compulsory purchase orders where section 13A of ALA applies.
Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (SI 2019/456)With Brexit looming, on 06 March the Town and Country Planning (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019 (SI 2019/456) were put before the National Assembly for Wales. The following regulations are to be amended:

• The Town and Country Planning (Control of Advertisements) Regulations 1992

• The Town and Country Planning (Local Development Plan) (Wales) Regulations 2005

• The Town and Country Planning (Development Management Procedure) (Wales) Order 2012

• The Planning (Hazardous Substances) (Wales) Regulations 2015

These regulations will help to address the deficiencies in domestic legislation and will allow certain EU law to continue to operate when the UK exits from the European Union.

The regulations will come into force on the day Britain leaves the EU.
Friends of the Earth Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 518 (Admin)Judicial review of the National Planning Policy Framework (NPPF) was applied for by Friends of the Earth (FoE) on the grounds that the government should have undertaken an SEA, (strategic environmental assessment) which should have been reflected in the revised NPPF.

Where a development or public plan is likely to have a significant impact on the environment a SEA should be carried out, as instructed by the Strategic Environmental Assessment Directive 2001.

FoE were concerned that the revised NPPF makes it hard for local authorities to refuse a fracking application as the authority must plan positively for shale gas extraction. They also claim it fails to ban the building of new coal power plants as well as making it hard to introduce new wind power developments.

However, on 06 March the High Court dismissed the application for judicial review because it was held that the NPPF should not be included within the definition of ‘plans and programmes’ in Article 2(a) SEA Directive 2001 as it is not a measure ‘required by legislative regulatory or administrative provisions’ and moreover is a voluntary measure.
Stephenson v Secretary of State for Housing, Communities and Local Government [2019] EWHC 519 (Admin)The High Court held that the Sedley principles (there is a duty to consult and said consultations should be fair) were breached in respect of the onshore oil and gas policy in para. 204(a) and was therefore unlawful in its design as a reasonable reader would not have had a clear picture from the material which was available to the public.

It went on to hold that material considerations should also have been taken into account, including new evidence surrounding the risks of fracking from TalkFracking. The court considered that this evidence was "obviously material on the basis that it was capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects".

No order has been made by the Court to give the parties time to come to an agreement as to what relief might be appropriate.
PINS: APP/F0114/W/18/3208289The Planning Inspectorate have refused planning permission for a dwellinghouse outside a Housing Department Boundary but within an Area of Outstanding Natural Beauty (AONB) as it was not isolated.

Following para. 79 in the NPPF, the development of isolated homes in the countryside should be avoided unless certain circumstances apply, including where the design is ‘truly outstanding or innovative’. The inspector confirmed that the site was indeed of outstanding design, but was not considered isolated enough despite being proposed in a vacant field and therefore the exception could not be applied and the house proposal did not accord with development plan policies.

The Braintree judgment was used in the assessment of isolation; it was understood that ‘isolated’ meant ‘far away from other places, buildings or people; remote” as is the ordinary meaning of the word. This is a matter of fact and judgment for the decision maker.
PINS: APP/Q0505/C/18/3196460Enforcement notices were issued in January 2018 by Cambridge City Council which claimed that 13 out of 19 flats (use class C3) over two residential apartment blocks were instead being used as short term visitor accommodation (sui generis use).

Between March 2017 and January 2018, a ‘length of stay’ table revealed that 77% of lets were only for a night or two, even though the flats should have been let for a minimum of three to four nights a week up to ten nights.

When deciding the appeal, the planning inspector referred to the case of Moore v Secretary of State for Communities and Local Government and another [2012] EWCA Civ 1202 which established the correct approach to take when considering whether a material change of use from a dwelling to a holiday or commercial residential use had occurred.

In the circumstances of this case the letting of a dwellinghouse for short term holidays did constitute a material change of use from C3 to sui generis because it could result in undue levels of noise or disturbance for some occupants of the apartments as visitors were more likely to arrive or depart at anti-social house than permanent residence.

No planning permission had been granted for those 13 flats where a material change of use had occurred and the appeals against the enforcement notices were consequently dismissed.
PINS: APP/L5810/W/18/3215027The conversion of two self-contained flats into a single family dwellinghouse was found to be acceptable on the facts.

The general rule under S.55 (3) TCPA 1990 requires planning permission for the material change of use from one dwellinghouse (including a flat) to more than one dwellinghouse. However, there is no legislation which pertains to merging multiple dwellinghouses to a lesser number.

In London Borough of Richmond v Secretary of State for the Environment, Transport and the Regions and Richmond upon Thames Churches Housing Trust (2000), the High Court held that an Inspector had erred in failing to take into account the nature of uses before and after in deciding whether there was a material change of use where the conversion of 7 flats into a single dwelling was proposed.

In this case the Inspector allowed the appeal against the refusal of planning permission for the conversion of two flats to a single dwelling for the following key reasons:
- There was a need for larger homes in the area
- Property was originally a family dwelling before being converted into flats, and was consequently the only property on the street to have been converted
- A reduction in the number of residents would be beneficial for the street scene in terms of decoration i.e. number of bins, doorbell etc.
- The property was in a conservation area and was locally listed.

It should be noted that where amalgamation of units creates a material change of use planning permission will be required. In addition, many local planning authorities have policies which seek to avoid the loss of residential units. The inspector in this appeal emphasised that decision regarding reversion policies depended on the proposal’s individual planning merits.
R v Panayi [2019] [EWCA Crim 413] (27 February 2019)The appellant was found to have failed to comply with an enforcement notice issued in 2005 in respect of an unauthorised roof extension, in which they then proceeded to use that space to let flats. A confiscation order was imposed against the appellant in 2016, following his breach of a planning enforcement notice contrary to section 179 of the Town and Country Planning Act 1990.

The appellant appealed against the confiscation order which was quashed by the Court of Appeal who substituted the previously calculated benefit figure of £95,920 to just £58. This £58 represented the rental income for the day of the offence rather than the proportion of the gross rental income of both the flats for the period that the appellant had failed to comply with the enforcement notice which had been awarded by the Crown Court.

The decision hinged on the particular wording of the charge of being in breach of the enforcement notice. This alleged that the appellant was in breach “on or about 18 February 2016”. The Court of Appeal rejected the assertion that the words “or about” gave a satisfactory degree of latitude which allowed the benefit to be calculated over the longer period. Nor, it was found, was there any scope for the court to find that any other criminal conduct had been committed to go on to identify the benefit received from such further offending.
PINS appeal decisions during the local election period.The Planning Inspectorate has confirmed that it will not issue appeal decisions that raise particular sensitivities or interest in an area until local election results have been announced. This is in order that the decision cannot be deemed to have influenced results or be used to electoral advantage by an interested body. As a result, below is a list of proposals that may be affected by the change:
- Represent a development with Green Belt land
- Major green field housing is involved
- An emerging neighbourhood plan is referred to
- Any other electorally sensitive cases
Chancellor of the Exchequer delivered the government’s 2019 Spring StatementSummary of the key announcements:

Housing and infrastructure -
- Additional planning guidance will be introduced to support housing diversification on large sites.
- Changes will be introduced regarding permitted development rights which is hoped to allow greater change of use between premises to improve building efficiency i.e. greater ease of commercial to residential by upwards extensions, amending the shops use class to allow businesses to diversify
- Commitment to publishing a National Infrastructure Strategy was reaffirmed
- The end-to-end planning process will be enhanced by the publication of the government’s Accelerated Planning Green Paper which aims to improve the speed of procedures
- Sites in London including Old Oak Common, the Oxford-Cambridge Arc and Cheshire have been awarded £717 million from the £5.5 billion available in the Housing infrastructure Fund, increasing homes in that area by 37,000
- The Transforming Cities Fund first announced in the Autumn Budget 2017 has allocated £60 million across ten cities in England. This will go towards upgrading roads, bus stations and cycle lanes

Environment -
- The launching of a new business energy efficiency scheme is hoped to help smaller businesses to reduce their carbon emissions and energy bills
- The introduction of a Future Homes Standard by 2025 which will ensure all new homes have low carbon heating and world-leading levels of energy efficiency
- Advancing the decarbonisation of gas supplies and decreasing burning natural gas in homes
- Exploration into emissions from daily commutes and increasing the option to ‘travel zero carbon’
- Following the governments’ consultation last month regarding biodiversity net gain for new developments, the new requirements will be introduced in the Environment Bill
Welsh Government publishes ‘Prosperity for All: A Low Carbon Wales’On 21 March, the Welsh Government delivered the Low Carbon Delivery Plan which was promised in the July 2018 consultation. This consultation explored actions to be taken to meet the environmental targets in place, namely to hit a 45% reduction in carbon emissions by 2030.

The 100 policies are divided into five parts and set out how they aim to reduce emissions and maximise the support they are providing for the growth of the low carbon economy, as well as the key steps to be taken over the next few years.
Accelerated planning inquiriesFollowing the Independent Review of Planning Appeal Inquiries PINS is trialing the acceleration of a small number of inquiry appeals moving away from their bespoke process of leaving the parties to agree a programme and inquiry date.
Planning Practice Guidance updated The Planning Practice Guidance was updated on 15 March in respect of the following:-

- The pooling of CIL receipts by local authorities working jointly
- Consultation on pre-decision matters
- The determination of planning applications
- Permission in principle
- Planning obligations
- Plan making
- Environmental impact assessment
- Hazardous substances
Five new garden towns announcedOn 25 March the Ministry of Housing, Communities and Local Government announced plans for 5 new garden towns to provide up to 64,000 homes across England together with funding of £3.7 million to fund fast-track specialist survey and planning works.

The following towns will join the 23 existing garden communities currently being supported by the government:-

- Grazeley Garden Settlement (up to 15,000 homes)
- Hemel Garden Communities (up to 11,0000 homes)
- Easton Park Garden Community, North Uttlesford Garden Community and West of Braintree Garden Community (up to 18,500 homes)
- Tewkesbury Ashchurch Garden Community (up to 10,195 homes)
- Meecebrook, in the north of Stafford borough (around 10,000 homes)
Written Statement from the Secretary of State for the Ministry of Housing, Communities and Local GovernmentOn 26 March 2019 in a written statement to the House of Commons and the House of Lords the Secretary of State for the Ministry of Housing, Communities and Local Government confirmed that it the policy that the government would give reasons for decisions not to call in planning applications is withdrawn.

Reasons will no longer be given for calling-in or declining to call-in planning applications.

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 present time 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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