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Articles Planning 13th Jun 2019

Planning Law Update – May 2019

May saw a large number of environmental updates ranging from the Environment Agency setting new goals to make England more resilient to flooding, the Natural Capital Committee published advice to the government on net environmental gain, soil management and marine management, and DEFRA evaluated the progress made within the first year of the 25 year Environment Plan whilst considering future landmarks they still need to reach. Meanwhile, a number of amendments have been made to permitted development rights and deemed advertisement consent, including a new class being created. Developers will be interested in the Wiltshire Council case which clarifies the position of the registration of land as a town or village green.

We update below on recent planning law changes:

Legislation, Case Law or PolicySummary
Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 (SI 2019/907)Taking effect on 25 May 2019, a number of amendments have been made to permitted development rights and deemed advertisement consent. The main changes include:

- A new definition of “transport undertakers” to enable interpretation of Class C (tramway and road transport operators) has been added to article 2(1).

- Under Class A, Part 1 of Schedule 2, the temporary right to enlarge a detached dwellinghouse by up to eight metres or six metres for any other dwelling has been made a permanent right.

- The height limit of outlets and upstands for charging electric vehicles has been increased to 2.3 metres as permitted by Class E, Part 2 of Schedule 2. However, if the outlet or upstand is within the residential curtilage of a dwelling/block of flats, the height limit remains 1.6 metres.

- In respect to new permitted development rights, in Part 3, Schedule 2 a new Class JA has been created in order to allow the following circumstances;
- Change of use of class A1 (shops), A2 (financial and professional services) and A5 (hot food takeaways) and betting shop, pay day loan shop or launderette to class B1(a) (offices)
- A building in use as an office under this new class JA cannot benefit from the permitted development rights in class F or G in Part 4 of Schedule 2 (available to office buildings generally)

- Also under Part 3, Schedule 2; Class M has been extended to also permit buildings falling within class A5 to change to a dwellinghouse. Plus, the floor space of dwellinghouses under class Q cannot exceed 465 square metres.

- Under class C, Part 4 of Schedule 2, buildings used as temporary state-funded schools will retain the use they had before given the temporary status

- Again under Part 4 of Schedule 2, class D has been extended to include non-residential institutions under class D1 as permitted temporary flexible uses. This flexible use time limit has been extended from two to three years.

- Class 16 under Part 1 of Schedule 3 is amended to remove permission for the installation, alteration or replacement of a telephone box, or on behalf of an electronic communications code operator.

And finally, the Control of Advertisement Regulations 2007 have been amended so that the need for deemed consent to display an advertisement on the surface of a telephone kiosk has been removed.
R (Squire) v Shropshire Council (Civil Division) [2019] EWCA Civ 888On 24 May 2019 the Court of Appeal quashed a planning permission for an intensive poultry-rearing facility, due to issues with the environment impact assessment.

The failure in the assessment to consider the environmental impact on nearby agricultural land of odour and dust from the storage and spreading of manure at the facility whilst an indirect off-site effect was a material consideration in the quashing of the planning appeal as this had not been addressed in the planning officer’s report to committee.
PINS: APP/Z5060/C/18/3214506The Inspector considered an appeal regarding whether a residential care home fell within Class C3(b) (use by not more than six residents living together as a single household where care if provided for residents) or Class C2 (the provision of residential accommodation to people in need of care)_of the Town and Country Planning (Use Classes) Order 1987.

Under Section 55(2)(f) of The Town and Country Planning Act 1990 planning permission is not required when there is a change of use within the same use class. However, a change from a dwelling (Class C3(a)) to a residential care home (Class C2) would require permission.

The Inspector held that the following factors were a useful indicator that in this case the use fell within Class C3(b):
• The layout of the property was what would be expected of a family home (there is a communal lounge, kitchen and garden area).
• The bedrooms were separate and private. The locks on the bedroom doors were not a deciding factor of if the residents formed a single household.
• It was not determinative that the residents did not form a household because they were there due to Council referral
• The residents had a sense of communal living as they shopped and cooked together and formed friendship groups.
• Only a small room was used as an office for support staff and the support staff were not resident.
• There was no argument to the living situation not being one household just due to was noise and disturbance to neighbours
Canterbury City Council v Secretary of State for Housing, Communities and Local Government v Hollamby Estates (2005) Limited, Crondall Parish Council v Secretary of State for Housing, Communities and Local Government, Crondall Developments Limited v Hart District Council [2019] EWHC 1211 (Admin)On 14 May the High Court considered cases where a development plan or project might have implications for a site with protected habitats under the Habitats Directive (Directive 92/43/EEC). The Habitats Directive requires member states to protect European Sites which have known European protected species of fauna and flora (Special Protection Areas or Special Areas of Conservation)).

The High Court concluded that when the decision-makers in the planning process were considering a plan or project that is likely to have a significant effect on a Special Protection Area or Special Area of Conservation, an assessment must be undertaken to follow the People Over Wind v Coillte Teoranta (C-323/17) case. This requires that any proposed mitigation measures are disregarded at the screening stage to ensure that the appropriate assessment process is not watered down, in determining whether the plan or project was likely to have a significant effect on the site.
R (Spurrier) v The Secretary of State for Transport [2019] EWHC 1070In June 2018, the Airports National Policy Statement (NPS) set out the framework in relation to a third runway at Heathrow. The claimants; London local authorities and the Mayor of London, Friends of the Earth, Plan B and Mr Spurrier all brought judicial review claims challenging the Airports NPS.

The claims were bought on the grounds that the expansion conflicted with the government’s greenhouse gas reduction commitments, amongst other things. This view was echoed by members of the public but the court stressed the hearing was only concerned with the legality of the NPS.

On 01 May 2019, the judicial review challenges were dismissed for the reasons set out below:-

- The fact a matter had only been explained in broad terms could not be relied on itself when trying to demonstrate a material consideration had been left out by the secretary of state.

- Secretary of state was only required to carry out a consultation as they thought reasonably appropriate in accordance with the established principles where statute does not set out a detailed procedure.

- When a decision is based on environmental or scientific factors, the court should allow for an enhanced margin of appreciation by those with appropriate expertise.

- Complaints raised in the claim in respect of surface access failed as all matters were dealt with to an adequate level including forecasts regarding road, rail and increased population and employment levels.

- Air quality also proved not to be an issue as the effect of the third runway as there was no evidence that it would result in a breach of the UK’s air quality obligations, nor was there a breach of the Habitats Directive or SEA (adequacy of strategic environmental assessment).

This decision has been criticised for being incompatible with the advice provided by the Committee on Climate Change given to the government in respect of achieving net-zero carbon by 2050.
APP/J4423/L/17/1200229The Planning Inspectorate (PINS) have begun publishing the Community Infrastructure Levy (CIL) appeal decision notices in an effort to improve the levels of understanding around the precedents.

In this case, the description of the development included demolition.

Demolition works were carried out by the appellant on the existing buildings on the site. He acknowledged that the required notices were not submitted before the buildings were demolished, but argued that the demolition had to be carried out in order to conduct the contamination survey, which was a pre-commencement condition in the planning permission. He also argued the demolition was agreed with the Council’s Planning officer.

Pursuant to s.56 of the Town and Country Planning Act 1990, the development begins on the earliest date on which any material operation is carried out, which includes “any work of demolition” as stated in subsection (4). Therefore, as Regulations 31(1) and 67(1) of the CIL Regulations 2010 state that notices must be submitted before development takes place.

Whilst the Inspector had sympathy with the appellant the appeal was subsequently dismissed and surcharges upheld.
APP/D3830/W/19/3222711This appeal was against a refusal to grant approval required under the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) for the conversion of an office building to a dwellinghouse.

The appeal was dismissed as the requirements of Part 3, class O of Schedule 2 of the GPDO were not met. The primary use of the building did not fall under B1a and so did not benefit from permitted development under class O.

The primary use of the appeal site related to product design, research and development and whilst still B1 use, is not within B1a.
APP/B3438/W/18/3206824The appeal was against a refusal to grant outline planning permission for the redevelopment of a commercial nursery/garden centre involving the demolition and removal of all buildings and erection of dwellings. The main issues in the appeal were whether the development would be inappropriate in Green Belt land, whether the land would be accessible to motor vehicles, and if the benefits of the development would outweigh any harm to the surrounding area.

The appeal site consisted of a vacant plant nursery with two large glasshouses and two derelict polytunnels. Para. 145 of the NPPF was of particular interest in this appeal as it sets out the exceptions to inappropriate development in the green belt, one of which being “partial or complete redevelopment or previously developed land”. The appeal held that the primary use of the site was In fact agricultural (for the growing of plants) as opposed to commercial and the land did not therefore meet the definition of previously developed land in the NPPF.

Therefore, the appeal was dismissed as the site was ‘inappropriate’ and did not comply with the policy needs or requirements in the NPPF in relation to the Green Belt land.
APP/A1910/L/18/1200234This appeal was made against surcharges imposed by Dacorum Borough Council. The planning permission in question was for a new dwelling, and the applicant failed to submit a Commencement Notice before commencing works.

A liability notice was served on the applicant on 22 May 2017 and was registered as a local land charge (so was binding on the land). On 17 October 2018, a further liability notice was served after the Council became aware that works had begun on the development and that the appellant was the new owner. This updated liability notice included a surcharge.

Pursuant to Regulations 117(b) of the Community Infrastructure Levy Regulations 2010, a purchaser or owner of the property is deemed to have full knowledge of the burdens attached to the land. Therefore, it was held that the Liability Notice was correctly served by the Council and the appellant should have been aware of the relevant CIL procedures. The surcharge was upheld.
Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840A local authority appealed against a decision quashing its registration of land as a town or village green. The decision was upheld and the appeal dismissed as the identification of the land for potential development in the authority's development plan was viewed as a "trigger event" for the purposes of the Commons Act 2006 s.15C.

Since the previous decision in Oxfordshire CC v Oxford City Council [2006] UKHL 25, the definition of a town or village green has a very broad meaning and the government was concerned that registration was being sought after in order to prevent development, rather than being used for the original purpose. Consequently, this led to the insertion of the so-called “trigger events” in legislation after which registration cannot occur. The particular trigger event with which we are concerned is that in paragraph 4 of the Table:

"4. A development plan document which identifies the land for potential development is adopted under section 23(2) or (3) of the 2004 Act."

In the instant case, the question was whether the Core Strategy identified the site for potential development. Lewison LJ held that as the site was in the settlement boundary and the Wiltshire Core Strategy adopted in 2015 included the following:-
- A settlement strategy identifying settlements where sustainable development would take place; and
- A delivery strategy incorporating a presumption in favour of sustainable development within defined settlement boundary.

Lewison LJ held that identification within a settlement boundary alone was not enough to suspend the right to register land as a TGV but depended on the consequences of the Core Strategy as a whole. In this case, the policies clearly identified the site as having potential for development and to allow the registration of a TVG would frustrate the objectives of the Strategy. Therefore, the identified development site should be achieved through the planning system as opposed to the registration of a TVG.

The High Court pointed out that “potential” is a very broad concept and should not be equated with likelihood or probability.
APP/W0340/L/18/1200241This appeal argued development had not commenced as it was not started intentionally.

Regulation 67(1) Community Infrastructure Levy Regulations 2010 states that failure to submit a commencement notice before works start can result in a surcharge.

Here, demolition works took place on the appellant’s site as the site needed to be cleared for health and safety reasons. The appellant’s agent argued that there was no intention to implement the planning permission, and so no development had commenced.

It was held that the alleged breach of failing to submit a commencement notice had in fact occurred and the appeal was dismissed accordingly. The state of mind was not relevant; a material operation was still carried out and the notice should have been submitted. The surcharge was upheld.

This serves as an important reminder to developers to ensure all necessary forms and notices are submitted before any work takes place, including demolition, in order to comply with the relevant legislation.
APP/L5240/N18/1200237The appellant failed to serve a commencement notice pursuant to the Community Infrastructure Levy Regulations 2010 prior to starting work on the chargeable development and argued mitigating circumstances for the failure as his father had been involved in a serious road accident.

Whilst the Inspector did not wish to appear dismissive of the unfortunate situation there is no power to waive a surcharge for the failure to serve the commencement notice. As such the surcharge was upheld.
R (Thornton Hall Hotel Ltd) and another v Thornton Holdings Ltd [2019] EWCA Civ 737The Court of Appeal has upheld the High Court’s decision to quash a 2011 planning permission for the erection of three marquees.

The Court held that that the judge had not erred in extending the time to bring the challenge where the failure to impose a condition limiting the consent to 5 years had not come to light until after the 5 year period had expired.

This case was decided on its exceptional facts (both the applicant and the Council had been aware of the failure for some time) and the Court stressed that no precedent was being set by the decision.
Statutory guidance has been published by the MHCLG on overview and scrutiny in local and combined authorities The statutory guidance, which has been issued under section 9Q of the Local Government Act 2000, and para. 2(9) of Schedule 5A to the Local Democracy, Economic Development and Construction Act 2009, ensures local and combined authorities are aware of how to conduct an effective overview.

The following areas are covered:
- Culture; rather than opposing issues due for examination the scrutiny committee should be viewed as a ‘critical friend’

- Resourcing; the level of resource allocated to the scrutiny function varies with each authority and should reflect the needs of the local people

- Power to access information; the committee should have appropriate access to the relevant information in order to streamline work. If an authority does not wish to share information with the committee, they will instead be asked to share in a closed session.
Consultation response published for the Permitted Development, Advertisement and Compensation amendmentsAs mentioned above in the Legislation section of this month’s planning update, on 01 May 2019 the government published the Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019 (SI 2019/907). On 03 May, the government’s response to the consultation was published and a brief summary can be found below;

Amongst the 522 responses to the ‘Planning Reform: Supporting the high street and increasing the delivery of new homes’, in relation to permitted development rights and use classes the responses were equally balanced. Many responses welcomed greater flexibility and the potential benefits of stimulating economic growth by extending the class uses, but there were concerns that an ad hoc introduction of office use may undermine the planning ability of local authorities to design high streets in a way to have an impact on the vitality of shopping areas.

There was a considerable amount of support for the amendment to temporary changes of use as this will ensure town centres continue to attract good numbers of people due to changing and evolving venues.

Many recognised that extending certain buildings upwards would increase housing supply which is supported as national policy. However, there is a risk that the quality and safety of homes may be compromised, although there wasn’t necessarily an overall limit of storeys; it should be applied on a case by case basis.

In respect of removing the permitted development right for telephone boxes and associated advertisement consent, there was overwhelming support. It was viewed that there is already a comprehensive network of public call boxes along with the view that adverts can distract road users. The right to advertise is also viewed to be the reason for the high number of boxes cluttering our pavements.

Where authorities desire to dispose of surplus land at undervalue, respondents believed that the general consent should be increased to improve flexibility and scope for local decision making, as well as ensuring transparency during current financial challenges.
Consultation published by the Environment Agency on draft flood and coastal erosion risk management strategyThe draft applies to England only and the consultation closes on 04 July 2019. It sets out the aims of the Environment Agency (EA) to create a nation that is more resilient to flooding. The EA plan to achieve their goal by:
- Improving appraisal guidance so that climate change scenarios can be better planned for

- Risk management authorities will look at enhancing habitats such as forest and coastal regions to effectively manage any changes, with the approach remaining as consistent as possible

- Improving the level of knowledge and understanding surrounding the varying levels of flood risk in England

- Identifying opportunities for career development in this sector

After the consultation’s closure, the EA will review responses and aims to publish a final strategy in 2020.
New advice published by the Natural Capital Committee (an independent advisory committee)In response to the consultation on requiring a biodiversity net gain for new housing and commercial development published in December 2018, on 14 May 2019 the Natural Capital Committee published advice to the government on net environmental gain, soil management and marine management.

In respect to environmental net gain, they believe the government has fallen short in its 25 year plan; the benefits of Natural capital (the sum of our ecosystems, species, freshwater, land, soils, minerals, air and seas) should be better understood.

They advise that soil health should be better monitored and the government should reinstate capital grants for the remediation of contaminated sites by local authorities.

Natural Capital also recommended that incentives should be offered to those who practice good behaviour by reducing their impact on marine habitats, alongside furthering scientific research and public engagement, whilst illustrating what success would look like as the marine environment improves.
Defra published first progress report on its 25 year environment planSince the environment plan was published in January 2018, there has been notable progress:
- Draft Environment Bill first published in over 20 years, which will prove to be particularly important as we leave the EU

- An Agriculture Bill has been introduced which overhauls the way that farmers are paid. They will no longer be paid on a subsidy basis, but rather are paid for their work to protect the environment and provide other public good

- As well as the biodiversity net gain already touched upon, the Clean Air Strategy to cut pollution was also published

- Extended the 5 pence charge for plastic bags, introduced a ban on plastic straws and taxing plastic packaging with less than 30% recycled content

- New Marine Conservation zones have been consulted on, strengthening ‘blue belt’ habitats.

As the government considers the future of the plan, they are looking to implement the following with the next 12 months:

- Will begin trialling a new farming system which will support innovative methods

- Revolutionise the way in which we protect our countryside as UK’s departure from the EU provides a new opportunity

- Start developing a new emissions reduction plan for agriculture

- Legislating to prohibit the sale of the most polluting fuels for domestic fuel burning on stoves and open fires

- Encouraging food surplus redistribution and food waste minimisation through a £15 million fund available 2019-2020
Neighbourhood planning guidance updatedThe Ministry of Housing, Communities and local Government has updated the guidance on neighbourhood planning to include further guidance on the provision of housing.
Viability guidance updatedThe updated guidance sets out the key principles in understanding viability in plan-making and decision-taking.

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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