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Articles Planning 29th Jul 2019

Planning Law Update – June 2019

This month saw two Community Infrastructure Levy (CIL) surcharges quashed by PINS; in the first decision the works were not viewed as “material operations” implementing the planning permission, whilst the second decision was based on a commencement notice under CIL which did not provide clear enough evidence on how the notice was calculated. Away from case related developments, the CIL Regulations 2019 were laid before Parliament which will aim to speed up housing delivery, but contains significant changes that may have a negative impact. More recently the Rt. Hon. Robert Jenrick MP has been appointed Secretary of State for Housing, Communities and Local Government on 24 July 2019, following the appointment of the Rt. Hon. Boris Johnson MP as Prime Minister and his cabinet reshuffle. Not a great deal is known about Robert Jenrick MP’s views on planning and it will be interesting to see the direction of travel in his policy and the Secretary of State’s decision over the coming months. Initials indications are his views are similar to his predecessors. The Welsh Government has also published revised guidance for practitioners who are involved in preparing and implementing local development plans.

We update below on recent planning law changes:

Legislation, Law or PolicySummary
Community Infrastructure Levy (Amendment) (England) Regulations 2019 (SI 2019/966)Regulation 59(2) of the CIL Regulations 2010 confirms that CIL collected by or on behalf of the Mayor of London should be spent on transport facilities. If money is borrowed to pay for transport infrastructure, reg.60(3) states that CIL must only be used to repay any such borrowing if the following conditions are met:

- There has been at least one full financial year’s collection of CIL receipts; and
- the total amount of CIL spent does not exceed the percentage set by the Secretary of State in a direction given under para (6).

Reg.60 has been amended to facilitate borrowing to fund the crossrail project – the Mayor can now spend CIL repaying crossrail borrowing as well as accrued interest without having to follow the conditions. However, this will only remain effective until 31st March 2033.
Community Infrastructure Levy (Amendment) (England) (No.2) Regulations 2019Along with the above changes to the CIL Regulations 2010 in respect of the crossrail project, further amendments have also been made (including the following):

- Instead of two rounds of consultations, only one will be required before a charging schedule is adopted

- Clearer procedure in regulation 4 in respect of the procedure to be followed when a charging schedule ceases to have effect

- Separate Schedule 1 will now contain the calculations in regulation 40, 50 and 128A

- A surcharge for failing to a provide a commencement notice will be enforced instead of CIL reliefs being lost

- Greater reporting requirements for charging authorities and parish councils.

- Removal of the pooling restriction in Regulation 123.

Although the Government’s message on the removing of pooling and the introduction of reporting was to increase transparency, the removal of the pooling restriction allows for “double charging” through the use of S106 agreements and CIL to fund infrastructure. This will raise concerns on the issue, particularly on large developments.
Town and Country (Blight Provisions) (Wales) Order 2019 (2019 Order)The 2019 Order came into force on 5 July 2019 and revoked the Town and Country Planning (Blight Provisions) Order 2011.

The 2019 Order is applicable to Wales and enables persons holding certain interests in categories of land which are specified in Schedule 13 to the Town and Country Planning Act 1990 (including land affected by planning and highway proposals) to require the appropriate authority to acquire their interest in the land.

One of the interests in land in Wales which qualifies for protection is an interest of an owner-occupier of a hereditament where the annual value of the hereditament does not exceed such amount as may be prescribed by the Welsh Ministers.

The 2019 Order increases the annual value limit from £34,800 to £36,000.
APP/L/18/1200239This appeal was made against a Demand Notice that was issued by Sheffield City Council, the collecting authority (CA). The issue in this appeal was whether the CA had correctly identified the commencement date on the notice. Below is a timeline of events in respect of the development in question:

- Planning permission first granted in July 2015
- Second Planning permission granted in April 2018
- Foundations laid between July ’15 – April ’18. According to the appellant, operations implementing the second permission began on 19 February 2018.

As the scheme allowed by the first permission was modified by the second, it marked a material departure from the development in the first permission. Foundations were constructed to reflect the dwelling as illustrated on the plans submitted with the second planning application. The inspector concluded that the works were both part-retrospective and part-prospective in nature because work had started but was incomplete.

The CA deemed the commencement date to be 24 October 2018, but no examination of the progress of works had taken place. The appeal was granted and Demand Notice quashed on the basis that there was no evidence to justify this date.

It must be noted, however, that if the building operations had been viewed to commence on 19 February 2018, the appellant would have had to pay the surcharges as planning permission which first permits a development on a day when the charging schedule is in effect will be liable for the levy (CIL). This is viewed as the day the second permission was granted. The appellant also failed to submit a valid commencement notice prior to starting works pursuant to that permission.
APP/Z4310/W/19/3224223This appeal was made against a refusal to grant planning permission. The proposed development was the erection of automated metal gates providing highway and pedestrian access to residential dwellings. The main issue was the effect on the character/appearance of the area, as well as community safety. The appeal site is part of a cul-de-sac serving 24 to 31 Stowe Close.

Paragraphs 91-127 of the National Planning Policy Framework (NPPF) focuses on promoting safe neighbourhoods and applications for planning permission must take into account this framework.

The issue in the present case was that the cul-de-sac was attractive and welcoming and the addition of these gates would conflict with these aims and the ‘cohesiveness’ of the community would be broken.

Consequently, the appeal was dismissed. This case serves as a reminder of how important the NPPF is when deciding whether to grant applications for planning permission, and how the design of a build can be viewed to have such a detrimental effect on a community.
APP/B2355/W/19/3221538An appeal was made against the refusal to grant planning permission for the commercial breeding and rearing of working sheep dogs in the green belt.

There was concern from the Council that the proposal was inappropriate development in the green belt. The Council took into consideration paragraph 143 of the NPPF which states that inappropriate development is harmful to the green belt and should only be approved in very special circumstances. Local authorities are directed by paragraph 144 of the NPPF to give greater weight to any harm to the green belt, and paragraph 145 establishes that new buildings are inappropriate in the green belt, subject to specific exceptions.

The appellant argued that a kennel building would fall under agriculture and forestry use and was therefore exempt under paragraph 145 a) of the NPPF.

The definition of agriculture under the section 336 of the Town and Country Planning Act 1990 (TCPA 1990) states the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land).

The inspector concluded that although working sheep dogs are used in connection with livestock farming they are not livestock in themselves and are not kept to produce any of the listed commodities. The appellant had not provided any evidence that sheep dogs are necessary to a specific farming activity or agricultural business in the area. Therefore the proposed commercial kennel building was not for the purpose of agriculture and would therefore be inappropriate development in the green belt.
R (Davidson) v Elmbridge BC [2019] EWHC 1409 (Admin)The High Court found that the principle of consistency was still applicable where a previous planning permission had been quashed. The previous planning permission was capable of being a material consideration and the committee should have given reasons for the change of position in respect of the development’s impact on green belt openness.

The principle of consistency requires local planning authorities to decide like cases in a like manner, and should the local authority depart from a previous decision reasons must be given. Therefore the previous decision does not bind the authority but it must be clear why it was not followed.

The court had quashed the local authority’s decision to grant itself planning permission for football and athletics stadium. The planning committee had granted the permission even though there would have been a limited adverse impact on the openness of the green belt. The court quashed the permission as the local authority had erred in its decision, if a proposal had an adverse impact on the openness of the green belt then it did not comply with the policy which required openness to be maintained, even if that adverse impact was limited.

The local authority made a second application for a football and sports stadium, with minor differences to the first permission. The planning committee granted the second application and in doing so took the view that the proposed development preserved the openness of the green belt (i.e. no adverse impact).

The Claimant argued that the local authority had failed to apply the principle of consistency in its decision-making of the second permission, as it had decided that the facility would not have an adverse effect on the openness of the green belt.

The local authority countered that it had not been required to consider its previous planning judgment because the court had quashed the decision.

The High Court stated that the officer and the planning committee could have addressed the change in position on green belt openness, and thereby doing so they secured the public confidence in the planning system.

The High Court did not quash the second permission stating that it could not be ascertained when the planning committee were making the decision on the second permission if they were aware of the changed position on green belt openness and if their decision would have been different.

This judgment is useful in clarifying that quashed decisions may be a material consideration and councils should give reason if they disregard a quashed decision.
PINS – APP/G1250/L/19/1200250On the 19 June 2019 the Planning Inspectorate published its decision that a Community Infrastructure Levy liability notice which is marked for the attention of the wrong person would not be validly served.

As the liability notice was sent via email, although it was sent to the correct address, it was not marked for the attention of the correct person and therefore was not validly served. A liability notice must be served on the correct person.
PINS – APP/A4710/X/18/3218370Appeal against Calderdale Metropolitan Borough Council’s refusal to grant a lawful development certificate for the construction of a log cabin to provide ancillary residential accommodation within the residential curtilage of a dwelling.

The main point of in issue was whether the site for the log cabin fell within the residential curtilage of the farm.

As curtilage is not defined, the decision-makers must rely on case law and the dictionary definition of curtilage.

In making the decision on what constitutes curtilage the inspector considered the layout of the buildings within the grounds, ownership (past and present) and the use of the site (past and present).

The conclusion by the inspector in this case was that on a matter of fact and degree the appeal site did not form part of the residential curtilage, and the Council’s decision was sound.

This is a useful reminder of what should be considered in respect of an application for lawful development.
Barlow v Wigan Council [2019] EWHC 1546 (QB) The High Court found when assessing a claim for compensation relating to personal injury that a path was now a highway through presumed dedication under section 31(1) of the Highways Act 1980.

The question to be determined was that as the path became a highway by presumed dedication could it be highway maintainable at public expense. If that was the case then the Council was under a duty to maintain the path under section 41 of the Highways Act 1980 and liable for the personal injury.

The court found that a highway under presumed dedication could be a highway maintainable at the public expense. To do otherwise would create uncertainty and arbitrariness.

This case provides clarification for local authorities on the scope of section 36(2)(a) of the Highways Act 1980.
R (Mawbey) and others v Cornerstone Telecommunications Infrastructure Ltd [2019] EWCA Civ 1016 The Court of Appeal decided that electronic communications apparatus installed on top of a block of flats were not permitted development under Town and Country Planning (General Permitted Development) Order 1995 (“GPDO”) Sch 2. Pt 16 Para.A as the equipment did not meet the narrow definition of “mast” which, when on buildings under 15 metres when the mast would be within 20 metres of the highway were not permitted development and were instead “electronic communications apparatus”.

The definition of “mast” is defined for the purpose of the Para.A of Part 16 of Sch 2 of the GPD is “a radio mast or radio tower”.

The definition of "electronic communications apparatus" in paragraph 1(1) of Schedule 2 to the TA 1984 applied in this case, with the High Court (approved by the Court of Appeal) finding that each central support pole came within the TA 1984 definition:

"as it is a "…pole….on, by or from which any electronic communications apparatus is installed, supported, carried or suspended" (paragraph (d))."

On 28 December 2017 (after Lewisham Council’s original decision that the apparatus did constitute permitted development), the definition changed and omitted any reference to a pole to now include:

"other structures or things designed or adapted for use in connection with the provision of an electronic communications network."

It will be interesting to see whether the Courts in the future interpret central support poles as coming within the definition of “other structures or things”.
41 new designated marine conservation zones (MCZs)Under Part 5 of the Marine and Coastal Access Act 2009 the Department for Environment, Food and Rural Affairs (Defra) designated 41 new MCZs and announced 12 additional features to existing conservation zones in English waters.

These conservation zones, of which there are 91 in total, are often referred to as the “blue belt” around the English coast. The first zones were allocated in 2013.

This third stage of designation completes England’s contribution to the marine network in the North East Atlantic and will help to ensure that species and habitats are protected to a high standard in the inshore and offshore waters around England.
Government has produced response to reforming developer contributionsThe process surrounding developer contributions will be amended in order to rectify problems which have been raised in the Government consultations.

The aim of the reform is to improve transparency by having authorities publish their annual ‘rate summaries’, which will in turn increase accountability. A call to improve market responsiveness is also being met as low levy rates will have a closer link with the value of development. An overall reduction in the complexity of the process is hoping to be reached as it is to be a single round of consultation as opposed to the implementation of the levy taking up to two years for local authorities to bring into effect.

This is hoped to benefit both local communities and developers.
New consultation on the Hackitt Review of Building Regulation and Fire SafetyThe Hackitt response was published last year after the Grenfell Tower tragedy in June 2017. The Government has now begun consulting on the suggestions for reforming building safety. Key features of the new regime include:

- There will be five new dutyholder roles who will be responsible for making sure Building Regulations have been complied with during the design and construction phase. They will also be viewed as the “accountable person” who will be responsible for overseeing the building once occupied.

- Residents of buildings of 18 metres or more in height will have a greater right to information so they can raise concerns about the building.

- A new building safety regulator will be created in England.

- The introduction of fixed and variable monetary penalties for building safety breaches, along with criminal sanctions for serious offences and repeated non-compliance.

There is also a suggestion that the right for private individuals to claim damages where harm is suffered if Build Regulations standards have not been met is increased by way of bringing section 38 of the Building Act 1984 into force.
Revised draft Development Plans Manual (3rd Edition)On 7 June 2019 the Welsh Government published a consultation, which is applicable only to Wales, on a draft revised Development Plans Manual (Edition 3).

The aim of the consultation is to obtain views for the revised guidance for practitioners who are involved in preparing and implementing local development plans following significant changes to planning legislation and national policy since the 2015 publication of the current guidance contained in the Local Development Plan Manual (Edition 2).
Community Infrastructure Levy (CIL): minor development exemption is not applicable if an entire new dwelling is created.On 18 June 2019 the Valuation Office Agency (VOA) publicised a CIL appeal decision. This appeal was concerned with the interpretation of Regulation 42 (exemption for minor development) of the Community Infrastructure Levy Regulations 2010.

Upon the grant of planning permission the Collecting Authority had issued a CIL Liability Notice. The Appellant contended that no CIL was payable as the development proposal relates to a residential extension under 100sqm.

Minor development under Regulation 42 of the CIL Regulations 2010 (as amended) is exempt from CIL liability if on completion of the development, the gross internal area of new build on the relevant land will be less than 100sqm.

The existing basement flat was to be enlarged, but the additional space fell within the 100sqm limit for the exemption.

The VOA concluded that the Collecting Authority had misinterpreted Regulation 42(2). The VOA concluded that as the development did not create a new or additional dwelling, it was an extension of an existing dwelling, it falls under the exemption for minor development, as set out in Regulation 42.
RICS Code of Measuring Practice is generally accepted method of calculation for the definition of the gross internal area for CILOn 18 June 2019 the VOA publicised a CIL appeal decision.

A pertinent issue of this appeal was the disagreement on how floorspace measurement should be taken. As the CIL Regulations 2010 do not define the gross internal area, the registered valuer advised that it was necessary to adopt a definition. The gross internal area as defined in the RICS Code of Measuring Practice (6th edition) is the generally accepted method of calculation.
Planning Inspectorate (PINS) publish new template On 14 June 2019 PINS published a template for an appellant to email to the relevant local planning authority (LPA) and PINS if they wanted their planning appeal to follow the inquiry procedure.

The LPA and PINS must be notified at least ten working days before the planning appeal is submitted.
Draft Flood and Coastal Erosion Risk Management Strategy ConsultationThe Welsh Government have published a consultation on its draft national strategy for FCERM (flood and coastal erosion risk management). The consultation closes on 16 September 2019.

The updated strategy will replace their 2011 strategy and will reflect the Well-being of Future Generations (Wales) Act 2015, Planning (Wales) Act 2015 and Environment (Wales) Act 2016.

The Flood and Water Management Act 2010 states that local authorities must take the strategy into account when performing any of their functions, including planning decisions that may have an effect on flood or coastal erosion risk.
Guidance has been published on housing for older and disabled peopleThis guidance seeks to ensure that planning policies involving housing for older and disabled people are made at the planning stage of development as opposed to making costly adaptions to existing houses in the future.

It will assist in identifying local area housing requirements and any specialist housing needed along with any necessary design considerations that may have to be made.

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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