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Articles Planning 17th Sep 2019

Planning Law Update – September 2019

Whilst no new planning legislation was passed this month there have been a number of new court and appeal decisions issued as well as new guidance published.  In the High Court; a case for a judicial review application on EIA grounds was dismissed and clarification given that an extension of time under a prior approvals application can only be agreed where there was no stated deadline for determination. The Government has produced updated guidance on the Administrative Court Judicial Review proceedings and electronic filings and new guidance has been issued to help practitioners preparing a Statement of Case and Common Ground submissions. The Welsh Government also launched a consultation on a new National Development Framework, which will close on 1 November 2019.

We update below on recent planning changes:

Legislation, Case Law or PolicySummary
R. (Wingfield) v Canterbury City Council [2019] EWHC 1974 (Admin)In this case, the claimant submitted judicial review proceedings in respect of the grant of outline planning permission for reserved matters relating to a mixed-use development by Redrow Homes South in November 2018. Part of the Site was a Local Wildlife Site.

In 2015, the Council decided an environmental statement was required along with a Habitats Regulations Assessment (HRA) in light of the 2018 People over Wind judgment. However, this assessment was undertaken after the outline planning permission was granted and so the claimant argued the Council had breached EU law.

The High Court dismissed the application as reg. 70(3) of the Habitats Regulations 2017 states the HRA should be conducted at the outline planning permission stage. The case of Smith v East Elloe Rural DC sets out that a decision made by a public body is valid until quashed, whilst R (Barker) v Bromley LBC confirms that where an EIA is not conducted at the outline stage, it needs to be undertaken at the reserved matters/screening stage. It is important to note that the People Over Wind judgment did not change this. At no point does the Habitats Directive state the assessment needs to be conducted “at the earliest possible stage” unlike the EIA Directive 2011.
APP/R5510/L/17/1200269This appeal decision was made against CIL surcharges imposed by the Local Planning Authority, London Borough of Hillingdon due to the alleged failure to assume liability and failure to submit a commencement notice.

The appellants insisted they did not receive the Liability Notice as it was not sent to the appellant's registered company address notwithstanding that it was sent to the address given on the planning application form. However, Reg. 126(1)(f) confirms that the onus is on the charging authority to find out what the correct address is. It is the liability notice that triggers the requirement to submit forms before starting works, but without this notice, it was not possible for appellants to submit a valid commencement notice.

The appeal was therefore allowed and the surcharges were quashed.
PINS: APP/M0933/W/18/3204360The Planning Inspectorate considered the meaning of “repowering” in the NPPF when the appellant made a section 73 application to the Council to vary a condition requiring the removal of the turbines at the end of 25 years but the Council refused this application as there were no suitable areas identified in the development plan for wind energy and therefore the footnote 49 requirements were not met.

Footnote 49 states: “Except for applications for the repowering of existing turbines, a proposed wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing."

The Council argued that the benefit of using renewable energy failed to outweigh the negative impact on the landscape and character of the area of the Lake District.

The appeal was allowed; in the absence of national guidance on the term “repowering”, the inspector confirmed that the wind turbine proposal did not need to be in an area identified in the development plan. Although the Dictionary definition of “repower” was "to rebuild or replace the power source or engine of a vehicle, power plant etc.” the continued use of the existing turbines should not be classed as repowering, and as such, the term was in fact an umbrella term for the replacement, continued use and the replanting of wind turbines.
APP/D3315/C/18/3211485This appeal decision was made against an enforcement notice issued by Taunton Deane Borough Council (known as Somerset West and Taunton Council since 01 April 2019).

The Council alleged that a material change of use of a building had taken place from agricultural use to residential use. According to Gravesham Borough Council v Secretary of State for the Environment, an important characteristic of a dwelling is that it provides a person with day-to-day “private domestic existence”.

Naturally, the inspector recognised that the facilities needed by individuals for “day-to-day private domestic existence” varied greatly, but the most basic of shelter was not enough to make a building a dwelling as discussed in Gravesham.

When calculating the immunity period, the unauthorised use will only be immune from enforcement action after a four-year period has passed. Moreover, no planning enforcement action can be taken after this period if the breach of planning control relates to a change of use of a building to a single dwellinghouse.

The inspector concluded in this case that the building in question did not become a dwelling until December 2016 - after improvements were made to the basic kitchen facilities. Therefore, the four-year rule was not met.
APP/L5240/L/19/1200256This appeal decision was made against a surcharge imposed for an alleged breach of failure to submit a Commencement Notice before starting works by Croydon Council. The appellant did not receive the Liability Notice as it was sent to the previous owners of the land.

However, the inspector confirmed that as a Liability Notice will be registered as a local land charge and binds the land, the charge goes with the land and not the owner. All purchasers of a land are deemed to have knowledge of all burden attached to the land.

In addition, Regulation 117 does not state upon whom the liability notice must be served.

Therefore, the Liability Notice was in fact served correctly and the appeal was dismissed.
APP/R1845/W/19/3223931This appeal decision was made against a refusal to grant planning permission for a proposed development for a replacement chalet and associated works including cellular mesh to driveway in green belt land.

According to paragraph 145(d) of the NPPF, the construction of a replacement building in the green belt is allowed, provided the new building is in the same use and not materially larger than the building it replaces.

Here, the inspector concluded that due to the poor physical condition of the chalet and the little evidence of any permanent use/occupation since 1965 it was difficult to envisage even occasional use and as such the residential use had been abandoned. Consequently, the proposal was not the same use as the existing use and did not come within the definition of appropriate development in the green belt.

The appeal was dismissed.
R (on the application of Warren Farm (Wokingham) Ltd v Wokingham Borough Council [2019]EWHC 2007 (Admin)The High Court has confirmed that under the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015) local planning authorities do not have the power to extend deadlines for the determination of prior approval applications for agricultural-to-residential.

Under Class Q under Part 3 of Schedule 2 of the GPDO 2015 provides that a change of use of an agricultural building and any land within its curtilage to a dwellinghouse is permitted development and the developer does not need to make a formal planning application but does need to apply for prior approval of the details.

The developer applied for prior approval to convert an agricultural building to residential use. The GPDO 2015 requires that all decisions on prior approval applications are made within 56 days. The Council requested more time to consider the application and the Developer agreed. The application then was subsequently refused by the Council and the Developer challenged the Council’s decision in the High Court, stating that a refusal of prior approval should have been issued within 56 days.

The High Court held that the extension of time was unlawful as was any decision to refuse consent that was made after the 56-day deadline, the application therefore should have received deemed consent.

Although developers and local authorities could agree to extend deadlines under article 7(c) of the GPDO 2015, this is only applicable if it does not involve a stated deadline for determination. The court, at paragraph 34, said that:

"Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority's decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made, and there is therefore scope for agreeing a time within which the authority has to make a decision."

This decision is likely to be applicable to other change of use applications under permitted development rights.
Tewkesbury BC v Secretary of State for Communities, Housing and Local Government [2019] EWHC 1775 (Admin)In Tewkesbury BC v Secretary of State for Communities, Housing and Local Government [2019] the High Court looked at the term “person aggrieved” under section 288 of the Town and Country Planning Act and whether the claimant, the local authority, satisfied the requirement in this instance.

Following Tewkesbury Borough Council’s decision to refuse an application for planning permission for a residential development the applicant appealed and both the Inspector and the Secretary of State agreed with the Council and dismissed the appeal.

The Council challenged the appeal decision in the High Court under section 288 as they disagreed with the way that both the Inspector and the Secretary of State had calculated the housing land supply.

The court held that the Council was not a person aggrieved as is set out in the legislation as the decision of the Secretary of State was in the Council’s favour. As such the Council did not have the standing to make the appeal and the challenge was dismissed.

The Court stated that the calculation of housing land supply would surely come up for further debate at future appeals of refused planning permissions and that the High Court was not the correct forum for such academic debate.
The Ministry of Housing, Communities and Local Government (MHCLG) published guidance in response to People over Wind and another v Coillte TeorantaThe updated guidance surrounding the impact of the Court of Justice decision clarifies that competent authorities can only take account of mitigation measures intended to avoid/reduce the harmful effects of a plan as part of the appropriate assessment itself (and not during the earlier screening stage).

An appropriate assessment may be required if the primary reason a measure has been considered at the screening stage is to mitigate the likely habitats-related effects of the scheme on the site.
Cooke v Information Commissioner (EA/2019/0077)First-tier Tribunal (Information Rights) confirmed that Transport for London correctly relied on the exception in regulation 12(5)(e) of the Environmental Information Regulations 2004.

Transport for London refused to disclose part of an unpublished safeguarding zone map along with residential “hotspots” for the Crossrail 2 project. The Appellant lived in this zone and argued the value of his property was greatly reduced by to the project due to blight.

The First-Tier Tribunal confirmed that disclosure of the safeguarding zone map would increase the properties’ value because without disclosure, naturally there would be speculation about the property and its’ price. Transport for London’s reliance on the exception was upheld because although the non-disclosure had a negative effect on many other property owners in the area, the public-interest test favoured withholding the information as it would result in the savings of large sums of taxpayers’ money.
Draft guidance note produced on the Measurement of Land for Development and Planning PurposesThe Royal Institution of Chartered Surveyors (RICS) is seeking comments on its new draft guidance which puts forward five core definitions to be read alongside the measurement of land for planning and development purposes:

1) Land area: the legal title area of land
2) Site area: area of land used for planning applications
3) Net Development area: area from which financial value is directly derived, by virtue of either being income –producing or for sale
4) Plot Ratio: ratio of Gross External Area (GEA) of a building or buildings at each floor area, under the International Property Measurement Standards, to the site area, and is already used as a standard metric for planning and design in certain sectors and jurisdictions
5) Site Coverage: ratio of the building footprint’s GEA to the site at ground-floor level, and is already a standard metric for planning and design in certain sectors and jurisdictions
The Welsh Government has launched a consultation on a new National Development Framework (NDF) The consultation will run from 07 August to 01 November 2019. The NDF is a 20-year plan for Wales up to 2040, and the new draft identifies the aims over the coming years that will form the basis for the new policies and proposals.

In total, 33 policies are proposed which includes providing more affordable housing, supporting the roll-out of charging infrastructure for ultra-low emission vehicles, enhancing biodiversity and proposing new priority area for wind and solar energy and district heat networks.
Updated metric to measure biodiversity net gain published by Natural EnglandAs a response to the recent government consultation regarding mandatory biodiversity net gain in development, an updated metric is to be used to measure and account for any changes to biodiversity in line with the new mandatory requirements.

The updated metric will be included in the Environment (Principles and Governance) Bill, which is due to be published in October this year.
Government issues new guidance for Statement of Case and Statement of Common Ground submissionsThe government has issued new guidance in respect of statements of case and common grounds intended to assist the appellant, but also ultimately, both the local planning authority and the inspector on an appeal.

Where an appeal is made against refusal of planning permission (or in respect of the confirmation of a Compulsory Purchase Order), part of the appeal process is for the parties to submit:

• Their own statements of case, which amplify the grounds of appeal/reasons for refusal.
• Jointly a statement of common ground which narrows the issues between the parties.

The government has suggested that the Planning Inspectorate should aid the process by assisting the appellant in this and providing pro forma statements with possibly mandatory information requirements and limits on length.

It is hoped that such forms will be developed and will be available digitally.
Consultation on extending permitted development rights for Code operators.A government consultation has been published on the proposed reforms to permitted development rights which are available in England to electronic communications code operators under the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596). These proposals are designed to support the implementation of 5G networks and also extend mobile coverage which will be especially useful in rural areas.

The consultation is seeking views on the extension of the relevant permitted development rights in the following areas:

• The removal of the requirement for prior approval by the local planning authority (prior approval) for the installation of radio equipment housing on article 2(3) protected land, or on unprotected land where it exceeds 2.5 cubic metres. This will then be consistent with the rights relating to fixed-line broadband infrastructure but would not be applicable to installations on a site of special scientific interest (SSSI), which would still require prior approval.

• To encourage the greater utilisation of existing sites Code operators would be allowed to increase the width of existing ground-based masts by more than a third. Views on the maximum increase that should be permitted without prior approval are also sought.

• Code operators would be able to increase the height of existing masts to a relevant permitted height without prior approval.

• To allow masts to be installed on buildings of less than 15 metres in height that lie within 20 metres of a highway. Views are sought on whether this proposal should be subject to prior approval.

• Increase the maximum height of new masts that may be installed as permitted development, subject to prior approval. Views are sought on an appropriate maximum height and a lower limit should apply to masts located on article 2(3) land or on a highway.

Views are also sought on what type of restrictions should be attached to each of the new rights, in order to promote safety and security and to control the visual impact of the relevant installation.

Comments are welcomed from interested parties on the following matters:

• the likely impact of the proposals and the government's stated aims.
• any suggestions of further measures that could be offered which will reduce the visual impact of new installations, and ensure the removal of redundant apparatus which maximise the use of existing sites.

The consultation closes on 4 November 2019. Following this consultation the government will further consult on the detailed proposals which will include draft regulations.
Administrative Court judicial review guidance updated including details on electronic filing in judicial review proceedingsOn 12 August 2019 HM Courts and Tribunals Service published an update to the 2018 version of the Administrative Court Judicial Review Guide 2019 (the Guide), which provides important information on judicial review practice and procedure. This 2019 version provides for further details on the introduction of electronic filing in the Administrative Court.

Although the Guide does not have the force of law, parties to judicial proceedings are expected to follow it. It provides important practical guidance to legal practitioners on various different aspects of procedure and practice, which constitute to consolidate relevant statutory provisions, procedure rules and case law.

Changes include of:

• Details of the anticipated commencement of the Electronic Working Pilot Scheme in the Administrative Court in 2020, which includes further instructions for registration and practical guidance. New Claims in the Administrative Court issued after the pilot scheme has been introduced will be managed under the Courts Electronic Filing system (CE-File). A detailed note on electronic filing is due to be issued in 2019.
• Annex 6, concerns judgments handed down by the Welsh Administrative Court. This includes video links for a case which has been heard in Wales, but the judge is sitting outside of Wales when the judgment is handed down.
• Annex 7, concerns judicial reviews in the Upper Tribunal (UT), including transfers of judicial review applications between the UT and the High Court, and out-of-hours applications.

There are further minor amendments which include:

• the Guide's chapter on the duty of candour which now provides that there is a duty which imposes a "particular obligation" on solicitors and barristers that are acting for public authorities to assist the court in fulfilling "high duties" (at paragraph 14.1.5); and
• parties' skeleton arguments need to include a time estimate for the court's suggested advance reading (at paragraph

Or contact another 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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