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Planning Law Update October
Articles Planning 18th Oct 2019

Planning Law Update – October 2019

As we see Brexit looming closer, the developments were mainly interesting cases and appeals. An appeal was allowed against CIL surcharges imposed due to a late Liability Notice (LN), whilst another appeal was dismissed as the inspector concluded that an emailed LN was correctly served. In other news, the House of Commons Library have produced a new briefing paper for the recent changes to planning obligations, and Defra has both produced new environment reports and received comments on a published progress report, namely by the NCC.

We update below on recent planning law changes:

Legislation, Law or PolicySummary
Legislation (Wales) Act 2019 receives Royal AssentThis legislation will came partially into force on 11 September 2019 by enacting section 44.

The Act arranges Welsh law into Codes by the subject areas that were devolved to Wales in reflection of the amendments made to the Wales Act in April 2018.
APP/E5900/L/19/1200265In this case, an appeal was brought against CIL surcharges imposed by the London Borough of Tower Hamlets as they failed to serve a Liability Notice in relation to a development on time. In fact, it was issued nearly four years after the planning permission was granted.

Reg. 65(1) of the CIL Regulations 2010 states that the Council must serve the Notice as soon as practically possible after the day on which planning permission is granted. Therefore, the inspector concluded that the late Notice could not reasonably be interpreted as meeting this requirement.

The appeal was allowed. Even though the council sent an email 4 days after permission was granted, it was simply an informative email rather than serving Notice. Simply having knowledge of the relevant CIL information is not enough and does not act as a substitute for the required Notice.

The surcharge was dismissed.
APP/Z2830/L/17/1200253In contrast to the case above (APP/E5900/L/19/1200265), the inspector concluded here that an emailed Liability Notice was correctly served.

The appellant in this case argued that firstly, they could not find a record of having received the Notice via email from the Council, and secondly did not receive a physical copy of the Notice until 16 months after planning permission was granted for the development.

As the Council successfully produced evidence of the email with all the correct information required for the Notice, the inspector dismissed the appeal.
Reeves v Secretary of State for Transport and another [2019] UKUT 213Here, the Appellant landowner appealed to the Upper Tribunal (Lands Chamber) against a negative certificate of appropriate alternative development under s.17 Land Compensation Act 1961 in connection with HS2.

The local planning authority issued the negative certificate as the proposed residential development would have an urbanising impact on the countryside and thus conflicted with the local plan for the area.

The Upper Tribunal accepted that where an application conflicts with the local plan, it will usually not be granted. In this case, the development was viewed as unnecessary and no material considerations were present to sway the court to depart from local plan policies.

However, after reviewing the existing policies, the court issued a certificate of appropriate alternative development for the exploitation of sources of renewable energy and for small scale employment uses relating to farming, forestry, recreation or tourism provided that the development complied with the applicable local plan policies.

The case also clarified that the appropriate respondent to the appeal against the negative certificate was the acquiring authority under the Compulsory Purchase Order this did not necessitate the LPA being excluded from the appeal. Where there were good reasons the Upper Tribunal would consider joining the LPA as an additional respondent.
APP/P3610/L/19/1200266An appeal was made against a surcharge issued by Epsom & Ewell Borough Council. The alleged breach was a failure to submit a Commencement Notice before starting works on the development.

The Appellants claimed the breach did not occur as they argued ‘demolition’ did not form part of the planning permission and so works had not commenced on the development.

S56(2) TCPA 1990 - development is taken to have begun on the earliest date on which any material operation comprised in the development begins to be carried out.

S56(4)(aa) states that a material operation includes "any work of demolition of a building".

There was no suggestion that the demolition works were carried out pursuant to prior approval or permitted development rather than the planning permission.

Here, the Appellant explained demolition only took place to avoid incurring unnecessary business rates. The inspector reminded the Appellant the CIL regime is not concerned with whether or not development is lawful or the motivation for undertaking works, it is only concerned with whether it has commenced.

The appeal was dismissed and the surcharge upheld.
APP/W0340/L/19/1200267In the instant case, an appeal was brought against a CIL surcharge imposed by West Berkshire Council. Much like the appeal above, the alleged breach was a failure to submit a Commencement Notice. However, here the appeal was allowed under grounds 117(1)(a) and (b) of the Community Infrastructure Levy Regulations 2010.

Under Regulations 117(1)(a) and (b), the Council was delayed by 6 months in issuing a Liability Notice (LN) and therefore this delay could have been reasonably interpreted as meeting the requirements to serve the LN set out in Regulation 65(3)(a). In the absence of a LN, it was not possible for the appellant to submit a valid Commencement Notice.

On this ground, the appeal was allowed and the surcharge dismissed.
APP/H2265/W/18/3218714The appeal was made against a refusal to grant planning permission for a proposed erection of a forestry storage building.

The two main issues were:
• Was the proposal classed as inappropriate development in the Green Belt
• If inappropriate, did the harm outweigh other considerations to amount to ‘very special circumstances’

The purpose of the development was to "provide dry storage with ventilation to allow timber to [dry] out so that it is a usable product and to provide secure storage for machinery". The timber used would be from surrounding woodland.

The Inspector dismissed this appeal as they viewed the building as more of a ‘timber processing operation’ as opposed to forestry. Due to the timber being processed rather than simply stored (it was cut before the further process of drying) the Inspector considered the proposed development did not fall within the exception of para 145(a) in the NPPF and was inappropriate development in the Green Belt. No very special circumstances were put forward.
APP/T0355/W/19/3229741This appeal was against the refusal of the Council of the Royal Borough of Windsor and Maidenhead to grant permission for retention of an existing cabin for ancillary residential accommodation for a period of three years. After this three years, the cabin would be used for purposes ‘incidental’ to the dwellinghouse.

The inspector decided that the difference between incidental and ancillary was not clear-cut, and small changes to the building inside and out could mean that incidental could become ancillary use over time. Thus, the option of a condition, which would seek the removal of the ancillary use of the cabin after a three-year period, would be unenforceable.

Ultimately, due to the separate nature of the cabin to the main dwellinghouse, including independent access and a separate garden area, the inspector dismissed the appeal as all the evidence amounted to an independent dwelling whose purpose was neither incidental or ancillary to the dwellinghouse.
APP/A5840/L/19/1200247This appeal decision highlights the necessity of ensuring that a community infrastructure levy (CIL) notice is completed correctly.

Even though the appellant did submit a commencement notice (CN) before commencing works on the chargeable development, the CN did not comply with regulation 67(2)(b) of the Community Infrastructure Levy Regulations 2010 as it did not identify the liability notice (LN) issued in respect of the chargeable development. As it was not identified, the CN was declared invalid and the appeal was dismissed, consequently the surcharge was upheld.

A good guide to reminder practitioners to correctly fill in the CIL notice form this will ensure that developers are not liable for CIL further down the line.
Gladman Developments Ltd v Secretary of State for Communities and Local Government and others [2019] EWCA Civ 1543On 12 September 2019 the Court of Appeal dismissed an appeal by Gladman Developments Ltd.

The local authority refused two planning permissions in Kent, and the High Court upheld the planning inspectorate’s decision to reject the appeals. The High Court held that the inspector’s decision was not flawed by a failure to heed the possible consequences of the decision in the ClientEarth (No. 2) decision. In coming to this conclusion the court stated that there was no statutory requirement or principle of law which required an inspector to remedy an unacceptable proposal for air quality mitigation and the impact of a development. Therefore a planning condition could not be imposed which prevents the development going ahead until a particular objection was overcome.

Furthermore there was no requirement in the National Planning Policy Framework at Paragraph 122 for an inspector to assume that the Air Quality Directive 2008 requirements would have been complied with soon, and to make the proposed development effects on air quality acceptable.
APP/A0665/C/19/3224527 and 322458This Planning Inspectorate (PINS) appeal decision looked at the personal hardship of the demolition of a dwelling within the green belt outweighing its proposed harm to the green belt.

The appellants had brought the property with garage in the green belt in good faith, and after seeking professional advice they believed that the property was authorised, when in effect it was not.

Consequently as the property was not authorised enforcement action was taken by the local authority. The inspector found that the property was inappropriate development within the green belt. The usual outcome in a case such as this is for the property to be demolished. However, the inspector found that the personal hardship that the owners would face from the demolition of the dwelling outweighed any harm to the green belt, and as such amounted to very special circumstances. The appeal was allowed.
APP/J3720/L/19/1200273This Planning Inspectorate (PINS) appeal decision highlights a potential problem with commencing development and then amending the planning permission.

A requirement under the Community Infrastructure Levy Regulations 2010 is to submit a commencement notice (CN) before starting works on a chargeable development. The developer in this case had failed to submit the CN before starting works.

When the original planning permission was decided the local authority did not have a CIL charging schedule in place. However on the consequent retrospective permission required as a result of non-compliance with the approved plans a CIL schedule was in place and the development was automatically triggered for CIL liability, as well as a surcharge, as the chargeable development had already commenced

The inspector appreciated this was an unfortunate situation that the appellant had found himself in. As they had not carried out the original planning permission in accordance with the approved plans, it was an issue which was effectively one of their own making.

The planning inspectorate dismissed the appeal and the surcharge was upheld.
Valuation Office Agency has made available a Community Infrastructure Levy (CIL) appeal decisionThe Valuation Office Agency which deals with the Community Infrastructure Levy (CIL) has provided valuable information from an appeal decision on the calculation of CIL and the term “in use building”.

A CIL charge is calculated on new buildings above a size limit, set by the local authority, and it provides the funds to go towards local and sub-regional infrastructure identified in the local authorities’ development plan.

The floorspace of buildings which qualify as “in use buildings” is credited against the CIL charge.

Accordingly under Regulation 40(11) an “in use building” is a building that contains an area that has been in lawful use for a continuous period of at least six months within a period of three years ending on the day that planning permission first permits the chargeable development.

Where a collecting authority (CA) is lacking the information, to substantiate whether the relevant building is an “in use building”, the CA may conclude that it is not an in use building under regulation 40(9) and the gross internal area (GIA) of that part to be zero (regulation 40(10)).

In this case the CA had conflicting evidence and as such the registered valuer concluded that the CA had been acting within its powers, and that regulation 40 had not been satisfied, therefore the GIA of the premises should be included in the GIA of the development when calculating CIL.

On one hand a lease of the premises during the relevant period had been provided together with a statutory declaration (although legally invalid) confirming the name of the tenant and the use to which is was put and an electricity bill. However, the CA’s own domestic rating records showed a visit to the premises by a staff member and a request for empty property exemption which contradicted the evidence.

In addition the CA believed that the electricity charge was incurred by builders working on the site rather than a tenant in occupation.

The release of this information has provided some much needed clarity to those practitioners who deal with CIL calculations and charges.
House of Commons Library publishes new briefing paperOn 30th August 2019, the briefing paper “Must planning committees follow officers’ advice in reaching decisions?” was published which discusses the scenarios when a planning committee overturns the advice of a planning officer.

In summary, where councillors overturn the advice of officers, reasons have to be given in full. Plus, officers should be given an opportunity to explain such a decision’s implications, including an assessment of a likely appeal outcome and the chances of a successful award of costs against the council. Costs may be awarded where:
• a party has behaved unreasonably; and
• the unreasonable behaviour has directly caused another party to incur unnecessary or wasted expense in the appeal process.

It must be noted that any application contrary to the development plan must be advertised as ‘departure’ applications so it is clearly identified for all involved.

Interestingly, this report highlights the change of role that councillors have played in determining planning applications. According to MHCLG, for the year ending March 2019, 94% of planning applications in England were delegated to officers.

In other news, on 6th September another House of Commons Library published a new briefing paper looking at Planning Obligations. Restrictions on pooling obligation contributions were introduced from April 2015 and are to be lifted from September 2019. This change is brought about due to some in the planning industry arguing pooling can result in developments stalling, and others suggesting that LPAs might should be more creative in how they apply planning obligations.
Ministry of Housing, Communities and Local Government (MHCLG), Notice of correction to Approved Document B 2019 edition: Circular 03/2019The MHCLG has published corrections to its latest editions of Building Regulations Approved Document B (Fire Safety).

The government has made several technical corrections to Building Regulations Approved Document B (Fire Safety) Volume 1: Dwellings and Volume 2: Buildings other than dwellings; and they relate to specific requirements and do not represent any wider change to policy.

Although the new version of Approved Document B was published in July 2019 and came into force on 30 August 2019. The new technical corrections took effect from 19 September 2019; the online version of Approved Document B has already been updated to reflect the changes.
Guidance published by Planning Inspectorate on cumulative effects assessment (CEA) for nationally significant infrastructure projectsAlthough this guidance does not have statutory status, it sets out a staged process for undertaking CEAs. The guidance was brought about as there was no single method and industry advice varied widely. This update also takes into account changes occurring as a result of the introduction of the NSIP EIA Regulations 2017.

The cumulative impacts of the proposed development with other existing and/or approved development must be considered.

The staged approach:
1.establishing the long list of other existing and/or approved development by reference to a Zone of Influence
2. establishing the short list (applicants should apply threshold criteria to the long list, in order to establish a shortlist of ‘other existing development and/or approved development’)
3. information gathering on short list
4. assessment of cumulative effects

Note – stages 1 and 2 should be undertaken early in the pre-application phase before requesting a Scoping Opinion. The Zone of Influence for each environmental aspect should also be considered.

A proposed NSIP may comprise multiple, geographically dispersed development sites, and the potentially cumulative effects due to the interactions between the different parts of the nationally significant infrastructure project should be noted in the CEA.
Sprinkler requirements in high-rise buildings to be widenedFollowing the Grenfell Tower tragedy, the Government is continuing to take steps towards improving, including;

• publishing a summary of responses to call for evidence on changes to fire safety requirements for Approved Document B of the Building Regs
• launching consultation on amending Document B to reduce trigger height requirements of the sprinkler systems
• setting up a Protection Board which will provide “expert, tailored building checks and inspections, if necessary, on all high-risk residential buildings in England by 2021”
Natural Capital Committee publishes response to both Defra’s progress report and the net environmental gain commissionThis month the NCC responded to the Department for Environment, Food and Rural Affairs’ first ever progress report on the 25 year environment plan. The report covers the period between January 2018 – March 2019.

In the report, it highlights the government has delivered 4 out of the 40 actions of the plan, including the below three where particularly significant progress has been made;

- Environmental governance
- Biodiversity net gain
- Public money for public good

Still on track to be fulfilled in the 25-year plan are 32 other actions, whilst delays are expected with the remaining 4 priority actions.

However, the response does highlight that Defra’s report fails to provide any sort of assessment of whether the overall natural environment in England has improved. The NCC believe that there has been more decline than progress in England’s environment.

As well as publishing comments on the above, the NCC has also responded to Defra’s environmental net gain commission for the development sector and marine environment.

The NCC believe that Defra’s approach should be based on key natural capital assets, present individual benefits and losses as opposed to providing single net figures and also adopt a ‘avoid, minimise, remediate, compensate’ hierarchy. For the greatest impact, Defra’s work should be applied to all future and current projects covered by the Town and Country Planning Act, work of the Planning Inspectorate and the Marine Management Organisation.
Department for Environment, Food and Rural Affairs (Defra) publishes final report assessing National Parks and Areas of Outstanding National BeautyDEFRA commissioned the Designated Landscapes Review and their final report was published on 21 September 2019 which assesses National Parks and Areas of Outstanding Natural Beauty (AONB), collectively referred to as “national landscapes”.

The overarching aim of the review was the assessment on whether national landscape protections remained fit for purpose and whether they needed to be renewed.

There were 27 proposals offset out in the review which include the following:

• The establishment of a new National Landscapes Service (NLS) to govern and support National Parks and AONBs. The anticipation is that the 34 AONBs and 10 National Parks could accomplish more when working as one united unit and there will be a reduction in duplication and wasted resources. The bolstered management plans suggest this is a key mechanism which will oversee accountability within the NLS.
• New designated landscapes and a new national forest. An outcome of the review is that the three largest AONBs should be considered for National Park status – The Chilterns, Cotswolds and Dorset. The Forest of Dean would be considered for AONB status.
• Something of interest to those in the Midlands is the recommendation of a strong case for a new national forest which would include the areas of Sherwood Forest, north of Nottingham and south of Worksop.
• There would be a new financial model which would provide more money, security and more enterprise.
• A consideration towards expanding open access rights in national landscapes.

The proposals will now be considered by Defra and a response will be published in due course.
PINS Appeal decision – APP/K3415/C/19/3227050This Planning Inspectorate (PINS) appeal decision reviews the special circumstances that can outweigh harm for areas in the green belt.

A greenhouse was erected in the grounds of a Grade 2 listed building. As the building was listed the erection of the greenhouse did not fall under the requirements for permitted development rights, and as such should have required express planning permission from the local planning authority. As such enforcement action was taken against the erection of a greenhouse in the grounds of a Grade 2 listed building.

Even though the greenhouse was inappropriate development in the green belt, the social benefit it provided outweighed the harm it caused in the green belt and as such it fell under very special circumstances. The appeal was allowed.

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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