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Articles Planning 18th Dec 2019

Planning Law Update – December 2019

It has been a quiet month on the planning front largely due to the general election. The most interesting development, perhaps, is a further case on the ability to amend the description of development on a planning permission pursuant to s73 of the Town and Country Planning Act 1990.

We update below on recent planning law changes:

Legislation, Law or PolicySummary
Wood v Commercial First Business Ltd (In Liquidation)[2019] EWHC 2205The High Court looked at the requirements for the valid execution of a will under the Law of Property (Miscellaneous Provisions) Act 1989 (LP (MP) Act 1989) and the execution of deeds where a witness signs the deed at some point after its execution by the executing party, and not in their presence.

Section 1(3) of the LP (MP) Act 1989 provides that for a deed to be validly executed by an individual it needs to be signed by the individual in the presence of a witness who attests the signature.

The validity of mortgages were challenged on the grounds that the first mortgage deed was not properly executed by the borrower as the attesting witness had not signed the deed at the same time as or in the presence of the borrower.

There was no dispute as to whether the Borrower had executed the mortgage deed in the presence of a witness. However the borrower argued that in order for section 1(3) to be satisfied, both the person executing the deed and the witness must sign the deed in each other's presence.

The court held that the proper interpretation of section 1(3) stated that although it was necessary for the executing person to sign the deed in the presence of a witness there was no requirement for the witness to sign in the presence of the executing party. If it was an intended requirement that the witness needed to sign in the presence of the executing party it would have been simple to express this fact in the legislation. The court considered that this was an unlikely accidental omission and the court therefore found that the witness not signing the mortgage deed in the borrower’s presence did not invalidate the deed.

This case clarifies the legislation on the execution of deeds and witnesses.
R (Wright) v Resilient Energy Severndale Ltd and another [2019] UKSCThis appeal was focussed on community donations and material considerations of planning permissions.

A planning application was granted for a single wind turbine which was to be built and run by a community benefit society. As part of the Council’s determination for approval they took into account an annual donation which was proposed to a local community fund.

The Respondent challenged the grant of permission on the fact that the donation was not a material planning consideration and the Council had acted unlawfully by using it in their consideration.

The Supreme Court reviewed the three-fold test set out in Newbury District Council v Secretary of State for the Environment [1981] AC 578, which requires that the following conditions be imposed:

1) Be for a planning purpose and not for any ulterior purpose;
2) Fairly and reasonably related to the development; and
3) Must not be so unreasonable that no reasonable planning authority could have imposed them.

The Supreme Court unanimously held that the local community donation was not a material consideration and therefore should not be taken into account for the grant of the planning permission. As the donation did not serve a planning purpose and was not reasonably related to the proposed development.

This case serves to remind planning practitioners and local authorities that planning permissions cannot be bought or sold. Even a local community donation must be inspected carefully to ascertain whether it properly amounts to a material consideration.
Flausch and others v Ypourgos Perivallontos kai Energeias and others (Case C-280/18)This case concerns the time limits for bringing proceedings and how they cannot be relied on where the public were not able to participate in the EIA decision making processes (ECJ).

On 7 November 2019 the European Union Court of Justice (ECJ) held that:

• Article 6 of the EIA Directive 2011 prevents member states from carrying out public participation procedures in a project’s decision-making which require an environmental impact assessment (EIA) at a regional administrative authority level rather than a municipal unit level within which the project site corresponds and where the specific arrangements do not ensure that the concerned public’s participation rights are met. The compliance of those rights is a matter for the national courts to establish. The ECJ has commented on the publication notification of a project and its development consent notice which was publicised in the competent authority’s regional office and newspaper which was on a different Greek island to where the project related and as such it did “not appear to have been liable to contribute sufficiently to informing the public”.

• Articles 9 and 11 of the EIA Directive 2011 do not allow national legislation in which the public can bring proceedings during the relevant consultation period where there was not adequate opportunity to find out about the consent procedure which is set out in accordance with Article 6(2) of the Directive. In this case, the consultation period ran from when the development consent for a project was published on the internet.
R (Coventry Gliding Club Ltd) v Harborough District Council and another [2019] EWHC 3059 (Admin)An appeal to the High Court of Harborough District Council (HDC) against the grant of prior approval of a barn conversion, where the right of way to the barn went across a runway for Coventry Gliding Club (CGC).

The High Court held that HDC's decision was flawed as there was a failure on the following grounds:

• Display a notice of the proposed development in accordance with the requirement of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015). The display near the application land was an objective fact.

• The relevant considerations set out under paragraph Q.2, class Q, Part 3, Schedule 2 of the GPDO 2015 for safety of access to the barn and the noise impacts caused by CGC’s activities were not taken into account.

A quashing order will probably not be sufficient to afford CGC an effective remedy as t may not prevent the development from going ahead by default under the prior approval rules and therefore the issue of an appropriate remedy has been adjourned for now.

The Secretary of State has been invited to intervene on the matter as there could be a potential breach of CGC rights under Articles 6 and 1 of Protocol 1 to the European Convention on Human Rights.
London Borough of Haringey v Secretary of State for Housing Communities and Local Government and another [2019] EWHC 3000 (Admin)London Borough of Haringey’s appeal against an Inspector’s decision on an enforcement notice was allowed to the High Court over the meaning of the term building within section 55(2)(a) of the Town and Country Planning Act 1990 and whether it meant that included part of the building.

London Borough of Haringey served an enforcement notice alleging that there was no planning permission for the installation of UPVC windows on the ground floor front elevation of a flat. The flat was within a terrace block. This enforcement notice was appealed to the planning inspectorate.

On that appeal the planning inspector determined that the relevant building was taken to mean the terrace-block as a whole. Although the windows did affect the exterior, he concluded that the installation of the UPVC windows in the flat did not amount to development, because of the pre-existing predominance of UPVC windows and therefore did not materially affect the external appearance of the building.

LBH appealed, arguing that the term "building" in section 55(2) of the TCPA 1990 included part of a building. The Court allowed the Council’s appeal against the Inspector’s decision.

The judge concluded that the Inspector had misdirected himself and the appeal decision contained errors that went to the heart of the Inspector’s reasoning on the key issues that needed to be determined.
Sequent Nominees Ltd (formerly Rotrust Nominees Ltd) v Hautford Ltd [2019] UKSC 47The facts of this case follows a covenant which prevented a tenant from seeking planning permission for a change of use of part of the first and second floor premises to residential use without the landlord’s consent.

The Landlord owned the freehold part of the property and the rest of the block (the estate). He refused consent as he claimed the change of use would increase the chances of a successful claim for enfranchisement (a qualifying tenant being able to buy the freehold), consequently being detrimental to the Landlord’s management of the estate.

The Landlord appealed against the County Court decision, which held that he had unreasonably withheld consent.

On the basis that there were no other cases on a landlord’s refusal of consent which supported this, the Court of Appeal held the purpose of the consent clause in this case was not to restrict the change of use because of enfranchisement; this being a “re-writing” of the clause. The court also suggested that Estate management considerations could be sufficiently met by s10(4) of the LRA 1967.

The Landlord appealed again, although the arguments centred on the Enfranchisement ground as the estate management ground would not on its own be a sufficient ground of refusal.

The Supreme Court eventually allowed the appeal, which had a majority of three to two, for the following reasons:
- The three principles in Ashworth Frazer Ltd v Gloucester City Council [2001] 1 WLR 2180 were followed; same principles applied to a refusal of planning application should be the same for refusal of consent to an assignment.

- Two previous cases which held a landlord could refuse consent on the basis of enfranchisement were decided before the LRA 1967 was brought into force. This was not confirmed as the only reason behind the decision, but was taken into the circumstances.

- The Landlord did not need to show that the refusal was right or justifiable, only that it was objectively reasonable.

- The user and content clause should be read together to show the combined effect of the clauses; to allow residential use in parts permitted by the planning regime from time to time.

This case is interesting as both the majority and dissenting judgments have convincing arguments. It serves to highlight that all clauses should be read together and not in isolation, as this may obscure the intended meaning.
APP/G5750/L/19/1200288This appeal was made against surcharges imposed by the London Borough of Newham due to an alleged failure to submit a Commencement Notice and late payment of the CIL.

This is a further case relating to Reg. 65(1) of the Community Infrastructure Levy Regulations 2010 (SI 2010/948) which confirms a liability notice must be issued as soon as practicable after the day planning permission first permits development by the collecting authority.

Here, although the notice was issued 7 weeks after the day planning permission was granted, this was still held to be “as soon as practicable”. The requirement in Reg 65(1) was met and therefore the appeal was dismissed and surcharges upheld.
APP/V2255/C/19/3225341The appeal followed the issue of an enforcement notice by Swale Borough Council because, a carport and summerhouse had been built allegedly without planning permission. The appellant lives on a houseboat, that he regarded as his ‘dwellinghouse’ and the buildings were built on their private area of land, which he considered his garden.

The appellant argued that the buildings above benefit from planning permission by virtue of being developed in accordance with Class E, Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) (outbuildings incidental to the enjoyment of a dwellinghouse).

The inspector stated “houseboats normally float and are only attached to the ground by ropes which allow them to be easily moved”. Therefore, the appellant’s house boat should not be regarded as a dwellinghouse, and consequently the buildings were not within the curtilage of a dwellinghouse.

The appeal was dismissed.
Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868The appellant was an interested party that appealed against a decision of the Welsh Minsters in relation to the scope of the power under s73 of the Town and Country Planning Act 1990 to grant a planning permission, when the conditions of a previous planning permission had not been complied with.

The previous planning permission was granted for two wind turbines “with a tip height of up to 100m”. The developer applied under s.73 to extend the height to 125m. The second respondent the local planning authority refused the application and the developer appealed to the first respondent Welsh Ministers. The inspector appointed by the Welsh Ministers allowed the appeal.

Moreover, the words “with a tip height of 100m” were removed from the description of development in the original grant. It was questioned whether either a local planning authority or the Welsh Ministers could change the wording in the operative part of the planning permission or whether the power related to the conditions only.

The appeal was allowed as the change was outside the scope of s.73 and the inspector’s decision was quashed as it was beyond her powers conferred by that section.
APP/Q1255/L/19/1200286This appeal was brought against a surcharge imposed by Poole Borough Council for an alleged breach of failing to submit a Commencement Notice (CN) before commencing works on the development. The relevant dates are as follows:

- 03/12/18: planning permission granted
- 14/01/19: liability notice served
- 06/02/19: deemed commencement date

Allegedly, the commencement notice was submitted on 19 November 18 and sent by first class post, but was not received. Without proof of posting, it did not satisfy the CIL Regulations 2010.

In addition the CN was dated before the date of planning permission was granted and a Liability Notice issued, and, as such would not have been valid as it was not possible to identify the Liability Notice.

This case again highlights the need to obtain proof of posting in respect of CIL notices and the strong line taken by Inspectors in respect of any breach.
Brooksbank v Information Commissioner and another (EA/2018/0226)A District Council gave instructions to a barrister which were held to amount to environmental information for the purpose of disclosure under the Environmental Information Regulations 2004 reg.2(1) (“EIR”).

There was a long running dispute between Ryedale DC and the local residents regarding the site of a new supermarket, and whether it should be built on the local authority’s land (car park) or on the site of a livestock market owned by a third party.

The Ryedale Council suggested that the planning applications for both sites should be called in and determined by the secretary of state, and as such instructed counsel for advice. Following counsel’s advice however, the Ryedale Council granted planning permission for the car park site.

The planning permission was quashed after a successful judicial review challenge, but Ryedale Council declined the appellant's request for information regarding the planning process, including her request for disclosure of the instructions to counsel. The appellant appealed.

It was held that although it fell within an exception from disclosure in reg 12(5)(b), the public interest factor outweighed the exception and so the council were required to disclose their instructions to counsel as (amongst other things):

- Considerable time had elapsed since the instructions and subsequent advice.
- The need to protect legal professional privilege was less compelling where a public body was seeking advice regarding general points of law.
- The need for maximum transparency as the advice related to the Council seeking planning permission for its own land which was likely to affect third party development rights.

The Tribunal did note however that there was a strong public interest in maintaining legal professional privilege however in a finely balanced case such as this the presumption in favour of disclosure in the EIR was determinative.
Payne v Maldon District Council [2019] UKUT 335 (LC)A restriction within a s52 planning agreement was modified under s.84 of the Law of Property Act 1925 by the Upper Tribunal (Lands Chamber) (UT). S52 was the predecessor to s106 and has now been repealed. As such this case relates to s52 Agreements only.

A restriction had been placed in the s52 agreement which prevented “any permanent buildings or structures” on the land. The applicants applied to the UT for the removal of the restriction on the basis that the covenant did not allow a reasonable use of the land, nor did it offer any practical benefit to the council.

The UT noted that it does not have jurisdiction to discharge or modify a planning obligation under s106 of the Town and Country Planning Act 1990, but it does have jurisdiction to modify a restriction for s52 agreements made before 25 October 1991. Consequently, the UT modified the restriction to allow the proposed development to go ahead.

This procedure is not available for positive covenants.
European Commission publishes guidance on application of EIA exemptionsOn 14 November 2019 the European Commission published the Commission Notice: Guidance document on the application of exemptions under Articles 1(3), 2(4) and 2(5) of the Environmental Impact Assessment (EIA) Directive 2011.

This EIA guidance provides for the incorporation of and updates in the previous Commission guidance, Clarification of the application of Article 2(3) of the Environmental Impact Assessment Directive. The reviewed EIA guidance proposes the following:

• Exemptions for projects, or parts of projects, which sole purpose is defence or response to civil emergencies (Article 1(3));

• The interpretation of the term "exceptional cases" in regards to the exemption for specific projects when the application of EIA requirements would run counter to the purpose of the project (Article 2(4));

• Where a project is adopted by a specific set of national legislation then there is an exemption from public consultation requirements (Article 2(5));

The purpose of an EIA for major development projects is to prevent, reduce or offset significant adverse environmental effects.
Welsh Government launches consultation on proposed changes to permitted development rights for allotment holdersOn 22 November 2019, the Welsh Government set in motion a consultation on their proposed changes to permitted development rights for allotment holders.

The proposals are to amend the Town and Country Planning (General Permitted Development) Order 1995 in order to permit the erection of a shed and a glasshouse on each allotment plot, subject to conditions regarding size limitation.

The consultation closes on 28 February 2020.
The Ministry of Housing, Communities and Local Government (MHCLG) publishes updated guidance on air qualityThe new planning practice guidance on air quality in England replaces the previous guidance from March 2014. Local planning authorities will primarily use this guidance when deciding the outcome of planning applications.

The following, key changes are as follows:
- Focus on the impacts of the smaller developments on the air quality, not only those larger developments, as these can have a potential cumulative impact

- A new section which highlights new point sources of pollution i.e. district heating or combined heat and power plants
Updated letter for planning appealsThe government updated the model notification letter on 11 November 2019. This letter notifies local planning authorities of interested parties of planning appeals and encourages early submission by Rule 6 parties.

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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