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Planning Law Update - January 2020
Articles Planning 21st Jan 2020

Planning Law Update – January 2020

The month of December was somewhat quiet, most likely due to the distraction of the General Election. However, we saw many new PINS decisions this month including the change of use from a field to a residential garden being classed as appropriate development in the green belt. In another decision, a ‘detached’ house was considered to be a ‘terraced house’ for the purposes of Town and Country Planning (General Permitted Development) (England) Order 2015 as it was linked to houses via the garages on either side.

The key update from the Queen’s speech was the announcement of the Planning White Paper that will be published in the next few months.

We update below on recent planning law changes:

Legislation, Law or PolicySummary
The Building (Amendment) (Wales) Regulations 2019On the 13 December 2019 the Building (Amendment) (Wales) Regulations 2019 were laid before the National Assembly for Wales.

The regulations ban the use of combustible materials for cladding on all new residential buildings (flats, student accommodation and care homes) and hospitals for high-rise buildings over 18 metres in height.

A similar cladding ban was brought into force in England in December 2018, due to the Grenfell Fire in June 2017 and the role combustible cladding can play in spreading fire.

The regulations came into force on 13 January 2020.
Queens Speech December 2019: agriculture, rural land, environmental and planning implicationsThe Queen’s Speech on the 19 December 2019 sets out the government’s intention for the 2019-20 Parliamentary session following the election on 12 December 2019.

The first governmental priority is to deliver Brexit on 31 January 2020 and negotiate a free trade agreement with the EU for the benefit of the whole of the country.

The government also proposes measures in the following areas:

Agriculture and rural land
A new Agriculture Bill, this will include measures for replacing the Common Agricultural Policy with a new type of farming system and is concerned with public money for public goods.

Proposals for a new Environmental Land Management Scheme framework that will reward farmers who protect the environment.

Other measures were referred to in the briefing notes to the Queen's Speech which were of particular relevance to agricultural and rural land practitioners include:

• The Animal Welfare Bill
• Global free trade
• Extended next-generation broadband coverage

Please see Practical Law Update for further information.

Environment
The Queen has re-affirmed the UK’s commitment under the Climate Change Act 2008 to achieve carbon neutrality by 2050.

The speech’s briefing notes confirm that:
• One of the government’s first priorities in the new budget is to prioritise the environment.
• The new Environmental Bill will include the following measures:
- Environmental principles will be enshrined into law;
- establish the Office for Environmental Protection (OEP);
- increase local powers to tackle air pollution;
- introduce deposit return schemes and charges for specified single use plastic items;
- extend producer responsibility;
- require biodiversity net gain from developers;
- introduce nature recovery strategies;
- introduce powers for mandatory recall of vehicles in breach of emission standards; and
- secure long-term, resilient water and wastewater services.

• A re-introduction of the Agriculture Bill and Fisheries Bill
There were also a renewed commitment on the government’s re-affirmed manifesto pledges for tree planting and increasing offshore wind provision to 40 gigawatts (GW) by 2030. There were several other pledges on funding climate change action, which included the first fully deployed carbon capture storage cluster by around 2025 which will cost in the region of £800 million.

A new measure announced in this Queen's Speech is a ban on the export of plastic waste to countries outside the Organisation for Economic Cooperation and Development.

DEFRA published the new Environment Bill on 15 October 2019.

Please see Practical Law Update for further information.

Planning
Although there was not much in the way of direct relevance to planning law. Planning practitioners may be interested in the publication of the Planning White Paper which should be in the next couple of months; and the controversial High Speed Rail (West Midlands - Crewe) Bill which was also brought forward from the previous Parliamentary session.

Please see Practical Law Update for further information.
Merging two flats into a single dwelling amounted to a material change of useFollowing the decision in Kensington and Chelsea RBC v SSCLG and Reis and Tong (2015), the inspector in this case looked at whether the flats served a proper planning purpose.

Here, the Local Plan acknowledged a need for 2/3 bedroomed properties for young people and therefore concluded that the flats did serve a purpose.

Consequently, the inspector held that changing the use of the building would amount to a material change which would require planning permission.

Please see Practical Law Update for further information.
APP/H1840/W/19/3235302This appeal is made against the refusal to grant planning permission for the proposed development of the “change of use of field to residential curtilage” by Wychavon District Council. The issue was whether the change of use would amount to “inappropriate development” in the green belt.

The site was surrounded on two sides by established hedgerows/vegetation and on the third side was an access track and a group of farm buildings in residential use.

Paragraph 146(e) of the NPPF (which sets out one of the types of development which is considered to be inappropriate in the green belt) was pivotal to the Inspector’s decision:

"material changes in the use of land (such as changes of use for outdoor sport or recreation, or for cemeteries and burial grounds)”

The phrase ‘such as’ suggests that the list is not exhaustive and therefore the Inspector saw no reason why a change of use to domestic garden would fall outside the above category which is considered not to be inappropriate to the green belt. Accordingly, the openness of the green belt would be protected.

As the site was small in relation to the existing residential area as a whole, confined within clear natural boundaries, and did not encroach on the countryside the Inspector allowed the appeal in these particular circumstances..

Please see Practical Law Update for further information.
Oliver's Battery Ltd v Winchester City Council and another (CR/2019/0001)This Appeal against a decision to lits land as an asset of community value (ACV) was dismissed on the basis that the increase of recreational use by the community meant that the use of the land was no longer ancillary to agricultural use.

The freehold land, left crop-free under an EU set-aside scheme, was owned by the appellant and was the subject of an agricultural lease, which also contained public rights of way. The residents claimed to enjoy a large number of recreational activities on this land which were ultimately accepted through trespass.

The appellants appealed against the ACV listing, but it was dismissed due to the following reasons:
- The fact that the land was uncultivated does not mean agricultural use stopped being used

- However, the public’s recreational use of the land was also a current use, evidenced by the visible desire lines on Google Earth

- This recreational use was not ancillary to the agricultural use, moreover the recreational use by the public was now the land’s primary use due to the only agricultural activity being the annual mowing of the land

Banner Homes Ltd v St Albans City and District Council and another [2018] EWCA Civ 1187 was cited; “actual current use did not have to be lawful use” and therefore the public's trespass onto the land did not assist the appellant.

Please see Practical Law Update for further information.
Venuscare Ltd v Cumbria County Council [2019] EWHC 3268 (Admin) (29 November 2019)A statutory challenge to a traffic regulation order (TRO) was rejected by the High Court. The claimant owned a car park and objected to the TRO on the basis it would prevent vehicle access to the car park. The claimant also wanted to ensure public and private rights on the highway.

The judgment sets out the correct decision-making principles for TRO’s:
- The TRO was approved for substantial traffic reasons; it was obvious the order would avoid danger to persons using the highway when the prescribed factors in the Road Traffic Regulation Act 1984 were followed

- S122 requires a balancing exercise and this was undertaken, even though the reports did not specifically cite the section. The key issue in the case cited was one of substance not form, and therefore here there was no issue.

The claimant had not yet applied for planning permission, but if it did so a sufficient remedy would be to have the TRO revoked.

Please see Practical Law Update for further information.
APP/L5240/X/19/3221041This appeal was made against a refusal to grant a certificate of lawful use of development (LDC), which was sought after for a loft conversion with side dormers on a dwellinghouse.

The argument included that because the dwellinghouse was detached, the loft conversion would benefit from the 50 cubic metres permitted development allowance under class B, Part 1, Schedule 2 GDPO 2015. However, attached garages linked this building to the neighbouring properties on the street.

DCLG Technical Guidance "Permitted development rights for householders" (April 2016) was refered to for the definition of a ‘terrace house’:

(a) it shares a party wall with, or has a main wall adjoining the main wall of, the dwellinghouse on either side; or
(b) if it is at the end of a row, it shares a party wall with or has a main wall adjoining the main wall of a dwellinghouse which fulfils the requirements of subparagraph (a).

After viewing all of the plans as part of the application, the Inspector concluded the dwellinghouse was in fact a terraced house and only benefitted from the permitted development right of 40 cubic metres.

Please see Practical Law Update for further information.
APP/X4725/L/19/1200321This appeal was made against a surcharge imposed by Wakefield Council for the alleged failure to submit a Commencement Notice (CN) before commencing works on the chargeable development.

The demolition works at the site took place before planning permission was granted. As such the appellant argued that works had not actually begun on the development and consequently no CN was required.

With respect to S56(2) of the Town and Country Planning Act 1990, the inspector was satisfied the demolition formed part of the planning permission because development is viewed to have begun on the earliest date on which any “material operation” in the development is carried out. This included demolition.

The Appeal was dismissed. As the permission was retrospective, it was not possible to submit the CN ahead of the demolition and therefore the permission automatically became liable to CIL and CIL surcharges.

Please see Practical Law Update for further information.
New World Payphones Ltd v Westminster City Council and another [2019] EWCA Civ 2250The Court of Appeal considered whether a telephone kiosk that consisted of an integral illuminated digital advertisement panel fell within class A of Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015. In doing so they upheld the High Court's decision to quash a grant of prior approval for a telephone kiosk with integrated advertisement display panel.

It is clear from Hickinbottom LJ when he expressed that a general proposition of "permitted development" that the whole of any development had to fall within the scope of one of the Schedule 2 classes of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015). For it to fall within the relevant definition it must therefore satisfy the express restrictions as to the exceptions, conditions and limitations. A mixed use or dual-purpose development whereby one purpose fell outside the scope of the class could not generally be permitted development (Keenan v Woking BC [2017] EWCA Civ 438).

There was an integrated display panel in the proposed kiosk which was not incidental or ancillary to the electronic communications apparatus. The whole kiosk therefore had the dual purpose of providing advertising as well as electronic communication. If the kiosk had not had the panel it would be permitted development under class A of Part 16 of Schedule 2 to the GPDO 2015. However, with the panel included this meant that only part of the kiosk fell within class A.

The law has since changed and new telephone kiosks require express planning permission; however, Hickinbottom LJ considered that this appeal was still important because the issues remain relevant to the status of existing telephone kiosks and the interpretation of permitted development rights in other classes.

Please see Practical Law Update for more information.
Royal Institute of Chartered Surveyors (RICS) consultation on a draft guidance note on financial viability in planningOn 13 December 2019, RICS began a consultation on a new draft guidance note, Assessing financial viability in planning under the National Planning Policy Framework for England, 1st edition. The purpose of the note is to reflect government changes to the National Planning Policy Framework (NPPF) and Planning Practice Guidance (PPG) in 2018 and 2019.

The focus of the change is assessing viability at the plan-making stage, rather than the development management stage.

The consultation closes on 9 February 2020.

Please see RICS consultation.
Welsh Government published a consultation on changes to planning feesOn 16 December 2019, the Welsh Government (WG) a consultation was published regarding amending fee levels for planning applications and related applications and to introduce a fee for applications for Certificates of Appropriate Alternative Development (CAADs).

Local planning authorities provide a development management service and the aim of the application fees is to recover this cost. The fee levels do not currently cover the full costs of this service.

The Welsh Ministers under section 303 of the Town and Country Planning Act 1990 can prescribe fees and charges in connection with planning functions. The Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015 sets out the fees and charges.

Applicants can submit a CAAD application under section 17 of the Land Compensation Act 1961 without a fee.

The proposals of the WG are:

• An approximate 20% increase in planning fees across the.

• A £230 fee for an application for a CAAD.

Annex A of the consultation document sets out the proposed changes.

The consultation closes on 13 March 2020.

See the Practical Law Update for further information.

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 present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
Robert Bruce

Author: Robert Bruce

Partner

Zoë Walker

Author: Zoë Walker

Senior Associate

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