Planning Law Update – February 2020

There have been several interesting technology judgments this month, including that a Facebook post was sufficient evidence to prove that a lagoon was immune from enforcement action. In addition, PINS decided that it was the collecting authority’s (CA’s) responsibility to ensure that a Community Infrastructure Levy (CIL) liability notice was correctly served via email.

In other news, on 30 January 2020, the Environment Bill 2019-20 was introduced to the House of Commons and given its first reading. The Bill introduces a mandatory requirement for biodiversity net gain in the planning system.

We update below on recent planning law changes:

Legislation, Law or Policy	Summary
European Union (Withdrawal Agreement) Bill 2019-20 (WAB) received Royal Assent, becoming the European Union (Withdrawal Agreement) Act 2020	On 23 January 2020, the European Union (Withdrawal Agreement) Bill 2019-20 (WAB) received Royal Assent and was enacted as the European Union (Withdrawal Agreement) Act 2020 (WAA). The purpose of the WAA is to implement the withdrawal agreement into UK law. However in order for that to happen both Houses of Parliament needed to agree on the wording of the WAB for it to receive Royal Assent. In previous developments: • On 8 January 2020, the WAB passed its initial House of Commons (HoC) stages unchanged • On 20 and 21 January 2020, the House of Lords (HoL) agreed five amendments to the WAB, however the House of Commons disagreed with all of the five amendments and the House of Lords did not pursue them. Consequently no changes were made and the WAA went forward for ratification by the government. Parliament passed the WAA and the government proceeded to ratify the withdrawal agreement. The following statutory preconditions to ratification were no longer applicable: • Section 31 of the WAA has repealed section 13 of the European Union (Withdrawal) Act 2018 (EUWA). As a result, none of the conditions set out in section 13(1)(a) to 13(1)(d) (such as the "meaningful vote") apply in relation to ratification. • Section 32 of the WAA disapplied the requirements of section 20 of the Constitutional Reform and Governance Act 2010. The European Parliament gave its consent to the withdrawal agreement on 29 January 2020 and consequently authorised the conclusion of the withdrawal agreement on behalf of the EU and Euratom. Click the link here for further information.
The Town and Country Planning (Major Residential Development)(Notification)(Wales) Direction 2020	On 15 January 2020 the Town and Country Planning (Major Residential Development) (Notification) (Wales) Direction 2020 (the 2020 Direction) came into force. This 2020 Direction along with the Welsh Government Circular 001/2020 requires that local planning authorities must notify the Welsh Ministers where they do not propose to refuse certain types of planning applications.. The Welsh Ministers need to be notified on any proposed residential development, the LPA wish to grant, of more than ten residential units, or a residential development on more than 0.5 ha of land. The 2020 Direction and the Welsh Government’s Circular 001/2020 amend the Town and Country Planning (Notification)(Wales) Direction 2012 and the Welsh Government’s Circular 07/12 on the definition of “Significant Residential Development”. These provisions will no long apply to planning applications that are made on or after 15 January 2020. Applications made before 15 January 2020 will continue under the previous legislation. Click here for further information.
APP/E1210/L/19/1200303	This appeal was brought against surcharges in relation to the alleged failure to assume liability and submit a Commencement Notice (CN) before starting works on the development. On 19th June 2019, the appellant submitted a CN and an assumption of liability notice via email to the collecting authority – Christchurch Borough Council. However, unbeknownst to him, the authority had not received this email due to a fault with the email address used. He did not receive a delivery failure message for this particular email, only to subsequent ones. Therefore, when the collecting authority found out that development had commenced on 10th July 2019, surcharges were imposed as they had no record of the email being sent by the appellant. The appellant argued that the authority was still aware work was about to commence, as an acknowledgement email had been sent from the building control department. Despite this, the inspector pointed out that the building control department was not part of the CIL collecting authority. The appeal was dismissed and the surcharges remained payable. This case serves as a reminder that it is not unreasonable to expect the appellant to check notices have been received. Please see the Practical Law Update for further information.
Valuation Office Agency publishes three CIL appeal decisions	The Valuation Office Agency (VOA), in the hope that useful lessons can be shared to a wider audience, has made a number of Community Infrastructure Levy (CIL) appeal decisions available. The first decision involved the change of use to a dwelling a long with a number of extensions. The main argument was that the floorspace had not only been calculated incorrectly, but it was not in accordance with the definition of gross internal area (GIA) in the RICS Code of Measuring Practice (6th edition). However, as in this case there was no permanent access to voids in the roof space and first floor atria areas, it was viewed that these should be excluded from the GIA calculations. Please see the Practical Law Update for further information. The VOA confirmed in another appeal decision that "GIA is the area of a building measured to the internal faces of the perimeter walls … and includes areas with a headroom of less than 1.5 metres". This decision should be viewed in the context of the decision regarding roof space to which there was no permanent access. Please see the Practical Law Update for further information. In addition to the above, another appeal decision concerned whether a park home was a caravan or a building. The outcome would determine whether it was or was not liable for CIL. The park homes would not be "particularly large" and their only affixation to the land would be connections to services. Intention is not key in this case; the degree of permanence of the park homes does not rely on the intention of the appellants to move the homes, but their capability to do so. After looking through plans and photographs, it was concluded that in this case the park homes were caravans and not buildings, and therefore the appeal was allowed, and CIL was not payable. Please see the Practical Law Update for further information.
R v Robinson [2019] EWCA Crim 2204	The applicant insurer (R) appealed against a decision varying a confiscation order convicted of breaching an enforcement notice. A house was converted into five flats without planning consent. In 2016 in the Crown Court, R benefited from £288,801 in rental income, but the confiscation order was the sum of £100,000 because at that stage, that was the available amount. R had earlier commenced proceedings in the High Court against former solicitors declaring they had failed to advise him on the lack of planning consent. In 2017, judgment was given for R totalling £123,383. Included in that award was the £100,000 ordered to be paid pursuant to the confiscation order. R was also granted declaratory relief indemnifying him against any increase in the confiscation order that might be made, were the prosecution to apply to the Crown Court for its variation under the Proceeds of Crime Act 2002 s.22 (the indemnity). In 2018, the Crown Court made the s.22 application and as the value of the property belonging to R had increased, the full amount was now payable as the available amount was increased (full amount was the £288,801). The applicant argued that the judge had erred in finding that the indemnity had value at the time of the s.22 application. However, it was held that ‘Property’ had a very wide definition under section 84 POCA, which was sufficiently broad as to include an indemnity. The fact that the amount was not crystallised at the time the indemnity was given was irrelevant. Please see the Practical Law Update for further information.
R. (Day) v Shropshire Council [2019] EWHC 3539 (Admin)	Shropshire Council granted planning permission for the development of 15 dwellings on land adjacent to a recreation ground. A resident sought judicial review of this decision as it was disputed whether the site was part of land that had been acquired in the 1920’s for use as a public recreation area. During the Second world War, in 1942 a small portion of the recreation ground was temporarily allocated for use as allotments, but it was never reallocated, and only fell into disuse in the 1970’s. The site was fenced off for a tree nursery. In 2017, the site was sold by the Council to CSE Developments Ltd without following the correct procedures required for a disposal of a protected open space. CSE applied for planning permission; the officer's report recommended the grant of permission with conditions but did not consider that the site was designated public open space or recreational ground. The claimant submitted that the Council had acted unlawfully by failing to (1) establish if the site was public open space and subject to a statutory trust; (2) take account of material considerations such as the statutory trust and local and national planning policy on open spaces; (3) give adequate reasons. Grounds one and two were successful whilst ground three failed on the basis that although the officer’s report did not adequately investigate some key issues which led to ‘flawed advice’, this legal error should not be characterised as a procedural failure by the committee to give adequate and intelligible reasons. This case is of particular interest because of its analysis of the statutory trust arising under the Public Health Act 1875 and the Open Spaces Act 1906. Please see the Practical Law Update for further information.
High Court in Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45 (Admin)	This case was concerning an unincorporated association and whether it had sufficient capacity to bring a judicial review challenge against a local planning authority's decision to adopt a site allocation plan. The Aireborough Neighbourhood Development Forum (an unincorporated association) (ANDF) had been officially recognised as a neighbourhood forum under section 61F of the Town and Country Planning Act 1990 (TCPA). However consequently the designation had expired and the renewal remained pending. An objective of the ANDF in partnership with Leeds City Council was to produce a Neighbourhood Plan which set out the needs and visions of the area. In July 2019, Leeds City Council adopted the Leeds Site Allocations Plan (SAP), as a result ANDF statutorily challenged under section 113 of the Planning and Compulsory Purchase Act 2004 (PCPA). The Council disputed ANDF's legal capacity to bring such a challenge as it was not a "person" aggrieved within section 113(3) as it was no longer a designated neighbourhood forum. Alternatively even if an unincorporated association could be a person aggrieved, ANDF was not such a person. Upon making its decision the High Court held that: • There is a distinction between private and public law litigation, the legal test in private law being whether the individual has demonstrated that a legal right has been infringed. For a judicial review or statutory challenge the requirement is whether the claimant is a person aggrieved or has standing in order to challenge i.e. an interest in the decision. • In Schedule 1 to the Interpretation Act 1978 the definition of "person" included "a body of persons corporate or unincorporated", "unless the contrary intention appears" (section 5). Therefore it stands to reason that there was no reason why, in terms of public law and the TCPA that it was contrary to the intention. • The ANDF remained a local body with a constitution and one of its purposes related to the good planning of the local area, irrespective of its designation under the TCPA. Even though its statutory function was not a reality at the date of the claim, pragmatically speaking this did not prevent its purposes from continuing to apply. This case confirms that unincorporated associations may bring forward judicial review claims or statutory challenges, although this will be dependent on the facts. Click the link here for the full case digest.
PINS: APP/L3815/C/18/3218436 (10 January 2020).	A social media post was sufficient to prove a lagoon was immune from enforcement action. Where there is a breach of planning control which relates to building, engineering, mining or other operations, in, on, over or under land, enforcement action cannot be taken after four years, this four year period starts with the date on which the operations were "substantially completed" (section 171B(1), Town and Country Planning Act 1990 (TCPA 1990)). On 1 November 2018, an enforcement notice was issued which cited that a slurry lagoon and earth bunds did not have planning permission. The enforcement notice was appealed. Included in the evidence to the appeal was a Facebook post, dated 6 August 2014, which showed the slurry lagoon with clearly defined edges and earth bunds. The inspector concluded that the works had been substantially completed by the date of the Facebook post, and he considered that it was obvious that the photograph could not be any later than the 6 August 2014. The photograph showed that the slurry lagoon edges were well vegetated which indicated that no works could have taken place recently. Therefore on the balance of probability the construction of the slurry lagoon and earth bunds could not have taken place more than four years prior to the date of the enforcement notice. Clink the link here for the full case digest.
PINS: Appeal decision: APP/C1435/L/19/1200305 (15 January 2020).	If a liability notice is sent by email but the appellant’s agent did not receive it, it was not validly served. On 16 September 2016 a planning permission was granted, the Collecting Authority (CA) subsequently emailed the appellant's agents a copy of the planning permission and a liability notice (LN). On 11 July 2019, the CA served a demand notice on the applicant. It was alleged that the applicant’s breaches were failures of the following: • to assume liability; and • to submit a commencement notice (CN) before starting works on the chargeable development. In the applicant’s appeal to the Planning Inspectorate (PINS), he asserted that as no LN had been received he consequently could not submit a valid CN. The CA submitted a copy of the screenshot and email log to show that the email had been sent to the appellant's agents. The appellant and PINS contacted the former agents for confirmation that the email regarding receipt of the LN on the 16 September, alleged by the CA, was received. The agent confirmed that no such email was received. The Inspector concluded that it is ultimately the CA's responsibility to ensure the LN is correctly served. The screenshot and email log provided by the CA was not proof that the email was actually sent or delivered, only that it was generated. The inspector was therefore not content that an LN had been validly served. The appeal succeeded and the surcharges were quashed. Clink the link here for the appeal decision.
Mayor and Burgess of the London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12	A Court of Appeal case regarding local authority injunctions against gypsy and traveller community encampments. The Court of Appeal (CoA) has held that a five-year long, boroughwide injunction which prohibited encampment, site entry and occupation, against "persons unknown", was actually directed against the gypsy and traveller community and as such was disproportionate The CoA considered that a High Court’s action to reject the application from London Borough of Bromley as correct. The CoA distinguishing the underlying circumstances from a recent "spate" of similar wide-ranging injunctions. The High Court’s summation that the injunction was wide-ranging and “much too long”, and the cumulative effect of such other recent injunctions meant that the gypsy and traveller community would have nowhere to go if every local authority obtained one. The COA also ruled that the proposed order failure to satisfy the public sector equality duty. The CoA established several guidance points for local authorities to take into consideration on future applications of that nature, which were mostly embraced by the gypsy and traveller community. However some local authorities may need to reconsider their engagement with and provision of accommodation to the GTC, especially in their consideration of an application for an injunction of this kind. It will be insufficient for a local authority to submit a statement that the GTC can "go elsewhere" or occupy private land, particularly where nearby authorities are taking similar action. There was no requirement of the CoA to reconsider the High Court's finding that the criteria for a quia timet injunction (against persons unknown), as established in Boyd and another v Ineos Upstream Ltd and others [2019] EWCA Civ 515, were met. Click here for further information on the case.
PINS: Appeal decision: APP/W1525/C/19/3227243	The appeal concerned a substantial building within the garden of a dwellinghouse and whether it was incidental to the enjoyment of the dwellinghouse. An enforcement notice was issued by the local authority alleging that a building in the garden of a dwelling was constructed without planning permission. This was a single-storey building which contained a home office, snooker room and bar area, gym, shower room and games room, and the building’s footprint exceeded the overall floor area of the main dwelling. The appellant’s argument was that the building was permitted under class E, Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/595) (GPDO 2015) (the provision of any building or enclosure, swimming or other pool within the curtilage of a dwellinghouse, required for a purpose incidental to the enjoyment of the dwellinghouse). The argument was whether the building was required for an incidental purpose. The appellant and LA both agreed that the building otherwise satisfied the Class E conditions and limitations. The inspector stated that in their consideration of what is required of a building for it to be an incidental purpose, the following points were important: • The purpose for the building and its incidental quality in relation to the enjoyment of the dwelling. • Whether the building is genuinely and reasonably required in order to accommodate the use or activities and consequently achieves that purpose. It is necessary to apply objective reasonableness in consideration of all of the relevant facts and circumstances. Size alone is not determinative. The inspector considered that although each of the uses was capable of being for an incidental purpose, as due to the gym’s distance from the dwellinghouse the shower room, while a primary living activity, could be considered incidental to the gym. However, as all of the rooms were of a substantial size, the inspector was not persuaded that the scale of the uses was genuinely and reasonably required. As such the building did not benefit from class E permitted development rights and planning permission was needed. The appeal was dismissed. Click here for further information about the appeal.
The Local Government Association updates Probity in Planning guidance	This guidance concerns the role of councillors and officers in the planning process. The guidance has not been updated since 2013, and therefore adds new references to the National Planning Policy Framework 2019 as well as a flowchart of Councillor’s interests and the impact on a planning application or decision. Probity in planning is about ensuring that decisions on plan making and planning applications are undertaken, on behalf of communities, in a fair, impartial and transparent way. Please see the new document for further information.
Welsh Government publishes amendments to Building Regulations Guidance	These new amendments to the Approved Documents (accompanying the Building Regulations) reflect the ban on using combustible cladding on high-rise residential buildings following the Grenfell Tower Tragedy in June 2017. The ban in England was brought into force in December 2018. Please see the Practical Law Update for further information.
Welsh government consults on Building Regulations Part L and F Review: Changes to Part L (conservation of fuel and power) and Part F (ventilation) of the Building Regulations for new dwellings	The Welsh Government (WG) on 20 January 2020 published the following consultation of the Building Regulations for new dwellings - Building Regulations Part L and F Review: Changes to Part L (conservation of fuel and power) and Part F (ventilation). The proposed changes to the Building Regulations is in a two-part consultation, the WG sets out the first part, with its plans on improvements to energy efficiency requirements for new homes from 2020 and how further greenhouse gas (GHG) emission reductions are to be phased in by 2025. The proposals include: • The phasing out of the use of high-carbon fossil fuels by 2025; and • Instigating low-carbon heating and energy generation, in the form of renewable energy, heat pumps or district heat networks. The second stage for the consultation is for the WG to consult separately on raising the standards of the Building Regulations for building work on existing homes, new homes and existing non-domestic buildings. The consultation closes 12 March 2020 and is part of the wider WG strategy to cut GHG emissions. Click the link here for further information
Natural England publishes register of enforcement action	Natural England published on 9 January 2020 a register of its enforcement action in the period 2007-19. The register sets out details of: • the civil sanctions which have been served and the enforcement undertakings accepted (including under the Regulatory Enforcement and Sanctions Act 2008 (RESA 2008)); and • the prosecutions relating to sites of special scientific interest (SSSIs), environmental damage legislation, environmental impact assessments (EIAs), and heather and grass burning regulations. A page is included for species licensing prosecutions but does not list any The register will include relevant details of the sanction or prosecution, such as the name of the offender (except where details have been removed in accordance with the Rehabilitation of Offenders Act 1974), the site, the nature of the offence and the relevant legislation and policy area they were charged under. Any links to press releases will also be made available. This will provide a more detailed research tool for practitioners to look to when advising developers. Click here for the Register

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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.