Planning Law Update – March 2020

With Brexit now on the backburner, attention has turned towards other important developments. This month, there was a Supreme Court Case which confirmed that when assessing “openness” in the NPPF, it is not necessary to consider visual impact. Meanwhile, the Court of Appeal held time for service of a notice under Schedule 2A of the Compulsory Purchase Act 1981 began to run when a notice to treat, served under section 5, was delivered to the address of the holder of the interest, not when the holder of that interest had knowledge of it.

In other news, the Building Better, Building Beautiful Commission published its long-awaited final report, whilst Public Health England published guidance to provide practical support for LPA’s promoting healthier lifestyles within the local community.

We update below on recent planning law changes:

Legislation, Law or Policy	Summary
Environment Bill 2019 – 21	On 26 February 2020 the Environment Bill 2019-21 passed its second reading in the House of Commons. The bill will now go on to be scrutinised before the Public Bill Committee and will report to the House of Commons by 5 May 2020, before going on to its third reading. After this stage it will go on to the House of Lords for further scrutiny. The Rt Hon. George Eustice MP, the new Secretary of State for Environment, Food and Rural Affairs, introduced the second reading of the Environment Bill, which will constitute: - A domestic framework for environmental governance; - Setting up the Office for Environmental Protection - Environmental improvement plans (the 25 year plan will be the first) and key environmental principles on a statutory footing. - Clearly identified environmental provisions, these being enabling powers which concern waste, air quality, water, nature and biodiversity and conservation covenants. For further information please click on the link
ClientEarth launches judicial review challenge against approval of Drax gas turbines on climate grounds	Drax submitted an application to install four new gas turbines in Selby, North Yorkshire, which was approved by the government. It is argued by ClientEarth that this decision made by the government undermines the UK’s target of achieving net zero carbon by 2050, as well as being in conflict with the government’s ‘Clean Growth Strategy’ announced in 2017. This major project has also been contested by the Planning Inspectorate (PINS) who recommended, for the first time in history, that an application be rejected on climate grounds due to the potentially damaging future impact. Please see thePractical Law Update for further information.
Gluck v Secretary of State for Housing, Communities And Local Government and another [2020] EWHC 161 (Admin)	A developer challenged a local planning authority’s refusal of prior approval for a proposed change of use from offices to residential accommodation (75 flats). The reason for the challenge was due to the council refusing two proposals after the 56-day time limit. The developer claimed that once the time period had passed (specified in Schedule 2 to the GPDO 2015) it was incapable of being extended. They relied on the decision made in R on the Application of Warren Farm (Wokingham) Ltd v Wokingham Borough Council [2019] EWHC 2007 (Admin). However, the inspector disagreed. GPDO 2015 provides for time periods to be extended by the agreement of the applicant and the authority. Although the purpose of Article 7 is to impose an obligation on LPA’s to determine prior approval applications within the time period, both Schedule 2 and 7 should be read together. Any of the prior approval time periods specified either in Schedule 2 or in Article 7 was capable of being extended by an agreement between the developer and the council in writing. The High Court supported the Inspector’s decision and determined that the decision in Warren Farm should not be followed here. Please see the Practical Law Update for further information.
Anixter Ltd v The Secretary of State for Transport [2020] EWCA Civ 43	The tenant occupied four buildings in a business park. One of the leases (for Unit R) was due to expire on 24 December 2018 and Part II of the Landlord and Tenant Act 1954 (LTA 1954) applied. On 8 December 2017, a notice to treat was served to the tenant informing them of the intention to acquire Unit R as it was required for the construction of the HS2 railway. The notices of compulsory purchase were sent by ordinary and recorded post and received at the tenant’s office on 12 December 2017 where they remained unopened until 20 December. The tenant sent counter-notices which arrived on 11 January 2018. The time limit for service of a counter-notice under the CPA 1965 is 28 days "beginning with the day on which the notice to treat was served". The time limit for the service of a counter-notice under the CP(VD)A 1981 is 28 days "beginning with the day the owner first had knowledge of the general vesting declaration". However, this does not apply in the case of certain tenancies, including "a long tenancy which is about to expire" (section 2(2), CP(VD)A 1981 The Court of Appeal dismissed the appeal for the following reasons: - The ordinary and grammatical meaning of the words used in section 2(2) of the CP(VD)A 1981 refers to how long the tenancy which was granted still has to run contractually. The date of expiry of a tenancy is its contractual term date. It goes too far to suggest that a tenancy protected by Part II of the LTA 1954 will not expire. - At the date of the GVD the only thing that was certain was that A had a tenancy with nine months left to run. It would pose an unacceptable burden on acquiring authorities if they were required to assess whether (and for how long) a tenant might expect to remain in occupation in order to decide if a tenancy was "about to expire". This is an important decision in respect to what constitutes "a long tenancy which is about to expire”. Please see the Practical Law Update for further information in relation to the long tenancy.
R (Samuel Smith Old Brewery) v North Yorkshire CC [2020] UKSC 3	In this case, the Supreme Court considered the meaning of “openness” in paragraph 90 of the National Planning Policy Framework. Jackdaw Crag Quarry is a limestone quarry located in the green belt. Planning permission was first granted in July 1948 and has been subsequently renewed. The sequence of events was as follows: Darrington Quarries Ltd applied for planning permission to extend the quarry by six hectares in October 2009, which was granted in January 2013 on the basis that the development was not inappropriate to be built in the green belt. Samuel Smith Old Brewery and Oxton Farm (SSOB) sought judicial review of this decision, arguing that NYCC had had erred in its analysis of "openness" and did not consider visual impact. Following a dismissal by the High Court of their appeal, SSOB appealed and the Court of Appeal quashed the planning permission because the planning officer's report failed to make clear to members of the planning committee that, under paragraph 90 of the NPPF 2012, visual impact was a potentially relevant and significant factor in their approach to the effect of the development on the "openness" of the green belt. NYCC appealed to the Supreme Court. The Supreme Court unanimously allowed the appeal. Their decision included the following reasons: - The visual quality of the landscape was not in itself an essential part of the "openness" for which the green belt was protected. The concept of "openness" in paragraph 90 was a broad policy concept and a matter of planning judgement - The officer's report addressed the openness proviso. The planning officer had been entitled to take the view that the quarry extension did not detract from openness in green belt terms. This Supreme Court decision provides guidance on how to approach the assessment of harm to green belt openness. Development that is inappropriate in the green belt is restricted, but development considered "not inappropriate" in the green belt is acceptable, provided that it preserves the openness of the green belt. This highlights the important distinction between planning judgement and legal interpretation of planning policy, and the court's continued reluctance to interfere with matters of judgement. Please see the Practical Law Update for further information.
R (Greenpeace Limited) v Secretary of State for Business, Energy and Industrial Strategy and others CO/4392/2019	On 04 February 2020, the High Court (Planning Court) granted permission for Greenpeace to proceed with its judicial review challenge to Offshore Pipe-lines EIA Regulations. Greenpeace argues that the Regulations do not follow the Environmental Impact Assessment (EIA) Directive (2011/92/EU) by failing to: - Require public to be informed "electronically and by public notices or by other appropriate means" - Contain detailed arrangements for informing and consulting the public - Provide a route for challenge to a relevant decision The full JR hearing is expected in late spring or early summer 2020. Please see the Practical Law Update for further information.
PINS: APP/F0114/L/19/1200325	This appeal was made against Bath & North East Somerset Council failure to provide a CIL liability notice, but the Council confirmed they had emailed as well as posted a copy to the appellants. The CIL Regulations 2010 makes clear that an LN must be served on the relevant person as defined in regulation 65(12). The appellants contact details had changed, and they had informed the planning officer which they assumed would have been passed on to the CIL officer, but his did not happen. While the inspector had some sympathy with this argument, he highlighted the fact that the Collecting Authority is a separate regime to that of the planning department and the onus was on the appellants to inform the CA direct of any change in contact details. The appeal was dismissed. Please see the Practical Law Update for further information.
Fearn and others v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104	The claimant’s flats were adjacent to the Tate Modern art gallery in London. Users of the gallery had an uninterrupted view of the flats’ living areas as they had floor to ceiling glass walls and argued that many visitors had observed them through binoculars/taken photos. The claimant’s brought a claim seeking an injunction requiring the Tate Modern to close the relevant part of the gallery. High Court decision The Tate Gallery was not exercising functions of a public nature. Consequently, the Article 8 ECHR privacy claim under section 6 of the HRA 1998 failed. The tort of nuisance is capable of protecting privacy rights infringed by a deliberate act of overlooking a claimant's home. However, here the owners knew when they bought the flats that there was a lot of glass and a decreased amount of privacy. The claimants appealed against the High Court's decision. They argued the court failed to have regard to the use of the viewing gallery to photograph and film individuals in the claimants' flats, with the photos and videos sometimes being posted on social media. The court also failed to hold that installing privacy film and net curtains would be problematic as it would be in breach of the leases of the flats. Court of Appeal decision The court dismissed the appeal, but for different reasons to the High Court. They decided: - overlooking does not fall within the scope of common law nuisance. If it is actionable at all, it would fall into interference with a neighbour’s quiet enjoyment of his land - there are no reported cases in which a claimant has been successful in a nuisance claim for overlooking by a neighbour. There have, however, been cases in which judges have decided that no such cause of action exists - the real issue in cases of overlooking is invasion of privacy rather than damage to interests in property. There are already other laws which bear on privacy, including the law relating to confidentiality, misuse of private information, data protection, harassment and stalking - there was no reason to extend the common law tort of private nuisance to overlooking in light of Article 8 because the European Court of Human Rights has not held that mere overlooking by a neighbour or a neighbour's invitees is a breach of Article 8 Please see the Practical Law Update for further information
PINS Appeal: APP/B9506/C/18/3210831 and 3213790	A camping pod constitutes a building in planning terms. This case concerns an appeal to enforcement action against the erection of four camping pods. The appellant stated in their appeal that the camping pods were caravans. In making a decision the planning inspectorate referred to the Caravan Sites and Control of Development Act 1960 and the definition of caravans within the Act. The planning inspectorate determined that due to the camping pods degree of permanence and physical attachment to the ground, this constituted operational development under Section 55 of the Town and Country Planning Act 1990. The planning inspectorate dismissed the appeal and upheld the enforcement notice. Please click on the link for further information.
PINS: APP/N1730/X/19/3230608	A building with a display window can benefit from deemed planning permission granted by class G(c), Part 3 of Schedule to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015). An application for a certificate of lawfulness of proposed use or development (CLOPUD) was made to Hart District Council (HDC) for a change of use from class A2 to a mixed use comprising class A2 on the ground floor and two flats on the first floor, which was subsequently refused. Two of the criteria in which deemed planning permission is granted under Class G, Part 3 of Schedule 2 to the GPDO 2015 to a change of use for this type of application are under paragraphs (c) and (d): - From a use falling within class A2 (financial and professional services) or as a betting office or a pay day loan shop to a mixed use for any purpose within class A2 and up to two flats (class G(c)). - Where that building has a display window at ground floor level, from a use for any purpose within class A2 or as a betting office or a pay day loan shop to a mixed use for any purpose within class A1(shops) and up to two flats (class G(d)). HDC argued that class G(c) was not available for a building that had a display window at ground floor level and the proposed development had to be assessed under class G(d). HDC considered this was an “intentional qualifying criterion” in order to protect ground floor high street units with display windows for class A1 use. As the proposed use did not fall into class G(d) as it comprised of class A2 and two flats. The inspector dismissed the appeal as there had been no evidence provided by the appellant that the building was in an actual class A2 use and so therefore that the proposed change of use would fall under class G(c). In considering the wording and structure of class G’s permitted development rights, paragraph G.1 sets out the conditions applicable to these categories of permitted development. There was nothing in class G(c) or in the G.1 conditions that suggested that this category of permitted development is not available where the building has a display window. Please click on the link for further information.
Aboutboul v Barnet LBC [2020] EWHC 285 (Admin)	The High Court held that the Crown Court does not have the requisite jurisdiction to extend the 21-day time limit for stating a case following conviction (section 111 of the Magistrates’ Courts Act 1980). On 28 December 2018 the appellant was found guilty for breach of an enforcement notice. At the Crown Court for confiscation proceedings and the sentencing, the appellant asked for an adjournment so that he could state a case regarding the magistrates’ decision. The adjournment was agreed by the judge on 30 January 2019 and held that a 21-day time limit began for stating a case from that day. The Respondent’s argument was that under section 111(2) the court had been wrong to extend time as the time had expired 21 days after conviction, which was on 18 January 2019. The 21-day time limit began on the day of an offender’s conviction and the reference in section 111(3) to the time limit beginning the day that the offender was sentenced meant where the magistrates’ court had retained the matter for sentence. The Crown Court had no power to extend the time limit which had run from the date of conviction, the magistrates’ conviction was the final determination of the case. The High Court would not proceed to a judicial review when a case stated was the appropriate remedy as that would circumvent the strict time limit. Please click on the link for further information.
PINS: APP/V2635/W/19/3239194	An appeal decision on whether building works which were needed in order to convert a former agricultural building to a dwellinghouse meant that the development was not permitted development under Class Q, Part 3 Schedule 2 of the Town and Country Planning (General Permitted Development) Order 2015 (GPDO 2015). A prior approval application was made to King’s Lynn and West Norfolk Borough Council (the Council) in order to convert a piggery into a dwellinghouse under Class Q - the Council refused the application. The appellant appealed and argued that the proposed works were internal works only and thus exempt from the definition of development under the Town and Country Planning Act 1990, which defines development as "carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land.” Therefore, planning permission was not required and could be granted under permitted development rights in the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015). Class Q of Part 3, Schedule 2 to the GPDO 2015 grants deemed planning permission for the change of use of an agricultural building and any land within its curtilage to use as a dwellinghouse, along with any building operations reasonably necessary to convert that building to a dwellinghouse. The permitted development rights are only available if the GPDO 2015 criteria are met. However, development is not permitted under class Q should there be significant building works in order for the building to function as a dwellinghouse; and partial demolition was considered reasonably necessary to carry out these building operations in this case. The inspector concluded on the grounds that the totality of the required works meant that the building was not capable in its current form to function as a dwelling and could not be considered a conversion but a re-build. Please click on the link for further information
R (Adamson) v Kirklees Metropolitan Borough Council [2020] EWCA Civ 154	A Court of Appeal case regarding land which was used as allotments for over 80 years and did not amount to appropriation for allotment purposes. Land at Cemetery Road, Huddersfield was owned by Kirklees Council (the Council) and was used partly as allotments. The Council decided to appropriate the land in order for it to be used for educational purposes, as a primary school, playing field and car park. The case went to the Court of Appeal due to whether the Council had already “appropriated” that land historically for use as allotments defined within section 8 of the Allotments Act 1925 (AA 1925), because if it was already appropriated the Council would need to obtain consent from the relevant government minister before deciding to dispose of the land. The judge at first instance concluded that the land had been appropriated when the Council had zoned the land for allotments as part of a town planning scheme in 1935. The Court of Appeal held, that historically appropriation n in local government law has not occurred. In appropriate circumstances long user of land can be taken as a legitimate inference that an appropriation has taken place. Therefore, the Council was entitled to use the land for the purposes of allotments without appropriating it to that use. The Agricultural Committee had not been delegated the power of appropriation for such purposes. This case provides guidance and clarity as to how to identify definitive evidence of land use and appropriation by a local authority over a long period of time and the evidence required to make it a lawful appropriation of land. Please click on the link for more information.
R (Plan B Earth and others) v Secretary of State for Transport and others [2020] EWCA Civ 214	The Airports National Policy Statement (NPS) is without legal effect until the Secretary of State has reviewed it in accordance with the Planning Act 2008. On 27 February 2020 Plan B Earth, Friends of the Earth and others brought a judicial review challenge regarding the NPS and the Heathrow Airport expansion. Upon reviewing the case the Court of Appeal declared that when making a decision the Secretary of State had acted unlawfully in failing to take into account climate change commitments made by the UK under the UNFCCC Paris Agreement on Climate Change when designating the Airports NPS supporting the Heathrow Airport expansion. Please click on the link for further information.
VOA: Community Infrastructure Levy appeal decision: conversion of barn; demolition of buildings and erection of 7 dwellings	A Valuation Office Agency (VOA) decision provides some guidance as to what constitutes deductible floorspace from the chargeable area calculation for the purposes of the Community Infrastructure Levy (CIL). The Community Infrastructure Levy (CIL) Regulations 2010 under regulation 40(7) stipulates that, for “in-use buildings”, the floorspace of retained parts can be deducted from the Gross Internal Area of the chargeable development and this will give a net chargeable area upon which CIL will be calculated. In accordance with these regulations and the calculation of CIL, the appellant included within this floorspace actual buildings which comprised of a barn, stables, glasshouses, sports complex and garage. Under RICS Code of Measuring Practice (6th edition) the definition of GIA is the standard way of calculating the floorspace. It states that "GIA is the area of a building measured to the internal faces of the perimeter walls". The following are the excludable areas: - perimeter wall thicknesses and external projections; - external open sided balconies; - covered ways and fire escapes; - canopies; - voids over or under structural; - raked or stepped floors; and - greenhouses, garden stores, fuel stores and those as such in a residential property The registered valuer deemed that glasshouses and potting sheds constituted an ancillary lawful use to the main dwelling, and were in effect excluded from the measurement of GIA of the domestic buildings and as such could not be deducted from the chargeable area. As would be expected the red line boundary of the planning permission played a significant part as some of the buildings did not fall within the red-line boundary and could not therefore be classified as “relevant buildings”. It is important to remember to provide sufficient evidence for the lawful use of buildings over the time period, as the appellant could not provide this for the barn it to could not be utilised to reduce CIL liability. Please click on the link for more information.
Final report published by ‘Building Better, Building Beautiful’ Commission	The report, titled ‘Living with Beauty: Promoting health, well-being and sustainable growth’ has three main aims which the report believes must be embedded in the planning system and in the culture of development: - Ask for Beauty: not merely a visual characteristic of the building but a place that promotes a happy and healthy life - Refuse Ugliness: ugly buildings undermine the spirit of community, are unadaptable and unsightly - Promote Stewardship: our built environment and natural environment belong together, and both should be protected and enhanced for the long term benefits to communities Moreover, there are eight priorities for reform: 1) Planning: create a predictable level playing field 2) Communities: bring the democracy forward 3) Stewardship: incentivise responsibility to the future 4) Regeneration: end the scandal of left behind place 5) Neighbourhoods: create places not just houses 6) Nature: re-green our towns and cities 7) Education: promote a wider understanding of place-making 8) Management: value planning, count happiness, procure properly Please see the Report for further information.
Consultation published by MHCLG on First Homes scheme	The Ministry of Housing, Communities and Local Government has published a consultation paper which seeks views on the design of the First Homes Scheme. The proposals for the scheme include: - Flats/houses to be sold to local people at a minimum discount of 30% so they can remain in the community (should they so wish) without having to compete with high market prices - The scheme will be prioritised for first-time buyers, serving members and veterans of the Armed Forces, and key workers (nurses, police, teachers etc.) - The houses will be unable to be used as holiday homes or as buy to lets When the home is sold to a new buyer, the discount will be passed on to the new owner with the discount (of at least 30%) applied to the new value. Please see the Practical Law Update for further information.
Public Health England publish guidance on promoting healthy weight environments	The NPPF have already highlighted that local planning authorities have a responsibility to promote healthy communities with open spaces and accessible services which support their communities’ health and well-being. This new guidance goes a step further and sets out 6 elements to help achieve healthy weight environments: 1) promoting active travel and physical activity 2) providing informal and formal places for leisure, recreation and play 3) improving the food environment for both consumption and production of healthier food options 4) improving the provision of community facilities to run local programmes such as for weight reduction 5) improving the internal design and quality of homes and building to promote living healthier lifestyles 6) supporting people in local employment in accessible and healthy town centres or high streets Please see the New Guidance for further information.
The Welsh Government publishes a consultation relating to air quality and soundscape	The Welsh Government have published a consultation in order to provide further policy guidance and technical advice to support the new Planning Policy Wales. The consultation reviews the Technical Advice Note TAN 11: Noise and the new TAN 11 on noise pollution and air quality. The consultation is open until 04 May 2020. For further information, please see the Call For Evidence consultation document.
New guidance published by PINS for the examination in public of Spatial Development Strategies	The guidance focuses on ensuring that the Spatial Development Strategies comply both with relevant national policy (including the National Planning Policy Framework) and the legal framework contained within legislation. Please see the New Guidance for further information.
The Ministry of Housing, Communities and Local Government (MHCLG) confirms introduction of New Homes Ombudsman	Following a consultation held in 2019 the MHCLG confirmed its intention to introduce a UK wide New Homes Ombudsman (NHO), the purpose of such is in order to provide a complaints procedure for buyers of new build homes and productive redress through alternative dispute resolution. The NHO is independent of the housing construction industry and housing developers will have to belong to the NHO and it will be free for buyers to access. Jurisdiction of the NHO will be across the UK and will created through legislation. The MHCLG has announced the NHO will have a variety of powers, which will include: - Awarding compensation to buyers. - Requesting that developers undertake, or refrain from undertaking, work. - Directing developers to improve their service. - Expelling developers from the NHO, and publishing the details and reasons for expulsions. - Making recommendations for resolving disputes and the timescales for rectifying them. - Requesting apologies and explanations from developers. A new code of practice for housing developers has been announced and this will set standards in which developers will need to reach in their sales, marketing and construction services. Please click on the link for further information
Welsh Government publishes evidence summary on draft National Development Framework (NDF)	Following a consultation at the end of 2019 regarding a new National Development Framework (NDF) the Welsh government published on 19 February 2020 a summary of the evidence on the draft NDF. It is set out within the NDF the direction of development in Wales for the next 20 years and the document provides guidance in how to interpret the evidence which has been used in preparation of the draft NDF. Please click on the link for further information.
National Infrastructure Commission (NIC) publishes its annual monitoring report for 2020	The NIC’s Annual Monitoring Report 2020 is designed to assess the government’s progress towards executing the NIC’s recommendations and identifies important areas for the year ahead. The important areas identified for 2020 are as follows: - A clear National Infrastructure Strategy along with the government’s funding commitments - Technologies which will provide for a flexible energy system which will successfully bring about the UK’s net zero target at lower costs - Improvement of mobile signals on the UK’s railway - Key transport infrastructure projects, which include Crossrail 2, the Oxford-Cambridge Expressway and East West Rail Out of the 45 recommendations made by NIC 42 have been accepted. There are separate chapters within the report which measure progress in accordance with previous publications: - National Infrastructure Assessment 2018, "High Speed North" (on transport in the North); - "Smart Power" (on electricity infrastructure); - "Transport for a World City" (on transport in the London area); - "Connected Future" (on mobile signals around roads and railways); - Partnering for Prosperity" (on the Oxford/Milton Keynes/Cambridge arc); and - "Data for the Public Good" (on using new technologies in UK infrastructure) Please click on the link for further information.

Or contact another member of our Planning & Environment Group: Planning Team or Environment Team.

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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.