Planning Law Update – April 2020
Since our previous update the Coronavirus outbreak has been at the forefront of most minds. For specific planning news relating to the outbreak and the impacts on the planning system, please see our Coronavirus update published at the beginning of April, which is being updated regularly.
However in March, away from the coronavirus outbreak, the new Chancellor delivered the Spring Budget which although fairly quiet on planning announcements was followed by the publication of a new White Paper ‘Planning for the Future’ on 12 March. In terms of significant legal cases in March, the High Court considered whether a developer’s liability to pay the Community Infrastructure Levy should be assessed on the basis that the development was taking place under a phased planning permission. In addition, a March PINS case held that a climbing frame was found to be a “building” for planning purposes.
We update below on recent planning law changes:
|Legislation, Law or Policy
|Home Loss Payments (Prescribed Amounts) (Wales) Regulations 2020
|On 27 April 2020 these regulations will come into force in Wales only and increase the compensation payable under the Land Compensation Act 1973 to someone whose home is acquired in Wales by compulsory purchase.
The amount of the home loss payment depends on whether the person occupying the dwelling has an “owner’s interest” (i.e. the freehold interest or a lease with over three years left to run).
If they do have an “owner’s interest” the payment is 10% of the market value of the interest, which is subject to a minimum amount (now £6,200) and maximum (now £62,000) amount. If they do not have an “owner’s interest” the home loss payment is now £6,200.
The new regulations revoke the Home Loss Payments (Prescribed Amounts) (Wales) Regulations 2018 in relation to any persons whose home has been acquired on or after 27 April 2020.
|North Shropshire electricity distribution network given development consent by the Secretary of State
|On 20 March the Secretary of State gave development consent to the reinforcement of the electricity distribution network in North Shropshire by granting consent for the installation of a new 132kV overhead line from the Oswestry grid substation to the Wem primary substation.
The Secretary of State made some non-material changes to the draft Order in the interests of clarity and consistency and to conform with the current practice for statutory instruments.
To see the Decision please click on the following link.
|APP/H1840/W/19/3240409 – Permission in principle refused as the description of development did not include the affordable housing tenure
|Planning permission for a housing-led development can depending on location, land use and amount of development be given through the permission in principle (PiP) two-stage process being:
• The PiP stage which determines whether the site is in-principle suitable; and
• Technical details consent stage when the detailed development proposals are assessed.
Last year Wychavon District Council received a PiP application for the erection of one to two new dwellings. The appellants appealed due to non-determination.
The appellant had stated in their supporting statement that the dwellings would be affordable rented housing so in accordance development plan policy as a rural exception site.
The Inspector highlighted that conditions and legal agreements cannot be utilised to control development in the PiP process and that a specific affordable tenure, which directly influences the land use, cannot be secured in this way at this stage.
As there was no specific tenure set out within the description of development in the application, the land use had to be taken at face value and assessed in an unfettered way. It was not sufficient that the appellant stated in their supporting statement that the dwellings were to be provided as affordable housing. Therefore, the proposal had to be assessed as one for open market housing.
The appeal was dismissed and the PiP was refused.
This case provides clarity to developers and landowners who wish to use the PiP process to ensure the application is specific in its details and will ensure that a robust application is made to the local authority.
Please click on this link for further information on the case.
|APP/G5180/W/19/3236364 – An appeal decision emphasising that a prior approval determination is required before the commencement of development.
|In England deemed planning permission can be granted under Class O, Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015) for a change of use from offices (Class B1(a)) to dwellinghouses (Class C3), subject to limitations and conditions including a requirement that before ‘beginning the development’ the developer must apply to the Local Planning Authority for a determination about whether or not prior approval was required.
The London Borough of Bromley refused a prior approval application under Class O for the change of use of a building from offices to dwellings as the Council determined that the applicant had already started the development and its application was retrospective, so did not meet condition 2 of Class O. The applicant appealed.
The Inspector found on her site visit that the works required to convert the building had been implemented and that the dwellings were occupied. The Inspector concluded that a Class C3 dwelling use was in operation and a change of use from B1(a) office use had occurred. As the development had commenced the proposal did not meet the conditions of Class O so could not be considered through the prior approval procedure.
The Inspector also referred to High Court decisions that have held that prior approval cannot be granted for development that has already begun, whether or not it is wholly or partially completed. This principle applies even if the development was begun after the application was made or during the appeal process. Although the Inspector did not name any specific High Court decisions we refer you to Airwave MM02 Limited v First Secretary of State and Others  EWHC 1701 (Admin).
The appeal was dismissed. Please click on the link for the appeal decision.
|APP/M4320/D/19/3241867 –The preservation of the character and appearance of a conservation area
|In this appeal, retrospective planning permission was sought for not complying with a planning condition, on the original consent, requiring the elevation treatment of the development to be in white render in a conservation area: the appellants had used “vibrant pink” render instead.
The Inspector dismissed the appeal and concluded that the pink render, which was "visible over and, in parts, through the boundary hedge and gate", failed to preserve the character and appearance of the conservation area and was inconsistent with an Article 4 direction removing permitted development rights.
|APP/F1610/W/19/3236430 – Outstanding development design at an isolated dwelling within an Area of Outstanding Natural Beauty
|In this appeal, planning permission was sought for a dwelling within the Cotswolds Area of Outstanding Natural Beauty (AONB).
The scheme was promoted specifically as meeting the fourth bullet point to paragraph 55 of the 2012 National Planning Policy Framework (NPPF) (now paragraph 79(e) of the 2019 NPPF).
Paragraph 79 of the NPPF states that planning policies and decisions should avoid the development of isolated homes in the countryside unless one or more circumstances apply. One of these circumstances is that the design is of exceptional quality, in that it:
• Is truly outstanding or innovative, reflecting the highest standards in architecture, and would help to raise standards of design more generally in rural areas.
• Would significantly enhance its immediate setting and be sensitive to the defining characteristics of the local area.
The Inspector considered the design of the development “truly outstanding” and concluded the dwelling was isolated (which is given its ordinary meaning of “far away from other places, buildings or people; remote” as stated in Braintree District Council v Secretary of State for Communities and Local Government and others  EWHC 2743 (Admin) so paragraph 79 applied. Whilst the site was within the Cotswolds AONB, no harm would be caused to the designated area’s character and appearance, and its scenic beauty would be conserved and enhanced. The appeal was allowed.
|Historic England publishes consultation on Advice Note 4: Tall Buildings
|Historic England are consulting on their proposed revisions to their existing Advice Note 4 on how to take account of the historic environment when planning for tall buildings. The revised note seeks to guide people involved in planning for and designing tall buildings so that these may be delivered sustainably through the development plan and development management processes.
Proposed changes include:
• a bigger emphasis on a plan-led approach;
• acknowledging the evolving technologies and tools which can be used as evidence when creating tall building proposals (i.e. that help with visualisation);
• updating references to the National Planning Policy Framework, Planning Practice Guidance and the National Design Guide regarding design making and efficient use of land
The consultation closes on 26 April 2020.
|Welsh Government publishes final report on stalled development sites
|In early March the Welsh Government published a report which sought to ascertain the reasons for stalled development sites across Wales, building on previous work in the area.
Although no overwhelming reason was found for the delays, common reasons included:
• Planning issues including changes in the approach of local development plans over time;
• Wider economic conditions;
• Lack of landowner intent to develop land and lack of finance; and
• Site-specific issues.
The report provides a number of suggestions for a way forward including carrying out further research and engagement with stakeholders to establish a robust evidence base which can be used as part of ongoing discussions around a Vacant Land Tax in Wales where taxation could be used as a policy lever to bring forward development to support housing need and regeneration.
|MHCLG publishes a devolution deal for West Yorkshire
|Following the Budget announcement a few days earlier, on 13 March MHCLG published a proposed agreement for a devolution deal between the Government and the West Yorkshire local authorities of (Bradford, Calderdale, Kirklees, Leeds, and Wakefield Councils, and the West Yorkshire Combined Authority).
As part of the devolution deal a Mayoral Combined Authority will be established with a directly elected Mayor from May 2021. The Government will allocate an investment of £38 million per year over the next 30 years for the area, for economic growth.
Decision-making powers on transport, housing and planning and finance will also be devolved from central Government via secondary legislation.
The deal still needs ratifying by the Councils and the Combined Authority as well as approval of the relevant secondary legislation and Parliament’s approval before the deal will be confirmed.
For further information on this deal please click on the link.
|Welsh Government publishes table of local planning authority decisions on rural enterprise dwelling applications
|On 18 March the Welsh Government published a table of Welsh local planning authorities’ decisions on rural enterprise dwelling applications and removal of occupancy conditions for the period April 2018 to March 2019:
• Rural enterprise dwelling applications:
- 38 granted (all containing occupancy conditions); and
- 11 refused.
• Removal of occupancy conditions:
- 10 were granted; and
- 2 were refused.
Please click on this link for a copy of the full table.
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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