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Articles Planning 28th May 2020

Planning Law Update – May 2020

Due to the Coronavirus global pandemic outbreak, this month has seen the introduction of temporary permitted development rights, facilitating the Governments response to the outbreak by negating the need to apply for planning permission for the change of use to field hospitals. For specific planning news in relation to the outbreak, please see our Coronavirus updates published that are being updated regularly and can be found here:

Away from the Coronavirus outbreak, on the 02 April 2020, the Housing Secretary Robert Jenrick MP announced the “biggest changes in a generation” to building safety of high rise buildings in response to the Grenfell fire.

Legislation, law or policySummary
Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020This temporary amendment to the Town and Country Planning (General Permitted Development) (England) Order allows health service bodies and Local Authorities to carry out development if the purpose of the development is to:
• prevent an emergency;
• mitigate the effects of an emergency; or
• take any necessary action in relation to an emergency.
And the development is on land owned, leased, occupied or maintained by the health service body or the Local Authority.

These temporary powers will be in force until the 31 December 2020 whereupon the use must cease and remove the requirement for planning applications to be made.
R (Wiltshire Council) v Secretary of State for Housing, Communities and Local Government and anor [2020] EWHC 954 – Paragraph 79 of the NPPF analysed In this recent case, the interpretation of the term “dwelling” as per paragraph 79(d) of the NPPF was examined.

Paragraph 79 lists circumstances where development of isolated homes in the countryside may be permitted and paragraph 79(d) specifically deals with development that would involve “the subdivision of an existing residential dwelling”.

An application was submitted to change the use of a detached residential annex from ancillary to independent use.

The Judge had to consider the term “dwelling” on paragraph 79(d) and approached this by examining the individual words and what their meaning aimed to achieve in line with overarching policy objective. It was held that the exception outlined in paragraph 79 was intended to encompass an individual building rather than multiple units. Therefore, the appeal was allowed.
R (Greenpeace Limited) v Secretary of State for Business, Energy and Industrial Strategy (BEIS) and others CO/4392/2019
- Judicial review regarding drilling consent granted
A notice was published on the 3rd April 2020 by the Department for Business, Energy and Industrial Strategy of its drilling consent for BP to drill in the Vorlich oilfield.

A judicial review hearing is expected in Summer 2020. Greenpeace assert that BEIS failed to comply with publicity requirements when granting the drilling consent and failed to provide a route for challenge. The High Court has allowed the judicial review to take place and we therefore eagerly await to find out the outcome of this review.
Sawkill v Highways England Company Ltd [2020] EWHC 801 - S.52 of the Planning Act 2008 and S.172 of the Housing and Planning Act 2016 deemed to co-existIn this case, a Development Consent Order was sought to divert the trunk road which ran past Stonehenge through a tunnel. This therefore required various tests and surveys to be carried out on the area including the Claimant’s farming land close to Stonehenge. The Secretary of State had authorised amongst other things, two sets of pumping tests under s.53 of the Planning Act 2008. It was later decided that further tests were required to be carried out on the Claimants land, to which the Claimant refused permission to enter. The Highways Authority therefore gave notice of its intention to “enter and survey” the Claimants land to proceed with the tests under S.172 of the Housing and Planning Act 2016. The Claimant therefore argued that the Highways Authority had entered his land unlawfully as s.172 was not a statutory basis to enter his land, considering that s.53 provided specific powers and argued that the acts of the Highways Authority went beyond the powers conferred in S.172.

The High Court held on the 3rd April 2020 that the powers granted by virtue of S.172 of the Housing and Planning Act 2016 and S.52 of the Planning Act 2008 overlapped or could be used as alternatives to enable entry to conduct surveys. Therefore the Highways Authority were lawful in seeking entry to the land under S.172, a power conferred to Local Authorities – “Acquiring Authorities”. This confirms that organisations defined as Acquiring Authorities, can seek to rely on s.172 rather than S.53 if desired. This decision is significant as it provides clarity to the co-existence of both sections and also promotes time saving advantages to choosing to rely on s.172, notably a reduced determination time from 3 months to 14 days.
APP/R0660/L/19/1200319 – This case highlighted the need for deemed commencement dates to be accurate in demand notices This was an appeal under Regulation 118 against a Demand Notice on the basis that the Collecting Authority had included incorrect deemed commencement date in the notice.

The Appellant had obtained planning permissions on the following dates:

• Original planning permission on 25 March 2016;
• Subsequent permission on 20 April 2018; and
• Retrospective permission on 29 March 2019.

The Appellant commenced works on 11 June 2018 pursuant to the original planning permission.

An initial Demand Notice stated the deemed commencement date to be 1 March 2019 however this was changed this to 29 March 2019 in a later demand notice and the Charging Authority contended that that the deemed commencement date could not have been 11 June 2018 because there was no CIL Schedule in effect at that time.

What is significant is that between the deemed and actual commencement date, a CIL Schedule had come into force.

The Inspector held that there is nothing in the CIL Regulations to prevent Charging Authority’s from determining the deemed commencement date to be before CIL Schedule was in place.

The significance of this is that the original demand notices ceased to have effect and a revised notice was then required to be issued, highlighting the importance of the insertion of correct dates.
APP/U5360/L/19/1200349 – “ASAP” not a valid term to use on Commencement Notices The appeal was brought against the decision of the Borough of Hackney to impose surcharges imposed for failure to submit a commencement notice pursuant to Regulation 67(1) of the CIL Regulations.

The Appellant claimed that a commencement notice was sent to the Council before work started on site but unfortunately the Council never received a copy of this.

However, whilst a copy of the commencement notice was provided in connection with the appeal, he Inspector concludes that it would not have been valid in any event because the notice stated that work would commence “ASAP” and so did not state an intended commencement date as required by Regulation 67(2)(c).
APP/N5090/L/1200338 – Reminder that CIL appeals should be heard by the Valuation Office AgencyThe Planning Inspectorate sought to remind the public in this appeal that queries regarding the Community Infrastructure Levy (CIL) such as the amount charged and whether a charge was appropriate, fell outside of their remit to assess. This particular case concerned late payment of CIL. The Planning Inspectorate reiterated that all appeals regarding CIL should always be heard by the Valuation Office Agency and an appeal could be authorised under Regulation 113 of the Civil Regulations 2010.
PINS: APP/K3415/W/19/3243673 – Physical gates to a residential housing estate deemed harmful to social cohesion This appeal concerned the refusal of planning permission for the implementation of three sets of security gates spanning the width of a residential estate which would open only when activated.

As procedure dictates, applications for planning permission must be made in accordance with the development plan and the NPPF. The Lichfield District Local Plan Strategy 2015 requires ‘development to contribute towards the creation of sustainable communities’. In line with this, the Planning Inspectorate dismissed the appeal it was held that the insertion of these gates on a residential development would “cause harm to social cohesion by reason of an increased sense of segregation” and act as a physical barrier.
PINS: APP/X5990/X/19/3230642 – Juice bar classed as A1 Use ClassThe Planning Inspectorate in the case sought to clarify which Use Class under the Town and Country Planning (Use Classes) Order 1987 a juice bar fell under. On the 15th April 2019, a CLEUD Certificate was rejected on the basis that a juice bar with seating and some limited food re-heating of sandwiches did not fall under use class A1, which the ground floor of the premises had previously been used for. The appeal had to consider whether the specific use fell under A1 or whether it was a mixture of A1/A3/A5.

After inspecting the property and its day to day functions, the Planning Inspectorate held that the juice bar fell under Use Class A1 and a lawful development certificate was issued. Some factors which helped the outcome of this decision included the fact that the seating areas were mainly used for waiting and that food consumption off the premises accounted for 71% of transactions. Despite the reheating of food, it was held that the primary Use Class in this instance was A1.
NSIP granted development consent A new Highway has been granted development consent. The third crossing Highway is to be located in Lowestoft, Suffolk.
HS2 granted permission to cut down trees in ancient woodland The HS2 project has been granted permission to cut down trees as part of the projects developments despite campaigns, notably by TV presenter Chris Packham to halt the £106 billion project after claiming that it could cause “irreparable loss” to wildlife.
Government introduces new measures to improve building safetyIn response to the Grenfell fire which happened on the 14th June 2017 where 72 people sadly lost their lives, new measures have been announced by the Government to help combat issues bought to light by this tragedy. These include how best to manage fire and structural safety risks. Amongst the new measures introduced, one of the most notable include the requirement for mandatory sprinkler systems in all new high-rise blocks of flats over 11 metres tall.

On 02 April 2020, the Housing Secretary Robert Jenrick MP announced the “biggest changes in a generation” to ensure resident safety and the eagerly awaited ‘Building a Safer Future’ consultation. Within this consultation, a £1 billion fund has been announced to remove unsafe cladding in 2020/21. The Government plan to legislate these forms via the Building Safety Bill.
Guidance published on regulation 22 statementsGuidance has been published by the Planning Advisory Service regarding regulation 22 statements to aid Local Planning Authorities

The guidance provides a template and details how regulation 22 statements can be prepared.

A copy of the published guidance can be found here
Protection of England’s seahorses and seabreamConservation advice has been issued by Natural England to assist developers in understanding their impact of proposed developments on habitats.

The guidance can be found here

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.

Author: Robert Bruce


Polly Wisner

Author: Polly Wisner

Managing Associate, Knowledge Management Lawyer

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