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Articles Planning 26th Jun 2020

Planning Law Update – June 2020

The government’s decision to consent to judgement on the Westferry Printworks case on the basis of “apparent bias” is still attracting much attention in both the press and parliament.  A summary of the facts and current position is set out in the case law section below.

Other significant case law includes the Supreme Court’s decision to grant permission to Heathrow Airport Ltd to appeal against the Court of Appeal’s February 2020 decision on the judicial review challenge by Plan B Earth, Friends of the Earth and others against the Airports National Policy Statement (NPS). It is understood that the matter will be heard by the Court of Appeal on the 7th and 8th October 2020.

In addition, there have been several development consent orders granted this month, including the Cleve Hill Solar Park which will provide clean affordable electricity for around 91,000 homes and the Valuations Office Agency have released several Community Infrastructure Levy appeal decisions providing valuable guidance to developers on definitions, floor-space and the requirements of serving the commencement notice.

For specific planning news in relation to the Coronavirus outbreak, please see our Coronavirus update here with the main changes you should be aware of as of 13 May 2020.

Legislation, law or policySummary
Harbours and Highways (Environmental Impact Assessment) (Amendment) (EU Exit) Regulations 2020 (HH (EIA) (EU Exit) Regs 2020)The HH (EIA) (EU Exit) Regs 2020 were made on the 23 April 2020 and laid before Parliament on 28 April 2020. They will come into force at the end of the transition period which is currently the 31 December 2020, unless the transition period is extended.

The purpose of these regulations is to amend the deficiencies that were found in the environmental impact assessment legislation for schemes which concern highways and harbours, and to remove and replace language which refers to EU legislation and institutions. The Highways Act 1980 and the Harbours Act 1964 will then be able to function correctly after the EU transition period ends

The explanatory memorandum can be read here.
Westferry Printworks Legal ChallengeIn January this year, the London Borough of Tower Hamlets launched a challenge to the consent issued by the Secretary of State follow a call in appeal in connection with redevelopment of the former Westferry Printworks in East London into a 1,500 home scheme. The Secretary of State had approved the scheme against the advice of a Planning Inspector.

The challenge centred on whether the Secretary of State was “influenced by a desire to help the developer – Westferry Developments – avoid a financial liability” in relation to new Community Infrastructure Levy charges. These CIL charges would have been due given the planned introduction by the council of a new CIL charging schedule, which included new rates for the application site area, just three days after the decision letter on 14 January. However, because the timing of the controversial decision the applicant would avoid having to pay between £30-50 million in community infrastructure levy (CIL) payments.

In May 2020 the permission was overturned when secretary of state Robert Jenrick admitted "apparent bias" in his decision to approve the application against the advice of his own inspector. The application will now be re-determined.
Court of Appeal – granted permission to Plan B Earth and Friends of the Earth and others against the Airports National Policy StatementOn 6 May 2020, the Supreme Court granted permission to Heathrow Airport Ltd to appeal against the Court of Appeal's February 2020 decision on the judicial review challenge by Plan B Earth, Friends of the Earth and others against the Airports National Policy Statement (NPS).

The Court of Appeal in making their decision declared that the Secretary of State had acted unlawful in not taking into consideration the UK’s commitment under the UNFCCC Paris Agreement on Climate Change when in supporting the Heathrow Airport expansion in the Airports NPS.

As a consequence of the decision, the Airport NPS will not have legal effect whilst it is reviewed by the Secretary of State.

Plan B’s appeal against the Airports NPS will be heard by the Court of Appeal on the 7th and 8th October 2020.

To read the Supreme Court notice on this case click here.
Court of Appeal – granted permission to Plan B Earth and Friends of the Earth and others against the Airports National Policy Statement
Fishbourne Developments Ltd v Stephens [2020] EWHC 932 (Ch) – Option Agreements and an effective planning permission
In this case the High Court was asked to interpret an option agreement in connection with the purchase of a 117-acre farm and whether the planning permission which had been obtained by the claimant had in turn made the option agreement exercisable.

A 2002 option agreement defined “Planning Permission” as “a planning permission granted by the Local Planning Authority permitting any development of the Property”

In 2016 although the claimant had obtained planning permission for a new roof on one of the agricultural buildings, there was never any intention to implement the permission. The claimant argued that the grant of the planning permission (as defined in the 2002 Option Agreement) enabled the beginning of the contractual process pursuant to which it could acquire the whole of the farm at a discounted value.

The High Court in considering the option agreement looked at a number of points and concluded that "development" meant development including new buildings involving a change of use from agricultural use, and "development of the Property" meant of the whole or substantially the whole of the farm. The permission that the claimant had obtained did not meet that criteria and was therefore not a "Planning Permission" as defined. Accordingly the claimant was not able to exercise the option.

This case provides guidance as to what the courts will consider when interpreting option agreements that contain the grant of planning permission as a trigger point. It also serves as a reminder that option agreements should be carefully drafted to record the intention of both parties.
Dill v Secretary of State for Housing, Communities and Local Government and another [2020] UKSC 20 – whether limestone piers with lead urns are classed as a buildingThe Supreme Court ruled on whether a Planning Inspector held the power to determine whether an entry under the Planning (Listed Buildings and Conservation Areas) Act 1990 was a “building”.

The Appellant inherited an estate which included Idlicote House and two limestone piers with lead urns which the Council said were classed as Grade II Listed. The Appellant subsequently sold the piers and urns at auction not knowing that they were listed. The Local Planning Authority requested the items to be reinstated and issued a listed building enforcement notice. The Appellants argued that the urns were not buildings and therefore should not have been listed.

In ordering the enforcement appeal to be remitted for redetermination, the Supreme Court found that nothing in statute prevents someone accused under the Listed Buildings Act from arguing that the item demolished is not a 'building' and so not within the definition within the Act.

To read the decision click here.
Judicial review: Energy National Policy Statements Following the recent ruling which established that the government had failed to take into account the UK’s climate goals when the Heathrow expansion was approved; the Good Law Project Ltd, and others, have issued proceedings for a judicial review in relation to the Government’s alleged failure to review the Energy National Policy Statements.

For further information on the judicial review proceedings click here.
APP/C2741/W/19/3242886 – development of new buildings within the green beltIn this case, harmful development of the construction of new buildings in the green belt was examined. Usually, if proposals simply replace an existing building providing it is no bigger and of the same use, then the new building is usually not considered inappropriate development.

The City of York Council refused an application for the replacement of an existing building; the original building was 89.9 square metres and the new building was 90 square metres. In addition, the replacement building was to be positioned “a good distance” from the original building. The applicant appealed and the appeal was dismissed. Whilst the building was only a fraction larger in height, when taking into account other factors such as volume, the Inspector urged that this building would result in being larger and therefore would be harmful to the greenbelt and be classed as inappropriate development.

To find further information on this case please click here.
T & P Real Estate Ltd v London Borough of Sutton [2020] EWHC 879 (22 April 2020) - Interpretation of Article 4 direction is one of public law not private law so a challenge cannot be made by CPR Part 8 proceedings (High Court)A prior approval application was made in 2019 by a developer to the London Borough of Sutton (the Council) regarding the proposed change of use of an office building to residential property pursuant to permitted development rights.

An article 4 direction was in place for the town centre where the property was located, which removes permitted development rights. There is an exception for buildings that had prior approval granted before 29 January 2015. In this case, prior approval had been granted in 2014 to change the building to residential use, however this approval expired in 2017 with no work being carried out.

The developer appealed the Council's refusal of the prior approval application stating that if the article 4 direction exception was correctly interpreted, the prior approval that was in place in 2014 applied to properties irrespective of whether such approval had expired.

At the same time as appealing, the property's owner also made a declaration using a CPR Part 8 claim that the developer’s proposed development fell within the article 4 direction exception.

The Council applied to strike out the Part 8 claim as an abuse of process because the interpretation of an article 4 direction was exclusively one of public law. As the claim raised the same point which was also being determined by PINS as a result of the developer’s appeal it was also an abuse of process.

The Court found in favour of the Council and concluded that it was an abuse of process for a property owner to challenge the refusal through the use of CPR Part 8. The interpretation of the article 4 direction was an issue of public law which should be challenged through via the proper avenues for via an appeal to PINS and not through the courts.

To read the case click here.
Finney v Welsh Ministers [2019] EWCA Civ 1868 – modification of the operative part of a planning permissionPermission to appeal in this case was refused by the Supreme Court on the 19th May 2020.

It is therefore now settled that S.73 TCPA cannot be used as a mechanism to modify the operative part of a planning permission or impose a condition which would provide that it would be inconsistent with the operative part in the original planning permission.

To read the decision please click here.
R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy and another [2020] EWHC 1303 – four combined cycle gas turbines and government target of net zero carbon by 2050. The judicial review challenge for this case was dismissed on the 22 May 2020, confirming that the Secretary of State did not act unlawfully in granting permission for four combined cycle gas turbines to be erected in Selby, North Yorkshire.

To read the appeal decision notice click here.
PINS Appeal: APP/Z2830/L/19/1200348 – valid commencement dates for CILThis case concerns an alleged breach of planning control and the failure to submit a commencement notice (CN) before the works began on the chargeable development.

In this case the Charging Authority had no record of having received a CN from the appellant, who provided a copy of the CN.

The CN that the appellant had submitted stated as the commencement date “April 2019”. However the inspector concluded “April 2019” did not meet the requirement of the CIL Regulations as it did not state an intended commencement date, therefore the Charging Authority would not have accepted the CN as valid. Furthermore, the CN did not identify the liability notice in accordance with the regulations.

The appeal was dismissed and the surcharges upheld.

To see the appeal decision please click here.
Valuation Office Agency (VOA) – CIL Appeal Decision – and the definition of buildingThis appeal concerned disagreement over the word “building” in regulation 40 (calculation of chargeable amount) of the CIL Regulations 2010.

When calculating the CIL charge there is a provision for the deduction or off-set of the gross internal area (GIA) of existing in use buildings from the total development’s GIA.

Following the demolition of existing buildings on site planning permission had been granted for a building which would contain nine residential units. As the structure on the site was not a building the collecting authority did not consider there to be any deduction of floorspace. The “building” had no roof frame structure and walls were partially collapsed and could not support a roof. The “building” was neither permanent nor fit for any occupation due to a lack of structural integrity and extent of the deterioration.

As the CIL Regulations 2010 do not provide a definition for “building” the valuer looked for guidance in the dictionary and considered the definition in the Town and Country Planning Act 1990. He concluded that for the purposes of Regulation 40 the structure on the site could be taken to be a “building”.

To see the appeal decision please click here.
Valuation Office Agency (VOA) – CIL appeal decision The VOA has made a CIL appeal decision available, which provides clarity on whether internal and/or external balconies' floor space should be included within the calculation of the gross internal area (GIA) by reference to the RICS Code of Measuring.

The conclusion of the valuer was to separate balconies into two types:

• Internal – a balcony which was surrounded by the main structure of the building with an open front – this would be included in the GIA.
• External – a balcony which protruded from the main external wall – this would be excluded from the GIA

To read the Appeal Decision please click here.
CIL appeal decision: demolition of propertiesIn this appeal Regulation 40(7) of the Community Infrastructure Levy Regulations 2010 was examined. The matter for consideration was whether floor space demolished before the granting of a planning permission could be detached from the area of new development, when determining CIL payment. It is practice that for an existing building to be detached, or “netted off”, the building must be both in use and a relevant building.

However, in this case it was held that the floor space could not be netted off from the new development as the buildings had been demolished before the planning permission had been granted. Therefore, CIL was payable.

To see the appeal decision please click here.
APP/C/1435/L/19/1200369 – Commencement Notices and the commencement date of development and failure to inform the Collecting AuthorityThis appeal concerned a case regarding CIL liability and the correct commencement date for development. Pursuant to Regulation 85(1) of the CIL Regulations 2010, it is crucial that the correct commencement date is inserted on to Commencement Notices as the Collecting Authority can impose a surcharge equal to 5% of the amount or £200, whichever is greater, for payments received after this date. In line with the regulations the Planning Inspectorate examined Commencement Notices in relation to the date of commencement inserted on the document.

The Appellant argued that development commenced on the 12th October 2019 and that CIL was paid in full on the 8th November 2019, therefore within the required 30-day period. However, the Commencement Notice contained a commencement date of the 20th August 2019.

It was held that failure to inform the collecting authority that the commencement date has been changed will still result in the full payment being due 30 days from the date inserted on to the Commencement Notice.

To see the appeal decision please click here.
PINS issues an update to CIL Plan Examinations Guidance which includes an updated list of Charging Schedules that have been submitted for examinationThe Planning Inspectorate has updated its guidance for CIL Plan Examinations and the list of charging schedules submitted for examination. The list includes the dates the charging schedules will come into effect.
The Centre for Digital Built Britain (CDBB) has published Flourishing Systems – Re-envisioning infrastructure as a platform for human flourishingThe Centre for Digital Built Britain (CDBB) has published Flourishing Systems - Re-envisioning infrastructure as a platform for human flourishing in which it sets out the systems-based vision of UK infrastructure, with a renewed focus on people, connections, sustainability and digitisation.

This Report was prepared with the support of the Department for Business, Energy and Industrial Strategy, the Institution of Civil Engineers, the Institution of Engineering and Technology, and the Institution of Mechanical Engineers.

The report’s findings are that there is a need for infrastructure sustainability and digitalisation to be improved in order to provide the greatest value to society. The “next steps” proposed include the development of a national infrastructure strategy and a national data strategy (these have been impeded several times since 2019).

To read the paper click here.
The Welsh Government (WG) has published updated Compulsory Purchase Order (CPO) policy and guidance responseFollowing the WG’s consultation on CPO policy and guidance in Wales, which ended on 24 January 2020, the WG published its response on 30 April 2020.

In order to take account of the representations received the WG will make amendments and it will adopt:

• Draft Circular 003/2019, Compulsory Purchase in Wales and 'The Crichel Down Rules (Wales Version, 2019) (Circular).

• The template model claim form (in Part 1 of the Circular).

• Revised national planning policy. A policy clarification letter announcing this revision will be published ahead of the publication of edition 11 of Planning Policy Wales.

To read the consultation outcome click here.
Nationally Significant Infrastructure Project (NSIP) – Improvements and modifications to Junction 6 of the M42 On the 21 May 2020 development consent was granted for improvements and modifications to junction 6 of the M42 with an aim to increase capacity and create greater access to infrastructures such as the NEC and HS2.

To read the Decision Notice for this project click here.
NSIP – New Highway Crossing in Lowestoft, SuffolkOn the 30 April 2020 the Secretary of State for Transport granted development consent for the construction of a new third highway crossing at Lake Lothing in Lowestoft, Suffolk.

To read the Decision Notice for this project click here.
NSIP – West Midlands Strategic Rail Freight InterchangeOn the 4 May 2020 the Secretary of State for Transport granted development consent for the West Midlands Strategic Rail Freight Interchange. The development proposals comprise the following:

• An intermodal freight terminal accommodating up to 10 trains per day
• Around 800,000 sqm of rail served warehousing and ancillary service buildings
• A new rail terminal with connections to the West Coast Main Line

To read the Decision Notice for this project click here.
Secretary of State for Business, Energy and Industrial Strategy grants development consent for solar parkDevelopment consent was granted on 28 May 2020 by the Secretary of State for Business Energy and Industrial Strategy for the Cleve Hill Solar Park which is located approximately 2km northeast of Faversham, Kent and 5km west of Whistable on the North Kent Coast.

The project is for a solar and energy storage park which will provide affordable and clean electricity to power 91,000 homes. The development will comprise of photo-voltaic modules, energy storage and the relevant development connectivity infrastructure. It will produce a capacity in excess of 50 MW.

To read the Secretary of State’s Decision Notice click 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.

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