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Articles Planning 4th Sep 2020

Planning Law Update – August 2020

As usual it has been a very busy time in the planning world. The government has given their Summer 2020 Economic Update, with big changes coming to planning and development, for further information on our article regarding this click here.

There has been plenty of legislative changes including new Permitted Development Rights and a number of publications providing guidance. We also include a round-up of cases/appeals.


Legislation, Law or PolicySummary
The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (2020 Order)The 2020 Order came into force at 9.00 am on 31 August 2020 and provides amendments to the existing permitted development rights (PDRs), which is a deemed planning permission for certain types of development and material changes of use. This is provided by inserting the following PDRs into Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015:

• Enlargement of dwellinghouse by construction of additional storeys (Class AA, Part 1)
• New dwellinghouses on detached buildings in commercial or mixed use (Class AA, Part 20)
• New dwellinghouses on terrace buildings in commercial or mixed use (Class AB, Part 20)
• New dwellinghouses on terrace buildings in use as dwellinghouses (Class AC, Part 20)
• New dwellinghouses on detached buildings in use as dwellinghouses (Class AD, Part 20).

These PDRs will require prior approval from the local planning authority and are subject to a number of limitations and conditions.
The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020 (GPDAO 2020)The GPDAO 2020 came into force at 10.00 am on 31 August 2020. Article 4(2) of the GPDAO 2020 amends the Town and Country Planning (General Permitted Development) (England) Order 2015 by inserting a new Class ZA (Demolition of buildings and construction of new dwellinghouses in their place) into Part 20 of Schedule 2.

Class ZA allows for the demolition of a single detached building in existence on 12 March 2020 that was used either for a use falling within Use Class B1 or as a free-standing purpose-built block of flats (old building). The replacement building must be a detached block of flats or a single detached dwellinghouse and this must fall within the old building’s footprint. The replacement building can be no more than two storeys higher than the old building, up to a maximum overall height of 18 metres.

The old building must:

• Have a footprint no larger than 1,000 square metres.
• Not be higher than 18 metres.
• Have been built before 1990.
• Have been vacant for at least six months before the date of the application for prior approval.

Deemed planning permission is granted subject to a number of conditions, which includes the requirement to obtain prior approval. The local planning authority must consider the following areas:

• Transport and highways impacts.
• Contamination and flooding risks.
• Impact of noise on the future residents.
• Design and external appearance of the new building.
• Adequacy of natural light in all habitable rooms of each new dwellinghouse.

No demolition is allowed without the subsequent construction of a new residential building or for the construction of a new residential building on the previously cleared land. The demolition of the old building and its replacement build must be completed within three years of the date of grant of prior approval.
The Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) (Amendment) Regulations 2020 (2020 Amendment Regulations)On 24 August 2020 the 2020 Amendment Regulations came into force for Wales and amend the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015.

The changes include:

• An increase of approximately 20% on planning fees across the board (regulation 2).
• Charging a fee of £230 for an application for a certificate of appropriate alternative development (regulation 3).
The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (2020 Regulations) On 1 September 2020 the 2020 Regulations came into force.
These 2020 Regulations amend the Town and Country Planning (Use Classes) Order 1987 (SI 1987/764) by revoking Parts A and D of the Schedule in relation to England and inserting a new class E (commercial, business and service), F.1 (learning and non-residential institutions) and F.2 (local community).

The 2020 Regulations also confirm more sui generis uses (in a class of their own).

For the period 1 September 2020 to 31 July 2021, any references to the uses or use classes specified in the Town and Country Planning (General Permitted Development) (England) (Order) 2015 (SI 2015/596) (GPDO 2015) or in prior approval applications or article 4 directions are to be read as references to the uses classes which were specified in the UCO 1987 on 31 August 2020 (previous use classes).
Government has published the draft Building Safety BillThe government has published its draft Building Safety Bill, which proposes the implementation of the core principles of the “Building a Safer Future” policy, in response to the 2017 Grenfell Tower fire.

This draft Bill has been touted by the government as bringing forward “the biggest improvements to building safety in nearly 40 years”. This will be of particular interest to those involved in all aspects of a development’s lifecycle.
The Home Loss Payments (Prescribed Amounts) (England) Regulations 2020 (2020 Regulations)The 2020 Regulations have been made and come into force on 1 October 2020, they revoke the Home Loss Payments (Prescribed Amounts) (England) Regulations 2019 in relation to any displacement which occurs on or after 1 October 2020.

Under regulation 2(2) of the 2020 Regulations:

• The maximum home loss payment under section 30(1) of the LCA 1973 is increased from £64,000 to £65,000.
• The minimum home loss payment under section 30(1) of the LCA 1973 is increased from £6,400 to £6,500.
• The prescribed amount of home loss payment under section 30(2) of the LCA 1973 is increased from £6,400 to £6,500.

The purpose of the increases is to put into effect an uprating in line with house price inflation.
The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2020 have been published in draftThese Regulations 2020 will only be applicable to England and provide for proposed new fees:

• £334 per new dwellinghouse for development proposals of 50 or fewer new dwelling houses.
• A fixed fee of £16,525 plus £100 per new dwellinghouse for development proposals of more than 50 new dwellinghouses, subject to a maximum limit of £300,000.

They will amend the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012.
PINS Appeal Decision: APP/R1845/X/19/3230693 – New chapter in planning history meant permitted development restrictions did not applyWas a property still bound by the original planning permission for its conversion to ancillary accommodation

This was an appeal against Wyre Forest District Council’s decision to refuse to grant a certificate of lawful use or development; the certificate was sought for a proposed side extension, porch, detached garage and changes to the external fenestration.

The main issue was whether the property was bound by the original planning permission granted in 2001, for the conversion of the building to ancillary accommodation to the main dwelling. Under condition 4 of the 2001 permission permitted development rights had been removed from the dwelling.

In 2016, a lawful development certificate was granted which provided that the property, a former barn, was an independent dwellinghouse.

Due to this LDC in 2016 the Inspector surmised that this lawful development certificate established the lawful use of the property as an independent dwelling. Once it became lawful it formed a separate planning unit from the former host dwelling and was therefore no longer subject to the 2001 planning permission. Consequently, it became a new planning unit, which was not within the curtilage of the former host property, and its separate use as an independent dwelling, which therefore constituted the start of a new chapter in its planning history and afforded it permitted development rights for a single dwelling house.

To read the Appeal Decision click here.
PINS Appeal Decision: APP/N4720/C/19/3239996 – enforcement notice was a nullity due to no compliance periodOn 4 October 2019, Leeds City Council (LCC) issued an enforcement notice for an alleged breach of a change of use of land to the storage of shipping containers, trailers and associated vehicles and vehicle parts.

Under section 173(9) of the Town and Country Planning Act 1990 a notice shall include a compliance period.

LCC failed to specify an actual period of time within which the first requirement of the enforcement notice should be complied with meant that the enforcement notice was a nullity.

In Miller-Mead v Ministry of Housing and Local Government [1963] the court held that the recipient of the enforcement notice must be able to find out from within the four corners of the document what they are required to do or abstain from doing. Vague or ambiguous requirements offend that rule.

The inspector ruled that since the notice was found to be a nullity, no further action was to be taken in connection with the appeal.

To read the Appeal Decision click here.
PINS Appeal Decision: APP/J0405/X/20/324806 – lawful implementation of a planning permission irrespective of the dwellinghouse not being constructed in accordance with approved plansAn appeal against the refusal of a lawful development certificate which sought to confirm the lawful implementation of a planning permission.

On 25 August 2015 a planning permission was granted for the “demolition of existing garages and the erection of a new, detached dwelling and associated works”. The planning permission was issued with conditions, under condition 1 it stated that the development had to be commenced within three years from the date of the permission.

The garages and hardstanding was demolished in 2016 which was well within the three-year period.

In the cases of Malvern Hills DC v Secretary of State for the Environment [1982] JPL 439 and Thayer v Secretary of State for the Environment [1992] JPL 264, the test for commencement of development is not the quantum of work undertaken, but whether the work is related to the planning permission involved.

The demolition of the 13 garages was not considered to be de minimis by the Inspector. As the demolition of the garages was an explicit element of the scheme approved by the planning permission and thus development commenced.

Although the dwelling was materially different to that which was approved by the planning permission, this did not alter the legal position that the demolition works were within the relevant timeframe therefore the planning permission was extant. Although there was a deviation from the approved scheme the Inspector considered that it was a matter for the local authority on whether they take enforcement action.

To read the Decision Notice click here.
PINS Appeal Decision: APP/V5570/W/19/3242435 – planning application should have been validatedPlanning application for the change of use of an existing office building (Class B1) to provide flexible/mixed Class B1 and Class D1 facilities was submitted. The planning application was classed as “major development” and the local planning authority asked the developer to provide additional evidence to support the planning application. The developer refused so the application was not validated and the developer appealed.

As there was no operational development and the proposal was purely for change of use, with no increase in floor space, the inspector concluded that the proposal did not constitute major development. Therefore the planning application should have been validated.

The inspector then considered the planning merits of the proposal and was satisfied that planning permission should be granted. The appeal was allowed.

To see the appeal decision notice click here.
PINS Appeal Decision: APP/B0230/D/20/3248323 – Addition of kitchen to granny annex did not create a separate independent dwellingThis appeal decision concerns whether a granny annex which added a kitchen constituted a separate independent dwelling.

There was some consternation from the Council that a granny annex which was physically detached from the main property and included a kitchen, living area, bedroom and shower/WC and independent access could be used as an entirely separate self-contained residential unit.

The inspector was satisfied that restrictions could be placed on the property by planning condition and this would ensure the granny annex was ancillary accommodation to the main property, rather than as an independent residential unit.

To see the appeal decision notice click here.
PINS Appeal Decision APP/Y0435/W/20/3246822 – Condition requiring a deed of easement should have been imposed at outline stageOn 16 August 2019, a reserved matters application was approved following the outline planning permission for a site, which consisted of 134 dwellings and an adjacent music venue, subject to the following condition:

”No development shall commence until a deed of easement in respect of noise has been submitted to, and approved in writing by, the local planning authority. The deed of easement shall relate to the entire development in perpetuity”.

This condition was to safeguard the continued operation of the music venue in accordance with paragraph 182 of the National Planning Policy Framework (NPPF) and provide protection to the future residents from operational noise at the music venue.

An appeal against the imposition of the planning condition was made. The appeal was allowed and the inspector considered that the deed could affect the saleability of the dwellings and should be fundamental to the grant of outline planning permission so that any developer purchasing the land would know what constraints had to be addressed

The inspector stated that a deed of easement was capable of being a material consideration and could be lawfully entered into. However, conditions imposed on reserved matters approvals should address matters arising out of the reserved matters, and not seek to fundamentally alter the nature of, or modify, the outline permission (Kingsway Investments Ltd v Kent County Council [1970] AC 72).

The condition went beyond what was reasonable to impose. The outline permission was not granted with an equivalent condition. The condition would also put the power to achieve an implementable planning permission in the gift of a third party (the music venue). If the deed of easement was not agreed, the permission would be unimplementable.

The deed of easement condition should have been considered at the outline stage, and therefore did not satisfy the tests set out in paragraph 55 of the NPPF and as such was unlawful.

To see the appeal decision notice click here.
PINS Appeal Decision:
APP/M9584/W/20/3246733 – prior approval applications can be sent electronically
London Legacy Development Corporation (LLDC) considered that the prior approval application was not valid until hard copy plans were received. On 4 September 2019 the plans to the application were received. On 24 October 2019, LLDC refused the prior approval application.

The inspector considered the General Permitted Development Order 2015 electronic communication requirements under Article 2(6). Where the notice or other document is transmitted electronically it must be:

• Capable of being accessed by the recipient.
• Legible in all material respects.
• Sufficiently permanent to be used for subsequent reference.

Article 2(11) states that references in the GPDO 2015 to plans, drawings, notices or other documents, include references to such documents in electronic form.

The appeal was allowed by the inspector as it was considered that the notification submitted to LLDC on 23 August 2019 met the requirements of paragraph W(2) except for the fee. The application was complete once payment was received, which was the 27 August 2019.

Consequently, the refusal notice was not served as set out in paragraph W(11) which is within the 56-day period, deemed planning permission was granted on 22 October 2019.

To read the Appeal Decision Notice click here.
IE v Magistrat der Stadt Wien (Case C-477/19) EU:C:2020:517 – meaning of ‘resting place’ for European species protected under Habitats DirectiveThis particular case related to burrows of the protected European hamster (Cricetus cricetus) which was destroyed during preparatory works by a developer during the process of encouraging the hamsters to relocate to a protected area.

The Court of Justice of the European Union (ECJ) under Article 12(1)(d) of the Habitats Directive (92/43/EEC), has clarified that resting places which are no longer occupied by a European (protected) species must also be protected if there is a sufficiently high probability that the species will return to such places. The referring court will determine whether there is a sufficiently high probability of return.
PINS Appeal decision: APP/C1435/L/20/1200381 – use registered post or recorded delivery when sending CIL notices by mailThe appeal was allowed. The inspector stated that although the CA was entitled to use standard post, this did not provide proof of postage, unlike recorded delivery or registered post. Without any proof of postage, the inspector could not be satisfied that an LN was served on the appellant as required by Regulation 65.
PINS Appeal Decision: APP/L5240/L/20/1200389 –retrospective planning permission meant surcharge inevitableThe Inspector concluded that the appellant could not avoid the surcharge as the one bedroom extension was built without planning permission being first obtained. The retrospective planning application meant that it was not possible for a commencement notice to be submitted in advance and therefore the surcharge was imposed.

The appeal was dismissed and the surcharge upheld.
PINS Appeal decision: APP/L/19/1200356 – CIL notices cannot be corrected on appealThis appeal concerned a Demand Notice which was issued with an incorrect date of 20 November 2019, instead of the correct date of 15 November 2019, which was when planning permission for the part retrospective and prospective development was granted.

The Inspector allowed the appeal however there is no power within the CIL Regulations to correct or vary a Demand Notice.

The collecting authority should have served a revised demand notice and this would have meant the earlier demand notice would have ceased to have effect as per Regulation 69(5).

The Inspector quashed the demand notice as the collecting authority had incorrectly determined the deemed commencement date.
PINS Appeal Decision: APP/V3310/L/19/1200344 – CIL notices to be sent to applicant and applicant’s agentA collecting authority should serve notices on both the applicant and the applicant’s agent, therefore there would be no doubt as to whether it had been served.
Chancellor of the Exchequer delivers the Summer 2020 Economic UpdateOn 8 July 2020, the Chancellor of the Exchequer delivered the Summer 2020 Economic Update. The key environmental announcement include:

• A £2 billion Green Homes Grant, to help households towards the cost of energy efficiency upgrades in 2020-21.
• £1 billion invested over the next year in a Public Sector Decarbonisation Scheme, which will offer grants to public sector bodies to fund both energy efficiency and low carbon heat upgrades
• A £40 million Green Jobs Challenge Fund for environmental charities and local authorities to create and protect jobs in England that improve the natural environment
• Funding to support research and development in Direct Air Capture and electric vehicles technology

To read the Economic Update please click here.
Welsh Government consultation on making Fire and Rescue Authorities statutory consulteesThe Welsh Government has published a consultation on whether Fire and Rescue Authorities (FRAs) should be statutory consultees on planning applications relating to specific developments. The consultation closes on 23 October 2020.

FRAs must be consulted on applications where building regulations approval is required. There is no requirement for them to be consulted on applications for planning permission. Some local planning authorities do consult FRAs informally as a matter of course.

In order to make them a statutory consultee amendments would need to be made to the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (SI 2012/801) and the Developments of National Significance (Procedure) (Wales) Order 2016 (SI 2016/55).
The Department for Business, Energy and Industrial Strategy (BEIS) published a consultation on the proposed Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020 (2020 Regulations) On 24 July 2020, BEIS published a consultation on the proposed Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020 (2020 Regulations) which is to replace the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 (1999 Regulations). The consultation closes on 2 October 2020.

The draft 2020 Regulations will provide to:

• Consolidate, clarify and simplify the provisions of the 1999 Regulations.
• Provide a clear process for the publication and challenge of decisions.
• Incorporate other changes such as the inclusion of civil sanctions.
A19 Downhill Lane junction scheme is granted development consent.The Secretary of State for Transport gave development consent to the A19 Downhill Lane junction scheme in Sunderland. This development will support local plans for a manufacturing park and enhance the capacity of the junction between A19 and A1290.

The Order came into force on 6 August 2020.
Electricity storage (except for pumped hydro) is to be removed from the NSIP regimeThe government has confirmed that electricity storage (except pumped hydro) will be removed from the NSIP regime, both onshore and offshore, in England and Wales.

The primary consenting route for electricity storage in England and Wales will be under the Town and Country planning regime.

The government must lay two statutory instruments before Parliament, one under the Planning Act 2008 and one under the Electricity Act 1989 in order to effect this change.
Norfolk Vanguard windfarm granted development consentSecretary of State for BEIS gave development consent to the Norfolk Vanguard which is an offshore windfarm, which has an approximate capacity of 1800MW and is off the coast of Norfolk.
Manston Airport granted development consentThe Secretary of State for Transport has given development consent to re-open Manston Airport in Kent. It will be a dedicated air freight facility for 10,000 air cargo movements per year. Passenger, executive travel and aircraft engineering services will also be available
Chancery Lane Project – Climate Contract Playbook and Glossary – 2nd EditionThe 1 July 2020 saw the, independent and politically neutral, Chancery Lane Project publish the second edition of the Climate Contract and the accompanying Glossary

To read the publications click here.

Consultation responses published by the government on proposed reforms to permitted development rights to support the deployment of 5G and extend mobile coverageThe government has published its consultation responses summary which was received over the proposed reforms to permitted development rights available to electronic communications code operators (Code operators) in England under the Town and Country Planning (General Permitted Development) (England) Order 2015; along with their own response and confirmation of the measures it will take. These proposals are designed to support the 5G deployment and extending the mobile coverage, especially in rural areas.

The government proposals include the following:
• No prior approval will be needed to deploy the radio equipment housing on land to support 5G, this will be restricted up to specified limits and excluding sites of special scientific interest.
• Existing masts up to specified limits will be strengthened in order for sites to be upgraded for 5G and for mast sharing without prior approval.
• Enable the deployment of building-based masts nearer to highways to support deployment of 5G and extend mobile coverage, subject to prior approval and specified limits.
• Taller masts in order to deliver better mobile coverage and mast sharing, these will be subject to prior approval and specified limits.
The Ministry of Housing, Communities and Local Government (MHCLG) has provided an updated list of decisions made on called-in planning applications and recovered appeals.The Secretary of State for Housing, Communities and Local Government has the authority to call-in planning applications instead of the local planning authority making the decision. This only normally occurs if the application conflicts with national policy in important ways or is a project of national significance.

A planning appeal can also be recovered for decision by ministers. The inspector will write a report recommending how the appeal should be determined, and this will be given for consideration in the Secretary of State’s decision.

To see the updated list click here.
MHCLG publishes research into the quality standard of homes delivered through change of use permitted development rights On 21 July 2020 a report was published regarding the standard of homes delivered through permitted development rights. The report found that exterior alterations and additional amenities were similar to developments which had full planning permission and were less likely to meet the nationally described space standard for outdoor space.
Department for Environment, Food and Rural Affairs (Defra) publishes the government’s Flood and coastal erosion risk management: policy statementDefra has published the policy statement on flood and coastal erosion risk management, which sets out the government’s long-term objective of improving resilience to flood and coastal erosion risk. The key policies below are provided within it:

• Upgrading and expanding national flood defences and infrastructure.
• Managing waterflow more effectively and harnessing the power of nature to reduce flood and coastal erosion risk.
• Better preparation for communities and enabling more resilient places through a catchment-based approach.

In conjunction with the policy statement The Secretary of State has laid this revised National Flood and Costal Erosion Risk Management Strategy before Parliament (the Environment Agency consulted on the draft strategy in 2019).
PINS publishes guidance on participating in a virtual event, such as a hearing or inquiry.PINS now uses Microsoft Teams to host events and has published guidance - Guide to participating in a Planning Inspectorate virtual event

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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