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Articles Planning 8th Oct 2020

Planning Law Update – September 2020

Following the UK’s exit from the EU, this month saw an Order which grants temporary planning permission for border processing developments to help ease the country through the transition period. In terms of new policy, the MHCLG announced that dwelling houses constructed under permitted development rights will have to meet new space standards.

There has been plenty of new cases heard this month, including a case which clarified the meaning of “out-of-date” in the NPPF and another which confirms that sending an email is not an acceptable way of submitting a commencement notice, rather the appropriate form must be filled out.

Legislation, law or policySummary
Town and Country Planning (Border Facilities and Infrastructure) (EU Exit) (England) Special Development Order 2020 The Order was laid before Parliament on 03 September 2020, and grants temporary planning permission for development consisting of:
• the use of land in particular parts of England (the full list of areas can be viewed in Schedule 1 of the Order.
• border processing and the associated stationing of goods vehicles entering or leaving the UK, and;
• the provision of facilities/infrastructure associated with these uses.

The Order is due to come into force on 24 September 2020, and ends on 31 December 2025. Each case must be approved by the Secretary of State for Housing, Communities and Local Government.
Planning (Proper Maintenance of Land) Bill 2019-21 introduced to ParliamentOn 22 September 2020, a new Private Member’s Bill was introduced to Parliament which seeks to increase the fine payable for failing to comply with Section 215 notices.

Pursuant to S215 of the Town and Country Planning Act local planning authorities are given power in certain circumstances to require that land/buildings are to be cleaned up or repaired if they consider their condition adversely affects the amenity of the area.

The Bill seeks to amend sections 216(2) and 216(6). View the Bill here

The second reading of the Bill is expected to take place on 29 January 2021.
Peel Investments (North) Ltd v Secretary of State for Housing, Communities & Local Government [2020] EWCA Civ 1175The issue in this case surrounded the meaning of “out-of-date” in paragraph 11(d) of the National Planning Policy Framework (NPPF).

Paragraph 11(d) states when there are no relevant development planning policies, or they are out-of-date, there should be a “presumption in favour of sustainable development”. Permission should be granted unless the area is protected and there is a strong reason for refusal, or the adverse impacts of the development would “significantly and demonstrably” outweigh the benefits.

The Court of Appeal held that the wording of “out-of-date” did not cover the situation where a development plan document has expired; they are “out-of-date” if the document has been overtaken by a change in national policy for example. Otherwise, the NPPF would have used the phrase “time-expired”.

You can view the full case here.
Norfolk Homes Ltd v North Norfolk District Council and another [2020] EWHC 2265 (QB)The High Court held that a S106 agreement made in 2012 should not be construed to extend to a subsequent S73 permission made in 2015, and therefore was free of any S106 planning obligations.

The language used in the 2012 S106 agreement was very clear, and the parties could have chosen to use language in the agreement which extended the definitions of "Development" and "Dwelling" so that they applied to development, whether carried out pursuant to the 2012 permission or a subsequent section 73 permission. But they did not.

The Court decided that it would have been unreasonable to imply the additional meaning.

You can view the full case here.
Thurrock BC v Remblance [2020] 8 WLUK 245 (QBD)The High Court in this case granted an application to extend an interim injunction. The Local Planning Authority (LPA) wished to extend an injunction obtained without notice to restrain the defendants from preparing land which was to be used as a caravan site.

The LPA argued that there was no planning permission for the above, as well as the fact that the land was supposed to be used for agricultural purposes. Changing it to a caravan site would amount to a material change.

It was also held that the LPA had jurisdiction to seek an injunction not only in relation to actual breaches but also in respect of apprehended breaches, due to the serious nature of the breaches of planning control.

You can view the full case here.
Friends of the Irish Environment Ltd v An Bord Pleanála (Case C-254/19) EU:C:2020:680An Bord Pleanála (Planning Board, Ireland) granted an extra five years for the construction of a liquefied natural gas regasification terminal, on top of the ten-year period originally set in a previous development consent. This consent expired on 31 March 2018, and no development had taken place.

This decision to extend the consent was challenged by Friends of the Irish Environment (FIE) who argued the decision did not comply with Article 6(3) of the Habitats Directive. This Directive requires member states to undertake an assessment of a project which is likely to have a significant impact on either a Special Area of Conservation or Special Protection Area.

On 09 September 2020, the European Court of Justice held that when the extension of the duration of the development was permitted it was consenting to the project under the Directive. The purpose of the consent was to allow a project (that was the subject of a first consent that had lapsed without the intended works having even been started) to begin and that consent must be considered as a new consent under the EIA Directive and, consequently, also an "agreement" to the project under Article 6(3) of the Habitats Directive. This was due to the definition of “project” being far narrower in the EIA Directive and therefore it was definitely covered by the Habitats Directive.

You can view the full decision here.
Western Trading Ltd and another v R [2020] EWCA Crim 1234In this case the freehold owner of a Grade II listed building began works without obtaining planning permission or listed building consent for those works and in addition refused to undertake remedial works as had been required pursuant to a planning enforcement notices issued in April 2014. The owner had appealed against the enforcement notices but these appeals had been dismissed.

The Local Planning Authority began prosecution.

The Court of Appeal confirmed that the combination of an attempt at avoiding costs of remedial works and 3 years of disobedience justified the £40,000 starting point adopted. Further, the reduction in that starting point adequately reflected the guilty pleas and the fact that remedial works had been carried out following a deferment of sentence such that the final fees imposed on the company and sole Director amounted to £25,000.

You can view the full decision here.
PINS: Appeal decision: APP/C1245/L/20/1200386 (11 September 2020)This case relates to an appeal against surcharges levied by Dorset Council in respect of a failure to submit a valid commencement notice for the purposes of Regulations 67(2)(a) of the Community Infrastructure Levy Regulations.

The appellant informed the council by email that he intended to start works on the development whereas Regulation 67(2)(a) requires that a Commencement Notice must be submitted on a form published by the Secretary of State, or a form to substantially the same effect. , The Inspector held that an email did not satisfy this requirement and therefore the appellant had failed to serve a valid commencement notice and his appeal was dismissed.

You can view the full decision here.
Ministry of Housing, Communities and Local Government announces that permitted development housing will have to meet space standardsIt was announced on 30 September that dwelling houses constructed under permitted development rights will have to meet the Nationally Described Space Standard, which deals with internal space within new dwellings.

The space standard begins at 37m² of floorspace for a new one bed flat with a shower room (39m² with a bathroom), ensuring proper living space for a single occupier.
The Chancery Lane Project publishes third edition of Climate Contract Playbook and updates Glossary of key climate termsThe aim of the Chancery Lane Project is to help legal professionals develop contracts and laws to help combat climate change and achieve net zero carbon emissions. The newly published third edition includes 21 new clauses and 23 new definitions. Notable new clauses to assist lawyers in finding ‘climate-conscious’ wording include:

• Exclusion of climate obligations from insurance coverage;
• Green litigation and arbitration protocols to reduce the adverse impact of dispute resolution processes on the climate;
Final revised flood and coastal erosion risk management strategy for England publishedThe Environment Agency has published its final revised Risk Management Strategy for flood and coastal erosion. The long term vision calls for resilience “today, tomorrow and to the year 2100”.

The Strategy describes what needs to be done by all risk management authorities for the benefit of people and places. This includes:
• the Environment Agency
• lead local flood authorities
• district councils
• internal drainage boards
• highways authorities
• water and sewerage companies

It sets out the long-term delivery objectives the nation should take over the next 10 to 30 years. The above authorities should work alongside communities, farmers and infrastructure providers to increase resilience to flooding and coastal change. The main ambitions are the following:

• climate resilient places: working with partners to increase resilience to flooding across the nation, both now and in the face of climate
• today’s growth and infrastructure resilient in tomorrow’s climate: making the right investment and planning decisions to secure
sustainable growth and environmental improvements;
• a nation ready to respond and adapt to flooding and coastal change: ensuring local people understand their risk to flooding and
coastal change, and know their responsibilities and how to take action.

You can view the Strategy here.
Rights: Community: Action Ltd has sent out a pre-action letter which challenges the new rules on permitted development rights and the amendments to the Town and Country Planning (Use Classes) Order 1987This letter has been sent out as part of the judicial review protocol, and challenges the new permitted development rights on the following three grounds - the government:

(1) unlawfully failed to carry out an environmental assessment of the Statutory Instruments (SIs)

(2) did not take into consideration the affected protected groups before making a decision, and so the public sector equality duty was not complied with

(3) failed to consider the consultation responses and other material considerations

To view a copy of this letter, click here.

Rights: Community: Action Ltd was granted permission to challenge the new rules on 02 September 2020. Holgate J made an order listing the claim to be heard in court for 1.5 days between 8 and 15 October 2020.

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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