Planning & Environmental Update: March 2017

The Planning & Environment Group consists of 30 planning and environmental lawyers and planning consultants working closely together in one team, taking a holistic 360 degree approach and providing a one-stop shop to advising on development proposals.

The Group covers the whole country and all Freeths’ offices, with team members in the Nottingham, London, Sheffield, Leicester and Birmingham offices, and Michelle Spark, Senior Associate shortly joins in the Leeds office.

 In this update, we provide recent changes in legislation and policy, and notable work. Legal Update Housing White Paper In early February this year, the Government set out new measures in the Housing White Paper to fix the UK’s “broken housing market” by focusing on four key areas; planning for the right homes in the right places, building homes faster, diversifying the market and helping people now. Our overall opinion of the White Paper is that its policies do not go far enough to tackle the problems faced by the housing market, but it proposes important changes. CIL Review The Department of Communities and Local Government commissioned a report on the effectiveness of the Community Infrastructure Levy (CIL).

The report made two key recommendations: that the CIL system is replaced with a hybrid system of a Local Infrastructure Tariff and section 106 agreements, and that combined local authorities should be allowed to set up an additional Mayor type Strategic Infrastructure Tariff. The Government’s response is awaited, but a further change in the system is likely to cause further confusion. Build to Rent Consultation In early February this year, the Government released a Planning and Affordable Housing for Build to Rent consultation paper seeking views on policies to speed up the development of large-scale, purpose-built privately rented housing by encouraging local authorities to plan proactively for a Build to Rent Scheme; and Facilitating Affordable Private Rent as a form of affordable housing on Built to Rent schemes Suffolk Coastal DC v Hopkins Homes In February 2017, the Supreme Court appeal hearing was held on two conjoined appeals regarding the meaning of paragraph 49 of the National Planning Policy Framework regarding when housing policies are to be considered not up-to-date. Where policies are out of date a presumption in favour of sustainable development applies (i.e. a presumption that planning permission should be granted unless outweighed by adverse impacts). The decision will be important for housing developments. A decision is awaited.

HS2 The Phase 1 legislation has been enacted (London to the West Midlands), with major construction to start in 2018.The Phase 2a hybrid bill is expected later this year (West Midlands to Crewe).Our Group is already advising and well placed to advise on any issues arising.

EIA changesChanges to the EU Environmental Impact Assessment Directive come into effect in May 2017. The Directive makes important changes that will be implemented in the UK from May 2017.

Planning Paul Brailsford, assisted by Robert Bruce, Liz Garvey and Louise Clifton, acting for a developer successfully appealed a Community Infrastructure Levy liability notice reducing the client’s liability on a sizable retail development from £1.1m to £90k as a result of demonstrating 6 months of lawful use in part of the property.Robert Bruce and Jennifer Roe had a busy start to the year, with 4 instructions on planning litigation in the High Court received from key clients. An instruction has also been received for a £2.5m CPO compensation claim for medical facilities at the Upper Tribunal (Lands Chamber). Jennifer joined the Planning & Environment Group in London in January.Robert Bruce, Mark Bassett and Maddy Scott have recently attended a four day planning inquiry for the developer for 900 dwellings and associated development. This centred on key issues regarding the site being in open countryside and in an area where the Local Authority does not have a 5 year housing land supply, but where the Inspector for the emerging Local Plan has issued a note indicating that the plan is likely to be found sound. The Appeal was accompanied by a substantial S106 obligation drafted and negotiated by the team, the form of which was finalised in complex negotiations with the Council and another land owner.


The Environment team in Leicester has maintained its track record of success representing clients dealing with statutory nuisance claims. Most recently, the team defended the owner of a multi sports facility in London against allegations of nuisance from noise and floodlighting at the facility. Central to the case was the complex planning history of the site. It was a serious concern of the Respondent that adjacent residential properties had been built without proper noise attenuation measures (notwithstanding a planning condition to protect ongoing use of the sports facilities) which explained the noise environment inside the flats. Freeths’ cross-disciplinary approach ensured that our Client had ready access to all areas of expertise required to reach a successful conclusion. The case was conducted by a team of specialist environment solicitors, while expert planning evidence was given by one of our in-house Chartered town planners, Mark Bassett.

The Environment team in Sheffield have been easing the grant of planning for developer clients by effectively overcoming environmental objections. They have had 2 recent successes for house builder clients overcoming ecological-based objections. The objections were based on a lack of complete ecological survey data to support the planning applications. Our clients were able to rely on recent case law as advised upon by Freeths to successfully assert that they could make a “best guess” assessment of the likely ecological impacts of their projects, irrespective of this lack of survey data. As such the objections have been withdrawn.

The Environment team in Sheffield has been successful in obtaining a Great Crested Newt licence, for a major house builder, based on more lenient policy rules announced by Natural England in December 2016. This is one of the first licences issued under the new rules. This means that our client is now 6 months ahead of the timetable it would have otherwise faced.

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.