Planning Law Update – February 2021

 

Welcome to the Planning Law Update – February 2021

In January, the Court of Appeal confirmed that the 56-day period for the determination of prior approval applications can be extended by an agreement. There was also an abundance of Planning Inspectorate decisions, including one in which it was held that there was no power to consider mitigation in a Community Infrastructure Levy (CIL) appeal, and another case which highlights the importance of the wording of development plans. The Ministry of Housing, Communities and Local Government has published a new consultation on the ‘Right to Regenerate’, which will enable the public to require local authorities and the public sector to sell unused land and assets.

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Legislation

New regulations in place to protect England’s cultural and historic heritage

Summary: New legal safeguards have been announced for historic monuments at risk of removal. All historic statues, plaques and other monuments will require full planning permission to remove, ensuring due process and local consultation in every case. The protections come following the toppling of the statue of 17th-century slave trader Edward Colston into the harbour during a protest in Bristol in 2020.Moreover, if a council wants to grant planning permission for the removal of a statue and Historic England objects, the Communities Secretary will be notified to make the final decision. A new policy of "retain and explain" will apply, meaning that permission will only be granted in "the most exceptional circumstances". View the announcement here.

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Case Law

Aspire Luxury Homes (Eversley) Ltd v Hart District Council [2020] EWHC 3529 (QB)

Summary: The High Court held that it was not an ‘abuse of process’ to bring an ordinary civil claim in relation to the construction of a section 106 agreement. Whilst questioning the validity of the agreement would likely be a question of public law, it was found that the construction of the agreement was no different in principle to the construction of any contract. The section 106 agreement included obligations concerning affordable housing. In outline, it required that two of the dwellings permitted had to be units of affordable housing and they had to be provided before more than two other new dwellings could be sold on the open market. While the requirement to provide affordable housing was not in dispute, the parties did not agree on the interpretation of the relevant clause of the agreement, clause 14.The council applied for the claim to be struck out, arguing that the dispute was an issue of public law, and therefore should have been raised by a claim for judicial review. The judge held there was no reason why any issues over the meaning of the agreement could not be dealt with in the same way as an issue over the meaning of any other contract.

Gluck v Secretary of State for Housing, Communities and Local Government and another [2020] EWCA Civ 1756

Summary: The Court of Appeal confirmed that the 56-day time limit within which prior approval applications should be determined can be extended by agreement between the applicant and the local planning authority under GDPO 2015.Specifically, the eight-week period specified in paragraph W(11)(c) could be extended by agreement under article 7(c). Whilst the purpose of Article 7 of the GDPO 2015 is to impose an obligation on a local planning authority to determine prior approval applications within the time period defined in limbs (a), (b) or (c), Article 7 must be read as if limb (c) is an alternative to both limbs (a) and (b). It should also be noted that although the extension in time had been agreed orally, the emails between the parties was sufficient evidence.

Paul Newman New Homes Ltd v Secretary of State for Housing, Communities And Local Government [2021] EWCA Civ 15

Summary: The Court of Appeal considered that when interpreting paragraph 11 of the National Planning Policy Framework (plans and decisions should apply a presumption in favour of sustainable development), that one should not consider the language of earlier versions of the NPPF because the language in the most up to date version was deliberately and materially different.

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Planning Inspectorate Decisions

APP/L5240/L/20/1200423

It was held that a liability notice sent ten months after the planning permission was granted did not meet Reg. 65(1) of CIL Regulations 2010. Reg. 65(1) states that the collecting authority must issue a liability notice “as soon as practical after the day on which planning permission first permits development”. The inspector confirmed that ten months could not reasonably be seen as being “as soon as practical”. The appeal was allowed.

APP/U2235/L/20/1200435

This appeal confirmed that there is no power to consider mitigation in an appeal against the community infrastructure levy. Although the inspector had sympathy that the appellants’ architect had incorrectly advised them on when to submit a commencement notice, they had no discretionary powers to allow an appeal based on mitigating factors and it did not change the fact that the alleged breach had occurred. The appeal was dismissed.

APP/X3025/W/20/3250525

The facts for this appeal were that Mansfield District Council (MDC) had adopted a development plan containing a policy prohibiting takeaways within a 400-metre radius of any secondary school or college. Although the appeal site, a two-storey fast food restaurant, was not within 400 metres of a school or college it was considered to be “a fairly short distance away” from a primary school. MDC had refused planning permission. While the inspector understood the concerns that had been expressed, primary schools were not included within the exclusion zones under Policy. As well as taking into account that primary school aged children would be more likely to be accompanied by an adult, the appeal was allowed.

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Publications

Public Health England publishes advice on utilising the planning system to achieve healthy places and communities

“Getting research into practice: a resource for local authorities on planning healthier places” was published on the 12 January 2021 and aims to offer support to local public health and planning teams to reflect the current and future well-being needs of communities. 

Welsh Government publishes White Paper on building safety

The proposed reforms set out in the “Building Safety White Paper“ include legislative change across the lifecycle of buildings and a culture change in the way buildings are designed, constructed and managed in the future. The proposals follow a similar approach to the UK government's building safety proposals set out in the draft Building Safety Bill and the Welsh government will use powers granted to it under that draft legislation to implement its reforms. The consultation ends on 12 April 2021.

Welsh Government publishes consultation paper on heritage partnership agreements in Wales

The consultation seeks views on draft regulations which will make provision for Heritage Partnership Agreements in Wales.Heritage Partnership Agreements are voluntary arrangement which is negotiated between the owner of an asset and the relevant consenting authority in relation to the long term management and maintenance of designated historic assets. These agreements can also incorporate listed buildings consents and scheduled monument consents, for an agreed programme of works over a 10 to 15 year period. This would avoid the need for owners to have to make numerous applications for consents to undertake works to historic assets over that time period. The consultation closes on 12 April 2021.

Ministry of Housing, Communities and Local Government (MHCLG) publishes consultation

The new consultation, “Right to Regenerate”, was published on 16 January 2021 and will shape a reform of the ‘Right to Contest’ to enable the public to request that the Government directs councils and the public sector to sell unused land and assets. The Right to Contest is a little-known right, with only one direction to dispose issued since 2014. The consultation aims to reform this right to encourage a more productive use of land by making it quicker and easier for individuals, business and organisations to identify and ultimately acquire and develop unused or empty land such as vacant homes and garages that are owned by public bodies. The consultation ends on 13 March 2021.

Housing Delivery Test (HDT) 2020

HDT measures how many houses are built in a local planning authority over a three-year period, and if insufficient numbers are reached then the authority could face consequences. On 19 January 2021, MHCLG published the measurement and a technical note on the process which is used in its calculation. It should be noted that the first national lockdown, announced on 23 March 2020, was an unprecedented event which saw temporary disruption to local authority planning services and the construction sector. The MHCLG have reflected this in this year’s results and reduced the ‘homes required’ within the 2019 to 2020 year in the Housing Delivery Test by a month.

Government consults on changes to NPPF and new National Model Design Code

A consultation was announced by MHCLG on 30 January 2021 which seeks views on draft revisions to the National Planning Policy Framework (NPPF). The draft has been revised to implement policy changes in response to the Building Better Building Beautiful Commission “Living with Beauty” report. A National Model Design Code was also published as a sister document. Both documents are now available for public comment until 27th March 2021.

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Contact Robert Bruce or Polly Wisner from the Planning team at Freeths.