Planning Law Update - January 2021

The month of December saw the government publish a consultation on further planning reforms to help encourage housing delivery, as well as amending the recently introduced permitted development rights Class A and AA. The long-awaited UK Energy White Paper was also published which emphasises the importance of reaching both our nationally and globally set targets for achieving a net zero future.

Legislation, law or policy


Revised Offshore Pipe-lines EIA Regulations made following Greenpeace's JR challenge    The Offshore Oil and Gas Exploration, Production, Unloading and Storage (Environmental Impact Assessment) Regulations 2020 (SI 2020/1497) were made on 8 December 2020 and came into force on 31 December 2020.The Regulations introduce the proposed changes in the government’s consultation in July 2020, and aim to achieve the following:
  • 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 to further enhance the EIA regulatory regime for offshore hydrocarbon projects
Amendments made to class AA and class A permitted development rights      The Town and Country Planning (General Permitted Development) (England) (Amendment) (No 4) Order 2020 (SI 2020/1459) was made on 7 December 2020 and came into force on 30 December 2020.Class A (new dwellinghouses on detached blocks of flats) and Class AA (new dwellinghouses on detached buildings in commercial or mixed use) have been amended by introducing a requirement for a developer seeking prior approval in relation to an existing building, which is 18 metres or more in height, to provide a report from a competent professional which confirms that the external wall construction of the existing building complies with paragraph B4(1) of Schedule 1 to the Building Regulations 2010 (SI 2010/2214) which states:"The external walls of the building shall adequately resist the spread of fire over the walls and from one building to another, having regard to the height, use and position of the building".
Case Law
R (Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52      On 16 December 2020, the Supreme Court allowed Heathrow Airport's appeal against the Court of Appeal's decision on the judicial review challenges by Plan B and Friends of the Earth, and reinstates many of the High Court’s findings.The decision focussed on section 5(8) and section 10 of the PA 2008. The court held that for section 5(8) to operate sensibly, the phrase "government policy" needed to be awarded a narrow meaning so the relevant policies can be readily identified. Moreover, the Secretary of State's view that the UK's international obligations under the Paris Agreement were sufficiently taken into account was viewed as a rational decision.In addition, the Supreme Court accepted Heathrow's submission that the Secretary of State did not act irrationally in deciding not to assess post-2050 emissions by reference to future policies which had yet to be determined. The third runway project would be assessed against emissions targets in force at the development consent order (DCO) stage instead.
Leech Homes Ltd v Northumberland County Council [2020] UKUT 328 (LC)    The Upper Tribunal (UT) was required to determine whether it could order that one party should pay the costs incurred by the other party in an appeal against a certificate of appropriate alternative development (CAAD).Under s.17 of the Land Compensation Act 1961, a party can apply to the local authority for a CAAD where the authority proposed to acquire the party's interest in land through compulsory purchase.The UT held that an appeal regarding CAAD  was ‘compensation under compulsory purchase’ because their sole purpose was a step towards compensation and therefore could award costs.
Planning Inspectorate Decisions
APP/X3540/W/20/3259697 This appeal decision looks at the modification of a condition which limits construction hours on a residential development site. The appellant sought to temporarily extend the permitted working hours.Given the proximity of the site to properties, and the likely adverse impact of the almost constant noise of diggers and reversing alarms, the inspector concluded that only the internal works on the site could be extended without causing detrimental impact on the residents’ living conditions.
Consultation on reforms to planning system to support housing delivery     The consultation was published by the government on 3 December 2020 and focuses on three parts;
  • a new proposed permitted development right (PDR) for change of use from Class E to Class C3,
  • measures to support public service infrastructure, such as extended PDRs for schools, hospitals and prisons; and
  • simplifying and consolidating existing PDRs following the recent changes to the Town and Country Planning (Use Classes) Order 1987, for example the references to use classes throughout the GPDO 2015 need to be reviewed and updated.
The proposals relate to England only and the consultation closes on 28 January 2021. Our planning department have recently published an article on this topic which can be viewed here.
Welsh Government publishes second consultation on narrowing Parts L and F of Building Regulations     The consultation reviews changes to Part L (conservation of fuel and power) and Part F (ventilation) of the Building Regulations for existing dwellings and alleviating overheating in new dwellings.The consultation proposes:
  • Raising the standards for controlled works in existing homes (only where cost-effective).
  • Amendments to the requirements on consequential improvements (where extra energy efficiency works are required).
  • Transposing requirements from the Energy Performance of Buildings Directive 2010 concerning self-regulating devices, building automation and control systems technical building systems and primary energy.
The consultation closes on 17 February 2021.
UK Energy White Paper is published     ‘Powering our Net Zero Future’ was published on 14 December 2020 and builds on the Prime Minister’s recent Ten Point Plan for a green industrial revolution. The White Paper is split into six chapters, covering consumers, power (and the BEIS modelling), the energy system, buildings, industrial energy and oil and gas.The domestic agenda sets out a future “system with consumers at its heart, able to make money or save on bills through using the new technologies net zero will require…ensuring the energy system is fit for a net zero world, making markets efficient, incentivising people to move to clean energy solutions, or making sure system rules are agile and flexible to accommodate new technologies and new ways of doing things.”
Final report assessing the rail needs of the Midlands and the North is published     The National Infrastructure Commission published the report on 15 December 2020. It sets out three different illustrative budget options (baseline, plus 25 per cent and plus 50 per cent):
  • focusing on upgrades (baseline budget only)
  • prioritising regional links
  • prioritising long distance links.
The schemes include Northern Powerhouse Rail between Liverpool and Hull, the Midlands Engine Rail programme, and HS2 phase 2b linking Birmingham to Manchester via Crewe, and to Leeds via the East Midlands.
Change to the standard method for assessing local housing need The government will retain the standard method in its current form. However, in order to meet the principles of delivering more homes on brownfield land, a 35% uplift will be applied to the post-cap number generated by the standard method in Greater London and local authorities in England which have the largest proportion of people living in the citiesThese include: Birmingham, Liverpool, Bristol, Manchester, Sheffield, Leeds, Leicester, Coventry, Bradford, Nottingham, Kingston upon Hull, Newcastle upon Tyne, Stoke-on-Trent, Southampton, Plymouth, Derby, Reading, Wolverhampton, and Brighton and Hove.You can view MHCLG’s published response to the August 2020 consultation here.

For advice on any of the topics discussed in this newsletter please contact a member of the planning 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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