Planning Law Update - March 2021


In the month that saw the UK government publish its Spring 2021 Roadmap for COVID-19, there was an absence in the way of new planning legislation. However, February brought a number of judgments, including where the Court of Appeal decided that development plan policies can be taken into account when considering the "tilted balance" under paragraph 11(d)(ii) of the NPPF. In addition, the High Court found that an Inspector had not erred in granting retrospective planning permission for a storage building erected across a public footpath.

Case Law

Malvern Hills District Council v Secretary of State for Housing, Communities and Local Government and another [2021] EWHC 129

A planning inspector granted retrospective planning permission for a storage building to house a steam crane that had been erected across a public footpath. The ground of appeal was based on paragraph 98 of the National Planning Policy Framework:"Planning policies and decisions should protect and enhance public rights of way and access, including taking opportunities to provide better facilities for users, for example by adding links to existing rights of way networks including National Trails."The High Court held that the grant of planning permission did not authorise the obstruction of the footpath, because the footpath could easily be diverted to an alternative route. The crane may be the last-built steam crane surviving in Britain, and its continued existence would be threatened if not housed undercover.You can view the appeal here

Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 104

The Court of Appeal dismissed an appeal concerning the interpretation of the tilted balance within paragraph 11(d)(ii) of the National Planning Policy Framework.This paragraph of the NPPF states that plans and decisions should apply a presumption in favour of sustainable development, but where there are no development plan polices (or they are out of date) planning permission should be granted unless “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in this Framework taken as a whole”.It was held the phrase "the policies in this Framework taken as a whole" was not subject to the specific exclusion of development plan policies. Nothing in the wording suggested that the Government wanted to exclude development plan policy.The Secretary of State’s decision to refuse planning permission (in line with Corby Borough Council’s original decision) was upheld.You can view the appeal here.

Planning Inspectorate Decisions

APP/N0410/X/20/3259488 - Ancillary residential building not incidental to the enjoyment of dwellinghouse

An application for a lawful development certificate for a proposed single-storey outbuilding (140 square metres for domestic storage, studio, office, gym and toilet) was refused.The Inspector held that the gym and office were capable of being incidental uses, and perhaps the toilet could also be incidental if it was integrated in the right way. However, the proposed remaining uses of a studio and domestic storage were too ambiguous and imprecise.Appeal dismissed. 

APP/B2355/X/20/3257581 – Installation of underground pipe was a ‘material operation’

The digging of a trench (approximately five metres long and one metre deep) and the laying of an underground plastic drainage pipe was not classed by the Inspector as ‘de minimis’ works and therefore, constituted a “material operation” under section 56(4)(c) of the Town and Country Planning Act 1990.Rossendale Borough Council refused an application for a Certificate of Lawful Existing Use or Development seeking confirmation that a planning permission had been implemented within the three-year time limit. It was held that the development had been lawfully commenced and as a result of the above actions, the appeal was allowed.


Government confirms new buildings in England must meet nearly zero energy requirements

The Ministry of Housing, Communities and Local Government (MHCLG) published a letter on 10 February 2021 clarifying the implementation of the requirements for nearly zero energy buildings for new buildings with respect to Regulation 25B of the Building Regulations 2010. The letter sets out guidance for new buildings, which are required to meet Regulation 25B from 31 December 2020.Compliance with Regulation 25B is achieved by:(a)   meeting the Target Emission Rate required under Regulation 26; and(b)   undertaking an analysis of the technical, environmental and economic feasibility of using high-efficiency alternative systemsHouse of Commons Library publishes a briefing paper on recent changes to the use classes and permitted development rightsThe briefing paper, published on 12 February 2021 looks in detail at the changes made in 2020 to the Use Classes Order 1987 and The General Permitted Development Order 2015.You can view the full paper here

MHCLG publishes new policy paper on sustainable growth in the Oxford-Cambridge Arc

The Government confirmed in the 2020 Budget that a “long term spatial framework to support strategic planning” was being developed, which also included plans to create a new town at Cambridge. On 18 February, MHCLG published ‘Planning for sustainable growth in the Oxford-Cambridge Arc: an introduction to the Oxford-Cambridge Arc Spatial Framework’ which aims to support sustainable economic growth and long-lasting improvements to the environment, green infrastructure and biodiversity.It spans the five counties of Oxfordshire, Northamptonshire, Buckinghamshire, Bedfordshire and Cambridgeshire. 

Welsh Government publishes Future Wales National Plan 2040

The FWNP is the national development framework for Wales and sets out the direction for development until 31 December 2040. The FWNP replaces the Wales Spatial Plan. It can be viewed here. There are 18 policies in total and the Welsh Government intends to review the Plan every five years.

For advice on any of the topics discussed in this article, please contact a member of the planning team on the details provided below.


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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