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A ‘Minor Material’ clarification

A ‘Minor Material’ clarification

Robert Dibden 13 Jul 2017
The recent judgment of the Supreme Court in relation to Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East Borough Council raised a number of wider implications for planning, not least concerns regarding the role of the courts in planning decision-making and the over-legalisation of the planning process. For a number of years now, developers and landowners have used the judicial review process as a means of holding planning decision- makers to account, and ensuring the rigour of the planning system generally. Lichfields’ Newcastle office’s latest first-hand experience of the process in action offers helpful insight into both the workings of, and interrelationship between, England’s planning and legal systems, and the idiosyncrasies of a particularly well-used provision of the Planning Acts. The case centred on the use of Section 73 (s73) of the Town and Country Planning Act 1990, which allows applicants to seek permission for a minor material amendment (‘MMA’) to a previously approved scheme. In this specific case, a developer in York had obtained planning permission for a mixed use development described as: Erection of 8,000 seat community stadium, leisure centre, multi-screen cinema, retail units, outdoor football pitches, community facilities and other ancillary uses... Planning permission was granted subject to a number of conditions, including a requirement for the development to be in accordance with various approved plans. A short time later, the developer sought to update these plans by way of an MMA application. Amongst other amendments, the MMA application included increasing the capacity of the cinema by around 20%, and increasing the overall amount of floorspace made up of town centre uses by around 40%. Lichfields were subsequently appointed by an existing cinema operator in York to review the s73 application, in light of the potential adverse impact on their own business. During the course of this process it became apparent that the key question for the local planning authority to consider was whether, in fact, an alteration of this scale to the approved scheme could lawfully be approved (or indeed validated and then determined) by way of an MMA application. National Planning Practice Guidance advises : There is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved. The local planning authority contended that the proposed amendments were acceptable in this context, and proceeded to approve the application. During the six week judicial review challenge period following the grant of planning permission, Lichfields worked with Counsel to review the appropriate case law and primary legislation. This process indicated that guidance on the issue is less than clear. Whilst Planning Practice Guidance acknowledges there is no statutory definition of an MMA it is, by definition, inferred that the changes sought by such an application must constitute ‘minor’ alterations. High Court Judge Mr Justice Collins agreed that our client’s case was arguable, and a hearing at the Queen’s Bench Division in London was scheduled for January 2017. At the hearing, Counsel put forward the cases for the claimant and defendant respectively; each essentially focusing on v Coventry City Council Ex p. Arrowcroft Group Plc (2001). In summing up, Justice Collins contended that Arrowcroft established that, whilst there was no statutory definition of an MMA, the key principle is that it is not open to the local planning authority to vary a condition if that variation means that the precise terms of the original permission (i.e. the description of development) were changed by it. This reflects the wording of s73 itself, which states only that: "(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and— (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application." In part, this reflects the retro-fitting exercise undertaken by Government in utilising s73 to regularise the format in which applicants seek post-permission amendments to schemes. In itself, however (and possibly at odds with Planning Practice Guidance), s73 fails to limit the extent of changes sought through MMA applications in terms of how ‘minor’ or indeed ‘substantial’, they are in practice. In York, the description of development for the original scheme was sufficiently vague, such that no reasonable change to the scale or capacity of the cinema in isolation could negate the appropriate use of s73. This in itself is an important lesson for applicants, and ensuring local planning authorities don’t tamper with a description of development prior to the validation of an application could be key to retaining the future flexibility of a planning permission. Nevertheless, the whole judicial review process proved invaluable in untangling policy guidance which was admittedly never intended as a purpose-made solution. For planning consultants, this relationship between the legal and planning systems plays an integral role in assuring applicants of the robustness (and indeed lawfulness) of their planning decisions. Without these checks and balances in place, it is arguable that the whole planning process could become less fair and balanced, particularly given the fragmented nature of much current planning policy. For our client, this meant challenging a questionable decision through the courts over a period of six months or so. It is to everyone’s benefit within the planning sector that such a process exists, and can be utilised where necessary.  

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The First Metro Mayor for the West of England
Conservative Tim Bowles, has now been sworn in as the first Metro Mayor for the West of England Combined Authority (encompassing Bristol, Bath & North East Somerset and South Gloucestershire) and is tasked with leading the delivery of a Devolution Deal worth £900m. Addressing the housing shortage was one of the Metro Mayor’s key priorities during the election campaign. With barely two weeks having passed since he took office, and with purdah prior to the General Election, it could be some time before we have clarity on how this is likely to be achieved. This blog considers some of the key challenges that lie ahead in planning for more homes across the region. It is generally agreed that we need more houses across the region to address a worsening supply and affordability crisis. The emerging Joint Spatial Plan (JSP), which also includes North Somerset, goes some way to tackle the issue by providing the framework to deliver up to 105,000 new homes over the next 20 years. The consultation report on the JSP shows that the development industry considers this level of growth to be insufficient – particularly to address the desperate shortfall of affordable housing. Against this backdrop, it is encouraging that the Metro Mayor has pledged to develop a strategy to deliver more new homes. The biggest question of course is ‘where will these new homes will be built?’ The Metro Mayor has stated that he will work to ease the pressure for greenfield development and development within Green Belt and take a ‘brownfield first’ approach. However, for a region where Green Belt accounts for nearly 50% of the land and tightly constrains existing urban areas, it will not be possible to say ‘no’ to Green Belt release if the supply of new housing is to be significantly increased - particularly when capacity on brownfield sites is limited; viability more challenging; and the lead-in times for delivery longer.  To tackle the housing crisis the Metro Mayor should be ambitious in adopting a pro-growth and permissive approach which supports the delivery of open market and affordable housing in a range of suitable locations and across a portfolio of sites including brownfield and greenfield. This will involve difficult decisions because any robust plan for housing growth must include a full and proper assessment of the Green Belt. If not, there is a real risk that housing needs across the region will not be met. After May 2018, the Metro Mayor will have powers of strategic planning, including the ability to adopt a statutory spatial development strategy for the Combined Authority Area, which could act as the framework for managing planning across the region. To provide certainty for the development industry, there is need for clarity about how a spatial development strategy will sit with the emerging JSP. A principal issue will be to ensure that there is no delay in the delivery of strategic housing sites that are currently being planned for through the JSP. One of the key challenges in managing sustainable housing growth across the region will be the delivery of significant infrastructure improvements to address years of under-investment. The Metro Mayor recognises that an efficient and integrated transport system will help to unlock further growth across the region and has promised to work with a range of stakeholders to improve infrastructure through projects such as the revival of suburban rail links, enhanced park and ride provision, better cycle routes and bus improvement measures. The Joint Transport Plan outlines a raft of ambitious transport improvements including new rapid bus and light rail links, improvements to the road networks and the extension of the MetroWest project. The cost of delivering these projects runs in to billions of pounds - far beyond what is available through the Devolution Deal. But what we do now have is an immediate source of funding and a Metro Mayor with strategic transport planning powers to invest in some of the transport priorities that have been identified. What the Metro Mayor needs to deliver is a clear, long-term strategy for a better functioning and integrated transport system which not only improves residents’ access to jobs and opportunities but also demonstrates how development sites for new homes can be opened up. Strategic planning for transport alongside housing growth will lead to more sustainable patterns of development and ease congestion. The Metro Mayor will be one of four decision makers - chairing a Cabinet made up of the leaders of the three Councils (two Conservative and one Labour) including Bristol’s elected Mayor. This is positive because it will ensure that the benefits from the Devolution Deal will be shared across the region. But political diversity will mean that the Metro Mayor can only address strategic growth by cutting through party politics.  Another political consideration will be how best to work with North Somerset, which last year voted against the creation of a Metro Mayor and is not directly included in the new administration. North Somerset forms a part of the functional Wider Bristol Housing Market Area (not least because 22% of its residents in work commute in to Bristol) and will have a key role to play in solving the regions’ housing crisis including Bristol’s unmet need. Taking an inclusive approach to engagement and involvement in decisions that impact upon and help North Somerset will, therefore, be crucial.   Despite these issues, what remains beyond doubt is that the Devolution Deal provides a great opportunity for the West of England to maintain its strengths and unlock the full potential for well planned sustainable housing growth. Image credit: Paul Raftery

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