Commercial planning news, December 2018


Commercial planning news, December 2018

03 Dec 2018



Headline news


A section 73 permission that varies a description of development can be lawful

A recent High Court judgment has considered the lawfulness of a section 73 planning permission that necessitates a variation to the terms, or description of development, of the original (or an earlier) planning permission.
In Finney v Welsh Ministers, Carmarthenshire resident John Finney sought an order quashing a section 73 planning permission granted on appeal for (amongst other things) two wind turbines with a 125m blade height.  The description of development of the original 2016 planning permission begins “25 year operation of two wind turbines, with a tip height of up to 100m […]”.
The claim was made on the ground that:
“the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition pursuant to which a prior planning permission had been granted which had the effect of directly contradicting the description of the development permitted in that earlier permission. Further or alternatively, the Claimant asserts that the Inspector failed to consider at all (as she should have done in accordance with established legal principles) whether the application before her constituted a "fundamental alteration" of the prior permission”.
Judge Sir Wyn Williams considered leading authority R v Coventry City Council, ex p. Arrowcroft Group plc (2001) and also more recent (2017) cases; Wet Finishing Works v Taunton Deane BC (2018), and R (Vue Entertainment Ltd) v City of York Council .  He discussed the interpretation of and potential inconsistencies between these cases concluded that both 2017 cases applied the reasoning in Arrowcroft; notably ‘the Arrowcroft principle’ that under a section 73 application a local planning authority:
"is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application".
The judge decided:
“that the only proper interpretation of the judgment in Wet Finishing Works, is that a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application”
And that he was not minded to depart from this “persuasive authority”.  To accept the claimant’s argument would “lead to an over-technical and inflexible approach to the application of section 73”.
The judge also concluded that the Inspector had considered whether the s73 application constituted a fundamental alteration to the original proposal, but that even if she had not, the Inspector had set out the major points of difference between the two proposals so meticulously that had she considered whether they constituted a fundamental alteration she would have concluded that they did not.
The application for judicial review failed.

Finney v Welsh Ministers and others



Quote of the month

In bringing forward permitted development rights we have recognised that the only additional funding to local planning authorities through planning obligations will be where additional floor space is created and there is a Community Infrastructure Levy charging schedule in place. We consider that the permitted development rights for the change of use to residential are of themselves making an important contribution to housing delivery, with over 18,800 homes delivered under such rights in the year to March 2017

The Secretary of State James Brokenshire’s answer to a written question by Shadow Secretary of State for Housing, John Healey 5 November 2018



Office to residential Article 4 Direction is more limited than a Council intended

The High Court has quashed three decisions not to grant prior approval for office to residential conversion, because the site to which the applications related benefited from permitted development rights, when the reason for refusal on each decision notice said it did not.
In 2017, an Inspector had allowed two appeals against the London Borough of Hounslow’s (LBH) refusal to grant prior approval to convert offices in Brentford into 213 or 171 dwellings, depending on the scheme built out.
In December 2017, three further prior approval applications were submitted for alternative office to residential schemes at the same site.  In January 2018, an Article 4 Direction removing Class O (office to residential) permitted development rights was confirmed, and the site is within an area to which the Direction relates.
Consequently, LBH refused prior approval for all three December 2017 proposals because planning permission (on application) was required.  Berkshire Assets (West London) Ltd, the freeholder of the site, sought a judicial review of those decisions.
The wording of Schedule 1 of the Article 4 Direction, and particularly the text in the first set of brackets, was critical to the judgment.  Schedule 1 begins:
“Development consisting of a change of use of a building and any land within its curtilage (excluding any building or land in relation to which prior approval under paragraphs O.2 and W of Part 3 of Schedule 2 to the Order has been granted or under the terms of those paragraphs is treated as granted before the date this Direction is confirmed) from a use falling within Class B1(a) (offices) of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended), to a use falling within Class C3 (dwellinghouses) […]”.
According to the judgment, the Schedule 1 wording mirrors that in London Borough of Sutton and of Merton Article 4 Directions, which were modified by the Secretary of State in July 2014 so that office premises (rather than development) that secured prior approval prior to those Article 4 Directions coming into force were excluded from the Direction (i.e. the text in brackets after ‘curtilage’ was inserted by the SoS).
Deputy High Court Judge Justine Thornton QC accepted Berkshire Assets’ arguments that the plain meaning of the Direction excludes sites with extant prior approvals for office to residential conversion.  “The Council’s more restrictive interpretation, which limits the effect of the exclusion to specific development with extant prior approval, would require the word ‘development’ to be substituted for ‘any building or land’ in the wording of the Direction.”
The Deputy Judge went on to consider extent to which the purpose and context of Direction influences its interpretation but concluded that the Cabinet Report confirming the Article 4 Direction did not address the scope of the exemption, and the Secretary of State’s wording relied upon, and devised for different LPAs, gives broader protection than the Council intended. 
The judgment did not consider whether the exclusion would apply to lapsed approvals.

Berkshire Assets (West London) Ltd v London Borough of Hounslow

Project to link landlords of vacant retail units with community groups

The Secretary of State has launched an Open Doors project, which is intended to link landlords of vacant retail units with community groups that offer vital services.
The funded pilots will run in five areas and will have the following objectives:
  • Support community groups to deliver much needed services to young adults and older people who are greater risk of suffering from loneliness;
  • Raise the profile of community uses on high streets;
  • Increase footfall in high streets and town centres;
  • Help to build socially and economically stronger communities;
  • Encourage meanwhile use to help support landlords struggling to cover business rates, utility bills and other costs;
  • Provide new uses for empty properties on high streets.
The charity Meanwhile Foundation will act as a broker to match landlords and community groups in order to deliver the pilots.  Meanwhile Foundation will receive the majority of the funding and will hold the leases on behalf of the community groups.
The Open Doors project is a strand of the government proposals aimed at support the 'transformation' of High Street set out in the Budget, with other strands including the consultation on planning reform and potential changes to main town centre use classes and permitted development rights.
Launching the project the SoS said that there 27,000 vacant premises in town centres, and suggested that "if just a fraction of these vacant premises were turned into homes, thousands more people could have a roof over their head".  This is either an observation not directly related to the project, because Open Doors project uses are intended to be temporary, or suggests that the community groups would provide housing as well as community facilities, for which planning permission or prior approval would be required.
In planning terms, premises taking part project might benefit from the proposed extension to temporary flexible changes of use for certain main town centre uses, depending on the nature of the temporary proposed use.
Lichfields' guide to changing ‘main town centre uses’ via existing and proposed permitted development rights shows the relevant temporary and permanent changes of uses that benefit from permitted development rights, and those currently being consulted on.
Applications must be submitted by 31 December 2018, with the decisions due in early 2019 and the spaces coming into use during the 12 month period that follows.

Open Doors pilot: call for landlords
Secretary of State's full speech to the Locality Convention 2018Lichfields' Guide to changing ‘main town centre uses’ via existing and proposed permitted development rights

Final report of Raynsford Review published

‘Planning 2020’, the final report of the review of the English planning system, commissioned by the Town and Country Planning Association (TCPA) and led by former Housing and Planning Minister Nick Raynsford, has been published.
The final version of the 16-month review, which primary focus was an holistic appraisal of the planning system that England will need from 2020 onwards, builds and expands on the nine propositions included in the interim report (published in May 2018) to provide a set of 24 detailed recommendations on actions necessary to deliver the propositions.
Specifically, the Review makes recommendations on the purpose of the planning system; the need to deliver an effective and ‘people-centred’ planning; increasing community role in planning; supporting an outcome-focused system; simplifying the planning structures and aligning public agencies; tackling betterment values; and encouraging a visionary and creative role for planners.
Among the recommended actions, the Review supports a stronger legal status for development plans; returning control on conversions of offices and commercial buildings to local authorities; the publication of a new national building code; and the introduction of a ‘community right to challenge’ planning decisions that departure from the local development plan.

Town and Country Planning Association, Planning 2020 – Raynsford Review of Planning in England, Final Report

Government launches ‘Building Better, Building Beautiful’ Commission

The government has launched a Building Better, Building Beautiful Commission, which the SoS says is intended “to kick start debate about the importance of design, style and place in the built environment”.
The commission has 3 aims:
  1. To promote better design and style of homes, villages, towns and high streets, to reflect what communities want, building on the knowledge and tradition of what they know works for their area.

  2. To explore how new settlements can be developed with greater community consent.

  3. To make the planning system work in support of better design and style, not against it.

The Commission will be chaired by Professor Sir Roger Scruton and supported by a 'second tier' of 8 advisers.  The other commissioners were due to be assembled during November, with evidence gathering to take place from December to May.  An interim report is expected in July 2019, with a final report to the SoS due in December 2019.

MHCLG press release, James Brokenshire: building better and beautiful will deliver more homesBuilding Better, Building Beautiful Commission: draft terms of reference

Government consults on introducing mandatory biodiversity net gain for many developments

The Department for the Environment, Food and Rural Affairs (Defra) has published is consulting on whether to mandate that new developments must achieve a biodiversity net gain to be measured using the ‘Defra metric’.  This follows the 25 Year Environment Plan, published by Defra in January 2018, seeking to embed a ‘net environmental gain’ principle for development.
It is intended that where a development is unable to mitigate biodiversity loss on site or purchase the required biodiversity units locally, the developer would be required to pay a cash tariff on their shortfall against net gain obligations; the consultation provides an illustrative example of how this might be calculated.
The consultation proposes that mandatory biodiversity net gain would apply to development requiring planning permission, except most householder development, permitted development and ‘developments not resulting in measurable loss or degradation of habitat’.  It seeks views on whether small sites and brownfield sites should also be exempted.  Nationally significant infrastructure projects would not be affected by the procedures.
The net gain requirement would not be introduced until at least a year after the legislation that provided for it was introduced.
The consultation closes on 10 February 2018

Defra, Net gain consultation



The Lichfields perspective

Recent court case Finney has clarified the principles for determining the acceptability of a section 73 planning permission that results in a planning permission with a different description of development to the permission that is being amended.  Hopefully this will make for more straightforward discussions between developers and local authorities where this issue arises.
Ian Kettlewell, Planning Director


Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116