News
England planning news, August 2019
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Headline news |
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Prime Minister commits to Northern Powerhouse and reviewing ‘planning regulations’
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Quote of the month |
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I agree that it is important that we get this right and fund planning departments appropriately; they should be funded by planning applications fees, not cross-subsidy, unless that is what councils want, perhaps in addition to putting in extra staff. That remains a possibility but, in principle, we expect the fees to pay for planning departments. I anticipate that the accelerated planning Green Paper, which will be out later this year, will look at that issue.
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New and revised planning practice guidance on a raft of matters
Five new sections of Planning Practice Guidance were published in July: appropriate assessment, effective use of land, Green Belt, housing needs of different groups, and housing supply and delivery. Not all the information within the new sections is wholly new guidance; some has been moved from other sections. Some sections have been revised and rebadged and several other sections have been updated to varying degrees. A number of key changes are summarised below.
The new Green Belt guidance includes factors that might be taken into account when considering the potential impact of development on the openness of the Green Belt, as informed by court judgements. These include likely activity levels, how long the development will be there and its remediality potential, and activity levels forecast for the development. It also encourages policy-making authorities removing land from the Green Belt to write policies for compensatory improvement and provides examples of potential compensatory measures and notes matters to consider (such as ownership of land to be released and compensatory land, scope of works and mechanisms to secure improvements).
New guidance on effective use of land is wide-ranging and includes local authority land assembly powers, meanwhile uses, tools for establishing appropriate densities, measuring density, daylight and sunlight considerations and matters to potentially consider when determining if there is a realistic prospect of an allocated site being developed for its intended use.
Guidance on the housing needs of different groups includes suggested sources of data for assessing need, and potential approaches to carrying out further research. It also notes that polices that seek to restrict housing in certain rural settlements should be supported by robust evidence for doing so.
The revised noise guidance now includes paragraphs on the agent of change principle. The guidance on healthy and safe communities includes short new guidance on estate regeneration, securing sufficient school places, the role of planning in preventing crime and malicious threats and what a ‘healthy place’ might be.
The natural environment section, re-formatted and updated, has largely been revised to remove reference to what is ‘required’, deferring to the National Planning Policy Framework in this regard. There is much new guidance relating to ancient woodland and veteran trees; including how local planning authorities can assess the potential impact of development proposals on ancient woodland and ancient or veteran trees. The guidance advises that the cumulative impacts of development on the landscape need to be considered carefully. There is also much more detailed guidance on biodiversity net gain and its calculation, and guidance on wider environmental gain.
The housing and economic needs assessment section now includes a paragraph recognising the critical role of the logistics industry, in terms of enabling the effective and sustainable transport of goods, and for creating employment opportunities. The introduction of specific guidance on meeting specific locational requirements of specialist or new sectors and on allocating space for logistics is discussed in the blog ‘Planning for economic needs – implications of the amended PPG’.
Lichfields has produced a series of blogs commenting on key elements of other new and updated guidance, the links to which are below.
Defra publishes outcome of ‘Biodiversity net gain: updating planning requirements’
The Supreme Court has overturned a Court of Appeal judgement which had held that the conditions of an earlier planning permission that were not re-attached to a section 73 planning permission no longer applied. The Supreme Court judgement has concluded that, where it is clear from the face of a planning permission that a section 73 planning permission is to be considered a variation of condition, then it cannot automatically be concluded that a failure to reattach conditions of the original planning permission or an earlier s73 planning permission to the most recent planning permission means that those conditions no longer apply. Conditions of the original permission or earlier s73 planning permissions would have to be expressly removed or altered.
Lambeth LBC v Secretary of State for Communities and Local Government relates to a DIY store in Streatham that was first granted planning permission in 1985 with a condition limiting the range of good to be sold. In 2010 a section 73 planning permission was granted to widen the range of goods sold but this was not to include food; there was a condition to control the goods to be sold (condition 1) and a further two new conditions not on the 1985 planning permission. In 2014, a further s73 planning permission was granted, which set out in a very long description of development the purpose of the planning application, the original wording of condition 1 of the 2010 s73 planning permission and the proposed wording of the condition, however there was no condition added to control the sale of goods; the only conditions imposed related solely to time limits, traffic survey and parking.
In 2015, Aberdeen Asset Management applied for a Certificate of Lawfulness of proposed use for open A1 retail at the store, which was refused by Lambeth but approved on appeal. Lambeth’s application for the Inspector’s decision to be quashed was refused by the High Court and the Court of Appeal. The Supreme Court agreed with the Court of Appeal that the 2014 permission should be seen through the eyes of “the reasonable reader” but also said that this should start with the document being taken at face value rather than driven by the Court of Appeal’s “somewhat elaborate process of legal and contextual analysis”.
The Supreme Court considered the 2014 permission to be clear and unambiguous as it clearly states Lambeth approved a variation of condition in the “precise and accurate descriptions of the relevant development” and “It is unnecessary to look beyond the terms of the document. In these respects the case differs from many of the authorities to which reference has been made in submissions”.
Lord Carnwarth expressed a provisional view (the arguments have not been heard in full) that the conditions of the 2010 permission remained valid and binding: “The 2014 permission did not in terms authorise non-compliance with those conditions, nor, it seems, did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding - not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation”.
Lord Carnwarth also emphasised that it remains good practice that all the conditions to which a section 73 planning permission will be subject to should be restated on that permission and that “the importance of ensuring that applications and grants under section 73 are couched in terms which properly reflect the nature of the statutory power”.
Non material amendments can be made to reserved matters approvals and planning conditions
The Court of Appeal has confirmed that non-material amendments can be made to reserved matters approvals.
Fulford Parish Council objected to a non-material material amendment application to a condition of a reserved matters approval regarding a bat mitigation strategy, on the grounds that section 96A of the Town and Country Planning Act 1990 did not empower York City Council to amend a reserved matters approval, because it is not a planning permission.
The Court accepted that reserved matters is not, itself a planning permission. However, if a planning permission is granted subject to conditions, those conditions must be seen as an intrinsic part of the grant and conditional approval of reserved matters is itself a condition subject to which the planning permission has been granted.
Accordingly, and with reference to Pressland (where it was judged that a section 73 planning permission could amend a prior approval decision) Lord Carnwarth said:
“In my judgment, the "planning permission" to which section 96A refers is the package consisting of the grant of planning permission itself, together with any conditions to which the grant is subjected, whether the conditions are imposed at the time of or subsequent to the grant of permission”.
Lord Carnwarth also concluded that “Section 96A should not be interpreted so as to override section 73 (4)” (implementation within a certain time period).
Notwithstanding, “provided that the initial application for approval of reserved matters is made within the time limit imposed by the Act, I can see no good reason for outlawing non-material changes made later” (i.e. after the time period for submission of reserved matters has expired).
Finally, Lord Carnwarth concluded that retrospective section 96A applications can be made, because “one of the purposes of section 96A was surely to formalise minor differences between, say, approved layout plans and "as-built" development”.
MHCLG newsletter advises of new research into s106 and CIL
The newsletter also advises, amongst other things, that the University of Liverpool will be carrying out research on behalf of MHCLG (including a survey of all local authorities), “to update research that we carried out into the value and use of developer contributions in 2016/17 and to understand the early impacts of recent reforms to developer contributions”. According to MHCLG, the “output of this research will help feed into policy evaluation, our response to the HCLG Select Committee inquiry on land value capture and future policy Development”.
Lords debate planning application fees
However, in both Houses, Labour politicians argued that the £96 fee for prior approval applications did not cover costs and the debate in the House of Lords in particular moved into the issue of cost recovery for planning applications.
“Why can we not find just one volunteer authority to look at full cost recovery of planning fees? Surely we can find just one council in England to do that for us to see whether full cost recovery would work. It might not, and the pilot might show that that is the case, but I cannot see why we cannot find just one council somewhere in England to pilot full cost recovery on planning fees for the Government to see what effect it has”.
Lord Bourne responded:
“The accelerated planning Green Paper will be issued later this year and […] it could cover the point made quite fairly by the noble Lord about a pilot for full cost recovery, although let us wait to see to what extent; there will certainly be an opportunity to look at that matter”.
New ministers at MHCLG, Defra, DCMS, BEIS and DfT
Formerly Exchequer Secretary to the Treasury, Mr Jenrick had a responsibility for the National Infrastructure Commission, the Industrial Strategy, regional devolution, City deals, Northern Powerhouse and Midlands Engine, energy, environment and climate policy and infrastructure delivery (including Crossrail and the Thames Tunnel). He is a member of the Public Accounts Committee (albeit that he attended only one of 95 meetings in the 2017-2019 session), which this month issued a report on ‘Sale of public land’ that concluded:
Jake Berry retains responsibility for the Northern Powerhouse and Local Growth but has been promoted to Minister of State and attends Cabinet. Heather Wheeler has been replaced by Luke Hall, who is now Minister for Local Government and Homelessness.
This is tied to more general calls within the report for greater democratisation of the planning process. The Commission argues that currently, communities are primarily involved in development by “planning through appeal”; instead emphasis should be placed on early engagement in the plan-making process and the production of local design guidance, in order to achieve community consensus and local buy-in.
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The Lichfields perspective |
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The debate in the Lords regarding planning application fees suggests that the Accelerated Planning Green Paper, expected in the autumn, will consider potential changes to planning application fees in very broad terms, in order to secure the necessary levels of resourcing. This could lead to significant changes in the approach to collection of planning application fees, including full cost recovery. |
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