England planning news, August 2019

In a speech delivered at Manchester Science and Industry Museum at the end of July, the Prime Minister referred to the importance of devolution, housing, planning, transport and great public services to creating great neighbourhoods and safe streets and to driving local growth.

He said that in the context of seeking to address “one of the biggest divides in our country […] between those who can afford their own home and those who cannot”, the Government “will review everything - including planning regulations, stamp duty, housing zones, as well as the efficacy of existing Government initiatives”.

He referred to the “towns that feel left behind” and announced “a £3.6 billion Towns Fund supporting an initial 100 towns. So that they will get the improved transport and improved broadband connectivity that they need”.

The Prime Minister said he wanted to deliver Northern Powerhouse Rail and pledged to fund the Leeds to Manchester route. According to a press release, the Manchester to Leeds route will be the first step, with detailed plans published this autumn, following the review into HS2.

And in the same month that the interim report of the Building Better, Building Beautiful Commission was published (see below), the Prime Minister said that the Government would “emphasise the need, the duty, to build beautiful homes that people actually want to live in, and being sensitive to local concerns”.

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.

Following the publication of planning practice guidance on biodiversity net gain,the Department of the Environment, Food and Rural Affairs (Defra) published the outcome of its consultation on ‘Biodiversity net gain: updating planning requirements’ and an ‘updated summer policy statement’ setting out progress towards the Environment Bill, that is expected to make biodiversity net gain for development a statutory requirement in England.

The Government is to require development to achieve an “ambitious” 10 per cent net gain for biodiversity, after a two year transition period from the Bill receiving Royal Assent. A tariff system will not be introduced; the Bill will make provision for local decision makers to agree biodiversity net gains plans with developers.

The consultation outcome states that the Government intends to introduce narrow exemptions to biodiversity net gain, as the majority of consultation responses said that broader exemptions (other than for permitted and householder development) would not be necessary.  However, the Government will continue to assess viability and whether certain development should have a longer transition period or a lower net gain requirement. There will also be a targeted exemption for brownfield sites that do not contain priority habitats and would be potentially unviable.  Nationally significant infrastructure projects, marine development and development on protected sites or irreplaceable habitats will not fall within the scope of the requirement.

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”.

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 has issued a planning update newsletter to Chief Planning Officers advising that for planning appeal inquiries PINS is now following (or seeking to follow) the procedures recommended by the Rosewell Review with regard to scheduling arrangement and giving notice of an intention to submit and inquiry appeal.

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”.

The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2019 were made in July, following debate in the House of Commons and the House of Lords.

The amendment regulations do not make significant changes – they include removing a ‘sunset’ clause, introducing a fee for prior approval applications for larger home extension - and were not objected to.

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.

Lord Kennedy of Southwark asked of Lord Bourne (then Under Secretary of State for MHCLG):

“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”.

On 9 July, The Building Better, Building Beautiful Commission published its interim report ‘Creating Space for Beauty’. Set up in November 2018, the Commission was tasked with raising the standard of design for new homes and neighbourhoods, ensuring that what is built is both supported by existing communities and valued by future generations to come.

The Commission’s report argues that ‘great weight’ should be placed on ‘securing beauty’ in the built and natural environment, with the principle embedded in the NPPF. Beauty is considered at three scales, from individual buildings, places and the wider pattern of new settlements - though how beauty is defined should be determined locally through empirical analysis and gauging of local opinions.

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.

The report also calls for greater enforcement if agreed designed standards are broken arguing that where schemes are approved, it is those schemes that should be built, not a “diluted version down the line”.

Design review is encouraged, whilst councils should have the confidence to say “no to ugliness”; whilst poor-quality schemes that have are turned down should be made public.

Issues relating to staffing and capacity within local authorities are also recognised as major barrier to ensuring better quality proposals, with evidence submitted to the Commission highlighting a deficit in skills amongst local authority planners needed to give appropriate advice and inform decisions on design matters.

Whilst the Commission have stated that many of the policies are not yet fully formed, it believes several could already be implemented “quite easily”. The Commission will now begin work refining the proposals, with a final report expected by the end of the year.

In related news, on 20 July, the then Communities Secretary James Brokenshire announced the Government is to introduce new measures to curtail the use of “poor doors”, in a bid to reduce segregation and the stigmatisation of social housing residents living in mixed-tenure developments.

The measures will be introduced through planning practice guidance, with examples of best-practice promoted in the Government’s upcoming design manual.