England planning news, July 2019

The Community Infrastructure Levy (Amendment) (England) (No.2) Regulations 2019 have been laid before Parliament.   The regulations have been made via the affirmative procedure and will come into force on 1 September 2019.

Amendments of particular interest are set out below:

The amendment regulations remove Regulation 122, with the effect that the pooling restriction will not apply to any planning obligation entered into on or after the commencement date of the amendment Regulations.  The intended effect of this is to allow CIL and planning obligations to fund the same piece of infrastructure and accordingly remove what can be a barrier to development.

The Government considers that the introduction of Infrastructure Funding Statements from 31 December 2020, which are intended to show how monies are spent, will address concerns about ‘double dipping’ (i.e. the same development paying twice and it not being accounted for).

New abatement provisions for s73 phased planning permissions first permitted before CIL was in effect (‘balancing’ and ‘phasing credits’)

New abatement provisions will be introduced for phased planning permissions first permitted before the Levy came into force in an area, which are subsequently amended after a charging schedule is in effect.  This will include a mechanism to allow for the balancing of liabilities between phases for developments which were first permitted before the Levy came into force.

The Government is considering providing worked examples of these provisions as it is acknowledged that they are complex, particularly with regard to keeping an audit trail of phasing credits and potential difficulties in calculating the notional liability of a pre-CIL planning permission.

The amendment regulations seek to ensure that where a planning permission benefits from exemption or relief, or the right to pay by instalments, this can be carried over into an amended planning permission; this is not always the case at present.

According to the Government’s response “The regulations seek to avoid a new liability for the entire floorspace of the development being calculated at the latest indexed rate where a section 73 application is granted. The regulations ensure that any increases in liability resulting from a section 73 application are charged at the latest rate, including indexation, while previously permissioned floorspace continues to be charged at the rate/rates in place when those elements of the development were permissioned”.

The Government does not propose to go ahead with its proposal to use different indexes for residential and commercial development.  Instead, the Government has asked the Royal Institution of Chartered Surveyors to produce a bespoke index for the Levy, based on the Building Cost Information Service’s (BCIS) All-in Tender Prices Index, to be known as the ‘RICS CIL index’.

This new index will be produced annually, be made publicly available and will not change through the year.  The charging authority will also provide an ‘annual CIL rate summary’.

The Regulations require that the BCIS index applies to planning permissions granted before 1 January 2020.  From 1 January 2020 the RICS CIL index that is to be published at the end of this year will be used for planning permissions granted on or after that date.

The Government’s response to the 'Reforming developer contributions' consultation says it “intends to lay the secondary legislation which will enable the delivery of starter homes later this year. Therefore, the Government also intends to introduce the regulations for the exemption of starter homes from the Levy later in the year”.

The response also says that a home will only be a ‘starter home’ the first time it is bought by a qualifying buyer.  According to the government response, the Government proposes to commission a network of agents to ensure that potential buyers meet the necessary criteria, develop guidance to support local authorities in implementing starter homes and the application of the Levy, including model section 106 clauses and charge documents.

The home would be resold at full market value and the seller might have to pay some money back depending on how long they have lived in the property.

It is not expected that the regulations will include mandatory requirements for local authorities for the provision of starter homes, although this remains a possibility.

In Wavendon Properties Ltd v Secretary of State for Housing, Communities and Local Government (SoS) and Milton Keynes Council, Wavendon Properties sought judicial review of the SoS’s decision, against an Inspector’s recommendation, to refuse planning permission for 203 dwellings.

The claim was successful on grounds two and three of six, which related to the SoS’s conclusion that there was a deliverable five year housing land supply (5YHLS).  Wavendon Properties argued that the SoS had misinterpreted the policy requirement that specific evidence must be provided to demonstrate a deliverable supply of housing, because no such evidence was provided, and that no reasons were given for concluding that there was a 5YHLS.   

Mr Justice Dove emphasised that the measure of whether reasons are adequate will depend on the facts of the case: in this case Wavendon Properties and Milton Keynes Council had concluded that a 5YHLS could not be demonstrated and the SoS was for the first time in the decision-taking process concluding that a five year housing land supply was available to Milton Keynes Council.  The judge found that he was in “no doubt” that the SoS was required to provide reasons as to how he had treated the evidence before him in order to arrive at wholly new figures for the housing land supply.  Not doing so had prejudiced Wavendon Properties of understanding why their evidence and the Inspector’s conclusions had not been accepted, and the SoS arrived at a conclusion that meant the tilted balance was not applied.

Ground 1, which did not succeed, related to paragraphs 11 c and d of the National Planning Policy Framework (NPPF), which set out what the application of the ‘presumption in favour of sustainable development’ means for decision-taking and the so-called ‘tilted balance’ towards that presumption.

The judge concluded that Counsel for the SoS was correct to contend that paragraph 11d should not be interpreted as saying that once one of the most important policies for determining the application had been found out of date the tilted balance would apply.

Applying the tilted balance in cases where only one policy of several of those most important to the decision was out-of-date while others were up-to-date and did not support the grant of planning permission would be inconsistent with the purpose of paragraph 11 of the NPPF, which is to put plan-led decision taking at the heart of the development control process.

The Government has published new Planning Practice Guidance (PPG) on housing for older and disabled people. The guidance highlights the growing proportion of older people in the population, and the need for local authorities to have provisions in place to meet these changes.

As the PPG states:

“Offering older people a better choice of accommodation to suit their changing needs can help them live independently for longer, feel more connected to their communities and help reduce costs to social care & health systems”.

The guidance calls on strategic policy-making authorities to determine local need, through population projections, and use of online tool kits provided by the sector, such as the Housing for Older People Analysis Tool.

Whilst the guidance recognises that there is a great variety of different housing models available for older people, including age-restricted market housing; sheltered housing; housing-with-care; and residential care homes, it does not go as far as some commentators expected, in determining what use-class should apply to specialist housing for older persons.

The Government is clear that the use-class of individual developments should be determined by local authorities, though it does suggest that this could be based on matters such as the level of care offered, or the scale of communal facilities provided.

A High Court judgement has concluded that a planning inspector ought to have taken into account a submission regarding intensification of an unauthorised use when determining whether the material change of use had taken place more than ten years ago.

In April 2017 London Borough of Brent served an enforcement notice on a school in Wembley that had been selling parking spaces to visitors to Wembley Stadium.  The notice alleged a change to a mixed use as a school and car parking that was not ancillary to the school.

The school appealed the enforcement notice and at the subsequent inquiry the Council’s advocate and witness acknowledged that parking in association with Wembley events had taken place in order around the site for 22 years, but considered that with regard to whether at any time throughout a continuous ten year period the Council could have taken enforcement action, the parking of around 300 cars was materially different from activities over the preceding 20 years.  He stated in closing submissions:

“In the unlikely event that you conclude that 60 cars, parked one day in March 2007, followed by a further 500 cars parked over a further 7 days during the rest of that year, was the beginning of a new intermittent mixed use [..] there is a material difference between that use and the use the subject of the enforcement notice involving around 8,000 cars parked over 42 days in a year. […] What is happening on the land and its impact off the land results in a change [in] the character of the use from anything that happened in 2007”.

In her conclusions, the Inspector had noted that the Council considered there to be a “marked change in the level of activity for the off-site event parking use at the site” that coincided with Tottenham Hotspur FC using the Stadium but concluded that a primary parking use to serve those attending events at Wembley Stadium started in March 2007.  At that time around 50-60 cars were parked and the Inspector did not consider this to be de minimis.

The judgement found that the Inspector did not need to “cast around” for further breaches of planning control and, in the absence of submissions, was not required to consider whether the use subsisting in April 2007 had at some time within the ten year period ending on 12th April 2017 intensified to such an extent as to amount to a material change of use.  However, the submission made should have been addressed:

“The submission that there had been material change of use by way of intensification went to one of the issues that the inspector […] was required to consider, namely whether the appellant had shown that the unlawful activity had continued throughout the relevant period. In my judgement the submission made was plainly relevant to that issue […]. As the submission went to an issue which the inspector was required to consider, her failure to have regard to it and to address it in the decision letter was an error of law”.

The Court of Appeal has quashed a planning permission granted by Shropshire Council in 2017 for an intensive poultry farming facility near Bridgnorth in Shropshire. The fundamental question of the appeal was whether the LPA, when considering the application, failed to properly consider the likely effects of odour and dust arising from manure disposal. This decision serves as a reminder of the importance of ensuring that all EIAs clearly identify and fully assess all impacts of a development - direct and indirect.  For a summary of the case please follow the link to the Lichfields Planning Matters blog below.

A correction slip has been added to the NPPF (2019) to confirm that sub-paragraph 209a has been deleted and the paragraph no longer appears. The sub-paragraph, which required minerals planning authorities to recognise the benefits of, and put in place policies to facilitate, oil, gas and coal exploration and extraction, was removed by a Written Ministerial Statement on 23 May following a High Court that held that consultation on the paragraph was legally flawed.