News
England planning news, November 2019
08 Nov 2019
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Headline news |
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A section 73 permission cannot alter a description of development
The Court of Appeal has overturned a High Court decision and concluded that an Inspector should not have altered a description of development in the course of granting a section 73 (s73) planning permission, as it was beyond her powers.
Please refer to our blog for a more detailed summary.
A section 73 permission cannot alter a description of development, Lichfields Planning Matters
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Quote of the month |
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It is a pleasure to be here for my first appearance. I am sorry that I am one of a long line of Secretaries of State you have seen, although you joined this Committee around about my 18th birthday, so I bow to your experience and knowledge on this subject.
Communities Secretary Robert Jenrick, responding to an introduction to the MHCLG Select Committee by Chair Clive Betts |
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General Election means uncertainty for proposed policy and legislation
On 31 October the Early Parliamentary General Election Act 2019 gained Royal Assent. Parliament has now dissolved and the pre-election period of sensitivity or ‘purdah’ has begun.
This calls into question the timing and even the future of several pieces of proposed policy and legislation.
Environment Bill 2019-20
Firstly, the Environment Bill 2019-20, will fall away and will need to be reintroduced. The Bill’s webpage advises “This Bill was committed to a Public Bill Committee which was expected to report to the House by Thursday 19 December 2019. However, as the House has voted for a General Election, this is unlikely to take place”. Many of the Bill’s provisions would apply in Wales and Scotland too.
The Bill, which was introduced on 15 October, was to provide for biodiversity gain to be a condition of planning permission in England, amongst other things. In a written ministerial statement introducing the Bill, Secretary of State for Environment, Food and Rural Affairs said the Bill would “introduce new statutory cycle of monitoring, planning and reporting on the environment, coupled with a framework to set long-term legally binding targets, on biodiversity, air quality, waste and resource efficiency, and water”.
Accelerated Planning White Paper and permitted development
Secondly, the Accelerated Planning White Paper, due to be published this Autumn, cannot be published during the purdah period and will now depend on the outcome of the General Election.
Notwithstanding, if the Conservatives form the next Government, their commitment to reviewing planning legislation generally including permitted development rights (PDRs), planning application fees, resourcing of planning departments and roving hit squad of planners being brought into struggling local planning authorities would probably re-emerge in some form.
These matters were raised during the Ministry of Housing, Communities and Local Government Select Committee’s evidence session with the Secretary of State on 28 October. Mr Jenrick MP said he would like the system to be faster, simpler and – if possible – cheaper. However, he would consider introducing higher fees in exchange for a more efficient service and consistently meeting deadlines, and an automatic refunding of fees where published targets were not met, provided that this would not lead to unintended consequences.
With regard to the proposed PDR for the ‘permission in principle’ to demolish and rebuild an office block, Mr Jenrick said the Government was trying to “marry the advantages of having the freedom and certainty that comes with permitted development with the need, in certain circumstances, to have a proper process whereby the local authority can be involved and ensure quality, environmental standards and practicalities such as parking were actually taken into account”. He hoped future PDRs, including those for two storey extensions, would learn the lessons of previous permitted development rights.
Housing supply, housing delivery test and annual position statements
With reference to the outgoing Government’s desire for speed and improved certainty in relation to five year housing land supply requirements, the Housing Delivery Test results are due this month and the recommendations from the Planning Inspectorate on the draft Annual Position Statements (APSs) submitted by three local planning authorities were scheduled for the end of October.
According to Planning Practice Guidance, the decisions on the APSs were to be published in October “so long as the correct process has been followed, and sufficient information has been provided about any disputed sites”. According to Planning Magazine a PINS source says that decision will not be made until after the election.
The Housing Delivery Test results – the first iteration of which were issued late in February 2019 rather than November 2018 - may or may not be delayed by purdah; they are statistics generated by a standard formula and both issuing them and withholding them has the potential for political ramifications in terms of five year housing land supply.
The SoS advised the MHCLG Select Committee (prior to the General Election being confirmed):
“We have said that the next housing delivery tests will be published in November. Beyond the methodology, the criteria for setting housing numbers going forward is something we will have to give further thought to. I would imagine we will be announcing that next year”.
He went on, adding:
“[…] existing plans will proceed as they are, on the basis of the numbers they were made on. It would not be wise to open up existing plans. It is better that they proceed on that basis, but future plan-making will obviously be on new criteria”.
In a speech made at Policy Exchange and Create Streets the SoS said that “our target of building 300,000 homes a year by the mid-2020s may not be ambitious enough. And he considered that “The exciting technological innovation currently taking place across the sector through Modern Methods of Construction (MMC) makes it easier than ever before for architects, designers and builders to integrate beauty into their plans without compromising on delivery.
The Building Better, Building Beautiful Commission is due to issue its final report to the Secretary of State in December and nothings suggests that this will not happen, albeit that the new Government might take longer than anticipated to respond and might have a changed approach.
In his speech at Policy Exchange and Create Streets the SoS referred to the Building Better, Building Beautiful Commission reporting later this year and his confidence that the Government would take forward their recommendations and potentially “go significantly further than that” with “my new National Design Code”.
He said that every local planning authority would be asked to prepare local design guides to be embedded in planning policy and “making it a legal right for local people to demand these standards”. The design codes might set a presumption in favour of various design elements such as front doors, tree-lined streets or “quality facades”. He used the same speech to announce a heritage preservation campaign and a fund of £700,000 to help local people and experts in 10 English counties to identify areas which need heritage protection.
Other pre-purdah announcements
There were a number of other announcements during October, including:
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the Government launching a pilot of loans of up to £20 million being offered to housing developers in order that they can bring forward school places earlier
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£10 million for councils to develop locally-led proposals to deliver more new towns and economic growth opportunities
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Mark Farmer’s appointment as “a new Champion for Modern Methods of Construction as part of the government’s drive to make the UK the global leader in housing standard”
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Fracking will not proceed in England at this time and the Government has decided that it will not be taking forward proposed changes to permitted development rights for non-hydraulic fracturing shale gas exploratory development that were consulted on in 2018. This follows a report by the Oil and Gas Authority (OGA), which found that it is not currently possible to accurately predict the probability or magnitude of earthquakes linked to fracking operations.
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The consultation on the Future Homes Standard, including proposed options to increase the energy efficiency requirements for new homes in 2020 continues to run until January 2020
Environment Bill 2019-20HM Government, Heritage speech by the Housing Secretary - The Housing Secretary's speech at Policy Exchange and Create StreetsCommunities Secretary launches 'most ambitious heritage preservation campaign for 40 years' Government response to the permitted development for shale gas exploration consultationGovernment loans to build new schools alongside new homesMHCLG, Next generation of new towns and economic growth opportunities to be developed, levelling up every regionHousing Minister announces new champion for modern housebuildingThe Future Homes Standard: changes to Part L and Part F of the Building Regulations for new dwellings
Weight that Secretary of State gave to deliverability concerns was irrational
The Secretary of State’s (SoS) dismissal of a proposal for up to 1200 homes in Warrington was quashed because the SoS’s considered his concern that it was not deliverable an adverse factor to be given greater weight than a failure to comply with transport assessment, but he did not take into account the potential benefits of the scheme.
Developer Satnam planned a new neighbourhood on playing fields but did not control all of the site; part of it was owned by Homes England including a part required for access and a new bus route. There was no agreement in place to transfer the land and it had not been put forward in the local planning authority’s call for sites. The new bus service was a key part of Satnam’s proposals but there was no agreement to provide a service at the time of the decision. The Inspector was not persuaded that the scheme was deliverable and concluded that the transport and air quality assessments were inadequate and the scheme was not in accordance with the development plan overall.
Warrington Borough Council did not have a five year housing land supply, so paragraph 11d of the National Planning Policy Framework (NPPF) was engaged. Accordingly, the Inspector (and the SoS) had to consider whether the adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework as a whole.
The Secretary of State concluded:
“The Secretary of State is not satisfied that there would be no adverse impacts on the efficiency and safety of the local and strategic network or on local air quality and he gives significant weight to these factors. Of even greater weight, however, is the fact that he considers the scheme is not deliverable as proposed. He also affords moderate weight to the adverse impact upon the character of the area. The Secretary of State recognises that, if the scheme were to be considered deliverable, the fact that it could provide up to 1200 dwellings, 30% of which would be affordable, would attract significant weight. However, he considers that the merits of the scheme need to be left for further consideration once the issue of control over all parts of the site has been resolved and it becomes capable of implementation."
Satnam’s application for judicial review was allowed on two of four grounds.
Judge Sir Duncan Ouseley concluded in respect of ground 1:
“deliverable or not, it was unlawful on many bases to allow for the adverse impacts without considering the benefits which they would bring; and irrational to treat the lack of deliverability as an adverse factor”.
In the second successful ground (which related to the weight given to deliverability as a material consideration), it was held that the SoS erred in law in his approach to whether the development was deliverable:
“I accept the lawfulness of the conclusion that the scheme was not deliverable as proposed, I do not accept that that was a material consideration which should have weighed in the balance against the grant of permission, at least on the reasoning of the Secretary of State. There was no conclusion that the development could then proceed without the adverse impacts being mitigated as required. If they could not be provided, in the usual way, the development would not proceed”.
One of the rejected grounds of challenge was an allegation of bias; the judgment includes an entertaining description of the proceedings at the public inquiry with specific reference to evidence being given in song form.
Time periods for appeal decisions
Secretary of State decisions will not be made during the purdah period, hence a spate of decisions being issued prior to Parliament being dissolved on 5 November. Of these, none were allowed, reflecting a pattern often seen in the run up to General Elections.
The Planning Inspectorate has issued an explanation of its approach to casework during the pre-election period:
"Whether a decision or recommendation should be held back until the election results have been announced is a judgement taken by senior managers in the Planning Inspectorate on the circumstances of the case. We shall of course ensure that any such delayed decisions or recommendations are issued promptly after the election".
National Infrastructure examinations and local plan examinations and hearing sessions will continue, but letters regarding the soundness or legal compliance of local plans, or final reports (including for fact check) will not be issued until after the election.
With regard to Inspector decisions for planning appeals (not including enforcement, lawful development certificate, minor commercial, advertisement or householder appeals) the Planning Inspectorate announced during October that on average these are currently taking 25 weeks for written representations, 42 weeks for hearings and 34 weeks for inquiries. That hearings are taking longer than inquiries may be due to the Planning Inspectorate seeking to respond to the Rosewell Review of planning inquiries to speed up that process.
Planning Inspectorate, Appeals: how long they take
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The Lichfields perspective |
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In a month where we lost visibility on the timing and direction of a number of pieces emerging planning policy and legislation, we obtained clarity on the scope of section 73 planning permissions – albeit that it is a reduction in the flexibility available to the developer that was briefly considered possible. |
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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