England planning news, August 2020

The Chancellor of the Exchequer delivered his ‘Plan for Jobs’ speech and published the associated documents on 8 July.

On Planning reforms, HM Treasury’s Plan for Jobs referred to the various legislation now coming into force (see story below).  It was also stated:

“In July 2020, the government will launch a policy paper setting out its plan for comprehensive reforms of England’s planning system to better support the economy and release more land for housing in areas that need it most”.

The Plan for Jobs also announced that the National Infrastructure Strategy is to be published with the autumn Budget and Spending Review.

At the beginning of August, the press gave further insight into the content of the Policy Paper.

Notably, the zoning of land for growth, renewal or protection, with permission in principle granting ‘automatic’ planning permission for the former two.

Mention was also made of the tree-lined streets that have been recommended by the Building Better, Building Beautiful Commission in its report ‘Living with beauty’ and proposed in a ten minute rule Tree-Lined Streets Bill.

And with regard to the Government’s response to ‘Living with beauty’, Lord Greenhalgh recently reiterated that the Government would respond ‘in due course’. It seems likely that it will at least be referred to in the planning reform Policy Paper.

We will provide an overview and comment on the Policy Paper after it is published and over the coming weeks.

In a month when the Chancellor’s Policy Paper was anticipated there was very little calm before the reform.

In summary, legislation including the following provisions was announced, published or came into force:

1. The life of certain planning permissions and listed building consents and the time periods for the submission of certain reserved matters approvals will be extended by legislation inserted into the Town and Country Planning Act 1990. The same legislation, introduced by the Business and Planning Act 2020 will also allow for planning permissions that expired between 23 March 2020 and 18 August 2020 to be revived, subject to an additional environmental approval. See Business and Planning Act 2020: reviving or extending permissions and consents.
   
   
2. Provisions allowing fast track applications to be made to modify construction hours came into force on 28 July. See New route for amending construction working hours conditions.
3. Significant changes to the Use Classes Order will come into force in September. Changes to town centre use classes will allow far greater flexibility to change uses within town centres without the need to obtain planning permission, restricting the ability of local planning authorities to control the mix of uses. The changes provide for three new uses classes: Class E (Commercial, business and service), Class F.1 (Learning and non-residential institutions) and F.2 (Local community). Among the changes, shops (A1), financial/professional services (A2), cafés/restaurants (A3), indoor sports/fitness (D2 part), medical health facilities (D1 part), creche/nurseries and office/business uses (B1) will be subsumed into a new single Use Class E. Pubs, bars, cinemas, live performance venues and dance and bingo halls will be sui generis. See Fundamental changes to high street use classes and our summary of changes to the Use Classes Order.
   
   
4. The temporary amendments to the CIL Regulations, which give some relaxations for SMEs with a turnover of less than £45 million are now in force and covered in the blog CIL-ing out? Deferred payments for struggling SMEs but no wider relief.
   
   
5. Applications for temporary pavement licences, which combine licencing and planning permission, may now be made to local planning authority. Please see ‘A Licence to Refill’.
   
   
6. Regulations temporarily removing the requirement for the spatial development strategies and local plan documents to be available for inspection and for physical copies of documents to be available on request come into force on 12 August.
   
   
7. Legislation removing permitted development rights for the demolition of theatres, concert halls and live music performance venues will be drafted.
   
   
8. Permitted development right to demolish commercial and/or residential and build residential in its place come into force on 31 August (Part 20 Class ZA). See Tubthumping: knock down and rebuild permitted development rights.
   
   
9. In addition to this new right, there will be five permitted development rights to add storeys to create residential floorspace. The first published of these – Part 20 Class A for additional storeys to residential buildings– comes into force on 1 August. The other additional storeys PDRs (Part 20 Classes, AA, AB, AC and AD) will come into force on 31 August and are explained in New homes: extending into the sky!

The permitted development rights for additional storeys to dwellings, commercial and mixed used properties and to knock down commercial and/or residential buildings and build a residential building in its place were published at the same time as an independent report commissioned by the Government into quality standard of homes delivered through certain permitted development rights for change of use.

The report found:

The Government has not responded to the Report.

The Housing Minister has issued a Written Statement providing new policy for two very different matters.

Firstly, the Government has introduced a temporary policy that says current circumstances (i.e. the pandemic) are to be taken into account when determining planning applications to demolish or change use of theatres, concert halls, and live music venues. Essentially, the Government is trying to avoid the vacancy of these buildings related to COVID-19 lockdown or ‘business disruption’ leading to their permanent loss.  The policy will fall away at the end of 2022.

The Statement also says the Government will remove permitted development rights for demolition of theatres, concert halls and live music performance venues.

Secondly, the Statement says:

The Statement infers that local planning authorities should consider carefully whether to seek an application to extend seasonal hours as opposed to concluding that enforcement action is not proportionate or expedient given current circumstances:

The Draft Building Safety Bill was published on 20 July.

As anticipated, is it proposes to introduce a new statutory consultee, in the form of the Building Safety Regulator.  The Regulator will be a consultee for all planning applications containing a higher-risk building in order to provide specialist fire safety input on the proposals and assist the Local Planning Authority in their decision-making process.

‘Higher-risk building’ will defined in regulations, which it would be possible to amend by the affirmative procedure, i.e. debated by and approved in both Houses of Parliament. Regulations would be drafted in consultation with the Regulator.

At the start of the new regulatory regime the Goverment proposes to define a higher-risk building as a building with a top storey (excluding plant) 18 metres above ground level as measured from the floor surface or that has 6 or more above-ground storeys and contains:

a) Two or more dwellings (i.e. house, flat or serviced apartment);

b) Two or more rooms for residential purposes (e.g. supported accommodation), or

c) Student accommodation.

“Room for residential purposes” would be defined as:

“a room (other than in a dwelling) which is used by one or more persons to live and sleep but excluding a room in: a) A residential care home; b) Secure residential institution (e.g. prison, detention centre); c) Temporary accommodation (e.g. a hotel, hostel, guest house, hospital, hospice)”.

This court of appeal judgment relates to a challenge against that of Kerr J in the High Court (dated 4 February 2019) which quashed two planning permissions in the Calderstones/Wooton Green Wedge in Liverpool. The first planning permission was granted to Redrow Homes for the demolition of existing buildings and construction of 39 dwellings, and conversion of the Grade II listed Beechley House and Beechley Stables into 12 apartments, while the second permission related to the relocation of a miniature railway that was present on the 5ha site.

At the heart of the judgment are three issues: whether the council failed to discharge its duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Building Act”); the interpretation of development plan policy relating to the green wedge; and, because it was stated by the Council that the planning permission for residential development would not be delivered, whether an “academic” appeal should be entertained by the court.

In considering whether there was a good reason to hear this academic appeal, the Court gave regard to the three tests set out in Hutcheson v Papdog Ltd (News Group Newspapers Ltd, third party) (Practice Note) (2012), namely that “(1) the court is satisfied that the appeal would raise a point of some general importance; (2) the respondent agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; and (3) the court is satisfied that both sides of the argument will be fully and properly ventilated.” (Paragraph 6).

Whilst the Council was clear that “in the event of this appeal succeeding so that the permission for the housing development is reinstated, it will not commence any development under that permission or permit any other person from so doing” (paragraph 5), it argued that the High Court judgment would have important implications for other decisions in which the development plan policy relating to Green Wedges (Policy OE3), would be engaged. It also argued that that the judgment would have ramifications for decision-making by other authorities that had development plan policies relating to areas of Green Wedge or similar designations. The court accepted this argument and ruled that “this is enough to support the conclusion that this appeal is not wholly academic, and, in the public interest, ought to be heard” (Paragraph 11). Whilst the Council conceded that there was not wider importance arising in respect of s.66(1) of the Listed Building Act, the Court concluded that the appeal had to be heard as a whole (including the s.66(1)) issue because the Council had to win on both issues if it was to be successful in overturning the High Court judgment.

In quashing the permissions, the High Court concluded that the Council had misunderstood the Green Wedge policy in the development plan and was wrong to conclude that there was no conflict between the proposal and policy OE3. In essence, the Court held that the Council should have treated this as de facto Green Belt policy. The Court of Appeal disagreed. It accepted the submission made on behalf of the Council that it was necessary to establish whether the proposal accorded with the plan “as a whole” (as per R (Corbett) v Cornwall Council (2020)). It also recognised a clear distinction between the Green Belt policy (OE2) and the less restrictive Policy OE3 relating to Green Wedges which was “not drafted in terms of a requirement for ‘very special circumstances’ to be shown if planning permission is to be granted… [and] does not state a ‘very strong presumption against built development’…” (Paragraph 41). The Court of Appeal did not accept that Green space/wedge policies should be treated as de facto Green Belt policies. The judgment states that “the officer’s decisive planning judgment was unimpeachable” and “embodies a legitimate planning judgment, based on a true understanding of the policy” (Paragrpah 52). It therefore concluded that the appeal was good on this ground.

Section 66(1) of the Listed Buildings Act states:

The NPPF and PPG both refer to the decision maker taking account of expert opinion in assessing the significance of a heritage asset and the impact of a development proposal on that asset. In this case, the Council’s Principal Conservation Officer concluded that the proposed erection of three houses within the grounds and setting of Beechley House would have less than significant harm. Whilst the Committee Report indicated that the level of harm from the proposed works to Beechley House, the entrance gates and Beechley Stables would, in each case, be “less than substantial”, he did not mention the “strong conservation objection” that had been set out in the consultation response received from the Urban Design and Conservation team. The Court of Appeal held that Kerr J was “rightly troubled” by this failure to report the objections of the Conservation Officer and that he was “right to conclude that this was enough to displace the presumption that the section 66(1) duty had been properly performed” (Paragraph 74).  The judgment also concluded that the Conservation Officer’s objection was “an ‘obviously material’ consideration” which could have made a difference to the outcome had it not been overlooked. It therefore concluded that Kerr J was right to uphold the challenge to the planning permission for Redrow’s proposal.

The outcome of this Court of Appeal judgment was to allow the appeal in so far as it sought to overturn the High Court order quashing the planning permission for the relocation of the miniature railway. However, by virtue of the conclusion relating the heritage, it did not disturb the order quashing the permission for the development that had been proposed by Redrow. In addition to this direct outcome, this judgment raises four transferable points:

1. That claims made to the Court of Appeal in respect of High Court judgments that raise policy issues that will have a wider bearing on decision making across the local authority area (and beyond) can be heard and not dismissed as simply academic;
   
   
2. That development plan policies relating to green spaces (that do not constitute part of the formal Green Belt) should be treated as distinct from Green Belt policies and not as de facto Green Belts. As increasing amounts of land are required to meet the rising need for housing, this is a matter that will have ramifications for very many decision makers across the country;
   
   
3. That compliance with section 66(1) of the Listed Building Act will require a careful explanation of the opinion of relevant experts to the planning committee; and,
   
   
4. Notwithstanding the section 66(1) point, a failure to draw the committee’s attention to the views of an expert consultee (be it on heritage or other grounds) could constitute a failure to have regard to material considerations for the purposes of section 38(6) of the Compulsory Purchase Act (2004).

A High Court judgement has held that for the purposes of interpreting an affordable housing policy that refers to new dwellings, ‘dwelling’ is not limited to C3 dwellinghouses.

Rectory Homes challenged a Planning Inspector’s decision not to grant planning permission for a scheme that one of the s106 agreements drafted in respect of it described as “"the erection of a 'Housing with Care' development (Use Class C2) for 78 open market extra care Dwellings and a communal residents centre".

The s106 agreement restricted the occupation of each extra care dwelling to up to 2 people, at least one of whom must be aged 65 or more and in need of at least 2 hours of "personal care" a week. Accordingly, at least one occupier must purchase at least a basic care package.

The first s106 agreement did not include on-site affordable housing; Rectory Homes thought the proposal did not justify the provision of affordable housing either on-site or through a financial contribution. However, a subsequent unilateral undertaking did put forward a financial contribution that was intended to compensate for the loss of a planning obligation associated with an extant fallback scheme for C3 market housing on the same site (which had not yet been paid).  According to the Inspector’s report “This would only provide a financial contribution that would represent 40% of the 37 dwellings in the permitted scheme (the equivalent of 14.8 dwellings); 40% of 78 dwellings in the appeal proposal would be 31.2 dwellings”.

Policy CSH3 of the South Oxfordshire Core Strategy says that 40% affordable housing will be sought on all sites where there is a net gain of three or more dwellings subject to the viability of provision on each site and provides policy on tenure breakdown, mix, and calculations relating to part units and says that affordable housing should be provided on site. Other relevant development plan policies are summarised in the judgement.

The Inspector concluded (para 59 of the appeal decision):

There were five grounds of challenge, including that the Inspector misinterpreted Policy CSH3 of the South Oxfordshire Core Strategy in respect of affordable housing.

Rectory Homes and South Oxfordshire Council agreed that the whole scheme fell within use class C2. Use class C2 is “Use for the provision of residential accommodation and care to people in need of care (other than a use within class C3 (dwelling houses). Use as a hospital or nursing home. Use as a residential school, college or training centre".

According to the judgement:

The Council “maintained that residential accommodation could be provided within a C2 development as dwellings, (so long as the use of each such dwelling did not fall within the C3 Use Class)”. The Secretary of State also argued that dwelling should be given its normal meaning in this policy context. In this context, reference was made to the Gravesham and Moore cases, i.e. “It has become well-established that the terms the terms "dwelling" or "dwelling house" in planning legislation refer to a unit of residential accommodation which provides the facilities needed for day-to-day private domestic existence”.

The judgement notes that Class C4 “use of a dwelling house by no more than 6 residents as a "house in multiple occupation"” demonstrates that C3 does not cover all circumstances where a property has the physical characteristics of a dwelling as defined in the Gravesham case. Furthermore, while certain institutions that fall within use class C2 are unlikely to include dwellings, the first sentence of use class C2 does not require the institution to be a traditional one – it could be an organisation managing a development. And the specific exclusion of C3 uses from residential accommodation in the definition of use class C2 implies that properties with the physical characteristics of dwellings can fall within C2:

This is on the basis that “on a proper interpretation of the Use Classes Order, Class C2 may include residential accommodation in the form of dwellings as part of the primary use, subject to the provision of care and restrictions on occupation of the kind contained in the s.106 obligation in this case”.

Mr Justice Holgate concluded that there is no reason why a C2 development or scheme may not provide dwellings “the language of the Order does not support the Claimant's argument that the extra care accommodation proposed could not represent dwellings and therefore could not trigger the application of policy CSH3”. And that unless a policy referred to the Use Classes Order, its provisions do not aid the interpretation of policy.

Policy CSH3 “contains no policy mechanism by which affordable extra care housing may be secured through development control, despite the importance which SODC has attached to that type of provision”.

The judge also concluded that an Inspector who had determined a different appeal relating elderly care housing in South Oxfordshire would have been incorrect if “he might have been suggesting that open market dwellings provided for the elderly never engage Policy CSH3”.

The wording of the development plan and the reasons for the policies in the Core Strategy and Neighbourhood Plan were obviously critical in this case, the judge finding:

And the judgement provides a helpful overview of the case law related to the interpretation of policy and reasons at paragraphs 43-45.

The claim was dismissed on all grounds.