England planning news, August 2020


England planning news, August 2020

05 Aug 2020



Headline news


Chancellor confirms publication of a Policy Paper – now expected this week

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.

House of Commons Hansard, Tree-lined Streets BillHM Treasury, Plan for Jobs documentsBBC news, New homes to get 'automatic' permission in England planning shake-upUK Parliament, Housing: Construction:Written question - HL7098



Quote of the month

We have talked to Croydon, Ealing, East Suffolk, Havering, Hillingdon, Richmond, Southwark, and Tower Hamlets[…]. Labour and Conservative, and, in the case of Richmond, Liberal Democrat, local authorities all agree that our approach is right and sensible. They all agree that it is better to defer payments than risk SMEs going out of business and having no payments at all—and indeed no construction at all.
Rt Hon Christopher Pincher MP to the Fifth Delegated Legislation Committee considering the Draft Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020  


Overview of the legislation published during July

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:
“In some factors considered, such as external appearance, energy performance, access to services or neighbourhood deprivation, on average there was little difference between change of use schemes consented through permitted development and those consented through a full planning permission. However, there was a noticeable difference between schemes consented through the two routes in relation to the following key issues:
  • Delivery against space standards for dwelling units

  • The mix of units in a scheme (studios, one-bedroom flats etc.)

  • Adequacy of natural light into dwelling units

  • Access to amenity space (most significant for larger scale conversions)

  • Immediate location (for example, if surrounded by neighbouring industrial uses)”
The Government has not responded to the Report.

MHCLG, Quality standard of homes delivered through change of use permitted development rights

New national policies for venues and holiday parks

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:
"Caravan and holiday parks in England were able to reopen from 4th July 2020. Extending their operation beyond the usual summer season will be invaluable to parks as the sector begins to recover. We are aware that current planning conditions may limit their open season. The temporary relaxation of these planning restrictions can play a vital role in helping local businesses to get up and running again”.
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:
“Where local planning authorities consider it appropriate to require an application to vary relevant planning conditions (where for instance there is a risk of flooding or where parks are situated close to protected sites) they should prioritise the application and make an early decision to provide certainty to caravan and holiday park operators. In doing so, they should consider the benefits of longer opening season times to the local economy as it recovers from the impact of Covid-19”.

UK Parliament, Planning update:Written statement - HLWS359, 14 July 2020

Draft Building Safety Bill

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)”.

HM Government, Policy Paper: Draft Building Safety Bill

Liverpool: Interpreting green wedge policy and failing to report heritage concerns

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.
Was the appeal academic?
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.
Green wedge
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:
“In considering whether to grant planning permission of permission in principle for development which affects a listed building or its setting, the local planning authority, or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”
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).

R (Liverpool Open Green Spaces Community Interest Company) v Liverpool City Council (2020)

Extra care housing: dwellings can fall into use class C2, not only C3

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):
“Overall, the failure to provide the proper contribution to affordable housing and not robustly justify a financial contribution instead of on-site provision means that the proposal would be contrary to Policy CSH3 of the SOCS and Policy H8 of the TNP. It would also be contrary to paragraphs 62 and 64 of the Framework. Taken together, this harm should be given very substantial weight”.
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 essence of the Claimant's case before the Inspector and before this court is that the use of the word "dwellings" in the affordable housing policy, CSH3, of the SODC's Core Strategy could only refer to a dwelling in the C3 Use Class. Because it was agreed between the parties that the entirety of the proposed development fell within the C2 Use Class, the Claimant contended that it had to follow that no part of the development could fall within the C3 Use Class and so could not amount to a "dwelling" under policy CSH3 triggering a requirement to provide affordable housing (likewise policy H8 of the TNP)”.
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:
“Accordingly, a Class C2 development may include accommodation in the form of dwellings, for example flats and bungalows, each of which has facilities appropriate for private, or independent, domestic existence. But their use would only fall within the C2 Use Class if "care" is provided for an occupant in each dwelling who is in need of such care”.
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:
“Policy CSH3 does not use the word "dwelling" as a term restricted to the C3 Use Class. The policy makes no reference, expressly or by implication, to the Use Classes Order at all”.
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.

Rectory Homes v Secretary of State and another (2020)



The Lichfields perspective


July saw the publication of significant changes to the Use Classes Order and further sweeping permitted development rights. From the beginning of September many forms of development will no longer require planning permission. However, it should be borne in mind that there may be some planning conditions relating to existing development that mean planning permission or variation of conditions will be necessary before proceeding.

Jennie Baker, Associate Director 


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