England planning news, June 2020

On 13 May the Ministry of Housing, Communities and Local Government (MHCLG) introduced temporary changes to the publicity procedures certain planning related applications and issued several updates to planning guidance.

Temporary publicity arrangements

The amendments made by the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 apply, until 31 December 2020, to certain applications including those made to local planning authorities for:

1. planning permission (including planning permission for EIA development and planning permission for development affecting the setting of a listed building or the character or appearance of a conservation area);
2. listed building consent; and
3. variation or discharge of conditions attached to listed building consent.

The temporary Regulations amend the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO), the Planning (Listed Buildings and Conservation Areas) Regulations 1990 and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.  They do not apply only to applications submitted on or after 14 May, so can be used in respect of applications stuck in the system for some time due to publicity requirements.

The amended publicity requirements do not apply to Nationally Significant Infrastructure Projects (NSIPs) and the Government says it is working closely with consenting Departments, the Planning Inspectorate and National Infrastructure Planning Association to minimise the impact of current restrictions.

MHCLG also published a written statement and several updates to guidance on COVID-19 covering:

1. Validation and publicity of applications
2. Site visits
3. Digitisation of planning including casework and meetings
4. Existing and proposed flexibilities for the collection of the Community Infrastructure Levy (CIL) and enforcement of planning obligations
5. More flexible working hours on construction sites
6. Reviewing Statements of Community Involvement and updating them as required

More details on the current position on each of the above are provided in our Guide to the COVID-19 implications for law and policy in England

See also Lichfields' live tracker on how Councils are working through the COVID-19 pandemic and beyond, updated in partnership with the Planning Advisory Service (PAS)

At the end May the Planning Inspectorate (PINS) provided an update on the measures it was taking to progress appeals at the current time.

It anticipates that during June ten planning hearings, eight inquiries and fifteen NSIP project hearings (associated with four projects) will take place and PINS will reorganise “the vast majority” of hearings. Remaining inquiries will take place “as soon as possible”.

A local plan hearing will also take place in June and a local plan examination (South Oxfordshire) will be conducted remotely in July.

PINS used the update to confirm that post COVID-19 face-to-face events will resume.

 

Perhaps the current most pressing planning-related matter for the development sector is the need for planning permissions to be extended. In Scotland, new, temporary legislation has already extended the life of planning permissions, conservation area consents and listed building consents that expire during an ‘emergency period’.

For England, a statement from Lord Greenhalgh in the Lords and a written answer from the Housing Minister both say:

It is understood that this is being prioritised, in order that legislation can be made before the summer recess.  However, what is not clear is whether such an extension will apply to the time limits for submission of reserved matters, time limits for completions of prior approvals and implementation time limits for listed building consents.

With regard to the future, Lord Greenhalgh said in a House of Lords housing debate “[…] as a result of this pandemic, it is estimated that house prices have fallen by somewhere between 10% and 30%. We need to understand that the way to deal with the housing crisis is the provision of new homes and ensure that we facilitate those second moves so that the whole housing market gets going again”.

Over the last few weeks Government rhetoric has emphasised the importance of the construction sector and delivery of housing. In terms of supporting the housing market, and of relevance to the viability of proposed developments, the SoS said:

“today is too soon to judge with confidence the state of the housing market because there have been so few transactions in recent weeks. However, we stand ready to work with the industry and to help to guide it through what will undoubtedly be an extremely challenging period”.

In a written question Baroness Thornhill asked whether the Government had considered adjusting the housing delivery test methodology or its one million homes in five years target.  The reply suggested not yet:

“Over the last few days we are beginning to see more developers reopening sites following careful consideration of public health guidance. […] We note the concerns some authorities are raising on the housing delivery test and we will continue to monitor the situation”.

In a reply to a different question the Housing Minister said:

“We note the concerns some authorities are raising on 5 year housing land supply and we will continue to monitor the situation”.

And when asked how the Government plans to support housing market recovery the Housing Minister referred to ‘a package of housing reforms’, which would probably include ‘Planning for the Future.  He also confirmed that the Government is looking at guidance that would allow Help to Buy to be extended. A written answer by Lord Greenhalgh of 28 May says:

Lord Greenhalgh also advised the House of Lords that he believed the accessible homes consultation is with the SoS at present and the Government hoped to consult on it as soon as possible. In the same debate he also acknowledged:

‘Planning for the Future’, the Government’s planning reform paper, published in March, said that permitted development rights for upwards extensions would be in force by Summer 2020.

In a response to a written question the Housing Minister indicated that this remains the intention, with no further consultation to be undertaken.

The Supreme Court has overturned a Court of Appeal judgement and concluded that one can argue that a building should not have been listed, because it is not a building, at enforcement appeal stage.

Dill v Secretary of State for Housing, Communities and Local Government and another (2020) also gives a view on factors to consider when determining whether a structure or erection, in a heritage context, is a building.

According to the judgement, the Grade II listed buildings in this case are “a pair of early 18th century lead urns resting on limestone pedestals”, each listed in their own right in the 1980s.  At the time of listing they were situated either side of the driveway of Idlicote House in Warwickshire (itself separately Grade II listed, in the 1960s).  Removed from their first home in 1939, Idlicote House was the urns’ fifth home.

There is no record of the reasons why the urns were listed and their owner, Mr Dill, did not know that they were listed; he sold them, in 2009, and they were removed by crane and eventually exported (according to the Court of Appeal judgement).

In 2014, the local planning authority noticed their removal, refused retrospective listed building consent and served a listed building enforcement notice requiring the urns’ return. A planning inspector refused Mr Dill’s listed building and enforcement appeals.

One of Mr Dill’s grounds of appeal was that the urns his father had moved to Idlicote House in the 1970s were not buildings, and therefore not listed buildings, and so his enforcement appeal should be allowed.

The Supreme Court says that the Inspector “took the view, in summary, that the status of the items as “buildings” was established by the listing; that he could not reconsider that issue; and, that issues of property law or the so-called Skerritts tests of size, permanence and degree of annexation […] were irrelevant. The view that the status of the item as a building was not open to challenge was upheld by […] the High Court [...] and by the Court of Appeal.”

The Supreme Court thought very much to the contrary:

No convincing reason was offered as to why the question whether something qualifies as a “building” should be treated in a different way in the listed building context [to the planning enforcement context]. One advantage of allowing these issues to be dealt with through the planning appeal route is that it enables the inspectorate, with appropriate legal advice, to develop workable criteria on a case-by-case basis”.

The Supreme Court also noted that Section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that for the purposes of that Act, a listed building is i) a building and ii) included within the statutory list - if it is not a building including it on the statutory list cannot make it a building.

“There is nothing [in the Act] to prevent the accused arguing that the item on the list is not a “building” and so not within the definition. Short of a specific provision that the listing is to be treated as “conclusive” for such purposes, there is no reason to displace the ordinary presumption that the accused may raise any relevant defence”.

If it was decided at appeal that there had been no listed building, there could be no offence and the SoS has the power to remove the item from the list.

On this basis the appeal succeeded and has been remitted for redetermination by a planning inspector. The Court did not rule on whether or not the urns are buildings, but discussed the relevant considerations.

It found that the urns are not buildings under a ‘real property’ test because they were not related to the design of Idlicote House and its setting.

Following Skerritts of Nottingham the tests of whether or not a structure is a building, in a planning context, are size, permanence and physical attachment. Given that for the purposes of the Planning (Listed Buildings and Conservation Areas) Act 1990 “building” is defined by the Town and Country Planning Act 1990, the Supreme Court concluded the Skerritts criteria for identifying a “building” are also relevant in a listed building context.

The judgment provides arguments both ways for considering whether or not the urns formerly owned by Mr Dill are buildings under the Skerritts test, but Lord Carnwarth decided “I do not think it is possible or appropriate for us to reach a concluded view on how those tests should be applied in this case”.

However, the redetermination of the appeal may or may not happen, given the Lord Carnwarth’s view that:

“this court’s formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further”.

It was also noted:

“This case has revealed a disturbing lack of clarity about the criteria which have been adopted by the relevant authorities, not only in this instance but more generally, in determining whether free-standing items such as these are regarded as qualifying for listing protection, whether as ‘curtilage structures’, or as separate ‘buildings’ as in this case. Even now, in spite of the issue having been raised by Mr Dill in 2015, and after a planning appeal and three court hearings, he has had no official explanation of the criteria by which it was determined that these items qualified as ‘buildings’”.

Lichfields’ Heritage team will shortly issue a blog that will consider the implications of Dill.

Dill v Secretary of State for Housing, Communities and Local Government and another (2020)Historic England, hosting the Planning Inspectorate’s appeal decisions relating to Idlicote House, January 2017