News
England planning news, November 2020
11 Nov 2020
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Headline news |
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Planning permission significantly amended over many years cannot be relied on
The Court of Appeal has concluded that a 1967 full planning permission can no longer be relied upon, because so many departures had been made from the original approved masterplan.
Hillside Parks Limited owns a site that was granted planning permission for a 401 unit residential scheme in 1967, subject to a masterplan and one condition relating to the water supply.
The permission was implemented and over many years the master plan was varied several times by subsequent planning permissions. In 1987 the High Court found that the 1967 permission had been lawfully implemented and could still be relied upon.
Further variations were made after the 1987 judgement. In 2017, Snowdonia National Park Authority (SNPA), as local planning authority since 1995, advised that it was no longer possible to build out development in accordance with the 1967 permission due to changes that had taken place over time; it could no longer be relied upon.
Hillside Parks Limited’s claim that this decision by SNPA was unlawful was dismissed in the High Court in 2019. The Court of Appeal has now dismissed the appeal against the High Court judgement.
Lord Justice Singh accepted the argument put by Counsel for SNPA that legal decisions since the 1987 judgement, particularly Sage v Secretary of State for the Environment [2003]:
“[…] has placed greater emphasis on the need for a planning permission to be construed as a whole. It has now become clearer than it was before 2003 that a planning permission needs to be implemented in full. A “holistic approach” is required”.” (para 65).
The LJ Singh endorsed the judge’s approach to Sage in Singh v Secretary of State for Communities and Local Government and Another [2010] (para 67):
“[…] Hickinbottom J was of the view that, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out “fully in accordance with any final permission under which it is done” (emphasis in original). He continued:
“That means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful”.”
The Court did not consider whether this meant the whole development or only works undertaken after the impact of permissions, would be unlawful.
According to the judgement, the Court of Appeal judges were presented with plans to assist with understanding what had been permitted on the site. Lord Justice Singh said:
“it has to be noted that these plans will not be on the public register. […] it is important that the public, including potential purchasers of land and neighbours who may be affected by development, should be able to ascertain with reasonable certainty what is or is not permitted development by reference to what is available on a public register […].” (para 71).
Furthermore, LJ Singh found that while Hillside Park Limited might not be wrong to say that some of the units shown on the 1967 plan could still be implemented:
“[…] it does tend to show, in my view, is that the [High Court] Judge was entitled, having all the evidence before him, to reach the conclusion that events since 1987 have made it impossible now for the original planning permission of 1967 to be implemented” (para 72).
The Court of Appeal also concluded that SNPA’s change in approach to the position taken on whether or not the master plan could continue to be relied upon and built out, between it coming into existence and 2017, was not an abuse of process.
In conclusion, LJ Singh cited Hickinbottom J in Singh v Secretary of State for Communities and Local Government and Another [2010] EWHC 1621 (Admin) and found:
“[…] it is conceivable that, on its proper construction, a particular planning permission does indeed grant permission for the development to take place in a series of independent acts, each of which is separately permitted by it. I would merely add that, in my respectful view, that is unlikely to be the correct construction of a typical modern planning permission for the development of a large estate such as a housing estate. Typically there would be not only many different residential units to be constructed in accordance with that scheme, there may well be other requirements concerning highways, landscaping, possibly even employment or educational uses, which are all stipulated as being an integral part of the overall scheme which is being permitted. I doubt very much in those circumstances whether a developer could lawfully “pick and choose” different parts of the development to be implemented” (para 90).
The express reference to modern planning permissions and the need to approach them holistically raises the question of how this judgement sits with drop-in planning permissions, where a phase of development already granted planning permission is swapped-out for development approved by a later permission for that phase, without compromising the remaining elements of the planning permission granted. The swapped-out phase is often severed from the original permission by new conditions and/or a legal agreement.
Planning lawyer Simon Ricketts, of Town Legal LLP, considers the potentially complex legal implications of this case in his blog Multiple planning permissions, antique planning permissions: Hillside
Hillside Parks Ltd v Snowdonia National Park Authority (2020)
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Quote of the month |
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Making it easier for them to provide takeaways has helped these businesses [pubs, restaurants, cafes and markets] to adapt and helped sustain many through an unbelievably difficult year. That’s why I am extending these simple but effective reforms […]. As these reforms have made such a difference, I will be considering making them permanent.
Communities Secretary Rt Hon Robert Jenrick MP, 11 November 2020 |
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Proposals for homes built via permitted development rights must meet space standards from April 2021
The legislation requiring that homes delivered via permitted development rights meet space standards will come into force on 6 April 2021.
Permitted development rights will not apply to proposals to create homes if the gross internal floor area of any dwellinghouse proposed is less than 37sqm or does not comply with the nationally described space standard (as amended in 2016).
Permitted development rights will not apply to proposals to create homes if the gross internal floor area of any dwellinghouse proposed is less than 37sqm or does not comply with the nationally described space standard (as amended in 2016).
Accordingly, applications for prior approval that propose to convert a retail, commercial, storage or agricultural building to a dwelling, or that propose to create new dwellings by adding storeys or through demolition of residential or commercial buildings, will need to show that these standards will be met.
The new limitation on permitted development rights for homes will not apply:
- To prior approval applications submitted before 6 April 2021
- Where prior approval is given before 6 April 2021
- Where prior approval is given and the application was submitted before 6 April 2021
- Where prior approval is given on appeal and the prior approval application was submitted before 6 April 2021
- Where a written determination that prior approval is not required is given and a valid application was submitted before 6 April 2021
- For applications for prior approval for new homes to be created by conversion, where the 56 day period for determining the application either expires before 6 April 2021 or expires after that date but a valid application was submitted before that date.
The Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020Lichfields Planning News, Permitted development homes update: cross party pressure leads to space standards promise, October 2020MHCLG, Technical housing standards – nationally described space standard
Several planning related COVID-19 measures extended
The Government has extended several of the planning-related COVID-19 measures and announced that some may be made permanent.
The measures to be extended are as follows:
- The right introduced last March allowing pubs, restaurants and cafes to provide a food takeaway service will be extended until 23 March 2022 (still with notification to the local planning authority required and subject to licensing laws), but with a view to this becoming a permanent right.
- The time limits in the existing right for the temporary use of land were doubled from 14 days to 28 days for holding a market or motor car and motorcycle racing, and from 28 days to 56 days for any other purpose; this is to be extended by another year until 31 December 2021. (coming into force on 1 January 2021).
- The temporary measures enabling emergency development by councils and health service bodies from 31 December 2020 to 31 December 2021.
- The temporary changes to ensure the planning system continues to operate effectively during the COVID-19 emergency and to support economic recovery, including temporary freedoms on how planning applications are publicised, and on public inspection of planning documents
With the exception of the provisions relating to temporary use of land, the above measures come into force on 3 December 2020, allowing a seamless transition from the current provisions.
There is no direct reference to extending the legislation that has extended the life of certain permissions, consents and reserved matters approvals – nor is there a reference to extending the life of certain prior approval decisions.
The new temporary provisions for pavement licences are being kept under review, according to the Government’s press release.
Draft legislation has also been laid to extend the temporary time period during which the Mayor of London may make his current spatial strategy available for inspection by electronic means only, from 31 December 2020 to 31 December 2021.
The Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020MHCLG press release, Boost for restaurants, pubs and cafes as Jenrick extends takeaway services, 11 November 2020Draft Business and Planning Act 2020 (London Spatial Development Strategy) (Coronavirus) (Amendment) Regulations 2020
The Court of Appeal has concluded that a condition relating to highways in a new development did not require those highways to be public highways, overturning a High Court judgement.
The Court of Appeal had to decide whether a condition attached to the grant of planning permission for employment development of various kinds (part of the New Eastern Villages scheme in Swindon) lawfully required the public to have rights of passage over roads to be constructed as part of the development. Swindon Council said the condition required the roads to be dedicated as highways, the Secretary of State argued the condition merely regulates the physical attributes of the roads.
An illustrative landscape masterplan showed access roads connecting to the A420, some dual carriageway and footpaths with widths of between 59 and 60 metres.
According to the judgement:
“Condition 39 is the condition on which this appeal turns. It stated:
"Roads - The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use.
Reason: to ensure that the development is served by an adequate means of access to the public highway in the interests of highway safety."”
There was a s106 agreement, but not a s38 Highways Agreement. The s106 agreement referred to two of the roads on the illustrative landscape masterplan and required:
“the owners to transfer certain land, referred to as "the A420 Improvements Land", to Swindon for the purposes of carrying out improvements to the A420, and to grant them a licence to enter other land for the same purpose. In the event of a transfer of the A420 Improvements Land, it was either to be dedicated by Swindon as a highway maintainable at public expense, or to be used solely for undertaking the A420 improvements. The A420 Improvements Land was shown on a separate plan as lying to the west of the north-south access road and just below the A420”.
There are also commitments in the s106 agreement regarding the timing of compliance with condition 39 in certain locations.
In June 2017 the developer sought a lawful development certificate that the proposed “formation and use of private access roads as private access roads would be lawful”. The certificate was allowed on appeal in November 2018. According to para 74 of the judgement, the Inspector concluded, among other things:
“Condition 39 simply imposes a requirement concerning the manner of construction of the access roads and requires them to be capable of functioning as a highway along which traffic could pass whether private or public. It does not require the constructed access roads to be made available for use by the general public”.
This case is an appeal by the developer against Swindon BC’s successful statutory review in the High Court of the Inspector’s decision.
The Court of Appeal found:
- “[..] at least at this level in the judicial hierarchy, a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be an unlawful condition”. If an unlawful condition requiring land to be dedicated could not be severed from the planning permission then the planning permission could not stand either.
- The condition had to pass the reasonable reader test (following Lambeth LBC v Secretary of State for Housing, Communities and Local Government (2019)).
- One would not expect an invalid condition to be attached to a planning permission
- If a planning condition is intended to exclude a land owner's existing rights, which is the effect of Swindon’s interpretation, the words used in the condition must clearly evince that intention
- Condition 39 did not expressly require dedication of a highway and dedication could not be inferred from public use, because at the time when the roads are constructed there would have been none; the parts of the development required to be dedicated could not be clearly established.
- “the obligation imposed by the condition is one which at least on its face relates to the construction of the roads, which are themselves described as "access roads", rather than as highways”. The condition itself distinguishes between “highway” and “public highway”. The condition required the development – rather than parts of it – to have access to the public highway
- The condition sought to ensure adequate means of access to a public highway. There a ways of securing a public highway (section 38 agreement) or to bring roads up to adoption standard (section 106 agreement) that could have been used, but were not. The permission says nothing about liability to repair (8)
- Condition 39 should be given the meaning that the experienced Inspector gave it, because it is a realistic interpretation
According to an article in thisiswiltshire.co.uk, which includes an interview with Swindon Council’s cabinet member for strategic infrastructure, transport and planning, the Council is considering appealing to the Supreme Court.
Further Parliamentary debate on housing numbers
Following on from the housing debates reported in Lichfields’ October Planning News, Conservative MP for North Somerset Dr Liam Fox secured a debate on Housing in North Somerset. As with earlier debates, the proposed revisions to the standard method were central to matters raised. Dr Fox asked where the housing need should be met in North Somerset, raising concerns about flooding and infrastructure and saying that North Somerset people are not ‘NIMBYs’ as they have seen a population increase of more than 50 per cent since the 1970s.
The Housing Minister noted concerns about more homes being built in the south than in the north and referred to stock renewal, regeneration of town and cities, brownfield development and permitted development as addressing these concerns. He also referred to the standard method consulted on as being an “indicative formula” – a further signal that the standard method to be published is very likely to be different from that consulted on.
On lank banking, the Minister noted that the Letwin Review found no evidence of speculative land-banking, but as part of the White Paper consultation the Government would be looking at ways to better incentivise developers to build out their planning permissions.
Following on from announcements made during the summer, legislation removing permitted development rights to demolish theatres, concert halls and live music venues has been made.
The Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020 come into force on 3 December 2020 and mean that planning permission will be required to demolish these buildings.
The Heritage and Demolition provisions at Part 11 will be amended so that the list of development not permitted by Class B or Part 11 includes a building used or last used for the purpose of a concert hall, a venue for live music performance; or a theatre. These uses are not defined by the Regulations.
The provisions will not apply where prior approval has been given or considered as not being required in respect of an application made before 3 December 2020 or where an appeal made in respect of an application submitted before 3 December 2020 is successful.
The Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020MHCLG press release, Boost for restaurants, pubs and cafes as Jenrick extends takeaway services, 11 November 2020
MHCLG and Homes England have given oral evidence to the Public Accounts Committee’s inquiry into Starter Homes.
MHCLG Permanent Secretary Jeremy Pocklington was asked to outline the differences between Starter Homes and First Homes and to give an indication of targets and timescales for the First Homes policy. On the latter, Mr Pocklington stated that there were no targets and that details of the 1,500 home programme would be set out in the coming weeks. In terms of the national policy changes he said:
“We will need to adjust the planning policy in order to fully implement the First Homes proposal. After that stage, authorities, as they change their policies and update their local plans, will be required to provide First Homes. We are not setting a timetable on that. We are going to learn from the 1,500 homes. This is a policy that will grow over several years. It is not a quick policy to implement”.
Subject to meeting certain conditions, First Homes and other discount market homes in England will be able to benefit from social housing CIL relief from 16 November 2020, when the Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2020 come into force.
House of Commons, Public Accounts Committee Oral evidence: Starter Homes, HC 88 Thursday 22 October 2020The Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2020
A developer’s appeal against a surcharge imposed by South Lakeland District Council because his Community Infrastructure Levy (CIL) Commencement Notice (CN) was not received prior to development commencing, has been dismissed. The decision is a reminder of the importance of obtaining proof of postage and that an actual date must be stated on CIL forms. The Inspector concluded:
“the CN provided is invalid as it does not stipulate a commencement date as required by Regulation 67(2)(c). Instead, it simply states “A.S.A.P”. While I have sympathy with the appellant, if he genuinely posted a CN in good faith, I take the view that his decision to press ahead with the development without having received an acknowledgement of receipt was a risky strategy to take”.
Planning Inspectorate appeal decision – South Lakeland
Greater Manchester Spatial Framework (GMSF) Publication Draft Plan was approved by the Greater Manchester Combined Authority (GMCA) on the 30th October 2020. Subject to approval by the 10 constituent authorities through November, the consultation on GMSF 2020 will begin on 1st December 2020 and will run for only 8 weeks, ending on 26th January 2021.
For more details please see our blog series on the GMSF; more blogs will further provide and analysis in due course.
Lichfields Planning Matters, Manchester series
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The Lichfields perspective |
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It is clear that COVID-19 planning-related measures have been a test bed for permanent changes to the planning system, both in terms of better use of digital procedures and to assess the impact of more flexible measures for the operation of pubs and restaurants and temporary markets. It is welcome – if not particularly surprising – that the Government is considering making some of these measures permanent. |
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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