England planning news, August 2022


England planning news, August 2022

15 Aug 2022




Headline news


National Development Management Policies – consultation paused for now?

Scope of proposed national development management policies
During a 12th July Levelling Up and Regeneration Bill (LURB) Committee stage debate, the new Housing Minister, Marcus Jones MP, reiterated that a National Planning Policy Framework (NPPF) prospectus would be published this summer. It is anticipated that the prospectus will provide “details on what national development management policies could look like” and “indicate the scope for policies in plans to address matters that are locally important, or of strategic importance in the case of a Mayor or combined authority”, among other things.
The Housing Minister also said that the new Levelling Up Secretary, Greg Clark, agrees with his predecessor’s letter to the Chair of the LUHC Committee, Clive Betts, regarding NDMPs.
Mr Gove had written to Mr Betts, that requiring decisions to be made in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise, will bring certainty that proposals in local plans will come forward as intended and with the mitigation envisaged.
The scale of the change is not lost on the Government; the Housing Minister said:
"It would no longer be enough for those other considerations merely to “indicate otherwise”, something that can be exploited to override local decisions. This will be the biggest change to the basis of planning decision making since the early 1990s, and will ensure local and neighbourhood plans have greater primacy"
The letter acknowledged that in the event of a conflict with local policies, the NDMPs would prevail, but the former SoS thought such conflict will be rare, because plans will be up-to-date and there will be a clear distinction between local and national policy.
In subsequent exchanges during the debate, regarding non-Government proposed amendments that had sought to ensure NDMPs cannot outweigh the local development plan, the Minister said NDMPs must outweigh development plans due to outliers with out of date plans, to raise standards – policies on climate change, for example - and so that the Government can respond quickly. The Housing Minister observing that NDMPs would have been useful in the pandemic, for example.
This last point indicates that there might not always be consultation on national development management policies. The Government says the NPPF prospectus will explain more about what the National Development Management Policies (NDMPs) might be. However, if the law will say that NDMPs take primacy over the development plan, then how quickly and easily directions amending NDMPs can be made is arguably a more important question than what the Government first intends them to say.
A pre-election period style pause?
However, the NPPF Prospectus has not yet been published. While it could still emerge before a new Prime Minister is elected, a letter from the Secretary of State, Rt Hon Greg Clark MP, to the Planning Inspectorate (PINS) suggests that the Government is treating this time in a similar way to the pre-election period.
Mr Clark has said to PINS:
“[…] during this short period of transition before a new Prime Minister takes Office, and until the Department advises you otherwise, Inspectors should not send letters or reports which conclude that local plans are unsound and incapable of being made so and/or which advise councils that local plans should be withdrawn.
It is, of course, important that examinations continue, and plans are put in place and adopted so that councils and the communities they serve can benefit from having an up-to-date plan; ensuring development is plan-led rather than speculative and unplanned. Therefore, I expect to see Examinations and Hearings continue”.
This reflects the language of PINS November 2019 pre-election advice:
“However, in order to avoid making announcements that could be politically sensitive, the Planning Inspectorate will not be issuing any letters regarding the soundness or legal compliance of local plans, or final reports (including for fact check), until after the election”.
On this basis, one might conclude that there will be no significant planning related announcements until mid September and beyond.

DLUHC, Local Planmaking during the Summer

Levelling Up and Regeneration Bill, Committee Stage debates

Letter from the former Levelling Up Secretary to the Chair of the LUHC Select Committee, 30 June 2022



Quote of the month

The amendment to the LURB will seek to enable decision-makers to be confident the upgrades will be in place by 2030, enabling them to treat as certain the lower levels of pollution after 2030 as part of a HRA. Reducing the mitigation requirements for the inperpetuity period, as the current (higher) levels of pollution need only be mitigated until 2030 (or earlier if the upgrades take place sooner), with the lower pollution levels of TAL needing to be mitigated thereafter.
Joanna Averley, Chief Planner, Nutrient neutrality and Habitats Regulations Assessment Update , 21 July 2022


Nutrient neutrality and the Wyatt case

The Government has launched “a further package to tackle nutrient pollution, which is a significant problem for our freshwater habitats and estuaries”, as announced in a Written Ministerial Statement (WMS) from Environment Secretary, George Eustice. The policy in the WMS is explored and expanded upon in a letter from the Chief Planner of the same day, 21 July 2022.
Mr Eustice noted that there are “some 27 catchments, and several of our internationally important water bodies and protected sites, are in unfavourable status due to nutrient pollution”, observing that plans and projects should only be approved if the authority is certain that it will not have a negative effect on the integrity of such a site. He also referred to the 74 local planning authorities that have been advised on the nutrient impacts of development on certain protected sites and tools and guidance for ‘nutrient neutrality’ to mitigate the impact of nutrient pollution, but also noted the difficulties in finding quick and effective mitigation solutions.
In this context, the Government intends to table an amendment to the Levelling Up and Regeneration Bill, which will place a statutory duty on water and sewerage companies in England to upgrade wastewater treatment works to the highest technically achievable limits by 2030 in nutrient neutrality areas. This would reduce the extent of site specific nutrient neutrality mitigation needed for individual projects – but not for some time.
In the interim, Natural England is to establish a Nutrient Mitigation Scheme
“[…] this is intended to frontload investment in mitigation projects, including wetland and woodland creation. This will then be recouped through a simple payment mechanism where developers can purchase ‘nutrient credits’ which will discharge the requirements to provide mitigation. Natural England will accredit mitigation delivered through the Nutrient Mitigation Scheme, enabling LPAs to grant planning permission for developments which have secured the necessary nutrient credits. Wetlands and woodlands will also provide biodiversity enhancements to areas and promote public access to nature across England, helping to deliver on our levelling-up missions for pride in place and well-being. […] This scheme will not be a requirement but an option to discharge mitigation requirements more efficiently.”
The Chief Planner’s related letter said “It is envisaged that the scheme will enable LPAs to grant permission subject to conditions or obligations securing mitigation and phasing developments (if needed) so that mitigation is operational and in place, prior to any nutrient pollution being discharged”.
The WMS also seeks to address “concerns that some LPAs have around the impact of nutrient neutrality on their ability to demonstrate they have a sufficient and deliverable housing land supply”.
By the end of the summer, updated planning guidance will advise that deliverability assessments and housing land supply calculations should take the strategic and Natural England mitigation schemes into account.
“It will be for decision takers to make judgements about impacts on delivery timescales for individual schemes in line with the National Planning Policy Framework”.
Following discussion by some within the development sector as to whether HRA provisions apply to post permission approvals, the Government has confirmed its view and will update guidance accordingly:
“The Habitats Regulations Assessment provisions apply to any consent, permission, or other authorisation, this may include post-permission approvals; reserved matters or discharges of conditions. It may be that Habitats Regulation Assessment is required in situations including but not limited to:
  • where the environmental circumstances have materially changed as a matter of fact and degree (including where nutrient load or the conservation status of habitat site is now unfavourable) so that development that previously was lawfully screened out at the permission stage cannot now be screened out; or
  • development that previously was lawfully screened in but judged to pass an Appropriate Assessment cannot now do so because the mitigation (if any) secured is not adequate to enable the competent authority to be convinced of no adverse effect on integrity of the habitats site”.

Reform of the Habitat Regulations remains ongoing.
Related to the publication of the WMS, on the 15th July, judgment had been handed down in Wyatt v Fareham BC.
Roy Pinnock of Dentons has prepared a helpful summary of the case and considered its implications. Wyatt was also scrutinised by Paul Tucker QC in Have We Got Planning News For You.
The Chief Planner said of the judgment:
“The Court of Appeal dismissed the case on all grounds and concluded that the planning permission had been lawfully granted. This positive outcome should give all those involved confidence in the approach and methodology that Natural England has proposed to help LPAs to address nutrient impacts from new development. Natural England, when developing its nutrient neutrality methodology, guidance, and tools, incorporated the recommendations provided by Jay J. in his High Court judgment”.

Anything but Neutral – Nutrient Budgets & Wyatt v Fareham Borough Council
Have We Got Planning News For You with Matthew Spry, Senior Director at Lichfields (S7 E7)

Making sense(sus) of it

The publication of the census results on the 28 June 2022 has revealed that household sizes have increased across the country, and 600,000 potential households have been ‘lost’. The 2014-based household projections estimated there would be 24.4m households in 2021, around 1m more than reported in the 2022 census. 400,000 out of this 1,000,000 shortfall in potential households is due to a lower rate of population growth. This leaves 600,000 less households than predicted over the last decade.
In the place of creating new households at the rate expected, that would meet a growing population’s needs, household size has increased by 0.3% over the same period rather than decreasing by -2.2% as projected. Lichfields Insight explores the data, and considers how geography, affordability, and housebuilding might offer an understanding of this imbalance and what it means for communities.

Lichfields Insight, Making sense(sus) of it

Have We Got Planning News For You with Matthew Spry, Senior Director at Lichfields (S7 E7)

Future of Freight plan published

As previously reported here, the government has published its “Future of Freight” plan, which sets out the government’s long-term vision for the UK freight sector.
A Written Ministerial Statement from the Department for Transport and transport minister Trudy Harrison states that “The vision set out in the plan is for a freight and logistics sector that is cost-efficient, reliable, resilient, environmentally sustainable and valued by society for its role in supporting our way of life”.
The Statement also notes that a call for evidence will be published and that freight will be further included in planning, transport and design policy as well as planning reform.
The plan identifies five priority areas:
  • establishing a National Freight Network across road, rail, maritime, aviation, inland waterway and warehouse infrastructure;
  • transition to net zero;
  • further embedding freight in planning, transport and design policy and guidance, and ensure freight is represented in planning reform;
  • expanding awareness of the sector and freight careers amongst the public; and
  • maximising opportunities for uptake of innovative technology and digitalisation.
On planning, the report notes:
“A disconnect exists between an industry that is not equipped to properly engage with the planning process, and local planning authorities that are unable to understand the needs of a changing an innovative freight and logistics sector. This leads to increased complexity, cost and time for promoters bringing forward schemes that are in the national interest.”
Planning is seen as vital to facilitating the growth of the logistics sector, through increasing the number of site allocations in the right locations. The Government is also to undertake a call for evidence, to better understand the practical issues of planning for and delivering for logistics and freight.
As outlined in a previous 2021 Written Ministerial Statement, the Government intends to review and amend existing planning practice guidance to better support the freight and logistics sector. It may also consider changes to national transport and planning policy and has stated that it will consult on and publish an updated DfT Circular 02/2013 (The Strategic Road Network and The Delivery of Sustainable Development), as well as the National Networks National Policy Statement (NNNPS). The Government may also consider updates to the National Design Guide, Manual for Streets, and National Model Design Code, to better understand the role that the design of streets can play in driving up standards for delivery and servicing.

Department for Transport, Future of Freight plan

Written Ministerial Statement, Future of freight plan

Modifications required for Article 4 Directions

The Secretary of State has written to four local authorities setting out modifications he has made to various Article 4 Directions proposed for their respective areas. All four of the Article 4 Directions seek to restrict the Part 4 Class MA permitted development rights, which allow for change of use for business, service and commercial uses (Class E) to residential (Class C3).
The authorities affected by the SoS include:
  • Westminster;
  • Richmond Upon Thames;
  • Wandsworth Council; and
  • Kensington and Chelsea.
The GPDO 2015 requires that any Article 4 Directions must be agreed by the secretary of state, who has powers to either modify or quash the direction. The modifications put forward by the SoS were made on the basis that the Article 4s were not sufficiently targeted, with each letter containing the following justification:
“The Article 4 direction, as made, does not take a sufficiently targeted approach in the assessment of the wholly unacceptable adverse impacts of the permitted development right in each location. Such an approach is necessary to ensure that Article 4 direction applies only to the smallest geographical area possible. I am therefore of the view that the boundary must now be modified in accordance with the notice attached to this letter.”
As such, each of the Directions has been amended to remove certain areas and frontages from the designation. The LB of Kensington and Chelsea had initially attempted to designate the entirety of the borough under the Direction; the SoS’s modifications will mean that its major high streets and commercial areas are protected, though there have been changes which may affect some district centres.
Since Class MA (alongside other PD rights) came into effect on 1 August 2021, a number of other inner London boroughs have sought to restrict its use, with backing from the Mayor who last year provided evidence in support of Article 4 Directions for London’s Central Activities Zone and other key town centre designations. Similarly, then Housing Minister, Stewart Andrew wrote to the authorities involved also stating these did not take a sufficiently targeted approach.

Department for Levelling Up, Housing and Communities, Article 4 directions: Secretary of State modification letters

Committee could not attach condition that would change the substance of the development applied for

A recent judgement has outlined the role of the Wheatcroft principle and the extent that it can be used to impose conditions which change the form of development so that the full planning permission granted deviates from the description of development. The main principle laid down in Wheatcroft v Secretary of State for the Environment and Another (1980) outlines an acceptable change to a planning application is one that does not result in an application “in substance not that which was applied for”.
In Suliman, R (On the Application Of) v Bournemouth, Christchurch and Poole Council, a local resident who lived adjacent to the applicant site sought judicial review of Bournemouth, Christchurch and Poole Council’s decision to grant full planning permission for a mixed-use development, including 130 residential dwellings, on the site of the former police station in Christchurch.  The grounds of the challenge were that the council were wrong to advise the planning committee that it could not imposes a condition which would require an extension of the ecological corridor and the North West boundary of the site to at least 12m in width and that the Council were mistaken to proceed on the basis that it had no power to impose such a condition.
The judge noted that the interested party (the developer) did not consent to a further expansion of the ecological corridor. The judge also noted that effect of the proposed condition which required widening the ecological corridor to “12 m at least” would be that the proposed development would not be able to continue in accordance with the developer’s scheme for 130 dwellings and the attached site plan, which is fixed due to full planning permission being in place. The judge concluded that had the Council voted to extend the ecological corridor to 12 metres , this would have resulted in the developer being unable to build out the proposed scheme in full and match the site plan within the application. As such, they considered it this have breached the “substantive limb of the Wheatcroft test.”
The Judge concluded:
…on the facts of this case, it was rational for the officers and the Chair to conclude that the result of imposing Councillor Hall's condition would be a development which, in substance, was not that which was applied for, and therefore it would breach the Wheatcroft principle. On the facts, I consider that it would have been irrational for the Committee to reach any other conclusion, and so the planning officers were right to advise Members that they could not take this course.
“Such a condition would also have been Wednesbury unreasonable, and so failed to meet the third limb of the Newbury test, as it conflicted with the description of the development and the layout plan which the IP was bound to implement if the application for planning permission was granted. I am not satisfied, on the facts, that it would have failed to meet the second limb of the Newbury test, as I consider that it did relate to the development."
The claim for judicial review was therefore dismissed.


The Lichfields perspective

At a time of deepening housing crisis, the requirement for nutrient neutrality is having a dramatic impact on housing delivery in a quarter of local authorities. The government’s recognition that the impact of new housing accounts for only a small proportion of overall nutrient pollution is welcome, as is its statutory requirement for the upgrade of waste water treatment works from 2030. But more thought must be given to what is to happen in the interim. Efforts must be made to ensure that housing delivery can continue in the short and medium term. This includes consideration of the number of new homes on site that are likely to be delivered by 2030 and the net additional population of those homes. Any mitigation should focus on actual impacts arising between now and 2030 and not consider the homes that will be delivered after that date or the new households that already reside in the local area.
Simon Coop, Planning 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

[1] Of relevance, Scottish planning fees were increased significantly this month, see Lichfields Scotland Planning News