Planning: the death of “interim planning guidance”?

Local planning authorities facing constant changes in legislation and national policy face practical difficulties keeping their local plans under review.

Local planning authorities have produced interim planning guidance to bridge the position between out-of-date development plans and new development plans being adopted.

Regulation 2 of Town and Country Planning (Local Planning) (England) Regulations 2012 (“the 2012 Regulations”) defines “local plan” as “any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b), and for the purposes of section 17(7)(a) of the [Planning and Compulsory Purchase Act 2004 (“the 2004 Act”)] these documents are prescribed as [Development Plan Documents (“DPDs”)].”

“Supplementary plan document” (“SPD”) means “any document of a description referred to in regulation 5 (except an adopted policies map or a statement of community involvement) which is not a local plan”.

Regulation 5 of the the 2012 Regulations defines Local Development Documents (“LDDs”):

“Local Development Documents

(1) For the purposes of section 17(7)(a) of the [2004 Act] the documents which are to be prepared as [LDDs] are –

(a) any document prepared by a local planning authority individually or in co-operation with one or more local planning authorities which contains statements regarding one or more of the following

(i) the development and use of land which the local planning authority wish to encourage during any specified period;

(ii) the allocation of sites for a particular development or use;

(iii) any environmental, social design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and

(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission.”

There is another category of LDD recognised by the courts, which the 2012 Regulations are silent about – the ‘residual LDD’.

The categorisation of these different types of documents governs how they will be developed:

– the DPDs/LDDs are to be tested through independent examination;
– SPDs must be formally consulted on; and
– residual LDDs have no procedural requirements.

In R (Miller Homes) v Leeds City Council [2014] the old adopted development plan said designated land should not be developed in the plan period but kept back to meet longer term requirements.

Leeds later produced interim guidance to set the guidelines for the release of safeguarded land.

The High Court said Leeds’ Interim Policy did not fall within regulation 5(1)(a)(iv) because the Interim Policy was not a development management policy: it was a safeguarding policy, rather than a policy which regulated the development or use of land. Thus, the statements in the Interim Policy were not “regulating a development management policy.”

Thus it was neither a DPD/Local Plan nor a SPD. It was a “residual LDD”.

In the recent case of Skipton Properties Ltd, R (On the Application Of) v Craven District Council [2017] the High Court said:

If the document in question contains statements within any of (i), (ii) or (iv) of regulation 5(1)(a) (above), it is a DPD.

“This is so even if it contains statements which, taken individually, would constitute it an SPD or a residual LDD. This conclusion flows from the wording “one or more of the following”, notwithstanding the conjunction “and” between (iii) and (iv).”

In the Skipton case the real question was therefore whether the Council’s Policy NAHC 2016 concerning affordable housing “contained development management policies which guide or regulate applications for planning permission.”

The issue here was not the same as under 2012 Regulation 5(1)(a)(i) because there was no need to find any encouragement; regulation 5(1)(a)(iv) above is neutral.

NAHC 2016 clearly contained statements, in the form of development management policies, which regulate applications for planning permission.

NAHC 2016 contained statements in the nature of policies which related to the development and use of land which the Council wished to encourage, pending the Council’s adoption of a new local plan which would include an affordable housing policy.

“The development and use of land is either “residential development including affordable housing” or “affordable housing”. It is an interim policy in the nature of a DPD. It should have been consulted on; [a Strategic Environmental Assessment] should have been carried out; it should have been submitted to the Secretary of State for independent examination.”

So the court quashed policy NAHC 2016.

In conclusion if any guidance fulfils the criteria for a DPD/Local Plan in the 2012 Regulations, it must be prepared as a DPD/Local Plan. Alternatively, it might be a SPD requiring to be prepared as a SPD.

The scope of Regulation 5(1)(a) of the 2012 Regulations is so wide as to pretty much rule out meaningful ‘residual LDDs’ to provide interim guidance.

The correct course for local authorities is to press on with the timely preparation of up-to-date local plans, and in the intervening period between draft and adoption, to deploy them as material considerations for the purpose of the rights and duties conferred by the 2004 Act.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Flooding sequential test should have been applied

Policies in the National Planning Policy Framework (“NPPF”) cover development in “areas at risk of flooding”.

These include the policy for the “sequential test” in paragraphs 100 to 104.

“100. Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk, but where development is necessary, making it safe without increasing flood risk elsewhere. … Local Plans should apply a sequential, risk-based approach to the location of development to avoid where possible flood risk to people and property and manage any residual risk, taking account of the impacts of climate change, by:

applying the Sequential Test;

if necessary, applying the Exception Test;

using opportunities offered by new development to reduce the causes and impacts of flooding; ….”

The Planning Practice Guidance, issued by the Government has a section on “The sequential, risk-based approach to the location of development”. It gives guidance on the sequential test.

“….The aim is to steer new development to Flood Zone 1 (areas with a low probability of river or sea flooding). Where there are no reasonably available sites in Flood Zone 1, local planning authorities in their decision making should take into account the flood risk vulnerability of land uses and consider reasonably available sites in Flood Zone 2 (areas with a medium probability of river or sea flooding), applying the Exception Test if required. Only where there are no reasonably available sites in Flood Zones 1 or 2 should the suitability of sites in Flood Zone 3 (areas with a high probability of river or sea flooding) be considered, taking into account the flood risk vulnerability of land uses and applying the Exception Test if required.”

In Watermead Parish Council v Aylesbury Vale District Council [2017] planning permission was sought and obtained for a crematorium. Prior to the planning committee meeting the planning officer’s report had mentioned the sequential test but said “The proposal relates to an already developed site, and therefore a sequential assessment is unnecessary.”

The Court of Appeal said the sequential test:

“involves an assessment of the availability of “sites appropriate for the proposed development in areas with a lower probability of flooding”. It is required not only for “new development” proposed on sites which have not previously been developed but also for “new development” on land that is already developed.”

None of the express exemptions to that applied here.

The officer’s advice that under NPPF policy a sequential test was unnecessary in this case because the proposal was for “an already developed site” was based on a misinterpretation of the policy. This was an error of law.

A local planning authority could depart from national planning policy but if it did that, it must do so consciously and for good reason. That was not one here and this was not a case where it could be said that the mistake would have made no difference to the planning decision. Accordingly it was quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Construction: Employer could not challenge adjudication in enforcement proceedings

In construction disputes if an adjudicator has decided the issue referred to him, and he has acted in accordance with natural justice, his decision will be enforced by the court.

The defendant must pay now and argue later.

There are two narrow exceptions to this rule:

1. Involves an admitted error. For example a calculation error admitted by everyone, including the adjudicator. Here in the absence of an arbitration clause, the court would have jurisdiction to make a final decision on the point, and correct the error. However if there is an arbitration clause in the construction contract, the court would not have the power to determine the issue and the decision would be enforced.

2. Involves the proper timing, categorisation or description of the relevant application for payment, payment notice or payless notice. However it would not be open to a defendant to seek to avoid payment of a sum found due by an adjudicator by raising the very issue on which the adjudicator ruled against the defendant in the adjudication.

If the issue is a short and self-contained point, which requires no oral evidence or any other elaboration than that which is capable of being provided during a relatively short interlocutory hearing in the court enforcement proceedings, then the defendant may be entitled to have the point decided by way of a claim for a declaration.

It is envisaged at paragraph 9.4.3 of the Technology and Construction Court Guide that separate Part 8 proceedings will not always be required in order for such an issue to be decided at the enforcement hearing.

This procedure will rarely be used, because it is very uncommon for the point at issue to be capable of being so confined.

Very often, the defendant’s point is straightforward: the adjudicator was wrong and that, with regard to its timing, or its content, the relevant payment notice was invalid and/or that the defendant’s pay less notice was valid and prevented payment. Here, the defendant will have issued Part 8 proceedings seeking a declaration to that effect, and the claimant may issue its own enforcement claim or,the parties may agree that, if the defendant loses its Part 8 claim, it will pay the sums awarded by the adjudicator in any event.

These “consensual approach” cases all involved a significant degree of agreement between the parties. In particular, they all involved CPR Part 8 claims issued by the defendant challenging the decision of the adjudicator, and seeking a final determination by way of court declaration.

In all those cases:

1. There was a tacit understanding that the parties’ rights and liabilities turned on the decision as to whether or not the particular notice had been served in time and/or was a valid application for payment or payment/pay less notice.

2. The issue of a separate Part 8 claim was important in two respects:

2.1 it provided a means whereby the defendant could detail its challenge to the adjudicator’s decision so that the claimant could see and understand the precise basis of the challenge and the declarations sought and

2.2 the existence of a separate Part 8 claim meant that the court knew what was going to be involved at any subsequent hearing. This was vital to the court for the making of directions. A Part 8 claim means more involved arguments than would ordinarily arise on an adjudication enforcement, so the court will be able to list the hearing for a longer timeslot, and will be less concerned about fixing it within the usual 28 days.

Problems have arisen elsewhere because there has been no such consent.

This was the position in Hutton Construction Lted v Wilson Properties (London) Ltd [2017].

Here the High Court laid down the following guidelines for these cases:

1. The defendant must issue a CPR Part 8 claim setting out the declarations it seeks or, at the very least, indicate in a detailed defence and counterclaim to the enforcement claim what it seeks by way of final declarations. A prompt Part 8 claim is the best option.

2. Where there is a dispute between the parties as to whether or not the defendant is entitled to resist summary judgment on the basis of its Part 8 claim, the defendant must be able to demonstrate that:

(a) there is a short and self-contained issue which arose in the adjudication and which the defendant continues to contest;

(b) that issue requires no oral evidence, or any other elaboration beyond that which is capable of being provided during the interlocutory hearing set aside for the enforcement; and

(c) the issue is one which, on a summary judgment application, it would be unconscionable for the court to ignore. For example, that the adjudicator’s construction of a contract clause is beyond any rational justification, or that the adjudicator’s calculation of the relevant time periods is obviously wrong, or that the adjudicator’s categorisation of a document as, say, a payment notice is wrong, when, on any view, it was not capable of being described as such a document.

Such an issue could still only be considered by the court on enforcement if the consequences of the issue raised by the defendant were clear-cut. If the effect of the issue that the defendant wishes to raise is disputed, it will be most unlikely for the court to take it into account on enforcement. Any arguable inter-mingling of issues would almost certainly be fatal to the defendant being able to claim that their challenge falls within this limited exception.

The dispute between the parties as to whether or not the issue should be dealt with on enforcement would have to be dealt with shortly at the enforcement hearing itself. Due to the inevitable time constraints of such a hearing it will be rare for the court to decide that the issue can still be raised as a defence to the enforcement application even though the issue and its effect is disputed.

Because it is a potential abuse of the court process, a defendant who unsuccessfully raises this sort of challenge on enforcement will almost certainly have to pay the claimant’s costs of the entire action on an indemnity basis. Conversely, if the claimant does not agree to the defendant’s proposal to deal with the issue on enforcement, but the court finds that the issue does fall within the limited exception, it is the claimant who runs the risk of being penalised in costs.

In this particular case

1. It was common ground that:

1.1 The proper meaning and interpretation of the documents was a straightforward matter for the court. No other evidence of any kind was required.

1.2 If the adjudicator was wrong, and those documents did not constitute a proper claim for payment or a payee’s notice, then the defendant’s payless notice was valid and there is no entitlement to summary judgment.

So it was one of those rare cases where the substantive point in issue can be determined at the enforcement hearing.

2. The defendant’s challenge was of a type which should have been the subject of a separate Part 8 claim at the outset. The defendant’s solicitor’s correspondence did not make clear how and why the enforcement was being resisted. Neither did the witness statement.

So, it was only when the Part 8 claim was provided that the claimant (and the court) was given an inkling as to the defendant’s stance. But even that was inadequate. No specific declarations were sought in the Part 8 claim.

Further the defendant endeavoured to rerun the issues in the adjudication and rely on other matters too, such as the earlier sequence of interim applications and how they were dealt with by the parties. The court, on an adjudication enforcement, simply could not deal with all of the points – and more – raised in the adjudication.

The defendant now wished to rely on a number of factual matters. Once they have been set out properly, they might be agreed, but the claimant had not had sufficient time to consider them and its precise response. There may well be disputes. That was another reason why the defendant’s challenge was wholly inappropriate for any consideration on the summary judgment application.

The adjudicator’s decision ran to 73 closely-typed paragraphs. The adjudication had lasted from 11 October to 15 November 2016. The court had seen only some of the documents relating to the adjudication.

Absent any consent from the claimant, it could not be right, to let the defendant shoehorn into the time available at the enforcement hearing the entirety of that adjudication dispute.

“Such an approach would mean that, instead of being the de facto dispute resolution regime in the construction industry, adjudication would simply become the first part of a two-stage process, with everything coming back to the court for review prior to enforcement. That …. cannot be permitted.^

The challenge to the adjudicator’s decision failed and the claimant was entitled to summary judgment.

The defendant could pursue its Part 8 claim separately. The defendant would need to amend that claim and there needed to be a proper exchange of pleadings.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Application could be refused despite lack of 5 Years’ Housing Supply

Paragraph 49 of the National Planning Policy Framework (“NPPF”) states that:

“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”

Paragraph 14 of the NPPF provides amongst other things:

“…this means….[unless material considerations indicate otherwise]:…

where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole [(“the First Condition“)]; or

– specific policies in this Framework indicate development should be restricted [(“the Second Condition“)].”

Paragraph 14 of the NPPF does not supplant, but operates within, the framework for determining planning applications provided by section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.

The weight to be given to the policy in paragraph 14 itself is a matter for the decision maker provided that he does not act unreasonably.

“The Alternative Case Approach”

Where relevant policies are out-of-date, Paragraph 14 of the NPPF (above) is to be interpreted as providing two alternative cases where it’s presumption in favour of granting planning permission is rebutted.

The use of “or”, rather than “and”, to describe the relationship between the two conditions supports that interpretation.

In the High Court case of Barry Thorpe-Smith & Anor v Secretary of State for Communities And Local Government & Anor [2017] the Inspector had found (i) that the proposed development was not in accordance with certain out-of-date “saved” Local Plan policies; and (ii) that notwithstanding the absence of a 5 year housing land supply in the Council’s area and the guidance in paragraph [14] of the NPPF, the benefits of providing the proposed housing did not indicate that planning permission should be granted.

Applying “The Alternative Case Approach”

The court said that because the Inspector had decided that the Second Condition applied, he had no need to consider “alternatively” whether the First Condition also did.

The remaining question then was whether there was any other “material consideration” that indicated that the Inspector should override the saved development plan and grant permission for the development. In fact he found that “there [were] no other material considerations that suggest[ed] it should be allowed” given that it was not “sustainable development” anyway.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Application cannot be made for a development that has already begun

Class A in Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 provides limited planning permission for “the enlargement, improvement or other alteration of a dwelling house”. Condition A.4(1) provides that a number of other conditions apply to development permitted by Class A which exceeds the limits in paragraph A.1(f) but is allowed by paragraph A.1(g) including:

“(10) The development must not begin before the occurrence of one of the following-

(a) the receipt by the developer from the local planning authority of a written notice that their prior approval is not required;

(b) the receipt by the developer from the local planning authority of a written notice giving their prior approval; or

(c) the expiry of 42 days following the date on which the information referred to in sub-paragraph (2) was received by the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused.”

In Winters v Secretary of State for Communities And Local Government & Anor [2017] the High Court ruled that an application cannot be made under sub-paragraph(2) of Condition A.4 in respect of a development that has already begun.

The High Court said (my emphasis):

what the application to the local planning authority, and any approval or refusal given, under condition A.4 is concerned with is a “proposed development” that Class A is capable of authorising, not a development that has already been begun or one which is partially or wholly completed.

Thus the information that has to be provided to the local planning authority under sub-paragraph (2) of Condition A.4 includes a written description of “the proposed development” and a plan indicating the site and showing “the proposed development”. That has to be provided by the developer, as sub-paragraph (2) states, “before beginning the development”. Each adjoining owner or occupier must be notified (under sub-paragraph (5)) of “the proposed development” by a notice describing “the proposed development” and the address of “the proposed development”. If any owner or occupier objects to “the proposed development”, then, under sub-paragraph (7), the “prior approval” of the local planning authority is required as to the impact of “the proposed development” on the amenity of any adjoining premises. Thus, when it is provided (in subparagraph (10)) that “the development” must not begin before notice that prior approval is not required or has been given or, if such a notice is not given, the expiry of 42 days from the date when the information referred to in sub-paragraph (2) was received and (in sub-paragraph (11)) that “the development must be carried out” either in accordance with the details approved or the information provided under sub-paragraph (2), “the development” being referred to is the developer’s “proposed development”. That is what such information and any prior approval relate to.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning inspector had sufficient regard to viability of Grampian Condition

Paragraphs 203 and 206 of the National Planning Policy Framework say:

“203. Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition…..

206. Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.”

Planning Practice Guidance provides:

“When can conditions be used relating to land not in control of the applicant?

Conditions requiring works on land that is not controlled by the applicant, or that requires the consent or authorisation of another person or body often fail the tests of reasonableness and enforceability. It may be possible to achieve a similar result using a condition worded in a negative form (a Grampian condition) – i.e. prohibiting development authorised by the planning permission or other aspects linked to the planning permission (e.g. occupation of premises) until a specified action has been taken (such as the provision of supporting infrastructure). Such conditions should not be used where there are no prospects at all of the action in question being performed within the time-limit imposed by the permission.

Where the land or specified action in question is within the control of the local authority determining the application (for example, as highway authority where supporting infrastructure is required) the authority should be able to present clear evidence that this test will be met before the condition is imposed.”

In Bellway Homes Ltd v Secretary of State for Communities And Local Government & Anor [2015] the developer was proposing a housing development on Waggs Road in Congleton. The road and it’s footpath were narrow and speed bumps were considered necessary if it was to be able to support the development safely.

The Planning Inspector found:

“a) There has been no public consultation on the road hump proposals and the detailed design of the humps remains unspecified.

b) The Council has no adopted policy on speed humps but “advises that similar proposals have been rejected as a result of objections from residents”. The Inspector accepts that she cannot second guess the outcome of any consultation on “a detailed version of the submitted scheme or indeed any alternative scheme”. In those circumstances the Inspector notes that she: “cannot be confident that a scheme of speed reduction provided by way of a Grampian Condition could or would, in this case take account also of potential effects on road users and local residents”. The conclusion then is, given the uncertainties identified by the Inspector, that “neither the submitted proposals nor a Grampian Condition can reasonably be relied on to overcome the adverse effects the proposed development would have on the safety of pedestrians and drivers in Waggs Road.”

Upholding the Planning Inspector’s decision to reject the Developer’s appeal against the refusal of planning consent, the High Court was:

“satisfied that the Inspector’s references to the absence of probability that the works would be completed does not establish that she made any error in approaching her decision. Whilst the Inspector did not make specific reference to it, it seems to me that she almost certainly had in mind the need for all planning conditions to be enforceable, precise and reasonable in coming to her conclusion. ”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning permission failed to properly address impact on Green Belt openness

The National Planning Policy Framework (“NPPF”) says:

“89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this … [include]:

provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it;
… ”
In Boot, R (On the Application Of) v Elmbridge Borough Council [2017] the Defendant’s development plan policy DM17 – Green Belt (Development and New Buildings) said:

“b. Built development for outdoor sport, recreation and cemeteries will need to demonstrate that the building’s function is ancillary and appropriate to the use and that it would not be practical to re-use or adapt any existing buildings on the site. Proposals shall be sited and designed to minimise the impact on the openness of the Green Belt and should include a high quality landscape scheme.”

The planning officer’s report found that the new £17.9m sports ground use proposed, and the buildings and structures required to support it, including the pavilion, floodlights, fencing and car park, would have an impact on the openness of the Green Belt but considered that it would not be significant.

The Defendant’s planning committee accepted in its Statement of Reasons that:

“There will be a limited adverse impact on landscape and visual amenity and ‘openness’ of the Green Belt, however there will also be significant benefits in terms of facilitating the beneficial use of land within the Green Belt by providing significant opportunities for public access and outdoor sport and recreation by improving damaged land which is supported by para 81 of the NPPF.”

Quashing the planning permission the High Court agreed with the Applicant’s barrister that:

“if a proposal has an adverse impact on openness, the “inevitable conclusion” … is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Defendant concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paras 87 and 88 of the NPPF there were very special circumstances that would justify it.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Lapsed Land Registry application saddles land with right of way

Where someone buys real estate they only have an equitable interest in it until it is registered in their name at the Land Registry. Registration perfects their legal ownership. Until that registration the seller is deemed to hold the land on trust for the buyer.

In the High Court case of Baker & Anor v Craggs [2016] two areas of land were being sold by the two joint owners. The second area sold should have had a right of way over the yard of the first area sold but the Sellers omitted to reserve it.

However the Sellers’ failure to reserve that right of way did not prevent them selling the second area with that “right of way”.

Normally transferring the first area without reserving that right of way would have disabled the Sellers from granting it to the Second Buyers. However fate intervened.

The “grant” of the right might still be valid if the Sellers were still the “legal owners” of the yard at the time the Second Buyers bought the second area with the “right of way”.

The Second Buyers faced four hurdles:

1. Were the Sellers still legal owners of the yard notwithstanding that they had already “sold” it to the First Buyer? The court said yes because there had been a major delay getting the first sale registered at the Land Registry due to a problem with the transfer plan. It had been overtaken in the registration stakes by the second sale. Pending registration the Sellers had owned the legal estate in the yard on trust for the First Buyer.

2. Did the First Buyer still have priority over the Second Buyers because of his Land Registry search and application? Answer: no because the priority conferred by them had lapsed when the First Buyer’s original Land Registry application was cancelled due to delays dealing with the plan problem.

3. Was the priority of the First Buyer’s interest nonetheless protected by the fact that he had been in “actual occupation” of the yard since his purchase? Answer: Yes it had been pretty obvious to the Second Buyers. The First Buyer had been doing some building work.

4. Was 3 above fatal to the Second Buyers’ right of way or could the Second Buyers show that the First Buyer’s interest in the yard was “overreached” by the Second Buyers’ purchase of the second area and that right of way so as to be nevertheless postponed to them? The court said: yes. Pending the First Buyer getting registered the Sellers held the yard on trust for the First Buyer but the Sellers nonetheless had all the sale powers of an absolute owner and the First Buyer’s interest in the yard would be overreached so as to be subordinated to the Second Buyers’ purchase and right of way provided (as occurred here) all the sale proceeds of the second area were paid to both the Sellers who still held the yard as trustees for the First Buyer pending resolution of the plan problem and the registration of the First Buyer’s ownership of the yard.

This use of the doctrine of overreaching seems very harsh on the First Buyer as he had no entitlement to any of the sale proceeds of the second area. The Sellers granting a burdensome right of way through the yard to the Second Buyers seems rather inconsistent with the concept of the Sellers holding the yard on trust for the First Buyer.

The very technical concept of overreaching appears to have come to the court’s aid to avoid the Second Buyers from being landlocked.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Old policies can remain part of a development plan

Where planning applications fall to be considered what is the position where old policies remain part of the development plan?

The starting point, for the purposes of decision-making, remains section 38(6) of the Planning and Compulsory Purchase Act 2004.

This requires planning decisions to be made in accordance with the development plan – and, so, in accordance with those old policies and any others contained in the plan – unless material considerations indicate otherwise.

The National Planning Policy Framework (“NPPF”) and the policies it sets out may, depending on the subject-matter and context, constitute significant material considerations.

The mere age of a policy does not mean it ceases to be part of the development plan. The policy continues to be entitled to have priority given to it.

Paragraph 209 and Paragraph 210 to 215 in Annex 1 to the NPPF provide as follows:

“209. The National Planning Policy Framework aims to strengthen local decision making and reinforce the importance of up-to-date plans.”

“211. For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.

212. However, the policies contained in this Framework are material considerations which local planning authorities should take into account from the day of its publication. The Framework must also be taken into account in the preparation of plans.

213. Plans may, therefore, need to be revised to take into account the policies in this Framework. This should be progressed as quickly as possible, either through a partial review or by preparing a new plan.

214. For 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 2004 even if there is a limited degree of conflict with this Framework.”

Paragraph 215 sets out the approach to be adopted in relation to old policies and requires an assessment to be made as to their consistency with the policies in the NPPF.

The fact that a particular development plan policy may be old is irrelevant in any assessment of its consistency with NPPF policies.

“215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

In the Court of Appeal case of Gladman Developments Ltd v Daventry District Council & Anor [2016] Gladman had made an application for planning permission in May 2014 for residential development of up to 121 dwellings on two fields next to Weedon Bec village. It was not in-fill development of the village. The application was directly contrary to saved Local Plan policies HS22 and HS24.

The Council refused planning permission, especially relying on those saved policies.

Gladman argued that reduced or no weight should be given to policies HS22 and HS24 as they were out of date.

This was based on two principal arguments:

1. the Local Plan related to the period 1991-2006, and its evidence base related to that period, and the Structure Plan, which had been superseded and was no longer a statement of current planning policy; and

2. policies HS22 and HS24 related to housing supply and the Council could not show that it had a five year supply of deliverable sites for residential development, so those policies were deemed to be out of date under para. 49 of the NPPF.

In fact the Council was able to show that with current saved housing policies it had a five year supply of deliverable sites for residential development and also that policies HS22 and HS24 reflected a high degree of consistency with a range of policies in the NPPF, not just housing policies, and so they ought to be given considerable weight despite the length of time they had been in place.

The fact that the Council was able to demonstrate that it had the five year supply showed that there was no unmet housing need which required policies HS22 and HS24 to be overridden in that case. In short the current policies were not “broken” since they could be applied here without jeopardising the five year housing supply objective.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Court issued claim within limitation period despite wrongness of fee

In a case where a Claimant innocently fails to pay the correct court fee close to the end of a limitation period the question may arise whether that action was “brought” within the limitation period. Much will turn on which of the following two periods the problem arises in:

A) The period between:
(i) when the Claimant submits the claim form and puts forward the insufficient fee and
(ii) the Court issuing proceedings.

Here the failure to tender the correct fee will prevent any finding that the action has been “brought” for the purposes of the Limitation Act 1980 unless the Court actually issues the proceedings notwithstanding the fee being inappropriate; and

B) The period after the Court issues the proceedings.

Here the mere fact that the fee proffered by the Claimant and accepted by the Court:
(i) is less than should have been tendered and accepted for the claim identified in the Claim Form or
(ii) becomes so because of a subsequent increase in the quantum of the actual claim(s) advanced in the proceedings prior to the end of limitation period

does not prevent the action from being “brought” for the purposes of the Limitation Act 1980 when it is issued by the Court.

In Dixon & Anor v Radley House Partnership (A Firm) & Ors [2016] the High Court Judge said “where (a) abusive conduct is not present and (b) the court sets the wheels of justice in motion by issuing proceedings but (c) the Claimant has not paid and the Court has not required the correct fee, I reject the submission that an action is not brought for the purposes of the Limitation Act 1980 at the moment of issue.”

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.