Monthly Archives: March 2017

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Local planning authorities have produced interim planning guidance to bridge the position between out-of-date development plans and new development plans being adopted.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