Category Archives: Planning Law

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 For the purposes of decision-taking, the policies in the Local Plan (and the London Plan) should not be considered out-of-date simply because they were adopted prior to the publication of this Framework.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

Contribution towards element of composite development was lawful planning consideration

Planning law recognises the possibility that an application for planning permission may be for a development which includes a number of elements, a composite development. Here, the advantages of one element can be balanced against the disadvantages of another.

In Campaign To Protect Rural England (CPRE), R (On the Application Of) v Dover District Council [2015] China Gateway International (CGI) Limited (“CGI”) applied for planning permission for an extensive development on two sites on the western fringe of Dover. Namely:

(a) outline planning permission for:

(i) a very large residential development at Farthingloe;
(ii) a much smaller residential with hotel and conference centre development at Western Heights; and
(iii) pedestrian access and landscaping work between the two sites;

(b) full planning permission for:

(i) the conversion of existing buildings on both sites for a variety of purposes; and
(ii) the conversion of the Drop Redoubt at Western Heights into a visitor centre and museum.

Landowners agreed in a Section 106 Agreement to make a total payment of £8,132,499 towards a variety of purposes.

Objectors challenged a £5 million “heritage contribution” to be expended on the refurbishment of the Drop Redoubt and it’s conversion to a visitor centre and museum. It would not cover the whole costs.

Payments of £825,000, to assist making a countryside access area between the two sites, and £27,000, to afford a paved footpath between them, were also agreed.

CPRE said the heritage contribution of £5 million was unlawful and so should have been disregarded by the planning committee when determining CGI’s application for planning permission.

At all times material to this case the lawfulness of a planning obligation under section 106 fell to be determined by regulation 122 of the Community Infrastructure Levy Regulations 2010 which provided:

“(2) This regulation applies where a relevant determination is made which results in planning permission being granted for development.

(3) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is —

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development…..”

CPRE said where the planning obligation under a section 106 agreement was to make a payment of money for a specified purpose, “development” in regulation 122(2) meant that part of the development, for which planning permission is sought, which funds the contribution. Here it was the development of the Farthingloe site which would fund the heritage contribution for the Western Heights site. So it was unlawful and should have been disregarded.

Disagreeing with CPRE the High Court said “development” in regulation 122(2) meant the development in respect of which a “relevant determination”, namely the grant of planning permission under section 70 of the Town and Country Planning Act 1990, is made.

Planning permission here was granted for a composite development of the Farthingloe and Western Heights sites, and access land in between.

The lawfulness of the planning obligation to fund the heritage contribution must therefore be judged by reference to the development for which planning permission was granted; in other words the whole development, not solely or principally the Farthingloe site.

“Treated as a composite development, the questions posed by regulation 122 answer themselves. The heritage contribution was necessary to make the development acceptable in planning terms. Without it, the advantage which went a considerable way to balancing the disadvantage of development on an area of outstanding natural beauty could not be achieved. It was directly related to the development. It was to be expended on a part of the development for which planning permission was given, the restoration of the Drop Redoubt and the creation of a visitor centre and museum. It was fairly and reasonably related in scale and kind to that part of the development — at least that sum was required to fund it — and also to the development as a whole, which was understood, rightly, by all to be a major scheme.”

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

Planning: Failure to identify development as inappropriate to area

In Lensbury Ltd, R (On the Application Of) v Richmond-Upon-Thames London Borough Council [2016] a development at Teddington Weir, Teddington Lock, Teddington was in an area designated as Metropolitan Open Land (“MOL”).

The London Plan 2015 applied – in particular policy 7.17 which provided as follows:

“Policy 7.17 Metropolitan Open Land

Strategic

A. The Mayor strongly supports the current extent of Metropolitan Open Land (MOL), its extension in appropriate circumstances and its protection from development having an adverse impact on the openness of MOL.

Planning decisions

B. The strongest protection should be given to London’s Metropolitan Open Land and inappropriate development refused, except in very special circumstances, giving the same level of protection as in the Green Belt. Essential ancillary facilities for appropriate uses will only be acceptable where they maintain the openness of MOL.”

On appeal the Court of Appeal said in granting planning permission the Council had:

“gone badly wrong in its consideration of the planning merits of the application for development in this case. It failed to identify the development as inappropriate development in an area of MOL requiring the strongest protection against such development. It failed to consider whether, notwithstanding the inappropriateness of the development, “very special circumstances” exist to justify the grant of planning permission, and it is far from obvious that they do. On the materials available before the court.”

Policy 7.17 said without “very special circumstances”, planning permission should be refused:

“to safeguard important open areas from “death by a thousand cuts”, by a series of planning permissions being granted for developments each apparently reasonable in itself but having a serious cumulative detrimental effect on the important public interest in the continuing openness of MOL and the Green Belt.”

Accordingly, “the Council failed to appreciate that the planning application was for development which was inappropriate in the context of MOL and therefore failed to ask itself the critical question, whether very special circumstances existed which justified the grant of planning permission.”

Nor was it appropriate for the court to execise its discretion not to quash the decision:

“In light of the strictness of the policy in policy 7.17 and the importance of the public interest it protects, I do not think that it can be said that it is highly likely that the outcome for the Appellant would not have been substantially different if the conduct complained of (i.e. failure to understand and apply policy 7.17 correctly) had not occurred.”

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

World Heritage Site Planning: Council did not breach duty to notify Government

Sub-paragraph (2) in paragraph 18a-036 of the Planning Practice Guidance requires information to be provided to enable the Government to comply with it’s obligations, under the 1972 World Heritage Convention, to warn the World Heritage Committee of any proposals which may have an adverse effect on a World Heritage Site’s Outstanding Universal Value.

In Save Britain’s Heritage, R (On the Application Of) v Liverpool City Council & Anor [2016] the applicant said the respondent had failed to do this in breach of the above and the World Heritage Committee’s Operational Guidelines. The site lay within the buffer zone of the World Heritage Site and included The Futurist Picture House.

The main issue before the Court of Appeal was whether the city council was, or was not, required, to notify the Department for Culture, Media and Sport of the proposal, or at least to consider doing so, in the light of the guidance in paragraph 18a-036 of the Planning Practice Guidance.

The applicant said the city council was required by that guidance to at least consider referring the planning application to the Department for Culture, Media and Sport (“the DCLG”), and, through that department, the World Heritage Committee, as a proposal that “may affect” the Outstanding Universal Value of the World Heritage Site. The applicant said the words “may affect” must mean “may affect in a negative, neutral or positive way”, not merely “affect adversely”.

The court said the words “may affect the Outstanding Universal Value” meant “may have an adverse impact on the Outstanding Natural Value” – the kind of harm to a World Heritage Site or it’s setting that is contemplated in the second part of paragraph 18a-036.

To interpret the words “may affect” as meaning “may affect in a negative, neutral or positive way” would not reflect:

– the concept of effects requiring “appropriate solutions to ensure that the Outstanding Universal Value is fully preserved”, or

– the policies for the conservation of heritage assets, including World Heritage Sites, in the National Planning Policy Framework (“NPPF”)

and it would be at variance with the equivalent previous guidance in paragraph 7.12 of the document “The Protection & Management of World Heritage Sites in England” published by English Heritage and the two government departments in 2009 in response to paragraph 172 of the World Heritage Committee’s Operational Guidelines – which in turn referred to “an adverse impact on Outstanding Universal Value”.

Whether a particular proposal “may affect” Outstanding Universal Value so as to justify informing the World Heritage Committee was a matter for the Government, with the advice of Historic England. But such a discretion for the Government did not imply an obligation for a local planning authority to consult Historic England and the DCLG on any proposal that the authority considered might affect Outstanding Universal Value whether harmfully or not.

Where the guidance referred to the action that local planning authorities can take, it was not in mandatory or even directory terms, but encouraging or, “advisory”.

If a local planning authority did not do what was “very helpful”, it could not be said to have breached any requirement in the guidance or any relevant policy in the NPPF.

There was a sufficient paper trail to show that the City Council had considered the position.

By consulting Historic England first in March 2015 and then in June, the city council enabled them to consider, at a sufficiently early stage, whether the proposed development would have an effect on the Outstanding Universal Value of the World Heritage Site, and, if necessary, to bring the proposal to the attention of the DCLG so that a view could be taken on referral to the World Heritage Committee.

Historic England either had no concerns or were insufficiently concerned about the application so as to advise the DCLG to call it in. In deciding not to call-in the application the Secretary of State must have considered any effect on the World Heritage Site or it’s setting.

There was nothing to suggest that the DCLG would have onward referred the application in any event. Not every proposal for development, that could have an effect upon Outstanding Universal Value, could be referred to the World Heritage Committee.

The fact that the city council did not:

– directly consult the DCLG, or indeed notify it of the proposal, until 25 August 2015, was not a material failure to follow the guidance in paragraph 18a-036;

– refer to the guidance in paragraph 18a-036 in it’s correspondence with Historic England and the two government departments did not mean that it acted inconsistently with that guidance. The question was:

“not whether it explicitly or even consciously followed the guidance, but whether it failed to act in accordance with the guidance in such a way as to vitiate it’s decision on the application for planning permission. In my view it plainly did not. I should add that there is no evidence to suggest that it was unaware of the advice in paragraph 18a-036. But in any event, whether knowingly or not, it acted consistently with that advice.”

……. I reject the concept that the effect of new development on the setting of a World Heritage Site must necessarily be an adverse impact, or indeed an impact of any kind, on it’s Outstanding Universal Value. That concept is not to be found in government policy in the NPPF, or in the Planning Practice Guidance. ……. development in the setting of a heritage asset, in this instance development in the buffer zone of a World Heritage Site, will bring about some physical and visual change within the setting. Such change may potentially affect the “significance” of the heritage asset, in this instance the Outstanding Universal Value of the World Heritage Site. I emphasize “potentially”. There might or might not be an impact on Outstanding Universal Value, and the impact might or might not be adverse. Whether the impact, if harmful, is such as to militate against the grant of planning permission is ultimately a question for the decision-maker to determine in the light of relevant policy, including policy in the NPPF. This will be a matter of fact and judgment in every case.”

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

Planning: Sequential test sites must disregard applicant’s circumstances

Planning authorities must “require applications for main town centre uses to be located in Town Centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered.” That is the “sequential test”.

The High Court case of Aldergate Properties Ltd v Mansfield District Council [2016] concerned an application for planning permission for a large Aldi foodstore in a business park, just over 3 miles outside Mansfield town centre.

Aldi already had, in the vicinity, a current store and another that had got planning permission.

The claimant argued that planning permission for this third store resulted from a misinterpretation of the sequential test which had caused a failure to take into account a material consideration.

As it would not have made commercial sense for Aldi to build in such proximity to it’s other stores the planning authority had excluded Mansfield town centre from the sequential test.

The Court said “suitability” and “availability” for the sequential test did not depend on the commercial characteristics of any specific retailer. The test could not be dictated to by any particular trader’s preferences, or what opportunities a retailer had.

Instead the planning authority must look broadly at the proposed development’s approximate size, type and range of goods and at the sites that are available for it.

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

Planning condition not ultra vires as requiring neighbouring drainage improvement

A planning condition might require the preparation and approval of a surface water drainage scheme, before the approved development is begun, if that planning condition fairly and reasonably relates to the development permitted.

However a condition requiring the submitted scheme to achieve some improvement in the drainage of other land next to the site or nearby would offend the principle that planning conditions must fairly and reasonably relate to the development permitted. It might also be so unreasonable that no reasonable planning authority could have imposed it.

In the Court of Appeal case of Menston Action Group v City of Bradford Metropolitan District Council [2016] the claimant challenged a planning permission.

Condition 15 of the permission said:

“15. Development shall not begin until a surface water drainage scheme for water passing through the site, based on sustainable drainage principles has been submitted to and approved in writing by the local planning authority. This must include details of how the surface water run off rate of 8.2 litres/second/ha will be maintained for up to and including the 1 in 100 year (plus climate change) rainfall event.

Reason: To prevent flooding by ensuring the satisfactory storage/disposal of surface water from the site.”

The claimant argued that condition 15 required the submission of a surface water drainage scheme in which “sustainable drainage principles” were properly represented. The claimant contended this would require it to be shown that the potential for reducing existing flooding, both on the development site itself and also in the surrounding area, had been considered. The claimant said a document submitted under condition 15 that failed to demonstrate that this had been done would not be capable of discharging the requirements of the condition.

Dismissing the claimant’s contentions the court said the condition “did not stipulate any improvement – or “betterment” – to the drainage of neighbouring land, or the alleviation of existing flooding beyond the boundaries of the development site.

…….The only measurable requirement in condition 15 is that the submitted surface water drainage scheme “must include details of how the surface water run off rate of 8.2 litres/seconds/ha will be maintained for up to and including the 1 in 100 year (plus climate change) rainfall event”. This specific requirement must clearly be in keeping with “sustainable drainage principles” in the sense in which that concept is used in the condition. And the reason given for the imposition of the condition – “[to] prevent flooding by ensuring the satisfactory storage/disposal of surface water from the site” – must also accord with those principles. The expression “[to] prevent flooding” here cannot extend to include the amelioration or elimination of existing flooding on neighbouring land. It can only mean “to prevent flooding arising from this development” – because it is, after all, the development itself to which the condition must fairly and reasonably relate. The means of preventing flooding is “by ensuring the satisfactory storage/disposal of surface water from the site” – that is, the site once developed.”

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

Unlawful use enforcement notice could require removal of structures

In what circumstances may an enforcement notice issued by a local planning authority against an unlawful change of use require the removal of structures connected with that unlawful use?

In the Court of Appeal case of Hydro v Secretary of State for Communities and Local Government & Anor [2016] planning control was breached by the making of a material change of use from residential use to mixed use for residential purposes and as an “Adults Private Members’ Club” coupled with the erection of various structures and the laying of hardstanding to create a car park.

Applying the Divisional Court decision in Murfitt v Secretary of State for the Environment (1980) and the first instance decision in Somak Travel Ltd. v Secretary of State for the Environment (1988) the Court of Appeal said:

“…an enforcement notice directed at a breach of planning control by the making of an unauthorized material change of use may lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself – provided that the works concerned are integral to or part and parcel of the unauthorized use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased. But it can extend to unauthorized changes of use where the associated works, if viewed on their own, would have become immune from enforcement under the four-year rule in section 171B(1) (as in Murfitt) or would be outside the scope of planning control (as in Somak Travel Ltd).”

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

Offices to flats: Deemed planning consent convertible to have lesser conditions

In the High Court case of Pressland v The Council of the London Borough of Hammersmith and Fulham [2016] the Claimant, applied to the Defendant Council for a determination under the Town and Country Planning (General Permitted Development) Order 1995 whether prior approval was required before making a change in use from an office into three self contained residential flats. The Council granted prior approval for the change of use. That approval amounted to deemed planning consent under Article 3 and Class O of Part 3 of Schedule 2 of Town and Country Planning (General Permitted Development) Order 2015. However that approval was subject to fourteen conditions. Some required the later submission, approval and implementation of schemes to deal with things.

The question raised was whether or not an application under section 73 of the Town and Country Planning Act 1990 may be made for the grant of planning permission for the development of land without complying with conditions subject to which a prior approval was granted for development where (as here) planning permission was granted not expressly by the local planning authority but granted instead by virtue of a development order made by the Secretary of State.

The court said such an application could be made. Any conditions subject to which prior approval was granted were “conditions subject to which the relevant Class O planning permission was granted.”

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

CPO: Upper Tribunal could substitute new respondent after Limitation Period

After the expiry of the relevant limitation period, does the Upper Tribunal have power to substitute a new party as the respondent to a claim for compensation for disturbance?

There appears to have been no decision of the Upper Tribunal dealing with the issue of substitution of a party after the expiry of a limitation period.

In the Upper Tribunal (Lands Chamber) case of William Hill Organisation Limited v Crossrail Limited [2016], this was the position where the claimant had claimed against Crossrail Limited whereas the acquiring authority, and the proper respondent, should have been Transport for London (“TfL”).

Section 35, Limitation Act 1980 concerned the making of new claims in pending actions.

“35 (1)…..

(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either –

(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party; …

(5) The conditions …… are the following –

(a) ……; and
(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.

(6) The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either –

(a) the new party is substituted for a party whose name was given in any claim made in the original action in the stake for the new party’s name; or
(b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.”

So, the substitution of a third party (C) would only be necessary for the determination of the original action if either of two conditions was satisfied, namely: that the name of either A or B was given in a claim made in the original action in mistake for C’s name; or, a claim made by A or against B in the original action cannot be pursued by or against them unless C is joined or substituted as plaintiff or defendant in the action.

However Section 35 of the 1980 Act made no mention of tribunals, or of tribunal procedure rules.

The Tribunal was satisfied that, amongst the “powers akin to those of the High Court”, referred to by Sedley LJ in R (Cart) v Upper Tribunal [2010], vested in the Upper Tribunal by section 25 of the Tribunals, Courts and Enforcement Act 2007, is the power, conferred on the High Court by section 35(3)-(4) of the Limitation Act 1980, to allow, in accordance with the relevant rules of court, a new claim to be made, by the substitution of a new party, after the limitation period has expired, provided the conditions in section 35(5) were satisfied.

The Tribunal therefore determined the substitution of respondent “out of time” issue in the claimant’s favour.

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

Community donation immaterial consideration invalidating planning permission

The High Court case of Wright, R (on the application of) v Forest of Dean District Council & Anor [2016] concerned whether or not a local community donation, based on turnover generated by a wind turbine, amounted to a material consideration which it was lawful for the council to take into account when granting planning permission for the wind turbine.

The Environmental Report accompanying the planning application had offered benefits including:

“Annual community donations will also be made based typically on 4% of turnover (estimated at an average of around £15k to £20k each year for 25 years of operation – up to £500k to help address current and future community needs)…..”

The main ground of challenge to the permission was that this was not a material consideration that the council could lawfully have taken into account.

The court agreed:

“Simply being a contribution for community benefit related to a local strategy for health, social or cultural wellbeing does not make that contribution in and of itself material to a planning determination. It must pass the Newbury test and be for a planning purpose and be fairly and reasonably related to the development proposed. It is difficult to see how the provision of waterproof clothing for a play group or lunches for senior citizens has any proper bearing on the issues relevant to the regulation of land use and control of development which are at stake when considering whether or not to grant planning permission for a wind turbine. The opportunity to make provision for them from the turnover of the scheme is not a planning purpose and is not fairly and reasonably related to the development.”

The council was not entitled to take into account the offer of the local community donation as a material consideration in their planning decision. As a consequence the decision was unlawful.

The court “was not prepared to accept that there would have been no substantial difference to the outcome of the members’ decision-making process had they appreciated that they could not take account of the community donation in determining whether consent should be granted.”

The council’s decision should be quashed.

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