Plannin ing Law U Update by Killian an G Garvey ey Covid-19 a - - PowerPoint PPT Presentation

Plannin ing Law U Update by Killian an G Garvey ey

Covid-19 a and P d Plann nning

• i. a

appea eals ls

• ii. p

planning c commit ittees ees

• iii. co

court w work

• iv. keep

epin ing p permissio ions a alive

• v. Ne

. New PD R Rights

• vi. w

written en m minister eria ial s l statem emen ent

Covid-19 a and P d Plann nning

• i. a

appeals s

The current policy is for there to be no site visits or hearings/inquiries until further notice. Decisions can be taken with appeals where hearings/site visits have occurred.

Covid-19 a and P d Plann nning

• i. a

appeals s

25th March 2020 PINs issued a statement saying that they are considering technological solutions and greater use of written submissions Resistance to holding Examination in Public Site visits will have to be unaccompanied

Covid-19 a and P d Plann nning

• i. a

appeals s

PINs are testing less complex inquiries, we will see in time what they will do.

Covid-19 a and P d Plann nning

• ii. p

planning c committees tees

The Local Authorities (Coronavirus)(Flexibility of Local Authority Meetings)(England) Regulations 2020 Draft form published yesterday

Covid-19 a and P d Plann nning

• ii. p

planning c committees tees

They allow for attendance at planning committee meetings by ‘remote attendance’

Covid-19 a and P d Plann nning

• ii. p

planning c committees tees

Legalistic way of saying that everyone can hear each

• ther and, where possible, see each other.

Covid-19 a and P d Plann nning

• ii. p

planning c committees tees

Meeti tings c can b be conducted w with a access by the public through r remote a atte tendance Section 1(9A) is going to be inserted into the Public Bodies (Admission to Meetings) Act 1960, to say that a meeting being ‘open to the public’ include access through remote means including (but not limited to) video conferencing, live webcast, and live interactive streaming

Covid-19 a and P d Plann nning

• ii. p

planning c committees tees

However:

• i. site visits;
• ii. learning curve of committee members;
• iii. lack of planning officers due to re-assignment;
• iv. harder to secure evidence.

Covid-19 a and P d Plann nning

iii.

• iii. Co

Court rt w work

Deadlines for filing claims remain fixed Hearings are proceeding both by telephone and video conferencing Some Courts are being more pro-active than others Likely to be significant delays with new cases due to planning giving way to more urgent matters

Covid-19 a and P d Plann nning

• iv. keep

eepin ing p g perm rmis issio ions a alive

Coronavirus (Scotland) Bill Default period of 3 years extended by 12 months if it would lapse within 6 months

Covid-19 a and P d Plann nning

• iv. keep

eepin ing p g perm rmis issio ions a alive

Section 73(5) of the TCPA prevents extension of time limits Section 96A non-material amendments?

Covid-19 a and P d Plann nning

• iv. keep

eepin ing p g perm rmis issio ions a alive

Potential need to renegotiate section 106 agreements as viability has likely changed This can be renegotiated only with the willingness of the local planning authority if within 5 years. Albeit, their refusal to consider renegotiation can be legally challenged After 5 years one can apply

Covid-19 a and P d Plann nning

• v. New

ew P PD Righ ghts

New Class DA inserted into the Town and Country Planning (General Permitted Development)(England)(Amendment) Order 2020: Allows temporary change of use from Class A3 (restaurants and cafes), A4 (drinking establishments)

• r Class AA (use as a drinking establishment with

expanded food provision) to takeaway

Covid-19 a and P d Plann nning

• v. New

ew P PD Righ ghts

The temporary use lasts until 23 March 2021 and is subject to the developer notifying the local planning authority of this.

Covid-19 a and P d Plann nning

• vi. W

Written tten m ministe terial s sta tatem temen ent

13 March 2020, a Written Ministerial Statement to encourage local planning authorities not to take enforcement action which, ‘would result in unnecessarily restricting deliveries of food and other essential deliveries during this period’

No Non-mater eria ial a amendmen ent

The Q Queen ( (On t the A Application o

• f F

Fulford P Parish C Council) v v City o

• f York C

Council a and P Persimmon H Homes ( (Yorkshire) Limited [2019] EWCA Civ 1359 Court of Appeal determined that one can make a non- material amendment to a reserved matter application Court of Appeal confirmed that one can attach conditions to a reserved matter application

No Non-mater eria ial a amendmen ent

This greatly assists developers who are time expired for submitting further reserved matters Court of Appeal left open the question of whether

• ne can use a non-material amendment to approve

development that is retrospective

Sec ectio ion 7 73 Appli lications

In Finney v v Welsh M Ministers [2019] EWCA Civ 1868, the Court of Appeal determined that the description

• f development cannot be varied through a s.73

application.

Sec ectio ion 7 73 Appli lications

Lord Justice Lewison said the question was one of statutory interpretation. He said that if the inspector had left the description of the permitted development intact, “there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine)” He explained: “A condition altering the nature of what was permitted would have been unlawful.That, no doubt, was why the inspector changed the description of the permitted development. But in my judgment that change was outside the power conferred by section 73.”

Adjac acen ent t to a Cons nservation A n Area?

Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990: In the exercise, with respect to any buildings or other land in a conser ervation a area ea, of any [functions under or by virtue

• f] any of the provisions mentioned in subsection (2), special

attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area

Adjac acen ent t to a Cons nservation A n Area?

NPPF paragraph 190:

• 190. Local planning authorities sh

should i identi tify a and a asse ssess ss the he pa particular significance of any heritage asset that may be affected by a proposal (including b by development affecti ting t the se setti tting o

• f a heritage a

asse sset) taking account of the available evidence and any necessary expertise. They ey should t take this i into a account w when c considering t the i impact

• f a proposa

sal o

• n a

a herita tage a asset, to avoid or minimise any conflict between the heritage asset’s conservation and any aspect of the proposal.

Adjac acen ent t to a Cons nservation A n Area?

NPPF glossary: Heritage asset: A building, monument, site, place, area ea or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. It includes designated heritage assets and assets identified by the local planning authority (including local listing).

Adjac acen ent t to a Cons nservation A n Area?

In R.(oa

• ao
• James H

Hall) v v City o

• f B

Bradfor

• rd [2019] EWHC 2899 (Admin), the

High Court agreed that there was a duty:

• 16. There is no dispute in this case that the Site, being adjacent to the HCA,

involves development which may affect the setting of a heritage asset. It is accepted, therefore, that Paragraphs 189-190 NPPF, and Core Strategy Policy EN3 apply in this case. It is also accepted that the NPPF is a material consideration for the purposes of any planning decision. It follows that the Defendant accepts that, in determining the application, the Council was under a duty to assess the impact upon the HCA, including its setting.

Adjac acen ent t to a Cons nservation A n Area?

In R.(oao J

• Jame

mes H Hall) ) v City of

• f B

Bradfo ford[2019] EWHC 2899 (Admin), the High Court agreed that there was a duty:

• 34. In my judgment the three categ

egories es of

• f harm recognised in the NPPF are clear. There is substantial

harm, les ess than substa tantial harm and no harm. There are no other grades or categories of harm, and it is inevitable that each of the categories of substantial harm, and less than substantial harm will cover a broad range of harm. It will be a matter of planning judgement as to the point at which a particular degree of harm moves from substantial to less than substantial, but it is equally the case that there will be a number of types of harm that will fall into less than substantial, including harm which might otherwise be described as very much less than substantial. Ther ere is no inte termediate te bracke ket at at the bott ttom en end of

• f the les

ess than substa tantial categ egory of

• f harm for
• r something which is

limite ted, or

• r ev

even en negligible, but nev ever ertheles ess has a harmful imp

• mpact. The fact that the harm may be

limited or negligible will plainly go to the weight to be given to it as recognised in Paragraph 193

• NPPF. However, in my judgment, minimal harm must fall to be considered within the category of

less than substantial harm.

Enforcemen ment - fine

Enforcemen ment - fine

Enforcemen ment - fine

179(9) ) of t the Town wn and C Countr try P Planning A g Act 1 1990:

In determining the amount for any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.

Enforcemen ment - fine

There is n no max maxim imum o

• r mi

minim imum f fine

Enforcemen ment - fine

R R v A Ahme med [2014] EWCA Crim 1270

• 25. We observe however, that the financial gain to the

applicant is not to be considered the only relevant factor in determining appropriate fines in cases of this sort. It is clearly a factor that must be taken into account, the statute says so, but there are other important factors, including, for example, the nature of the breach of planning control. In this case, in our judgment, the breach was flagrant and it continued for a significant period of

• time. In our judgment, the overall fine imposed in this

case is not manifestly excessive on any view.

Enforcemen ment - fine

• 1 year, 7 months, 30 days
• SoS had found that it materially detracted from the

character and appearance of the area and caused significant harm to neighbour’s outlook

• No financial benefit
• Landowner didn’t do it
• Landowner had put it right

What was the fine?

Enforcem cement i in the C e Crown C Court rt

Regina v Roderick Bloor [2020] EWCA Crim 402 18 … It was an exercise of judicial assessment that took account of all relevant factors and was not influenced by anything that was not relevant. It seems to us to be well within the broad band of

• utcome that would meet in a fair and proportionate way the objectives of punishment and

deterrence in this case.

• 19. We stress that it in no way sets a tariff for other cases, just as the decision in Ahmed did not do
• so. However, it bears comfortable comparison with the fine upheld by this court in Ahmed …

Inter erpret etin ing P Policies es

3 case s e studies udies t to c cons nside ider:

• 1. C

Crane v v SSC SSCLG [2015] EWHC 425 (Admin)

• 2. C

Cant nterbu bury C City Council v v SSHCLG & Gladman D n Development nts L Ltd [2019] EWCA Civ 669

• 3. C

Chich chester D DC v v (1) S Secr cretary of

• f State f

for

• r H

Hou

• using, C

Com

• mmunities a

and L Loc

• cal

Government ( (2) B Beechcroft L Land L Ltd [2019] EWCA 1640

Inter erpret etin ing P Policies es

Case Study 1 1: Crane

Pol

• licies H

H1 & & H3 of

• f the B

Broughton A Astley Neighbourhood P Plan 2 2013 - 2028 No s set ettlemen ent b boun undary i iden entifi fied ed by by t the p plan Ques uestion i is w whet hether er t these p ese policies r es restricted ed development o

• n a

an u unallocated s site

Inter erpret etin ing P Policies es

Case Study 1 1: Crane

Policy H1

OBJEC ECTIVE: E: T TO A ALLOCATE E LAND F FOR A AT L LEA EAST 400 NEW HOMES POLICY H1 – HOUSING ALLOCATIONS POLICY

• Two sites for new housing development are allocated as a result of the public

consultation and Options Appraisal Process.

• Progress on new development will be monitored on an annual basis. Should

new housing not be delivered on the two allocated sites within the proposed phasing sequence; development on the identified reserve site may then be considered.

Inter erpret etin ing P Policies es

Case Study 1 1: Crane

Policy H3

OBJEC ECTIVE: E: T TO D DEVEL ELOP W WINDFALL S SITES W WHICH P PROVIDE T E THE E BES EST U USE O E OF L LAND

• POLICY H3 – WINDFALL AND BACK LAND DEVELOPMENT
• It is accepted that there may be some windfall developments over the life of the

Neighbourhood Plan on previously developed ‘brownfield’ or unallocated sites with direct highways access. Small, well designed residential sites which do not have a detrimental effect on the surrounding area and neighbouring properties will be supported. The impact of such windfall development will be incorporated into the on- going monitoring and review process.

Inter erpret etin ing P Policies es

Case Study 1 1: Crane

Not allocated Not a windfall site Do the policies restrict development?

Inter erpret etin ing P Policies es

Case Study 1 1: Crane

Lindblom J: 46 It follows from my understanding of the relevant provisions of the neighbourhood plan that a proposal for housing on a site other than those allocated in policy H1 will only accord with the plan if it finds support in policy H3 as a “windfall” proposal, and is consistent with

• ther relevant policies. Larger proposals for housing on unallocated sites

will not accord with the plan. They will be contrary to its strategy for housing development in policies H1 and H3. They will therefore be in conflict both with the neighbourhood plan itself and with the development plan as a whole.

Inter erpret etin ing P Policies es

Case Study 2 2: Cante terbury C City Council

Canterbury District Local Plan 2006 Whether it restricted development?

Inter erpret etin ing P Policies es

Case Study 2 2: Cante terbury C City Council

Polic icy H H1 The City Council will permit residential development on sites allocated for housing or mixed use as shown on the Proposals Map (see also all Insets). On other non-identified sites on previously developed land within the urban areas, planning permission will also be granted unless the particular site makes an identifiable contribution to the economic, environmental or social well-being of the town or District, and there is unlikely to be an excessive supply of new housing development coming forward within the Plan period. In these circumstances policy H3 will be applied.

Inter erpret etin ing P Policies es

Case Study 2 2: Cante terbury C City Council

Po Policy H H9 Planning permission for new residential development, in excess of minor development, on previously developed sites within villages, will only be granted where: a) An appraisal has been carried out to ascertain that the development will not have an adverse impact upon the existing social and physical infrastructure of the village and surrounding area; b) The development has regard to the character and appearance and historic environment of the village; c) The development does not conflict with other Local Plan design or environmental objectives; d) A Development Brief has been prepared in advance of any determination

• f a planning application to ensure the proper planning of the area.

Inter erpret etin ing P Policies es

Case Study 2 2: Cante terbury C City Council

Unallocated s site Not p previously ly dev evel eloped ed l land nd Is i it res estricted?

Inter erpret etin ing P Policies es

Case Study 2 2: Cante terbury C City Council

Dove J:

• 33. … The i

interpretation i is simple: policies H1 and H9 identify the types

• f location where housing development will be permitted; if housing

development is proposed in other types of location it is not supported by the policy and therefore in conflict with it and, to the extent of that policy (as part of the exercise of assessing compliance with the development plan taken as a whole), not in accordance with the development plan. Whether i it is s described as a as a "negative c corollary", or a a necessary i inference, o

• r an

an o

• bvious implication, what m

matters i is s that i it is cl clear t that t the p purpose of

• f t

the p pol

• licy is to
• identify t

those t types of

• f l

loc

• cation

where h housing d development is to be p permitted an and i if an an ap application i is made o

• utside o
• ne o
• f t

those i identified t types o s of l location t then t that i is clear arly not i in ac accordance w with t the policy.

Inter erpret etin ing P Policies es

Case Study 2 2: Cante terbury C City Council

Lindblom LJ:

• 31. As Ms Tafur submitted, at the time of the inspector's decision Policy H1 and Policy H9

belonged to a co compr prehe hens nsive l local p plan s n stra rategy f for h hous using ng d developm pment nt in t the c city co counci uncil's a are rea – which, as she put it, contained a "spatial vision" for the delivery of housing in that area and "policies to deliver that vision". The strategy did not merely include specific allocations of land for such development in the local plan period. It established, in explicit terms, a clear a and complete h hierarchy o

• f l

locations i in w which p proposals f for new housing would o

• r might b

be a acceptable and nd cons nsistent w with th the the pl

• plan. Although each of the individual policies composing the strategy was

in permissive terms, it is necessary to consider their true effect in combination. Together they formed a suite of policies for housing development, which left out none of the locations where such development might be expected to receive planning permission, subject to relevant criteria being met. Their e effect w was t to identify, i in addition t to the a allocated s sites, t the w whole r range o

• f

potenti ntially a y acce cept ptabl ble l loca cati tions ns f for h r housing ng developm pment, t, the t type pe a and d sca cale o

• f d

developm pment t suitabl ble in each l ch loca cati tion, n, a and t the c circum rcumstance nces in w which s ch such d ch developm pment w nt was l likely to to be approve ved.

Inter erpret etin ing P Policies es

Case Study 2 2: Cante terbury C City Council

• 35. The policies themselves were per

erfect ctly ly c clear

• lear. The judge's

conclusion to that effect was right. As he r rec ecogniz ized, t the e fact act t that t the e police lices w wer ere ex expres essed in p permissiv ive ter erms d does es n not ex excl clude the e

• bvio

ious co corolla llary t that p proposals als w wit ithout t their eir ex explic licit it s support w wer ere n not in accordan ance w e wit ith them or w wit ith t the e plan an's co comprehensiv ive s strategy f for housing d

• development. As he also recognized, however, this necessary

inference is only reinforced by the policy objectives and the supporting text, which emphasized the city council's intention to steer housing development to the existing urban areas and previously developed land and away from undeveloped sites in the

• countryside. The inference, therefore, is not neutral or positive

towards development without specific support in the policies, but negative.

Inter erpret etin ing P Policies es

Case Study 2 2: Cante terbury C City Council

The Court that one can essentially infer restrictions in policies. One need not spell out the restriction.

Inter erpret etin ing P Policies es

Case Study 3 3: Chichester v v SSHC HCLG

Development outside settlement boundary

Southbourne Neighbourhood Plan made Issue is whether the NP restricts development Agreed conflict with local plan, but not NP

Inter terpreting P g Policies es

Ca Case se Study 3: 3: Ch Chichester v v SSHCLG

Policy 1 of the Southbourne NP: The Neighbourhood Plan will support development proposals located inside the Settlement Boundaries of Southbourne/Prinsted, Nutbourne West and Hermitage/Lumley/Thornham, as shown on the Policies Map, provided they accord with other provisions of the Neighbourhood Plan and development plan.

Inter terpreting P g Policies es

Ca Case se Study 3: 3: Ch Chichester v v SSHCLG

Restrict development outside of a settlement boundary?

Inter terpreting P g Policies es

Ca Case se Study 3: 3: Ch Chichester v v SSHCLG

Policy 1 of the draft Southbourne NP: The Neighbourhood Plan will support development proposals located inside the Settlement Boundaries of Southbourne/Prinsted, Nutbourne West and Hermitage/Lumley/Thornham, as shown on the Policies Map, provided they accord with other provisions of the Neighbourhood Plan and development plan. Dev evel elopmen ent prop

• pos
• sals ou
• utside the

he Set ettlem emen ent Boundary will ill be required to con confor

• rm to dev

evel elopmen ent plan polic licy in in respec ect of

• f the control
• l of
• f devel

elopmen ent in in the countryside.

Inter terpreting P g Policies es

Ca Case se Study 3: 3: Ch Chichester v v SSHCLG

Court of Appeal

• 49. Unlike Gladman v Canterbury City Council, the p

policies o

• f the l

local plan do n not r require re any “ “natura ral and n necessary i infere rence” to be drawn in d deciding whether a r a proposal such a as B Beechcro roft’s is i in accord rdance w with the development p

• plan. It is not necessary to deduce

a conflict with the development plan from the absence of support in a specific policy. The policies of central relevance to the proposal are clear-cut, and the proposal was plainly contrary to them. The conflict with Policies 2 and 45 of the local plan was not merely a matter of

• inference. And it was distinct.

The he Tilted B Balance nce Paragr graph 1 11(d) o

• f the N

NPPF

For decision-taking this means: c) approving development proposals that accord with an up-to- date development plan without delay; or d) where there are no relevant development plan policies, or the e po policies w whi hich a are most i important f for de determining t the a app pplication are out-of-date , granting permission unless: i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed6; or ii. 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 he Tilted B Balance nce Paragr graph 1 11(d) o

• f the N

NPPF

In Gladman v v SSHCLG LG [2020] EWHC 518 (Admin), Holgate confirmed three ‘triggers’:

• 94. It is important to note that paragraph 11(d)(ii) may operate in three

different scenarios: - (1) There are no relevant development plan policies: (2) The policies which are most important for determining the application are assessed by the decision-maker as being out-of-date: (3) A shortfall in the requirement for a 5 year supply of housing land triggers the application of paragraph 11(d)(ii) by deeming those policies important for the determination of the application to be out-

• f-date.

The he Tilted B Balance nce Paragr graph 1 11(d) o

• f the N

NPPF

Paul N Newm wman New H w Homes L Ltd v v SSHC HCLG & Aylesbury V Vale D DC [2019] EWHC 2367 (Admin) Wavendon P Properties Limite ted v SSHCLG & & Milto ton Keynes C Central [2019] EWHC 1524 (Admin) Both judgments address the second trigger

The he Tilted B Balance nce Paragr graph 1 11(d) o

• f the N

NPPF

Paul N Newman v v SSHCLG

• 35. I also agree with the analysis of the phraseology of the second trigger as

a whole in Wavendon Properties. The first task is to identify t the b bask sket o

• f

polic icie ies from the development plan which constitute those most important for determining the application. The second task is to decide w whether t that basket, v viewed ov

• verall, i

is ou

• ut of
• f date; the fact that one or more of the

policies in the basket might themselves be out of date would be relevant to but not necessarily determinative of whether the basket of most important policies was itself overall out of date. This second trigger contains no requirement that the up to date basket of the most important policies in the development plan for determining the application should itself also constitute a body of policies sufficient for the determination of the acceptability of the application in principle.

The he Tilted B Balance nce Paragr graph 1 11(d) o

• f the N

NPPF

Paul N Newma man v v SSHCL CLG

• 1. Identify the basket of policies that are most

important for determining the application

• 2. Decide whether the basket overall is out of date

Housing R Requir irem emen ent

• 73. Strategic policies should include a trajectory illustrating

the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific

• sites. Local planning authorities should identify and update

annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their ir h housin ing r requir irement s set out i in ad adopted s strategic polic licie ies t their ir l local h housin ing n need w where the s strategic p polic licie ies are e more t e than f five y e yea ears o

• ld .

Housing R Requir irem emen ent

Footnote 37: Unles less t thes ese s e strateg egic ic p polic icies es h have b e been en rev evie iewed a ed and f nd found n und not t to requ quire u upda pdating

• ing. Where

local housing need is used as the basis for assessing whether a five year supply of specific deliverable sites exists, it should be calculated using the standard method set out in national planning guidance.

Housing R Requir irem emen ent

If plan adopted within the last five years, the figure in that plan is the relevant housing requirement If plan older than 5 years (where there has been no review), the standard method applies

Housing R Requir irem emen ent

What is a review? Is there consultation

• r

some independent scrutiny?

Housing R Requir irem emen ent

Reigate and Banstead Council Development plan housing requirement: 460 dpa Standard method housing requirement: 1,148 dpa Simply did an internal exercise, self-certified their policies so they stick with the standard method

Duty t to re re-consult

In R.(Broad) v Rochford District Council and the Sanctuary Group [2019] EWHC 628 the High Court had to consider the circumstances in which a Council’s failure to consult on amendments to a planning application will lead to planning permission being quashed. The judge, David Elvin QC, applied [55] the principle that a duty to re-consult arose only where the differences made by the amendments were of a “very high order” and in that case, he held that they were not. Save for where there is a Statement of Community Involvement - R.(oao Sykes) v Cheshire West and Chester BC [2018] EWHC 3655 (Admin)

Gree een B Bel elt

• R. (oao Samuel

el Smi mith Ol Old Brew ewer ery) v North Yorksh shire CC CC [2020] UKSC 3

Previously the thought was that a local planning authority need to consider both the visual and spatial role of openness.

Gree een B Bel elt

Volume is not the answer:

"The concept of 'openness of the Green Belt' is not narrowly limited to the volumetric approach suggested by [counsel]. The word 'openness' is open-textured and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a specific case. Prominent among these will be factors relevant to how built up the Green Belt is now and how built up it would be if redevelopment

• ccurs … and factors relevant to the visual impact on the aspect of openness which the Green Belt

presents." (para 14) Before us there was no challenge to the correctness of this statement of approach. However, it tells one nothing about how visual effects may or may not be taken into account in other circumstances. That is a matter not of legal principle, but of planning judgement for the planning authority or the inspector.

Th Thank y you

• u

Conta tact me a at: kgarvey@k @kingsch chambers.co com