Planning law update – August 2018
16th August, 2018
Welcome to Ward Hadaway's planning law update. The aim of our bulletins is to keep you abreast of the 'hot' topics and key legal issues relevant to you.
With the new deal announced for social housing in the green paper published by the government only this week and the recent publication of the revised NPPF, our planning experts are on hand to discuss in further detail what effects the recent changes in planning law and guidance they could have for you and your organisation.
Town or Village Green trigger events
R (on the application of Cooper Estates Strategic Land Ltd) v Wiltshire Council
The High Court gave the first ever ruling on Town or Village Green (TVG) trigger events in R (on the application of Cooper Estates Strategic Land Ltd) v Wiltshire Council  EWHC 1704 (Admin) where the issue at stake was whether Wiltshire Council had erred in its decision to register the land in question as a TVG.
The claimant owned 380 square metres of land in an established housing area. Wiltshire Council accepted an application to register this land as a TVG. The claimant challenged the decision to register as a TVG on the basis that the said land was identified in Wiltshire Council’s core strategy as land for potential development, thereby amounting to a “trigger event” preventing the registration of the land as a TVG.
In reaching a decision, the judge considered the extent of the area identified in the local plan as land for potential development. The 2015 Core Strategy clearly identified the land in question as suitable for development, and was shown on a plan attached to the strategy. However, in the Council’s defence they relied upon a report made by the Head of Spatial Planning in response to objections they had received to the application. The said report concluded that a trigger event had not occurred because the land subject to the application “[was] not specifically identified for potential development although strategic policy for the area [was identified] in the Wiltshire Core Strategy.” Nonetheless, the judge rejected this argument and ruled that the Council had erred in law in determining that the application was valid, and subsequently registering the land. The court, in justifying its decision, held that Wiltshire’s Core Strategy “specifically created a presumption in favour of development within the boundaries of a number of types of settlement,” and the land in question came within the boundaries of one of these settlements.
The court held that whilst the land need not be identified by way of a line on a plan, in this instance the land in question was “so identified that it is sufficient to bring it within the land identified as areas for potential development.” The case demonstrates that even if the land in question forms part of a larger area that is identified for development at a strategic level (if not site specific), it may nonetheless be identified as land for potential development for the purposes of the relevant TVG legislation. Therefore, landowners and developers who are fearful of a TVG application may wish to look again at any strategic allocations in relation to their interests, as it is quite possible that such an allocation may on the basis of the Wilshire decision afford them sufficient protection against registration.
Planning appeals inquiries review
The Government is conducting an end-to-end review of the planning appeal inquiries process, seeking views on the current operation of the planning appeal inquiries process and how it could be improved. Economist Bridget Rosewell has been appointed chair of the forthcoming review and the “calls for evidence document” (the consultation paper) was released in July 2018.
The document provides that the Government is particularly concerned with the “potential consequences of unnecessary delays in appeal decisions for major housing proposals.” The Government recognises that the lengthy inquiry process contains many stages, each of which can engender large volumes of evidence which, due to its complex and specialist nature, can take a substantial amount of time to analyse.
Many important development schemes are granted planning permission through the inquiry process, yet the delay in reaching a decision means the inquiry process is not often taken advantage of. An inquiry can take 44 weeks from the receipt of a valid appeal to make a decision, and in the last 5 years only 2% of all appeals have been decided by way of an inquiry. It is hoped that the review process achieves its goal of “making decisions sooner but without compromising the quality of the decisions.”
If you wish to respond to the consultation then you must submit your views by 18 September 2018. A link to the consultation can be found here.
Shortfall in the 5 year housing supply
Hallam Land Management Ltd v Secretary of State for Communities & Local Government
The Secretary of State had been entitled to uphold a refusal of planning permission for a development of up to 225 dwellings despite an acknowledged shortfall in the five-year housing supply in the local planning authority’s area.
In Hallam Land Management Ltd v Secretary of State for Communities & Local Government  EWCA Civ 1808, the proposed development site was protected by restrictive policies in the local authority’s local plan. Notwithstanding the acknowledged shortfall in housing supply, the Secretary of State followed the inspector’s recommendation and dismissed the application on the basis that the development would be contrary to the local plan and the harm it would cause outweighed the benefits of meeting the need for affordable housing.
However, the Secretary of State failed to consider two earlier cases in which there had been a shortfall in the five-year housing supply whereby permission had been granted on the basis that the development would make a significant contribution to the five-year supply shortfall. Further, on appeal to the Court of Appeal, the developer contended that the Secretary of State had failed to ascertain the extent of the shortfall against the five-year housing supply in the area, which was contrary to Government policy as per the 2012 National Planning Policy Framework (NPPF).
The Court of Appeal held that the relevant policies in the NPPF did not specify the weight to be given to the benefit of reducing or overcoming a shortfall and this was in fact a matter for the decision-maker’s planning judgment, not the court. The judge concluded that the issue in this case was not the decision to refuse the planning permission despite the housing shortfall. Rather, the judge affirmed that the issue at stake was that the Secretary of State had erred in his failure to engage with, or even consider the conclusions in the earlier applications and that this constituted a fatal defect in his decision-making, particularly as consistency in planning decisions was a principle of good practice, which had continuously been supported by the courts. The Court of Appeal found it impossible for an overall planning judgment to be made without at least some appreciation of the shortfall and therefore decided in favour of the developer.
The developer’s planning application will now be fully reconsidered in the light of the court’s decision.
Kit Malthouse appointed as new Housing & Planning Minister
Despite only becoming the Housing & Planning Minister in January this year, Dominic Raab has taken on a new role as Brexit Secretary and Kit Malthouse has been appointed in his place as the new Housing & Planning Minister.
Kit Malthouse was elected to parliament in 2015 as the Conservative MP for North West Hampshire.
British Property Federation chief executive, Melanie Leech, said “the housing sector will be frustrated with yet one more housing minister” as Kit Malthouse is the eighth housing minister in just over eight years. Nonetheless, Melanie Leech is hopeful that the new appointment can help the Government to reach its goal of delivering 300,000 new homes a year due to Malthouse’s previous experience. Prior to becoming an MP, he had been one of Boris Johnson’s appointed Deputy Mayors and has previously been a councillor in the City of Westminster which Melanie Leech hopes will enable him to “hit the ground running [in order to] undo the damage caused by the acute under supply of new housing over the past few decades.”
The new NPPF: changes to viability
In contrast to the draft NPPF, which suggested that where the proposals for a development comply with the relevant policies in a local development plan, “no viability assessment should be required to accompany the application” the newly published version of the NPPF last month, provides that it is down to the “applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage.”
The change means that applicants are expected to make representations on the viability of their sites during local plan preparations and are able to evidence this when development commences. It has been suggested by planning consultants that this change in the process “[tips] the balance firmly in the favour of local authorities with the onus on the promoter to engage in plan-making.”
Further, the latest revision to the NPPF confirms a proposal first set out in the draft proposal that councils will be required to publish viability assessments, except in exceptional circumstances. This transparency in the planning system has been generally welcomed by industry experts who regard the changes as enabling the public to have faith in the planning system by providing them with an understanding of the basis on which decisions are being made.
Going forward, developers anticipating making an application which will be supported by a viability statement will need to heed the changes to viability, especially the requirement to make representations on viability during local plan preparations. Developers will also have to bear in mind the requirement for making the said assessments publically available.
If you have any questions on the issues covered in this update and how they will affect you, please do not hesitate to contact Kamran Hyder.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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