Planning law update – August 2019
7th August, 2019
Welcome to Ward Hadaway's planning law update. The aim of our bite-sized bulletins is to keep you abreast of the 'hot' topics and key legal issues relevant to you.
Our planning experts are on hand to discuss in further detail what effects they could have for you and your organisation.
Supreme Court have ruled that developers should pay closer attention to previously granted planning conditions
London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and others  UKSC 33
The Supreme Court have ruled that Developers need to ensure they are paying close attention to conditions that have been granted as part of a previous planning permission.
This recent case involved a Homebase store which was granted planning permission in 1985. A Section 73 Application was made in 2010 to allow for a greater range of goods to be sold from the premises and permission was granted with the condition that there would be no sale of food. In 2014 a second Section 73 permission was granted however this did not include a condition restricting the sale of food.
The Supreme Court ruled that “the conditions remain valid and binding because there was nothing in the new permission to affect their continued operation”.
This casts doubt on the previously understood position that a Section 73 acted as a new planning permission and therefore if the condition wasn’t included then the new planning permission was not restricted. Whilst the decision was decided on the specific facts, it does provide a greater scope for LPAs to argue that pre-existing conditions could continue to affect the Site.
Changes to developer contributions coming into force in September
Regulations have been laid before Parliament which will make a series of changes to the way in which local authorities charge, collect and report on developer contributions raised through section 106 and the community infrastructure levy (CIL). These changes come into effect on 1 September 2019 and include the following:
Infrastructure funding statements – there will be a requirement for councils to publish new annual infrastructure funding statements which will replace current Regulation 123 lists. These lists will include details of the infrastructure projects which are being funded by CIL. Details of S106 planning obligations will also be included. The changes are designed to increase transparency to ensure that it is clear how the levy and planning obligations have been spent.
Pooling section 106 payments – the current regulation to restrict the number of s106 contributions that can be pooled together towards one infrastructure project will be removed.
Monitoring fees – Local authorities will be allowed to charge a fee for the monitoring and reporting of developer contributions. No set figures have been provided for the fees but they should be fair and reasonable. Previously, Developers have sought to argue against monitoring contributions but this change will give such contributions a legal basis.
CIL Indexation – from 2020 a new bespoke national CIL Index will be produced by RICS and used to calculate CIL liability.
A copy of the new Regulations can be accessed here.
NPPG focus on housing for older and disabled people
The Government has issued Planning Practice Guidance specifically relating to housing for older and disabled people. A new chapter has been added to the NPPG which states that Local Planning Authorities should set clear policies to address housing needs of older people.
By creating a new section in the NPPG it is hoped that more focus will be put on the delivery of homes for older people including the delivery of specialist housing where needed. Four categories of housing for older people have been identified in the new chapter:
- Age restricted general market housing
- Retirement living or sheltered housing
- Extra care housing or housing with care
- Residential care or nursing homes
There is an ongoing debate as to whether affordable housing will need to be delivered alongside housing for the elderly and it seems that the LPA will have a lot of discretion in relation to which use class the specialist housing falls into (C2 Residential Institutions or C3 Dwellinghouse). The new guidance suggests that the use class may depend on the level of care and scale of communal facilities provided.
The new guidance is a way of focusing attention on the provision of housing for the elderly but the application of the guidance is uncertain and is likely to lead to subsequent debate.
Court of Appeal rules that Section 96A (non-material minor applications) can apply to reserved matters approvals
The Queen (On the Application of Fulford Parish Council) v City of York Council and Persimmon Homes (Yorkshire) Limited  EWCA Civ 1359
Fulford Parish Council have recently lost an appeal in which they sought to argue that the power conferred under Section 96A of the Town and Country Planning Act 1990 could not be used in relation to reserved matters approvals. The Applicant tried to argue that the statutory power under Section 96A is limited to making non-material amendments to a “planning permission” and an approval of reserved matters is arguably not a planning permission.
The Court of Appeal determined that the statutory power conferred by Section 96A to make non-material changes to a planning permission does also include the power to make non-material amendments to conditional approvals of reserved matters. One of the reasons for the Court of Appeal’s decision focused on the point that s.96A applications relate to only non-material amendments.
High Court interprets para 11(d) NPPF “the titled balance”
In the recent case of Wavendon Properties Ltd v Secretary of State of Housing Communities and Local Government  EWHC 1524 (Admin) the High Court considered the interpretation of paragraph 11(d) of the NPPF. In particular, the Court focused on the wording not previously included in the old paragraph 14: “or the policies which are most important for determining the application are out of date”.
The correct approach was found to be that an LPA should first identify those policies which are most important for determining the application and to then consider in the round whether the overall assessment is that the policies are out of date. This does not require all policies to be out of date and similarly it may not be sufficient for one policy to be out of date. It is a planning judgment for the LPA.
This provides helpful guidance whilst still leaving flexibility for LPAs to weigh up the various policies and make a planning judgment as to whether they can rightly be considered out of date.
Government consultation on proposals for electric charging points
The Government has published a consultation on proposals which would see the requirement of electrical charging points for cars being installed in all new build houses.
The aim is to encourage the use of electric vehicles in the UK by making it more convenient and cheaper to run an electric car.
The consultation will close on 7 October 2019 and can be found here.
If you have any questions on the issues covered in this update and how they will affect you, please do not hesitate get in touch.
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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