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Planning law update – December 2019

Our planning experts are on hand to discuss in further detail what effects they could have for you and your organisation.

District level licensing for Great Crested Newts

The Ministry of Housing, Communities and Local Government in conjunction with Natural England are to introduce a new approach to licensing for Great Crested Newts. In order to speed up the planning process District Level Licensing will be introduced for developers who need to enter a wildlife licence for their development.

Under the previous scheme if a development site was home to Great Crested Newts the developers would be required to commission surveys, obtain a licence from Natural England and put in place mitigation measures. This was an increasingly costly process for developers who would spend considerable time and money surveying and moving small numbers of Newts who would likely not thrive in the long term in that location.

The new scheme will allow developers to pay a one off conservation payment when planning permission is granted which will be used to create ponds in areas of the country where Great Crested Newts can thrive.

Strategic schemes are currently available to 32 Local Planning authorities with a goal of more than 150 planning authorities having strategic schemes available by 2020.

Further Information about how the scheme works and what areas of the country it is available can be found here.

Community Funds should not be used to “buy” planning permission

The Supreme Court unanimously dismissed an appeal made by a Local Authority as to whether a community fund donation qualifies as a “material consideration” for the purposes of section 70(2) of the Town and Country Planning Act 1990 and Section 38(6) of the Planning and Compulsory Purchase Act 2004.

The case concerned a challenge by way of judicial review for the change of use of land at a farm from agriculture to use for the erection of a wind turbine.

The appellants proposed that the turbine would be constructed and run by a community benefit society and an annual donation would be made to the local community. The council took this into account when granting permission and made the permission conditional on the development being undertaken by the community benefit society and the annual donation.

The Judges referred to the three fold test found in Newbury District Council v Secretary of State for material considerations. Namely that conditions imposed be for (1) a planning purpose and not an ulterior purpose (2) fairly and reasonably relate to the development and (3) must not be so unreasonable that no reasonable authority could have imposed them.

In the present case the community benefits promised did not satisfy the Newbury criteria as the benefits were not proposed to pursue a proper planning purpose, but rather for the ulterior purpose of providing general benefits to the community. The benefits were offered as a general inducement to the council to grant planning permission, in breach of the principle that planning permission cannot be bought.

If a developer wants to include community benefits as part of its proposal they can continue to do so but in order for those benefits to be taken as a “material consideration” they must fit the criteria in Newbury and not be used as an attempt to “purchase” the planning permission.

A link to the case can be found here.

Section 52 Agreement modified by Court

In a decision taken by the Upper Tribunal Land chamber The Judge amended a restrictive covenant in an “old style S106 agreement” – an agreement entered into pursuant to s52 of the Town and Country Planning Act 1971.

The applicant wished to build 30 houses on the application land for which outline permission had been granted on appeal but was prevented from doing so by the terms of a planning agreement from 1984 made between the council and a previous owner of the application land.

Section 84 of the Law of Property Act 1925 allows the upper tribunal to, on the application of any interested person affected by any restriction arising under covenant, either wholly or partly discharge or modify any restriction. The restriction can be discharged or modified if its continued existence would impede some reasonable land use and the restriction does not secure the person entitled to the benefit of it any practical benefits or is contrary to public interest. If the restriction is modified or discharged compensation may be payable for the loss or disadvantage suffered by the person benefiting from the covenant.

The judge argued that the use of the application land was a reasonable one and it was plain that the proposed user is impeded by the restriction. He also argued that the ability to restrict development, relying on the restrictions, did amount to a practical benefit but such benefit is not of substantial value or advantage as it cannot be advantageous for the council to resist a reasonable use of land for which an outline planning permission had been granted. The covenant was therefore modified to allow the development as granted by the planning inspector.

No order for compensation was made as the Council would benefit from the development taking place.

Click here to view the full judgment.

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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