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Planning law update – January 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.

Reforming developer contributions: technical consultation on draft regulations

The Government are now consulting on the ‘technical implementation of reforming developer contributions’, following responses received from the October consultation report.

As discussed in our November update, the Government sought responses to proposals on removing the restrictions which prevent local authorities from using more than five section 106 obligations to fund a single infrastructure project. In light of positive responses, the Government have decided to formally consult on lifting the pooling restrictions and the necessary reform to bring the changes in to effect. As part of the changes the Government is proposing to allow planning authorities to prepare a report providing details of section 106 contributions including: the total monies received, a summary of the contributions provided by the monies and the amount of such monies spent on each item of infrastructure.

Although the form and cost imposed on obligations must still be assessed to see whether they  directly and fairly relate to the development, the latest proposed changes encourage greater transparency. This will lead to greater consistency in neighbouring areas and will spread the pooling of funds throughout the area governed by the local authority.

The consultation report also proposes certain detailed changes in relation to the setting of the Community Infrastructure Levy rate.

The consultation closes on 31st January and is open to anyone who wishes to express a view on the proposals.

While this article seeks to provide a general overview of the points, the full report can be found by clicking here.

Planning reforms to support the high street

With famous high street names such as House of Fraser and Mothercare appearing to lose the battle against online retailers, proposed amendments to planning law could facilitate an easier transition between store uses. The Government are seeking responses on their consultation report, ‘Planning Reform: Supporting the High Street and Increasing the Delivery of New Homes’. The consultation report is examining the use of new permitted development rights to allow for greater flexibility to change the use class of properties.

The consultation report is seeking opinions on how particular use classes can be simplified to allow for a fluid change of use and has suggested removing the current named use under Class A : “post office and retail sale of goods”, and replacing these with a broad definition to help accommodate new and future business models. If implemented, this proposal would enable owners of existing units to diversify the use of the unit according to demand, without the need for planning permission.

Similar attempts to review the Use Classes Order were made in 2002 and 2015 but the changes were not far reaching and had limited impact. The consultation period will end imminently (on 14th January 2019) and it will be interesting to see if a radical approach will be taken to support the changing character and use of our high streets.

Braced for Brexit, the EIA Regs are being updated

With Brexit looming on the horizon, the Ministry of Housing, Communities and Local Government have published the draft Environmental Assessments and Miscellaneous Planning (Amendment) (EU Exit) Regulations 2018. The Regulations ensure that the existing environmental impact assessment (the process by which information on the environmental effect of a development is collected, published and examined) will continue to apply after the United Kingdom leaves the EU in March 2019. While the draft regulations remove references to EU legislation and obligations, the law under the existing legislation will be retained. Reciprocal standards to those implemented under EU legislation will ensure consistency with those previous adopted.

Music venues and housing

Despite the campaigning efforts and supporting comments from the likes of Sir Paul McCartney, the Planning (Agent of Change) Bill 2017 – 2019 has been discharged from the House of Commons notwithstanding the scheduling of its second reading.

The Bill aimed to place the onus on residential developers, as opposed to the owners of existing properties, to ensure dwellings were protected from noise and other factors which could impact upon their use and enjoyment. John Spellar MP had previously suggested that “the Bill was designed to protect existing music venues from closure or crippling costs arising from the new development of new residential properties in their vicinity, especially over questions of noise”.

While the revised NPPF published in July 2018, has attempted to bring in line the appropriateness of a new development with its location and surroundings, the proposed statutory obligations to effectively protect music venues from noise nuisance claims will not be available.

Is “land banking” on the rise?

According to statistics published last month by the Ministry of Housing, Communities and Local Government, there has been some suggestion that the practice of “land banking” is on the rise.

Despite planning permission having been granted for the development of 313,700 homes in 2016-2017 only 183,570 homes were built during this period. These statistics have been published at a time when critics have once again expressed their dismay about the lack of houses to accommodate demand.

In response to ongoing concerns, shadow housing secretary John Healey MP has suggested the implementation of “housing delivery contracts” to prevent land going unused whilst its value rises.

When it comes to housing delivery, quite often a great number of factors are at play for example, preliminary site investigation and remediation works , archaeological investigations and ecological assessments, and it is rarely the case that housing delivery is delayed solely because of the desires of one party (whether that be the developer or land owner). Furthermore, large complex developments are often deliberately phased as the only sustainable means to take forward the construction of a large number of new homes from a site that are dependent on new infrastructure. It will be interesting to learn if any proposal to speed up housing delivery such as Labour’s proposal to introduce a housing delivery contract, will take in to account the many other variables and planning controls that postpone construction.

Court approaches the breach of pre-commencement conditions with a “dose of reality”

In R (Howell) v Waveney District Council [2018] EWHC the High Court again examined whether development that proceeds in breach of a pre-commencement condition will be rendered unlawful.   Planning permission was granted to erect wind turbines on a site next to an airstrip, provided certain aviation and archaeological conditions were complied with.

The aviation condition prevented development from commencing until 3 months had elapsed after the written submission of details concerning the turbine’s exact height and position. This was to allow warning to be given to aircraft well in advance of the construction risks arising, including by amending the National Air Traffic Services’ Directory and others, as well as flight planning software. However, in order to prevent the permission from lapsing, the developer had to begin works within the required 3 month period and therefore the developer was notionally in breach of the timing requirement under the planning condition.

The archaeological condition preventing development from commencing until a programme of archaeological work had been implemented, in accordance with a written scheme of investigation (WSI)

While the developer had failed to meet the time limit for complying with the conditions, the conditions were nevertheless discharged by the planning officer. The owners of the airstrip sought to judicially review the decision on the basis that the detail was submitted late and resulted in an unlawful development.

In assessing the validity of the claim,  the court firstly examined whether the conditions had been breached and secondly whether the conditions were a precedent thereby requiring satisfaction of them prior to the development commencing. Finally the court assessed whether the conditions went to the heart of the permission so that a failure to comply with them would make the development unlawful.

The Court found that although the aviation details were submitted late (because works had begun within 3 months of when the details of the turbines were submitted), the details did not raise anything of which the relevant authorities were not already aware, and therefore the court found that the aviation condition did not  go to the heart of the permission.

Regarding the archaeology condition and the failure to implement any actual archaeological investigation works, the WSI that had been submitted showed that archaeological works were not necessary. On this basis the court found that the archaeological condition had not been breached but even if it had, it was held that the archaeological condition did not go to the heart of the development such that its breach would render the whole development unlawful.

The case is an important reminder of the test set out in the Hart Aggregates decision and the Whitley Principle. The court also helpfully suggested that it would be wise to approach alleged breaches of pre-commencement conditions of these type “with a dose of reality”.

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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