Planning law update – June 2020
18th June, 2020
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.
Viability and decision making
Viability is already a hot topic but in the current COVID-19 landscape, it is likely to become increasingly important. Developers will be aware of the need to ensure that viability appraisals are consistent with the NPPF and Planning Practice Guidance which is prescriptive in relation to both form and content. There are also however key issues which local planning authorities will need to be alive to when preparing Committee Reports.
One such issue, that of transparency, has recently been examined in the case of R (Holborn Studios) v London Borough of Hackney (No 2)  EWHC 1509 (Admin). This case considered the information that was required to be made available to members as part of the background papers accompanying a Committee Report and the information that should have been available in the public domain. Mr Justice Dove, in the High Court, had “no doubt” that the LPA had failed to comply with its obligations as there was significant information which had a bearing on the interpretation of the viability appraisal which had not been made publicly available (or available to members as background information). A summary of the viability appraisal and the agreement reached between the planning officer and applicant was not sufficient.
The extent of viability information that is required to be published will be a matter of fact and degree depending on the specific circumstances of each case but the starting point should be one of transparency. The PPG makes clear that any viability assessment should be prepared on the basis that it will be made publicly available unless there are exceptional circumstances. The Holborn Studios (No.2) case is an application of that principle.
Temporary measures- COVID help
There are some good examples of Local Planning Authorities being proactive to help developers and businesses to tackle issues arising from COVID 19. Having LPAs on board is going to prove critical to the delivery of many projects. Some LPAs have agreed, for example, to relax S.106 obligations by deferring triggers for payment to a later stage in the development.
Cheltenham Council have recently announced that they will allow some temporary structures to be erected for a period of 6 months to help facilitate the implementation of social distancing measures. This will include structures like porta cabins, portable welfare blocks and covered areas. Click here for more.
The MHCLG have also produced further guidance, including in relation to the limited flexibility that may be available in respect of the Community Infrastructure Levy. Click here for more.
The Planning Anew document was published last week and is available here. This document is a collection of essays on reforming the planning system for the 21st century. There are some interesting insights in the essays from very experienced individuals in the planning industry. The Housing Secretary, the Rt Hon Robert Jenrick MP, is also quoted in the document by acknowledging that “the time has come to speed up and simplify this country’s overly bureaucratic planning process”.
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.
To see our COVID-19 legal updates visit our FAQ hub here.
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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