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Planning law update – November 2018

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.

New planning rules to speed up build out rates

Just a week after statistics were published by the Housing Minister highlighting an annual gap of 130,000 houses in 2016-2017, Sir Oliver Letwin published his independent review of Build Out Rates. The review was commissioned in Autumn 2017 to examine this significant gap and provide recommendations to close the gap, particularly on the largest development sites.

The report focuses on three main recommendations:

  • To increase the variety of houses offered in large sites, in compliance with the NPPF thereby encouraging residential developments to have a mix of sizes, types and tenures, whilst also raising the offering of affordable housing
  • Introducing new planning rules to incentive the diversification of housing supply.
  • Introducing powers for local planning authorities to promote specific land for large site development only.

Of particular note, the report envisages the use of both written ministerial statements and amendments to the current Town and Country Planning (Development Management Procedure) (England) Order 2015 to provide for the type, tenure and size of dwellings to be prescribed as additional reserved matters. The aim of this recommendation is to accommodate numerous housing types, encapsulating the different financial capacities and needs of the buyers. Further, reference is made to increasing the number of affordable housing units, particularly on large sites of more than 1500 units.

While the report is optimistic throughout, to effect real change and speed up the build out rate, implementation of such legislative change is needed to incentivise cooperation between land owners, developers and local planning authorities.  Greater diversity in the housing type to cater for housing demand is to be encouraged. However, to achieve these results an increase in the skilled labour force is required as well as the sensible and strategic use of space in relation to large sites. The economic and political landscape also have a role to play.  With  Brexit looming on the horizon, the likelihood of these proposals being implemented in the foreseeable future is not certain.

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

Reforming developer contributions

In an appeal decision in recent days the Inspectorate made clear that “financial contributions should not be sought on the basis of vague or generalised assertions by local planning authorities.” This is a point that was at the heart of a Government consultation paper that was issued in March 2018 on ‘Reforming developer contributions to affordable housing and infrastructure’.

That consultation also covered the Government’s proposals to allow local authorities to pool section 106 planning contributions where development is planned on strategic sites.

The current position under Regulation 123 of the Community Infrastructure Levy Regulations 2010 prevents local authorities from using more than five section 106 planning obligations to fund a single development project. Critics of Regulation 123 have expressed their concerns that such restrictions prevent otherwise acceptable planning permissions from being granted. It was recognised that lifting such restrictions would facilitate the speeding up and delivery of infrastructure. Further, it is speculated that that the pooling of meaningful contributions to alleviate the effects of a development will facilitate the grant of planning permission for otherwise unacceptable development.

The consultation also raised the concern that the differing CIL rates do not currently reflect the true value of land. Guidance to support local authorities in setting CIL rates which are effective and reflect the development constructed will be provided. The guidance will hopefully simplify and provide example structures to guide the authorities to best utilise the land value. While the consultation went some way to recognising and providing solutions to the problems faced by the industry, the Government’s ability to effect real change is only likely to come through the implementation of legislative amendments and supplementary guidance.

More information on the consultation report and responses can be found by clicking here.

Should the Secretary of State give reasons for not calling in a planning application?

The Court of Appeal made an unusual ruling in  R (on the application of Save Britain’s Heritage) v The Secretary of State for Communities and Local Government [2018] EWCA Civ 2137, confirming that in the facts of that case the Secretary of State should have provided reasons for not calling in a planning application pursuant to s77 of the TPCA 1990.

Whilst s77 of the TCPA enables the Secretary of State to call in planning applications referred to him or to decline to call them in, the statute however, does not provide for reasons to be given in either circumstance. Despite this, the appellant sought to challenge a judgment relying on the interpretation of s77 by firstly using a 2001 Green Paper to argue that they had a legitimate expectation that reasons for refusing to call in the application would be provided. Despite subsequent amendments to written ministerial statements, the 2001 statement was later confirmed by a 2010 policy which expressly stated, “reasons for either call in or non-intervention” should be provided.

Secondly the applicant interpreted s77 so as to provide the Secretary of State with a duty at common law to give reasons for any decision under this section. In respect of this ground, the court reiterated their unwillingness to impose duties not expressly provided by Parliament in the drafting. The court however recognised that a legitimate expectation, giving rise to an express promise had been provided in the 2001 Green Paper.

This case demonstrates a drive by the court towards greater transparency. The judgement suggests the need for Parliament to clearly revoke any promises or commitments they do not wish to be relied on to avoid similar issues arising in the future.

When does a S106 obligation no longer serve a “useful purpose”

In R (Mansfield District Council) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 1794 (Admin) the council sought to judicially review the decision of the planning inspector allowing an appeal, against the council, for failing to discharge an outstanding planning obligation.

In 1998 planning permission was granted and an associated s106 agreement required the developer to pay 75% of the costs of the highway works to facilitate the development. The works were completed by the local authority but the development did not go ahead and the developer subsequently did not reimburse the authority.

The developer was later granted planning permission for a different development on the site subject to another s106 agreement requiring the developer to pay the outstanding funds for the highways works. The developer subsequently sought a modification to the s106 to be released from the outstanding funds owed. The local authority failed to determine the application and, on appeal by the developer, the inspector found that the s106 should be discharged as it no longer served a ‘useful purpose’.

On appeal to the High Court, Justice Garnham found in favour of the council, stating that  the proper approach to a s106A application is to consider: the purpose of the current obligation and if these obligations would continue to serve a useful purpose, even if it was subject to modification.

Justice Garnham recognised that the statute does not specify the interpretation of ‘useful purpose’ nor does s106A require a ‘useful purpose’ to be a planning purpose. This ruling therefore highlights the importance of ensuring contributions are linked to specified dates as opposed to generic triggers. A developer does not want to fall into the trap of obligations being found to still serve a ‘substantial public purpose’ long after the development has completed.

New judgment on proceeds of crime and planning

The next case highlights the cautionary approach needed and the abidance with due process when councils issue enforcement action. An appeal was made under s174 of the TCPA by the Trustees of The Knightland Foundation against an enforcement notice issued by the London Borough of Islington Council.

Islington Council issued an enforcement notice against a developer after they seemingly ignored the remit of their planning permission. Instead of developing a multiple occupation dwelling with 14 bedrooms as prescribed by the permission, the developers sought instead to build 18 self-contained residential units,. This decision came off the back of informal words by the planning officer, alluding to the possibility of ignoring the permission on the basis that 18 units ‘seemed acceptable’. As a result of the developer’s failure to comply with the planning permission and failure to rectify the issue, the council prosecuted the developers under the Proceeds of Crime Act, to recover the profits obtained by the unlawful development.

The Court of Appeal recognised that whilst the developers were in breach of the enforcement notice, the council’s decision to prosecute under the POCA arose from an improper motive and an abuse of process. The judgment highlights the importance of councils exercising their prosecution powers fairly.

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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