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Planning law update – October 2018

Welcome to Ward Hadaway's planning law Speed Read. 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.

The Tory and Labour party conferences

With major concerns that Brexit has gripped the party agenda, Theresa May, at the start of the Conservative party conference, unveiled her plan to impose additional stamp duty payments on foreign buyers. The funds raised from the additional stamp duty, placed on those individuals and companies who do not currently pay tax in the UK, would be used in a push to alleviate homelessness throughout the UK.

This plan was revealed just a week after shadow housing secretary John Healey announced at the Labour party conference, plans to increase council tax payments on second homes. The proposal seeks to tax holiday homes based on their property value, thereby doubling the current council tax rate. It is suggested however that the additional money raised would not go back to the local council but instead the Treasury to tackle homelessness.

Healey, in his conference speech, emphasised the inequality which persists throughout the UK housing market and the adverse effect this is having on homeownership.

Yet both proposals come at a time when the UK housing crisis is being overshadowed by the unknown effects of Brexit and as such the implementation of these proposals may not be prioritised.

The importance of the setting of a Listed building

The Court of Appeal in Catesby Estates Ltd and Secretary of State for Communities and Local Government v Steer & and Historic England [2018] EWCA Civ 1697 has ruled on the principles to be examined when considering the impact a development has on the setting of a listed building. This joint appeal case examined whether the planning inspector had misunderstood the concept of ‘setting’ and the development’s potential effect on the desirability of preserving the assets within the estate.

The court established that the decision maker must have an appreciation for the setting, whether the site of the development is to be within that setting or in some way related to it. In this way regard is to be had to the desirability of preserving the building and its setting in compliance with the duty set out in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The case concerned an Inspector’s decision to grant planning permission for a housing development on land approximately 1.5km to the south of the Grade 1 listed Kedleston Hall. The judge quashed the decision on the basis that the Inspector had taken too narrow an approach to the question of the “setting” of the listed building – too much emphasis was given to there being a “visual” connection without any consideration being taken of the historic social and economic connections between the Appeal site and the Hall.

It was further established that the decision maker should focus on the surrounding of the heritage asset, recognising that although this may change over time the listed asset will still remain in situ. The case therefore highlights the importance of examining the effect of the development, with particular focus being placed on when and how the development is likely to harm, if at all, the setting of the listed building.

The importance of equality to the decision making process

In R(Buckley) v Bath and North East Somerset Council [2018] WLR 389 the interaction between the section 149 public equality duty and the Town and Country Planning Act has again between reiterated by the court.

A judicial review claim was made against the local planning authority on the ground that the council had failed to have due regard to the public sector equality duty as set out in section 149 of the Equality Act 2010, when determining an application for planning permission.

The council had granted outline planning permission for a development which would have provided up to 700 dwellings to replace 542 existing dwellings that were proposed to be demolished. Out of those new dwellings only 210 homes were to be classed as affordable homes in comparison to the 414 affordable homes on the existing estate.

Despite the local authority abiding by the planning policy set out in the local development plan, the authority had systematically failed to carry out an equality impact assessment. It was found that the policy adopted by the planning authority failed to consider the impacts the demolition of the dwellings would have on those people with protected characteristics, particularly the elderly and disabled. In addition, the council failed to have regard to the fact that a disabled resident may require suitable alternative accommodation for the time between the demolition of their dwelling and the new development.

This case reiterates the judgment in LDRA Ltd v SSCLG [2016] which had previously emphasised the need for a public sector equality duty to be demonstrated when any development would involve an unacceptable loss of amenity or have an adverse effect upon the number of available dwellings. A failure, by the local authority, to have due regard to the public sector duty at both the outline and full planning application stage could result in the quashing of planning permission.

A three stage approach to the disclosure of information

In Information Commissioner v Department for Transport and Hastings [2018] UKUT 184 (AAC) the Upper Tribunal has reported on the approach to be taken when documents consist of information governed by both, the Environmental Information Regulations 2004 and the Freedom of Information Act 2000.

Instead of distinguishing between environmental and other information, an approach adopted by the First-tier Tribunal, the UT emphasised the need to examine the nature and relevant measures associated with the information to determine the governing legislation. The UT went on to follow the earlier approach set out in Department for Business, Energy and Industry Strategy v Information Commissioner and Henney [2017] EWCA Civ, reiterating that where it is clear that the information, through its nature and context, is focussed on environmental matters, the whole document is therefore subject to the EIRs.

The UT devised a three stage approach to disclosure of information when the documents consist of both EIR and FOIA information.

The starting point for a tribunal’s analysis is that “environmental information” in regulation 2(1) of the EIR must be construed broadly. The document containing the requested information must be considered as a whole. Tribunals should ask themselves whether the requested information as a whole is information ‘on’ one or more of the matters identified in the regulation 2(1) EIR definition.

Where the public authority has disaggregated the information in the document into information which it accepts is environmental information (and so governed by the EIR) and information which it considers is other information (and so subject to FOIA), the tribunal must ask itself whether those component parts are separately information ‘on’ one or more of the matters set out in regulation 2(1) of the EIR.

This case highlights the responsibility placed on public authorities to assess the information before determining whether disclosure is appropriate. A clear assessment and determination process is required.

If you have any questions on the issues covered in this update and how they will affect you, please do not hesitate to contact a member of the planning team.

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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