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Planning law update – October 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.

Biodiversity net gain to be mandatory

The Government have issued new proposals for a mandatory biodiversity net gain on new developments. The proposals mean that any new development In England that results in loss or degradation of habitat must provide a biodiversity net gain of 10% in an attempt to leave the natural environment in a measurably better state than before.

The scheme looks to incentivise the enhancement of habitats on site or locally. Where there are no local projects available, developers will be able to invest in nationally strategic habitats through a system of statutory biodiversity units.

Although the proposals detail the requirement for a 10% biodiversity net gain for all new developments that result in the degradation of habitat under the TCPA 1990, there are in fact exemptions from this obligation. There are broad exemptions for permitted developments and householder applications as well as an exemption for certain brownfield sites. The government has not exempted smaller sites from the mandatory net gains but will consider whether minor developments should be subject to lower net gain requirements than other developments.

Changes to biodiversity are measured by The Defra Biodiversity Metric. Information including: habitat type, condition and size of habitat, strategic significance and connectivity is translated by the metric into a number of biodiversity units. Biodiversity net gain is achieved when a site’s score of units is at least 10% higher following the development. Long term protection of habitats is encouraged, as the 10% net gain is required to be maintained for a minimum of 30 years, with the biodiversity ‘score’ of the site after 30 years becoming the new baseline for future gain developments.

All developers will now need to factor in the potential impact and costs of the biodiversity net gain moving forward.

CIL appeal decision

An important judgement arose from an appeal decision in which the Judge provided an update on community infrastructure levy surcharges. At the point at which a developer initially applied for planning permission no CIL charging schedule existed. However, by the time they came to apply for retrospective permission, after not building out in accordance with the approved plans, CIL was in force. Therefore, the development automatically became liable for CIL as well as a surcharge.

The Judge in the case appreciated the unfortunate situation in which the appellant found himself but commented that  by not carrying out the planning permission in accordance with the approved plans he effectively brought the situation upon himself.

While this case related to an individual house builder it is important for larger developers. The principle will also apply to developers who don’t build out in accordance with conditions and subsequently submit a s73 to amend those conditions. The local planning authority can treat these applications as a s73A (retrospective) application and if so, it would be impossible to rely on the abatement provisions. Therefore, cases such as these could lead to an inadvertent  doubling up on the CIL liability. The case has shown the Judges’ attitude is largely unsympathetic and so developers should be wary of the effects of deviating from the original planning permission and its conditions.

A link to the decision can be found here.

Gladman Developments Ltd V (1) Secretary Of State For Communities & Local Government (2) Swale Borough Council (3) Cpre Kent (2019)

A planning inspector had been correct in his decision to refuse planning permission for two residential developments in air quality management areas (AQMAs). The developer’s proposed financial contributions had not been shown to likely be able to reduce the use of private vehicles and hence reduce the forecast emissions.

The developer appealed against the decision to refuse planning permission.

The planning inspector had found that the annual mean nitrogen dioxide concentrations limit would be exceeded – in some cases by a considerable amount. The High Court upheld the decision of the planning inspector that the limit would be exceeded, finding that the decision in ClientEarth v Secretary of State for the Environment, Food and Rural Affairs, which required the UK government to achieve compliance with the Air quality Control Directive by the soonest date possible  did not mean that the inspector should have assumed that the UK would soon become compliant.

A link to the decision can be found here.

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.

This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

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