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Planning law update – October 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.

How will the review of JR impact planning decisions?

The Government established its Independent Review of Administrative Law at the end of July, with its deadline for evidence closing on 19th October 2020. This consultation was formed as part of a pledge in the Government’s manifesto in response to the two well-publicised challenges to the Government’s handling of Brexit. Its prime focus is to consider the correct balance between the entitlement of citizens to challenge Government decisions and allowing the Government to govern effectively. The Prime Minister’s comments in January that courts were being used to “conduct politics by other means” evidence a desire to limit, at least somewhat, the extent that Judicial Review can interfere with the actions of Government.

The consultation considered a number of key issues including: whether Judicial Review impeded the effectiveness of decision making; if the cost regime is too lenient on unsuccessful parties; whether the current rules relating to public interest standing are too lenient and whether codifying the practice of Judicial Review would be preferable.

Planning, and associated environmental regulation, is a contentious area where Judicial Review is common and often brought by campaign and pressure groups, as evidenced in our previous commentary on the challenges to Heathrow’s Third Runway and the most recent changes to the Use Classes Order. While these cases garner much attention as impeding decision making, they also highlight the role of the Court in ensuring lawful and fair decision making.

It is equally true that planning and environmental regulation is an area where the law is not wholly domestic and the implications of the Government’s separate Internal Market Bill, potentially allowing for secondary legislation to breach “relevant international or domestic law” will, potentially, further limit the potential for Judicial Review in future. The passage of this Bill is subject to House of Lords scrutiny.

We await the report from the Independent Panel on Administrative Law.

Amendments to CIL – First Homes and Discount Market Dwellings included

The most recent amendments to the CIL regime come into force on 16th November 2020, subject to parliamentary approval and seek to extend social housing relief to First Homes. Social housing relief will be available for dwellings which are sold for no more than 70% of their market value and a planning obligation has been entered into prior to the first sale to prevent any subsequent sale from being for more than 70% of its market value.

These draft amendments evidence the Government’s desire to require First Home products to be provided imminently. However, the amendments also include the possibility for Discount Market Dwellings, which were previously excluded from social housing relief, to be eligible if the discount meets the above criteria. Even if it does not meet the qualifying criteria, discretionary social housing relief will still be available for properties sold for no more than 80% of its market value.

Planning White Paper: Deadline fast approaching

As we have previously discussed, the Government’s White Paper: “Planning for the Future” arguably asks more questions than it answers. This is particularly true in relation to the future of Section 106 Agreements and the CIL regime with the proposed introduction of an Infrastructure Levy. The deadline for consultation responses closes on 29th October 2020. Click here for more details.

PM pledges to increase amount of protected land – How does this affect the Environmental Bill

The Prime Minister has signed the Leaders’ Pledge for Nature, along with other world leaders in a commitment to assist in the recovery of nature and biodiversity. An extra 400,000 ha of land is to be protected increasing the amount of land protected to 30% of land in England.

This pledge should be viewed alongside the Environment Bill that was introduced at the beginning of the year. In draft form, it includes provision for biodiversity net gain to be a condition for the grant of planning permission. Having been brought back to Parliament in January, it has been beset by delays due to Coronavirus and it is not due to be reported on until December. The concern, therefore, is that there will not be enough parliamentary time to pass the bill in a suitable format before the end of the Brexit transition period on 1st January 2021. These concerns have been raised with the Secretary of State for Environment, Food and Rural Affairs.

The Government appears keen to increase the extent of protected land which would require extra assessment under the NPPF prior to any development taking place. However, unlike the provisions of the Environment Bill, there has been no indication that this pledge will be enshrined into statute or how this will be achieved in practice.  All the while, it is uncertain what the final form of the Environment Bill will look like and what the new environmental regulation landscape will look like in the new year.

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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