Planning law update – March 2020
04th March 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.
Have the Courts really “blocked” a third runway at Heathrow?
In recent days there has been a great deal of media coverage of the Court of Appeal’s “decision to block” the above proposal. A lot of the media interest is undoubtedly to do with the climate emergency issues associated with the proposal, but some of the attention has also centred on the obvious tensions within the Government towards the project. It also hasn’t escaped some of the tabloid press attention that the decision comes hot on the heels of the Government’s rhetoric to reform judicial review and look again at the relationship between the executive and judiciary.
It’s perhaps for this reason that the judges in the Heathrow decision carefully emphasised that their role in the judicial review process was not to subsume the position of the decision maker and actually make the decision for them, but was rather to come to a finding on how the decision was made. The Justices were at pains to explain that they have not decided, nor could they decide that there will be no third runway at Heathrow. They also went on to state that they have not found that an Airport National Policy Statement for such a project is necessarily incompatible with the UK’s commitment to reduce carbon emissions and mitigate climate change under the Paris Agreement.
Nonetheless the Court did find that the designation in the NPS of a third runway to be unlawful because of its failure to take account of the Paris Agreement, and that of course is something quite different from finding that the proposal itself is incompatible with the agreement. The airport have confirmed they will appeal the decision albeit the Government have curiously decided not to support them in this action and have decided instead to reassert that the project will be industry led.
Government details First Homes consultation
The Government have published the First Homes scheme consultation this month in the hope of ensuring more first homes are built and are available for local people at an affordable price.
Over the last 23 years, the average house price in the UK has increased from £58,854 in 1996 to £235,298 by the end of 2019.
A key element of the Government’s proposals is to offer new homes at a discount to local people. This has been prevalent in s106 agreements for many years through the use of Discounted Sale Units. These properties are normally offered at a 20% discount from the open market value provided the applicants meet certain criteria often based on locality. However only around a 1000 of these homes are built a year.
While the NPPF currently defines discounted market sale homes as those made available at a minimum 20% discount the proposals for the new First Homes Scheme is that a 30% minimum discount should apply. The Government have also made clear that in certain parts of the country this may need to be higher and so local authorities will have the power to set higher discounts on a site by site basis.
To ensure that local people get the benefit of these discounts they propose that local people should have first refusal on First Homes sold through the scheme. The discounted sale price of the home will also last in perpetuity so that future home buyers can access the discounts and the homes can deliver long term community benefits.
Planning inspector dismisses an appeal against a CIL Surcharge imposed by a local authority
An appeal was dismissed and a CIL surcharge upheld after the appellant failed to submit a commencement notice before completing demolition works.
Although in breach of the CIL regulations, the appellant carried out the demolition works before he submitted a commencement notice. It was argued that because the works took place before planning permission was granted, works had not actually begun and a commencement notice was not required.
However, a development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out as per section 56(2) of the TCPA. Section 56(4) tells us that a material operation includes any work of demolition to a building.
Therefore, despite the fact the demolition took place before the grant of planning permission, the Inspector was satisfied that the works formed part of the permission. Because the permission was then issued retrospectively it was not possible for a commencement notice to be submitted in advance of the works. The retrospective permission was therefore liable to CIL and CIL surcharges.
The case highlights the importance of the need to issue a commencement notice before starting works on a chargeable development as required by regulation 67(1) of the Community Infrastructure Levy Regulations 2010 and makes clear that Developers should be wary of the CIL implications of proceeding with a planning application for retrospective development.
Appellant must ensure the collecting authority have received the appropriate CIL notices to avoid surcharges
The Planning Inspector dismissed an appeal made under section 218 of the Planning Act 2008 and Regulations 117(1)(a) and (b) of the Community Infrastructure Levy Act Regulations 2010 after they failed to ensure the collecting authority had received the appropriate CIL notices before they commenced development.
The appellant submitted via email to the collecting authority a commencement notice and an assumption of liability notice. The collecting authority on discovering that the development had commenced imposed surcharges as according to their records no commencement notice or assumption of liability notice had been received.
Despite the fact that the evidence suggested that there was a fault with the collecting authority’s email address the Inspector considered it was not unreasonable to expect the appellant to contact the collecting authority to check the notices had been received. While sympathetic to the appellant the Inspector took the view that to commence development without having received any acknowledgement from the collecting authority was a risky strategy and therefore dismissed the appeal against the surcharge.
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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