public sector planning club, january 2017

Public sector planning clubJanuary 2017, Nottingham

Recent Changes to PermittedDevelopment RightsAn update by Steve Coult

Content

• Legal Basis• History• The 2015 GPDO• The 2016 GPDOs• 2017?

Legal Basis (1)• Town and Country Planning Act 1990

– Section 55 defines the meaning of development Operational Change of Use (noting changes of use within a Class of

Uses held not to be development).

– Section 59 gives powers to the Secretary of State tomake development orders (both general andspecific)

– (Note also S59 allows SoS to make Orders about theway planning applications are processed).

Legal Basis (2)

• Note also S60– Permitted development either unconditionally

granted or subject to limitations.– ss2. Design and external appearance of buildings can

be subject to further approval.– ss3. Order can limit areas to which it applies or in

relation to any particular development.– ss4. Permitted development for temporary periods

only granted for the periods specified in the Order.

History Pre 1947

• Development Orders predate the 1947 Act.• S45 Housing, Town Planning etc Act 1919 led to the

Town Planning (General Interim Development)Order 1922 concerned with developmentmanagement.

• However this followed in 1933 by the GeneralInterim Development Order which actuallypermitted forms of development.

History – the Post War Years

• Thus by 1947 it was accepted that there was aneed for flexibility and control over alldevelopment would be too limiting.

• First post war order was the General DevelopmentOrder 1948.– 21 classes of permitted development– Very prescriptive– No householder rights for extensions!

History – Deregulation

• Major deregulation in 1950– Town and Country Planning General Development

Order and Development Charge Regulations 1950– Not only permitted development but also

development administration/management– Householder rights extended “to remove from the

need to obtain express planning permission anumber of minor operations which have so faroccupied an amount of time and manpower out ofall proportion to their importance to planning”

History – Start of the Modern Era

• 1950 position generally prevailed up until 1995:-– Splitting of Permitted Development and

Development Management into 2 separate orders– Provisions for dealing with Environmental

Assessment impacts on permitted development– Close Circuit TV pd rights– Restrictions on permitted development in

conservation areas

• By 1995 43 separate parts to the GPDO

History – Planning Reform

• July 2014 – Technical Consultation on Planning– Section 2 seeking views on proposals to amend both

GPDO 1995 and Use Classes Order 1987 to grant permitted development rights to allow change of use from

light industrial units, warehouses, storage units, offices and somesui generis uses to residential; more change of use within the highstreet, including a wider retail use class; some sui generis uses torestaurants and leisure uses; retailers to alter their premises;commercial filming; larger solar panels on commercial buildings;minor alterations within waste management facilities and forsewerage undertakers; and, extensions to houses and businesspremises.

The 2015 Order – (1)

– 8 Articles and 4 Schedules– Key Articles

(2) Interpretation (3) Permitted Development – general operation (4) Directions restricting certain permitted development (5) Directions restricting certain minerals development –

express occasions where MPA can take away rights underClass K and M.

(6) Directions general – power to cancel or vary (7) Prior approval applications – time periods for decision –

8 weeks by default

The 2015 Order –(2)

• Schedule 1.– Part 1 (Article 2(3) Land - generally national or

international designations– Part 2 (Article 2(4) Land – National Parks and Broads

plus designated parishes. 3 in West Derbyshire –limits some agricultural permitted developmentrights.

– Part 3 (Article 2(5) Land - Various areas in some SEplanning authority areas plus Manchester City –restriction on pd rights offices to housing.

The 2015 Order – (3)• 19 Parts -Consolidation rather than removal of 1995 Parts• Key changes are

– PART 1 – Large Extensions to Homes now permitted through to May2019

– PART 3 — Changes of use - Now 22 classes much more freedom tochange uses of existing buildings. However pre notificationprocedures often included.

– PART 4 — Temporary buildings and uses - introduction of trial periodsfor to flexible use for 2 years.

– PART 7 — Non-domestic extensions, alterations etc. Extending whatwere temporary rights to permanent rights.

– PART 14 – 1 megawatt solar panels now permitted on roofs of nondomestic buildings.

The 2015 Order (4)

• Schedule 3 - Article 4 procedures.– No changes since 2010 amendments– Procedures better explained in Replacement Annex

D to Circular 9/95.– Annex sets circumstances and need for strong

justification.– Self confirming process.– SoS powers of intervention

• Schedule 4 –Revocation of Statutory Instruments

The 2016 Orders

• No 1 (6 April 2016)– Further buildings allowed to be used for residential

use (both temporary and permanent) some comeinto effect in April 2017 to allow Article 4’s to be inplace.

– Rights granted in respect of fracking exploration.

• No 2– Further amends to enable telecoms operators to

operate with more freedom.

2017 and later?

• Government Response to the 2014 Consultation onlygiven in May 2016.

• Matters in report not yet implemented-– Right to demolish offices and replace on like for like basis with

dwellings.

• Impact of work on Brexit likely to make any furtherproposals less imminent.

• However note EIA underpinned by EU Directive – willthis be retained and consequences for developmentcontrol?

Formation & Use of S106Obligations and Conditions

Ben Standing- Solicitor

Topics

• Difference between Planning Obligations & Conditions• Planning Conditions

– Example conditions and impact of Neighbourhood PlanningBill

• Planning Obligations– Community Infrastructure Levy Regulations 2010

• Planning Obligations or Planning Conditions• Section 106 agreement or unilateral undertaking• Discussion points

Differences between Obligationsand Conditions

Conditions Obligations

Timing Within planning permission Within s106 agreement orunilateral undertaking

Purpose Regulate developmentApproval for aspects of workCarrying out of worksNot usually detailed orcomplex

Specific mitigation ofdevelopmentLand itself is boundCan be very detailed or complex

Variation Application or appeal On agreement of parties. Cannotbe directly appealed.

Breach If conditions not compliedwith then effect can be thatdevelopment has noplanning permission

Contractual remedies, includinginjunction

What are Planning Conditions?

Para 203 NPPF– Imposed on planning permission– To make unacceptable developments acceptable

TCPA 1990: sections 70-73A, & Sch 5 (others for SoS)– Grant permission subject to conditions as LPA thinks

fit (s70(1)(a))– Impose conditions to regulate development (s72(1(a))

• Interpreted in light of NPPF, PPG & case law

The 6 Tests

Para 206 NPPF:1.Necessary;2.Relevant to planning and;3.To the development to be permitted;4.Enforceable;5.Precise and;6.Reasonable in all other respects

Formation of conditions

• NPPG: tailored to tackle specific problems• Should not be used if 6 tests not met• Should not be used if they:

– Unreasonably impact on the deliverability of adevelopment

– Reserve outline application details– Require the development to be carried out in its

entirety

Formation of conditions (2)

• Conditions should not be used if they:– Require compliance with other regulatory regimes– Require that land is formally given up– Require payment of money

• Limit use of conditions which require furtherdetails after permission is granted

• In RM, conditions can only relate to mattersreserved

Grampian Conditions

Grampian Regional Council v City of Aberdeen (1984)• Prevents planning permission until event occurred• Negatively worded conditions

– Cannot positively require action or payment of money

• Reasonable prospects of being performed in time• Appropriate for complex & strategically important

development

Neighbourhood Planning Bill

• Statutory force to ministerial guidance on planningconditions

• DCLG published consultation on 7.09.16; draftregulations prepared

• LPAs to seek agreement for pre-commencementconditions

• Certain conditions should be prohibited

Best Practice: NPPG & TCPA 1990

• Use where satisfied that conditions so fundamentalwould otherwise necessary to refuse permission

• Specify the application drawings and other detailswhich form part of the permission– creates certainty for all parties

• Give clear reasons• Ensure drafting is not ambiguous

Best Practice: NPPG & TCPA 1990

• Attempt agreement with applicant early– Increases certainty & control, delivery & compliance– Decreases likelihood of appeals & s73 applications

• Use conditions sparingly, collaboratively & positively• Consider whether time limits for commencement

should be altered

Modification and discharge

• Application under section 73• Appeal to Secretary of State• Local authority can be asked to confirm discharge

Planning Obligations

What Are Planning Obligations?

• Ancillary to planning permission– Restrict, or require, the use of land in someway– Mitigate development’s impact

• Positive & negative, on party with interest in land• For example: affordable housing, open space,

public art, highways improvements, CCTV &facilities

What Are Planning Obligations?(2)• Enforceable against successors in title• Local land charge under Local Land Charges Act 1975• Registered on planning register• Enforced by way of injunction, or power to enter onto

land to carry out works & recover reasonable expenses

Which obligations fall withins.106?• (1) Any person interested in land in the area of a local planning authority may, by

agreement or otherwise, enter into an obligation (referred to in this section and[sections 106A to 106C] 2 as “a planning obligation”), enforceable to the extentmentioned in subsection (3)—– (a) restricting the development or use of the land in any specified way;– (b) requiring specified operations or activities to be carried out in, on, under

or over the land;– (c) requiring the land to be used in any specified way; or– (d) requiring a sum or sums to be paid to the authority [ (or, in a case where

section 2E applies, to the Greater London Authority)] 3 on a specified date ordates or periodically

What if it does not fall withins.106?• Section 111 of the Local Government Act 1972• Section 1 of the Localism Act 2011 [*England only*];

OR• Section 2 of the Local Government Act 2000

[*Wales only*]

Formation of Planning Obligations

• State obligation is a planning obligation• Identify the land concerned• Identify person entering into planning obligation• State the interest in land of person entering into

planning obligation– Ensure successors in title are bound

• Clearly identify LPA with power to enforceobligation

Community Infrastructure Levy

CIL Regulations 2010:

– Necessary to make development acceptable– Directly related to the development– Fairly and reasonably related in scale and kind

• CIL- charge on development to fund infrastructure

Transfer of Land under s.106

• Wimpey Homes Holdings Ltd v Secretary of Statefor the Environment [1993] J.P.L. 919

• R v S Northants ex p Crest Homes plc [1994] 3 PLR47

• Hertfordshire County Council and another vSecretary of State for Communities and LocalGovernment [2011] EWHC 1572 (Admin)

Relationship with CIL

• Captures some of the land value released• If LPA elects to charge CIL- can still ask for s106• ‘Scaled back’ s106, dealing only with:

– Affordable housing– On-site matters e.g. replacement of facilities

• S106 not for matters in reg 123 (CIL Regs 2010)• Affordable housing delivered through obligations

Relationship with CIL(2)

• Pool contributions for measures not funded by levy– Can’t pool more than five contributions by levy

• Cannot be used to double charge developers– Must not use obligations to fund infrastructure

funded via levy

Practical issues

• Complexity of obligations is decision for LPA• Consider scale of development• Oxfordshire County Council v SoS for CLG [2015]

– Monitoring costs as obligation in s106 were not"necessary to make the development acceptable”Reg 122 (CIL Regs 2010)

Planning Obligation or Condition?

• If choice between obligation and condition:– NPPF confirms condition should be chosen

• Obligations can regulate land that is not subject ofapplication- conditions cannot

• Condition allows appeal to SoS– Appeals for obligations are limited– In reality, obligations cannot always be reduced to

conditions

Section 106 Agreement orUnilateral Undertaking?• UU can be easier for local authority• Not suitable where obligations placed on local

authority• Best used for relatively simple situations, such as

affordable housing schemes

Discussion points (1)

• Viability– Complex or simple clause– Link to sale value?

• Affordable housing– Condition or obligations– Wording of chargee exemption clause

Discussion Points (2)

• Maintenance Obligations– Contribution to LPA vs Owner maintenance– Long term enforceability

• Future Section 73 Variations– Impact of CIL Pooled obligations– Enforceable?

Discussion Points (3)

• Travel Plans– Do they work?– Enforceable?

• Monitoring Fees– Where are we post Oxford?

Questions?

Challenges to Planning Decisions

Will Thomas- Solicitor

Planning Appeals

• S78 TCPA 1990; only applicant can appeal against:– Refused permission– Non-determination within statutory time frames– Granted subject to unreasonable conditions– Refusal of reserved matters

• LPA to ensure that alternative avenues explored to avoidappeal; new application needed?– Carefully consider whether decision will withstand appeal– If against recommendations, document reasons in

committee minutes; reasons should be clear

Planning Appeals

Article 37 DMPO 2015• Time limits from date of decision notice:

– 12 weeks- householder/minor commercial appeals– 6 months- other applications

– 28 days if enforcement notice served• Right lost if not within relevant appeal period• Cannot appeal if within agreed extension period of

determination

Planning AppealsTypes of appeals:

– Written representations– Hearings– Local inquiries (formal method for complex cases)

• Inspector will visit site in all types of appeal• PINS s319A determination of method on behalf of SoS

within 7 working days– “Taking into account criteria, appellant’s & LPA’s views”

• If valid appeal, PINS inform appellant & LPA of:– Appeal starting date, case reference & method

Planning Appeals• LPA will be notified of procedure and then will have to comply

with relevant directions. General procedural requirements:– LPA to submit questionnaire, reasons for refusal and

supporting documentation– Notify interested persons of appeal within relevant time

period– Identify any factual errors in grounds of appeal– Alert PINS to material changes since decision made e.g.

changes to policy or relevant decisions made– Useful for LPA to suggest conditions to mitigate; include s106

if possible as conditions usually discussed at hearing/inquiry

Planning AppealsOutcome• Cannot change decision; may correct errors in decision• LPA responsible for monitoring implementation

– Power to take enforcement action• Cost awards

– Available in all appeals– Parties meet own costs, unless unreasonably behaved

• s288 TCPA 1990 “statutory challenge”: point of lawchallenged in High Court within 6 weeks; otherwise judicialreview

Judicial Review: ProcedureProcedure: Part 54 CPR• Remedy of last resort- alternative method of challenge?• Application within 6 weeks of decision takenStanding:• s.31(3) of Senior Courts Act 1981: ‘sufficient interest’

– Court to use discretion for 3rd parties e.g. public interest– Interested parties must be named

• Judicial review only third party right against decision

Judicial Review: Procedure

• Pre-action letter sent; LPA 14 days to respond• LPA to request time extension if necessary

– Without prejudicing time limits

• Must obtain permission• Judge then provides directions for substantive hearing

– Public hearing before single judge

• Successful challenge: decision often overturned &returned to PINS (in s. 288 appeal) or LPA– Can result in same decision being taken

Judicial Review: Grounds ofappeal

Irrationality• Challenge possible where demonstrated that LPA:

– Not taken into account relevant factors;– Taken into account irrelevant factors; or– Acted perversely

• Duty to take into account material considerations• However, must exercise discretion

Judicial Review: Grounds ofappealProcedural impropriety• Failure to follow express procedures

– E.g. consultation on development plans and publicityfor planning applications

• Natural justice– No perception of bias– Allow for fair hearing and proper consultation– Issues of bias often raised by 3rd parties

Judicial Review: Grounds ofappealProcedural impropriety• Legitimate expectations

– Policy may support approach, or statement made to thateffect

• Access to information• LPA to ensure:

– Individual put their case forward & all evidence heard– Those with ‘legitimate expectation’ are consulted– Applicant can access relevant documents– Sufficient reasons are provided for decision

Judicial Review: Grounds ofappealUnreasonableness• So unreasonable as to be ‘irrational’ or ‘perverse’• Argued with other grounds

“If a decision on a competent matter is so unreasonable thatno reasonable authority could ever had come to it, then thecourts can interfere… but to prove a case of that kind wouldrequire something overwhelming..”Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] I KB 223 HL

Judicial Review: Outcomes

• Mandatory, Quashing & Prohibiting orders– Can compel LPA to act in certain way– Quashed decision remitted to LPA to consider afresh– Prohibits LPA from taking intended action

• Ordinary declarations:– Statement on law; declares LPA’s actions un/lawful– Not coercive; although LPA expected to follow

Ombudsman Complaints• LGO or PHSO:

– Can only consider maladministration and process– Neither Ombudsman has the legal power to change a

planning decision once made– Relevant complaints procedures should be used first

Outcomes:• Steps to reduce harmful effects of LPA decision• Agreed changes to scheme (LPA may need to pay for)• LPA may have to pay compensation• Recommend changes to LPA procedures

Planning Decisions: Tips

• Early engagement with applicant to identify ADR, orchanges to the scheme

• Ensure decisions are well documented & reasons can beclearly identified

• All material considerations taken into account– Clear demonstration that decision based on relevant

factors

• Decision reached is reasonable and has followed correctprocedure

Case Law: Consultation /Procedural Expectation

R (Majed) v Camden LBC [2009] EWCA Civ1029

• Council SCI stated that local residents would beconsulted in relation to certain developments.

• Court rejected Council argument that they were notobliged to consult such groups because it went beyondstatutory duty under GDPO.

• Held: Residents had legitimate expectation of beingconsulted. Declaratory relief given, although decisionnot quashed.

R. (on the application of Vieira) v Camden LBC[2012] EWHC 287 (Admin)

• Judicial review against LPAs decision to grant retrospective planningpermission for conservatory and trellis in conversation area

• LPA briefing panel decided to refer decision pending revised plansfor trellis. Application subsequently approved following receipt ofrevised plans

• Officers report and revised plans not shared with objectingneighbour despite SCI suggesting that revised plans would be shared.

• Held: Neighbour had procedural expectation of being consulted onrevised plans. Also relief should be granted notwithstanding lowprospect of successfully objecting. Outcome would have to beinevitable. Decision quashed.

R. (on the application of Halebank PC) v HaltonBC [2012] EWHC 1889 (Admin)

• Parish council given 21 days to consider and respond onapplication for storage and distribution warehouse. Periodcommencing in August. Holiday commitments of membersmade it difficult to adequately consider proposal. Request ofextended period of time rejected by LPA.

• Referred to govt. guidance and argued legitimateexpectation of being given extended period of time toadequately consider proposal.

• Held: LPA decision unlawful. Inadequate consultation carriedout. Decision quashed.

Case Law: Fairness

Dudgeon Offshore Wind Ltd v Secretary of Statefor Communities and Local Government [2012]EWHC 861 (Admin)• Claimant appealed against dismissal by SoS of appeal against

LPA’s refusal of permission to build electricity sub-station. Atappeal inspector had refused to hear submissions regarding thesuitability (or lack therefore) of alternative sites. Inspector hadassured the parties this would not be taken into consideration.

• Inspector subsequently stated in decision notice that alternativesites was a “main issue” and that there was a possibility oflocating the station elsewhere.

• Held: a breach of natural justice. Appellant should be affordedthe opportunity to respond to an issue of importance in respectof the inspector’s decision.

Case Law: Policy Considerations

Suffolk Coastal DC v Hopkins Homes Ltd[2016] EWCA Civ 168 (appeal outstanding)

Meaning of ‘relevant policies’ & effect of para 49 NPPF:• 49 NPPF: in favour of sustainable development & relevant

policies should not be considered up-to-date if LPA can’tdemonstrate 5yr supply

Held:• Government aim of providing housing to meet needs of present &

future generations• Relevant policies are those "affecting" supply of housing• Extended to policies that restrict supply of housing land• Decision maker to judge how much weight to be given to out-of-

date policies

R (Boot) v Elmbridge BC [2017] EWHC 12(Admin)

• Permission for sports facility on green belt• Report considered NPPF para 89: buildings on green

belt regarded as inappropriate- sport & recreationappropriate if preserve openness of green belt

• Resident argued:– Harmed openness and purposes of green belt– Development on adjacent green belt inappropriate

R (Boot) v Elmbridge BC [2017] EWHC 12(Admin)

Held:• Paragraph 89 did not permit any harm at all to the

openness of the green belt• If any harm at all, must consider special circumstances

justifying development:– No justification that adverse impact not significant

• Previous planning appeal could amount to materialplanning consideration– Consider if materially dissimilar & distinguishable

Questions?

Contact us…

Stephen Coult – stephen.coult@brownejacobson.com

T: 0115 976 6152

Ben Standing – ben.standing@brownejacobson.com

T: 0115 976 6200

Will Thomas – will.thomas@bownejacobson.com

T: 0115 934 2007

All information correct at time of production.

The information and opinions expressed within this document areno substitute for full legal advice. It is for guidance only andillustrates the law as at the published date. If in doubt, pleasetelephone us on 0370 270 6000.

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