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A reasoned approach

We look at a local planning authority’s duty to give reasons, in light of recent case.  In September 2016, the Court of Appeal ruled that Dover District Council had failed to give legally adequate reasons for its decision, against the advice of its planning officers, to grant planning permission for a controversial development partly in an area of outstanding natural beauty (AONB) (R (on the application of Campaign to Protect Rural England) v Dover District Council [2016]). This was one of several recent cases which have dealt with, and have generated some uncertainty about, the duty to give reasons.

Read the full article

This article was first published in Property Law Journal (March 2018) and is also available at http://www.lawjournals.co.uk/

Mind the Gap – Letwin Review should take care to avoid policy overload

The Letwin Review is considering why there is a significant gap between the number of planning permissions being granted and the number of homes built.

Initial findings are due to be published with the Chancellor’s Spring Statement 2018 in March (with the final report in the Autumn Budget).  There are a few things to think about before engaging in another orgy of Plan-Shaming and policy overload.

Apples and Pears

There is a need to be careful about how sites are looked at in the first phase of the Review:

  • Treating outline consents as if they are, or should be, immediately implementable is wrong. Outline consents can require significant work to reach detailed approval, let alone readiness for mobilisation and delivery.
  • Care is needed too, on what is treated as ‘delivery’.  Site mobilisation (for example enabling infrastructure) takes time and pre-dates construction of homes.

Defining what delivery and success look like is therefore important to avoid categorising sites that are being invested in – but have not yet yielded homes – as dormant. This will be significant in the context of the emerging Housing Delivery Test, which should be a fundamental part of the Local Plan system.

90% of percentages are wrong…

Various figures are bandied around on how many consents are ‘unimplemented’. Even adopting the higher level figure of 423,000 unimplemented homes with consent:

  • that is a tiny proportion of total supply – roughly 12-14 months of planning approvals
  • it illustrates the need for a deeper stock of permissions to achieve the heroic build out rates the Government is now committed to.

A Local Plan system which made more (and more detailed) site allocations, with clarity about infrastructure requirements, would make a big contribution to closing the gap between in principle approval for development and the detail needed for delivery. Likewise, a Local Plan system that sniffed and snuffed out unrealistic assumptions on delivery rates when trajectories are being examined would help ensure the right number of consents are granted in the first place to create the stock needed.


Businesses will generally develop at the rate they are best able to achieve and which reflects the overarching price/demand relationship.  Rather than blaming the private sector for the speed it can – prudently –  build at, it would be more productive to look at how to achieve an increase in direct delivery (or directed delivery) by public bodies which have historically made up at least 100,000 of the gap to the Government’s 300,000 homes per year commitment.

In some cases that will involve more assertive use of land assembly and policy tools in a way that creates greater certainty about land values up front so that builders can build and sell more quickly.

Planning blame-fest?

Evidence from the sector on the non-Planning constraints to delivery is important.  Is there a skills gap, what will Brexit do to it and if Government is sponsoring Brexit how will it sponsor the solution?

From the frontline, a few of the  Planning matters that do slow things down are:

  • Length of time taken to deal with highways works agreements. The absence of a standard template agreement is a real blight on the development process.
    Constant reinvention of the wheel and imposition of poorly drafted and unreasonable requirements does have a real impact on the site mobilisation process. Government could sponsor a standard form and issue guidance recommending its use.
  • The bloat and general time-soak associated with unnecessary use of planning obligations. Our ‘speeding tickets’ blog flagged ways to speed things up without scarce Parliamentary time being needed.

Regulation change to allow LPAs to sell land with benefit of planning permission granted to themselves

From 23 February 2018, an LPA will be able to grant itself planning permission and sell the relevant land with the benefit of that planning permission. This small statutory change has the potential to significantly bolster LPAs’ role in facilitating development and ensuring that it is comprehensively planned.

The Town and Country Planning General (Amendment) (England) 2018 (the Amending Regulations) will remove Regulation 9  from Town and Country Planning General Regulations 1992 (the 1992 Regulations), with the effect that planning permissions granted by LPAs to themselves  will now run with the land.

Currently, Regulation 9 provides that a planning permission (where applied for by an LPA on its own land) will be personal to the LPA and where applied for jointly, only for the benefit of LPA and the named applicant. This has severely impeded the ability of an LPA, having secured planning permission to then sell the land on with the benefit of that planning permission. This has had cost implications requiring more complex land structures to be put in place before applications for development proposals could be made.

Oddly, the Regulations do not apply to any planning permissions granted before 23 February 2018. Given that future consents will run with the land it is strange that past consents have not been similarly “liberated”.

The removal of Regulation 9 was proposed in last year’s Housing White Paper on the basis that it will save time that developers would otherwise spend securing planning permission in relation to land which they purchase from LPAs.

It should achieve this. Now the Government needs to make sure that the best consideration requirements are changed so that land can be sold on for the best use for the area rather than just for the best price.

Deliverability vs Delivery – Court of Appeal confirms NPPF approach

The Court of Appeal has clarified the meaning of ‘deliverable sites’ in the key housing land supply provisions of Paragraph 47 NPPF (5YHLS).  As well as emphasising the need for pragmatism when applying the NPPF, the judgment confirms the need to get timing right if challenges are to be made to the assumed rate of housing delivery.

Supply test in question

In St Modwen v SoS CLG, the developer challenged the housing trajectory put forward by the authority to satisfy the NPPF 47 requirement to show specific deliverable sites sufficient to provide five years worth of housing against objectively assessed need. NPPF Footnote 11 confirms that ‘deliverable’ means available now, offer[ing] a suitable location for development now, and […] achievable with a realistic prospect that housing will be delivered on the site within five years and […] viable.

The Inspector disagreed that sites without permission should be excluded.  She accepted that the rate of consents was likely to increase in light of the draft plan.  She acknowledged a distinction between deliverability and likelihood of delivery: ‘…it may well turn out that not all allocations currently identified as deliverable will in fact be delivered’. The submitted HLS figures were robust, because ‘the assessment of supply is distinct from that for delivery’.

The Secretary of State accepted the Inspector’s finding that there was a 5 year HLS and dismissed the two linked appeals.

Courts insist on common sense

The High Court and the Court of Appeal dismissed the argument raised in seeking judicial review of the decision that the SoS had misunderstood and misapplied the concept of ‘deliverability’.  He should, it was claimed, have considered what would ‘probably be delivered’.

The Court of Appeal disagreed that Ouseley J’s judgment in the High Court suggested that assessment of ‘what probably would be delivered’ is part of, not separate from, the assessment of deliverability.

Ouseley’s judgment – that the assessment of “deliverability” … is an assessment of the likelihood that housing will be delivered. [It] does not require certainty that the housing sites will actually be delivered’ (emphasis added) – simply reflected the distinction between the HLS figure required under the first part of NPPF47 and the ‘expected rate of delivery’ required for the trajectory under the second part.

The Court of Appeal once again went out of its way to criticise ‘unreal’ arguments on the meaning of NPPF policy, holding that:

  • there is a consistent and intentional distinction in the NPPF between ‘deliverability’ and the ‘expected rate of delivery’;
  • deliverability in footnote 11 concern sites’ capability of being delivered – not the certainty/ probability of delivery;
  • the appeal decision was being taken in light of NPPF49, engaging the question of demonstrable 5YHLS, not a question about the ‘the expected rate of housing delivery’.

So what?

The judgment serves to emphasise that:

  • there need only be a ‘realistic prospect’ of delivery for sites to be relied in within the 5YHLS;
  • challenges to the assumptions around the expected rate of delivery generally need to be taken up at the Local Plan examination stage;
  • Local planning authorities do not control the housing market. The NPPF recognises that.’

The last point underlines the fact that LPAs play a critical role, but are only one part of the housing delivery jigsaw. It is also illustrates how important the Housing Delivery Test will be, as a sense check on assumptions and progress, if it is introduced as promised in the Housing White Paper.

What happens to old applications?

The question of what powers LPAs have to deal with old planning applications is raised by both applicants, concerned that their planning application may be unilaterally withdrawn, and LPAs, keen to understand their options for dealing with undetermined applications.

A LPA can decline to deal with an application if: (i) it is not made in the prescribed form; (ii) the circumstances set out in section 70A of the Town and Country Planning Act 1990 (‘TCPA’) apply (namely, the LPA / Secretary of State has refused a similar application in the previous 2 year period and there has been no significant change in the relevant considerations); or (iii) it constitutes an overlapping application under section 70B TCPA.  However, there is no power for an LPA to actually withdraw a planning application.

Instead, an LPA may seek to record the application as “finally disposed of” to avoid the application remaining open indefinitely. What does this mean?  What is the effect?

“Finally disposed of”

The term “finally disposed of” is used in article 40 of the General Development Procedure Order 2015 (‘GDPO’).  Under article 40(2) GDPO, each local planning register authority must keep a register of every live application for planning permission relating to their area.

Article 40(13) GDPO sets out the circumstances in which an application can be treated as finally disposed of.  In summary, this is where an application has been:

  1. granted or refused by the LPA  and the time limit for appealing has expired without appeal;
  2. referred / appealed to the Secretary of State, who has issued a decision and any application to the High Court has been finally determined;
  3. withdrawn before being decided by the LPA / Secretary of State or an appeal has been withdrawn before the Secretary of State has issued a decision; or
  4. finally, the period for determination and appeal has expired no decision has been made.  This means that a LPA can simply record an application as finally disposed of as soon as the period for determination and appeal has expired – so watch for that date.

Once any of these requirements are satisfied, the LPA may treat the application as finally disposed of and elect to remove the application from its Planning Register.

Best Practice for applicants

To avoid an application being finally disposed of, applicants should either: (i) agree to extend the time period for the Council to determine the application; or (ii) if the LPA fails to determine the application within the statutory period, appeal on the grounds of non-determination. Applicants should note that if the application period is extended, the right to a refund is lost, even if the authority fails to meet the extended deadline.

Best Practice for LPAs

Once the date for determination has passed, consideration should be given at regular intervals to whether the application should be deemed “finally disposed of” and removed from the Planning Register. Given the cost and expense of submitting an application an LPA should notify the applicant of its intention to treat an application as “finally disposed of” before doing so.  This should set out a timetable for dealing with any outstanding matters.

Refusal as an Alternative

Rather than recording an application as “finally disposed of”, LPAs could simply refuse the application. However, LPAs are often  keen to avoid this course of action for 2 reasons:

  1. Refusal rates are monitored nationally and, in theory, LPAs with clear policies and effective pre-application advice should issue fewer refusals.  LPAs may therefore be concerned that refusing such application will have a negative impact on their performance figures; and
  2. It would reinstate an applicant’s right to appeal.
  3. Given the above, it is likely that LPAs will continue to treat applications as “finally disposed of” unless a formal procedure for LPAs to withdraw planning applications is implemented.  This is unlikely to be high on the agenda at any time in the near future given the raft of more pressing planning matters.

More planning protection for pubs

In 2015, the Government removed permitted development rights from pubs listed as Assets of Community Value (ACVs).  As previously reported, pubs which are listed as ACVs, or have been nominated to become ACVs, require planning permission for changes of use or demolition, which otherwise could be carried out under permitted development rights.

Noting the importance of pubs to local communities, some local authorities have made Article 4 Directions to remove permitted development rights from pubs. The London Borough of Wandsworth made an Article 4 Direction in August 2016 removing specified permitted development rights for changes of use, demolition and alteration for 120 identified pubs and bars.

Following Wandsworth’s lead, the London Borough of Southwark introduced an Article 4 Direction removing permitted development rights from all 188 pubs in Southwark in March 2017.  The Article 4 Direction means that planning permission will need to be obtained for specified changes of use, demolition, demolition or construction of gates, fences and walls, and exterior painting.

After discussions in Parliament in connection with the then Neighbourhood Planning Bill, the protection afforded has been further extended by the Government to cover all pubs rather than just those listed as ACVs. Section 15 of the Neighbourhood Planning Act obliges the Secretary of State to as soon as reasonably practicable make an order to remove permitted development rights for changes of use and demolition of pubs, and to grant permission for pubs to change to pub and café/restaurant use.  This requirement has been met by the making of the Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017, which comes into force on 23 May 2017.

The order removes permitted development rights so in most cases pubs will instead have to apply for planning permission to:

  • change to a shop;
  • change to a restaurant or café;
  • change to a state funded school;
  • change to a temporary flexible use; or
  • to be demolished.

The order includes a new permitted development right, to allow pubs to change use to “drinking establishments with expanded food provision” and vice versa without planning permission.

The order demonstrates the importance of pubs to the Government, by requiring a planning application for a change of use other than to a pub restaurant.  While this change negates the need for communities to list their local as an ACV to prevent changes of use without planning permission, listing could still be pursued.  A local planning authority can consider ACV status as a material consideration on a planning application, and so ACV listing could be an extra factor the local planning authority has to take into account when considering an application to change the use of a pub.  This then offers an extra layer of protection for communities wanting to keep venues operating as pubs.

Planning controversies demand clear reasons

A flurry of decisions on reasons have underlined the need for care in explaining planning decisions, from delegated reports to sensitive areas. Our comprehensive guide to the Oakley green belt case and other decisions is here.

The decision in R (Campaign To Protect Rural England, Kent (CPRE)), v Dover District Council [2016] EWCA Civ 936 is on its way to the Supreme Court. In the meantime, it is worth looking into the Court of Appeal’s approach to the standard of reasons required of an authority granting permission for development of a scale “unprecedented in an AONB” in that case. The judgment confirms that reasons for approval may be required in planning matters where basic fairness demands it, despite the absence of a statutory duty, particularly where significant policy breaches are being entertained. It also highlights the benefits of dealing properly with the need for statements of reasons under the EIA regime.

Controversial proposals

The authority’s officers had recommended a less dense, but – according to its advisors – no less viable approach to delivering housing in the sensitive area.  Members rejected that approach on viability grounds and objectors challenged by judicial review on the basis of inadequate reasons.

No reasons required?

The defendant authority started from the position that there is no duty on planning authorities – unlike the Secretary of State – to give detailed reasons for the grant of permission (adopting the ‘light touch’ approach in R (Hawksworth Securities Plc) v Peterborough City Council & Ors [2016] EWHC 1870 (Admin)) where the standards applicable to an inspector’s decision on appeal were distinguished from merely an ‘administrative’ decisions by local planning authorities).

The Court of Appeal recognised that this approach “needs to be treated with some care. Interested parties (and the public) are just as entitled to know why the decision is as it is when it is made by the authority as when it is made by the Secretary of State.”  In the circumstances of Dover, several factors justified detailed reasons:

  • the nature of protective NPPF policies means that decisions to authorising development which will inflict substantial harm on an AONB must be accompanied by “substantial reasons”;
  • a departure from officers’ advice;
  • the applicability of the statutory duty to make a statement of reasons and mitigation under Regulation 24(1)(c) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.

Costly admin errors

The Committee minutes in question failed – against that standard – to give legally adequate reasons:

  • firstly, it was unclear whether members accepted their officers’ assessment of harm; if they did, they would have “opted to inflict irreversible harm on the AONB” on the limited material before them;
  • secondly, it was unclear whether they viewed viability issues as a mere risk, which would have made their obligation to address the issue of harm was “all the more acute”;
  • thirdly, it was not clear if they had applied a simple unweighted balance to AONB protections; and
  • finally, they had reached conclusions on visual screening which were “fragile at best and would have to be supported by reasoning a good deal more substantial than the sentence in the minutes”.

EIA goalie?

The judgment helpfully confirms that while the lack of a regulation 24 statement may not necessarily kill a decision where reasons are adequate on the record, it could save it where they are not.

The Supreme Court judgment, when it comes, should provide a definitive position on the basis and scope for reasons for approval. In the meantime, a little transparency and coherence for controversial decisions can only be a sensible approach.

The right to know why

Is there now a presumption that reasons be given for planning decisions? Within the last year, we have seen a surge of significant cases in which an absence of reasons being given for planning decisions has proved to be decisive. This happened despite the abolition in 2013 of the statutory duty to give reasons for the grant of planning permission. While the contexts have varied – ranging from delegated decisions, environmental impact assessment (EIA) development and planning committee decisions contrary to officer recommendation – the outcome has been the same each time: reasons for granting permission should be given.

Read the full article

This article was first published in Property Law Journal (March 2017) and is also available at http://www.lawjournals.co.uk/.


Daylight/ Sunlight Error Fatal To Permission

In Watt, R (on the application of) v London Borough of Hackney & Anor [2016] EWHC 1978 (Admin), the High Court quashed the grant of permission for a mixed use development likely to adversely affect sunlight reaching adjacent open land used by the neighbouring school for children’s play. The application had been considered on the basis the redevelopment of the vacant site would have enhanced the character and appearance of the conservation area.

Latent defects

The authority relied on a daylighting report addressing the extent of reduction in daylight to the play land at different times of year. A claim for judicial review was made on several grounds and independent assessment – carried out after the claim – identified flaws in the original report, exaggerating the existing levels of daylight and so understating (by a third) the effect of the new scheme on the play land.

The judge admitted the new report as part of a ground of claim alleging an error of fact. The defendant authority offered its own evidence in response, but – crucially – did not object to its admission.

Errors of fact can be fatal

The judgment confirms that the error of fact justified quashing the permission in the circumstances: there was a factual error which created a misleading picture; the fact was ‘established’, in the sense of being uncontentious; neither the appellant (nor his advisers) were responsible; and finally, the error played a material part in the reasoning (on the basis that it was impossible to say that had not done so, applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306).

Get your facts right

The daylight reaching the play area was above the relevant policy threshold with the correct analysis (just less far above than the original assessment had, wrongly, suggested). Despite the fact that the error may not have been decisive in the overall decision, though, the judge was prepared to quash the permission.  The judgment therefore confirms the risk that faulty technical work creates for planning decisions, even where the error itself is not decisive.

The need for focus on conditions (and not descriptions) in Section 73 applications

The consequences of failing to restrict use by imposing a condition were highlighted in a recent appeal decision concerning a DIY retail unit in South West London.

Both the original planning permission for the retail unit and a subsequent section 73 permission (granted in 2010) included a condition to restrict the sale of non-food goods.  However, the final section 73 permission granted in 2014 contained no such condition.

In 2015, the appellant sought a lawful development certificate permitting use of the premises for purposes within Use Class A1 without restriction on the goods that could be sold. Notwithstanding the lack of a condition restricting use, the Council refused.  Consequently, the applicant appealed citing the decision in I’m your Man v Secretary of State [1999] 77 P. & C.R. 251, which held that where a limitation is to be imposed on a permission granted pursuant to an application, it must be done by condition.

The Council contended that the original conditions were incorporated by reference to the previous permissions or should be implied, referring to the Reid case which held that it is permissible to impose conditions by reference to an earlier planning permission.

However, the Inspector rejected the Council’s arguments, finding that the principles from Reid could not reasonably be extended to the creation and incorporation of an entirely new condition which does not appear on the 2014 permission other than in the description, in accordance with the decision in Dunnett Investments.  The Inspector held that no condition restricting the nature of the retail use to specific uses falling within Use Class A1 had therefore been imposed on the final planning permission.  Accordingly, the appeal was allowed and the lawful development certificate issued.

So what can we take away from the case?

  1. The importance of conditions controlling use.

The decision in Reid confirmed that, in the case of planning permissions granted under section 73, conditions can be imposed in various ways:

  1. impose fresh conditions mirroring the original conditions save for the variation; or
  2. impose only the varied condition and incorporate the unaffected conditions by cross-reference to the original permission.

However, whichever method is used, any differing conditions must be incorporated in full in the new permission. For certainty, LPAs must adopt a ‘belts and braces’ approach and set out all the conditions to which the new planning permission will be subject, restating any unchanged conditions in full rather than relying on cross-referencing.

  1. The myth that the description of development can be varied by way of a section 73 application persists.

Confusion often arises as a result of overly complex and unclear descriptions of development, which applicants and local authorities seek to amend to accord more closely with the section 73 proposals. However, there is no formal ability under section 73 to amend the description of development.  It is therefore better to avoid references to the use classes, floor areas and number of units in the description of development (where possible), as it invariably acts to constrain the ability to lawfully use section 73 amendments to amend schemes post approval.

Steering clear of amendments to the description of development can help to maintain the focus on varying the relevant conditions, reducing the potential for LPAs to fall foul of this issue. As is clear from the present case, LPAs cannot rely on undefined conditions being imposed or implied into new permissions granted under section 73.

As a final note, we are willing to bet that I’m Your Man will be overturned at some point by the Courts or will be ousted by legislation. A failure to constrain by condition something that was clearly described as limited in the description of development should not, as a matter of fairness, lead to a windfall for the owner and a cost to the community.