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Common Sense Needed to Flush Out SPD Abuse

The High Court has confirmed the need to tread a common sense path through the mire of the Local Plan regulations, in quashing a supplementary planning document (SPD) that strayed into Development Plan Document (DPD) territory in William Davis Ltd & Ors v Charnwood Borough Council [2017] EWHC 3006 (Admin) (23 November 2017).

Light Touch

SPDs escape the examination process needed for DPDs.  They are often seen as simply elaborating on existing policies.  The Town and Country Planning (Local Planning) (England) Regulations 2012 are more nuanced: SPDs are allowed to contain policy, but it must be justified and must not conflict with the adopted development plan (Reg 8(3)).  SPD policy cannot supersede development plan policy and is merely a material consideration.

Substance Over Style

Local Development Documents (LDDs) that have the characteristics listed in regulation 5 must (under reg 6) be prepared as Local Plans (i.e. DPDs).  SPDs are defined negatively (reg 2) as anything that is not a Local Plan. In practice, this means a document containing statements regarding “any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land encouraged by a [Local Plan]”.

The regime is messy and open to abuse where SPDs stray into Local Plan territory. SPDs cannot contain policy identifying development and use of land which the authority wishes to encourage, making site allocations or site allocation policies or setting development management to guide application decisions.

No Mercy

In Charnwood, Gilbart J quashed policies in a housing SPD.  The core strategy contained strategic policies with high level targets for housing types to meet demographic needs, with a “subject to viability” affordable housing target and a requirement that types, tenures and sizes of homes would be appropriate having regard to identified housing needs and character of the area. The SPD prescribed different percentages for all house sizes, and a 60-70% affordable housing requirement for some unit types.

The statements were quashed: they contained policies; and they clearly related to forms of development to be encouraged and imposed development management policies against which applications could be refused (or conditions to control unit mix imposed) (under reg 5). Although there was some legitimate SPD ‘guidance’ that did not save the offending policies (citing R (Skipton Properties Ltd) v Craven District Council [2017] EWHC 534 (Admin)).  They could only be adopted as a Local Plan (DPD), following examination.

Take Heed

The judgment emphasises several points that authorities and affected parties should pay attention to:

  • where an ‘SPD’ is promoted as a “stop gap” in the absence of  saved policies, by definition it cannot be supplementary (and is itself a primary policy assuming DPD status as in the Skipton case);
  • a housing mix policy which could lead to refusal on the grounds that the proposed mix is unacceptable (or an outline application condition imposing a particular mix) is a statement regarding the development of land and development management policy;
  • uncertainty arising from the “very poor” drafting of the Regulations should be dealt with in light of the “realities of development control” and the fundamental importance of robust and independent examination of the development plan;
  • viability impacts were material and had adopting the policies without consideration of those impacts was unlawful;
  • SPD should not be used for making an alteration to plan policy to address new evidence.

So what?

Authorities will need to be far more careful about the statements they include in what purport to be SPDs on issues such as housing mix and affordability but also density, height and other matters.  There is still a tendency to sneak swathes of untested, unjustified and ineffective policy in through the back door via dodgy SPDs.

The judgment comes when the Mayor of London’s Affordable Housing Supplementary Planning Guidance (SPG) document is under legal attack for having strayed into the realms of policy, despite being clearly stated not to constitute policy and arguably not to extending beyond the policies in the London Plan itself.

It remains to be seen whether that challenge will be recast as a challenge to specific decisions which – wrongly – treat the SPG’s contents as a policy or a fixed position (which often feels like it is the case).

Free-Standing Sustainable Development Assessment a Mistake

In Reigate and Banstead BC v SoS CLG [2017] EWHC 1562 (Admin), Lang, J quashed permission granted on appeal for development on greenfield land intended for release in the development plan only if needed to boost housing land supply (HLS).

The recently-adopted Local Plan provided for almost a 5 year HLS, constrained so as to be unable to meet full objectively assessed need (OAN). Despite its “urban area first” strategy, the Inspector worked on the basis that sustainable development should be approved in the absence of harm.  He found that there was not basis for dismissing it because the proposal would reduce the HLS shortfall against OAN over the plan period and would not significantly prejudice the spatial strategy given its scale (45 homes).

The authority challenged the decision on the basis that the Inspector had inverted the statutory requirement to determine the appeal in accordance with the development plan, subject to material considerations otherwise (s38(6) PCPA 2004).

The judgment identifies ten key propositions for NPPF14 cases, including:

  • The need to distinguish between local and national policies which describe what qualifies as sustainable development (e.g. NPPF 6, 7, 18 to 219) and policies that determine when a presumption in favour of such development arises.
  • That the NPPF 14 exhaustively defines when a presumption in favour of sustainable development can arise. There is no general presumption outside NPPF 14 (applying Trustees of the Barker Mill Estates v SoS CLG [2016] EWHC 3028 (Admin) and Cheshire East BC v SoS CLG [2016] EWHC 571 (Admin)). The Inspector could – in theory – have reached the same outcome by applying the s38(6) starting point but giving in efforts to close the OAN gap greater weight.  However, the judgment implies that in the absence of something significant – such as evidence that local housing stress had worsened substantially since the Local Plan was adopted – the decision would be have been doomed to the same fate.
  • One proposition seems out of kilter with the rest – that the NPPF14 presumption “does not extend to a proposal which conflicts with the development plan“. Although not relevant in Reigate, NPPF14 is explicit that the presumption does extend to such proposals where (1) the development plan is absent, silent or relevant policies are out‑of‑date and (2) any adverse impacts of granting consent would not significantly and demonstrably outweigh the benefits considered against NPPF policies in the round (and no specific restrictive NPPF policies apply – which should now include ‘related’ development plan policies following Suffolk Coastal District Council v Hopkins Homes Ltd & Onr [2017] 1 WLR 1865).

DCO Decision Confirms Heritage Approach

In R (on the application of John Mars Jones on his own behalf and on behalf of the Pylon The Pressure Group) v The Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 1111 (Admin), the High Court dismissed the judicial review of a Development Consent Order made under the Planning Act 2008 by the Secretary of State for Business, Energy and Industrial Strategy.  The Order authorised an overhead electricity line to wind farms following developer requests to connect to the network. The Claimant, whose Grade II* listed Tudor farm lay within 125 metres of the route, challenged the decision to make the Order on several grounds, including the treatment of heritage effects.

The Secretary of State was required to regard to two relevant policy statements under section 5 of the 2008 Act – Overarching National Policy Statement for Energy (EN-1) (“EN-1”) and the National Policy Statement for Electricity Networks Infrastructure (EN-5) (“EN-5”).  The policy statements together required careful consideration of the feasibility of alternatives to overhead lines and the protection of heritage assets. He was required to determined the Order application in accordance with them unless, among other things, satisfied that the adverse impact of the proposals would outweigh the benefits.  He was also required to have regard to the desirability of preserving listed buildings or their setting (under regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010).

The Order was approved, on the basis that in the absence of substantial harm, there was no need for the disproportionate costs of undergrounding the cable section.

Dismissing the challenge, Lewis, J held on the main grounds that:

  • The  approach to heritage effects had been correct – identifying the scale of harm and then weighing the scheme benefits against, among other things, the heritage harm.
  • The regulation 3 duty had been complied with looking at the report and decision as a whole. There was no duty to consider alternatives not forming part of the Order scheme and the option of refusal had been properly considered.
  • Permanent extinguishment of private rights – despite the temporary nature of the Order -was not a principal controversial issue and did not require specific reasons to be given on it.
  • The fact that the weighing exercise was in a different part of the  part of the report to the assessment of heritage harm did not matter. It is worth noting that the limited (30 year) duration of the Order was accepted as minimising the impact on the setting of the listed buildings (being for period which would be insubstantial relative to the life of the buildings) and offering a sensitive approach to heritage effects.

Two become one

An examination of the current planning position on amalgamation of units. In recent years there has been a strong trend in the central London residential market for the creation of substantial residential properties through the reconversion of previously subdivided houses, the amalgamation of purpose-built flats or adjoining houses, and lateral amalgamation of units. As a consequence, there has been increased focus on decisions regarding amalgamation.

Read the full article

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

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.

SEA change

There has been a spate of recent cases concerning the requirement for plan makers to consider ‘any reasonable alternatives’ as part of the plan-making process and the role Strategic Environmental Assessment (SEA) plays in how that should be approached. This article looks at the recent decisions concerning the role that strategic environmental assessments play in the plan-making process, and the consideration of reasonable alternatives.

Read the full article

This article was first published in Property Law Journal (February 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.

Court of Appeal Confirms Full OAN Benchmark for Sensitive Area Developments

We commented on Knight Developments saga applying for 100 homes in the Ashdown Forest last year. Although upholding the High Court’s decision to quash the appeal permission, the Court of Appeal has confirmed that authorities resisting applications in National Parks and AONB will need to push the boat out on the duty to co-operate at the Local Plan stage to avoid being caught out on appeal.

Mitigation certainty

The High Court quashed an Inspector’s decision granting permission following errors in relying on recreational mitigation measures to offset traffic-related nitrogen deposition impacts on the Special Protection Area (SPA) and Special Area of Conservation (SAC).  The Court of Appeal agreed – by failing to identify any ‘solid’ S106 mitigation proposals, it was impossible to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered for the purposes of applying the precautionary principle to assessing SAC/SPA harm.

Exceptional Circumstances

The High Court also rejected the Inspector’s approach to considering Objectively Assessed Needs (OAN) when applying the NPPF116, which states that (emphasis added):

“Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:

  • the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy
  • the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way
  • any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.

The Inspector dismissed the alternative sites put forward by the authority not because they were unsuitable, but because ” the existence of other sites, which collectively still fall short of the full OAN, does not amount to an alternative“. He therefore did not use the constrained version which the Core Strategy was designed to meet (taking the SAC/ SPA and other constraints into account).  The High Court judgment appeared to suggest that alternative sites must be considered in detail, regardless of whether they would meet the FOAN.

Clunking Fist of OAN

The Court of Appeal disagreed:

  • There is nothing in the NPPF requiring alternative sites to be looked at across the whole of a local planning authority’s administrative area, or to an area larger or smaller than that. The area of search will be fact specific.  As a matter of fact, the Inspector had looked at both the local and the wider District housing land supply position.
  • Because most of the district was within the AONB, there were few alternative sites suitable for housing development that were “not equally constrained” as the appeal site.  The view that such other available housing sites were unlikely to meet unconstrained OAN was a matter of planning judgment.

Although it upholds the High Court judgment on the SAC/ SPA mitigation point, the Court of Appeal judgment nonetheless expressly endorses the use of FOAN as the benchmark for considering the relevance of alternative sites in National Parks, the Broads and Areas of Outstanding Natural Beauty. Where up to date Local Plans are adopted to deliver a constrained OAN, these areas are still open to appeals where the level of housing need not being met through the duty to co-operate is less than the up to date FOAN (and the decision-maker is prepared to give meeting needs exceptional weight).

Valued Landscapes Must Be Something Special

In Forest of Dean District Council v Secretary of State for Communities And Local Government& Anor [2016] EWHC 2429 (Admin), the local authority failed to quash the grant of permission for 95 homes in the open countryside on appeal. The development was in an undesignated landscape area. The authority claimed it was ‘valued’ nonetheless (so engaging NPPF 109 – requiring a starting point of “protection and enhancement” rather than a planning balance).

Out of the ordinary

Valued landscape is that which is “out of the ordinary”, rather than designated or simply popular (Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin)). The Inspector decided there were “no particular landscape features, characteristics or elements that demonstrate that the appeal site is in [landscape assessment] terms representative of the wider landscape i.e. a particularly important example which takes this site beyond representing anything more than countryside in general“. However he also concluded that  ‘valued landscape’ must mean a landscape that is considered to be of value because of particular attributes that have been designated through the adoption of a local planning policy document.

The Secretary of State accepted the claimant’s argument, that this was a misapplication of NPPF 109, but resisted quashing of the decision on the basis that the decision would have inevitably been the same. The developer fought back harder, on the basis that the Inspector properly found the landscape not to be valued because it lacked the necessary attributes, and so approached the NPPF 109 policy lawfully.

The claim was dismissed on the basis that while the Inspector’s phrasing was in places “less than optimal”, he had ultimately properly determined the issue having addressed the critical question of whether the landscape had extra-ordinary aspects taking it beyond ‘mere countryside’. The outcome would therefore have been no different.

The status and effect of valued but undesignated landscape is an increasingly common element of objections to greenfield housing schemes. Understanding whether there is any underlying objective basis for local perception of value is crucial to deal properly with these issues.

Amalgamation of units still at risk

As we have noted previously, the Town and Country Planning Act 1990 (“TCPA”) is clear that the conversion of a single unit into several units requires planning permission. Although the legislation is silent on amalgamation, it may too be a material change of use requiring planning permission (see our 13 May 2014 blog).

In the recent Cheyne Gardens appeal an Inspector dismissed an appeal against Royal Borough of Kensington and Chelsea (“RBKC”)’s decision not to grant a certificate of lawfulness for works to amalgamate two flats into a single dwelling. Planning permission had been refused and the applicant argued that a Certificate should be granted on the grounds that there was no material change of use requiring planning permission.  The analysis centred on two questions:

1          Is the change of use ‘development’?  ap

The appellant argued that the proposals should not be treated as development on the basis of Section 55(2)(f) TCPA and Article 3(1) of The Town and Country Planning (Use Classes) Order 1987. Both provide that where a building is used for a purpose of any class specified in the schedule to that Order, the use of that building for any other purpose within the same class shall not be taken to involve development of land. In Richmond upon Thames v SSETR & Richmond upon Thames Churches Housing Trust [2000] this was confirmed as engaged where the combined units were already in a single occupation.

The Inspector refused to apply Section 55(2)(f) and Article 3(1) on the basis that the two flats in this case were in use as two separate dwellinghouses, each occupied by a single household or person. The revised position would be one unit occupied by a single household or person.  Whilst the new arrangement, by virtue of the amalgamation, would be used for one of the uses within Class C3, it would not be the self-same building in the before and after scenarios.  The amalgamation was therefore development capable of amounting to a material change of use.

2          Is the change of use material in planning terms?

Richmond established that the extent to which a particular use fulfils a legitimate or recognised planning purpose (in terms of a purpose relating to the character of the land) is relevant in deciding whether a change from that use is a material change of use.   In particular, the loss of a particular type of residential accommodation where that loss was resisted by specific policies.

RBKC put forward evidence that de-conversions and amalgamations were anticipated to result in the loss of 400 homes over a five year period. Set against that, London Plan Policy 3.3 imposes a minimum 10 year housing building target of 7,330 dwellings for RBKC, with an annual monitoring target of 733 homes.  The Inspector considered that the loss of one unit should be considered against the annual target.  Despite accepting that this would be an “almost infinitesimal change” (and the loss of the single unit was under the 5 unit threshold set in the RBKC policy) he nonetheless decided that it would “as a matter of fact and degree have a significant impact in planning terms” concluding that circumstances had “changed significantly” since the adoption of that policy.

So what?

The focus of recent amalgamation appeals has been on the materiality of the change, rather than the question of whether there has been a change of use. The decision reflects the approach applied by the High Court in June, quashing CLEUD and Section 78 appeals on the basis that the Inspector should have taken account of generalised housing need arguments despite the lack of a specific policy threshold.

Although there is real scope to achieve permission on the basis that the loss of supply is clearly de minimis, the Cheyne Gardens decision confirms that decision makers will continue to treat general housing supply policies as a basis for regarding small amalgamations as material even though more specific policies on such changes do not necessarily warrant it.  The difficulties of doing so in the absence of such policies are illustrated by the 77 Drayton Gardens decision, in which the Inspector refused to grant a CLEUD (on the basis that a material change had occurred by virtue of amalgamation of two units, treating the existence of restrictive policies as weighing on the ‘threshold’ question of whether a change of use had occurred). He nonetheless quashed the related enforcement notice and granted permission on the basis that evidence of housing need (including for larger units) and actual supply outweighed the conflict with the development plan.