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Planning TV: What does the election mean for planning

In this episode Derek Stebbing from IPE, Michael Lowndes from Turley, and Jamie McKie from Dentons discuss a range of issues from the Housing White Paper, how Europe may sideline the legislative agenda for planning, the impact on local planning decisions (such as purdah), and a wish list for planning post-election.

Dentons Planning TV is a new and innovative platform for engaging in and reacting to the latest developments in the dynamic world of planning. Its mission statement is simple: to provoke debate and facilitate engagement at all levels in the planning process.

Brought to you by Dentons and Citiesmode it draws on the knowledge of a core panel of experts from across the sector, supplemented with special guests hand picked for their particular expertise. From Greenbelt to Brownfield, national planning policy to local plan-making and everything in between, Dentons Planning TV provides a unique insight into the thoughts of those involved at the sharp end.

Work in progress

We look at the current status of neighbourhood planning. The government has demonstrated its continuing commitment to neighbourhood planning by naming a Bill after it, including it in a written ministerial  statement and in the housing white paper, and continuing to emphasise its importance in recent appeal decisions. This article considers recent developments and the direction of travel.

Read the full article

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

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.

The new New Towns Agenda

The third reading of any Bill in the House of Lords is normally fantastically dull. That was not true of what is now the Neighbourhood Planning Act 2017. Lord Mathew Taylor introduced a new and apparently innocuous clause that allows a completely new and parallel way of bringing new towns forward. It authorises the rewriting of the existing new town legislation, by regulation, to allow local authorities, or groups of local authorities, to ask the Secretary of State to designate an area as a new town and for a development corporation to be set up.

If agreed by the Secretary of State, then the local authorities will, effectively, step into the role that the Secretary of State occupied in the old new towns. They will control the way in which their new town development corporation is governed, operates and delivers new communities.  They will be accountable for successes.  They will be responsible for failures. Some powers will, inevitably, be retained by the Secretary of State, at least in the short term – the power to confirm CPOs and to authorise Local Development Orders. In time, with true devolution, even these powers could be left to the parent authority.

What will this mean? Many authorities are already exploring the possibility of new towns and particularly garden communities. One of the real difficulties is educating landowners that the cost of developing the necessary community and social infrastructure up front is significant, and that the legacy costs of stewardship will eat into land values, as much as if not more than the traditional enabling costs. This means that the normal landowner model of a minimum land value + a share of net proceeds or overage does not really work.  There is also a need to ensure that all land is bound into the same broad vision and programme. If that is not the case then the allocation of costs can be unfair.  The first phases will have to bear significant infrastructure costs that then increase the value of the land in later phases. If the later phases choose to develop independently then it may be problematic making sure that they bear their fair share of the initial place-making investment. A development corporation model helps to solve this. It allows early and extensive acquisition. It also ensures that the underlying “scheme”, the new town, is more completely disregarded for valuation purposes.

In practice, development corporations should rarely be necessary. Local authorities already hold most of the appropriate powers. However, the use of, or the threat of the use of, a development corporation may well be a helpful bargaining tool. It should allow local authorities to reach agreements with reluctant landowners. It should ensure that all parties contribute and benefit equally. It should be a weapon of last resort.

A complex process

We look at the current approaches to assessing compensation in the context of CPOs. The promotion of nationally significant infrastructure projects such as HS2, Crossrail and garden cities, together with the recent (and continued) support in the housing white paper for the use of compulsory purchase to assist in delivering housing, confirms that the use of compulsory purchase orders (CPOs) will play an increasingly prominent role in the delivery of development. The inevitable requirement of exercising CPO powers is that those dispossessed of their land are entitled to appropriate and fair compensation.

Read the full article

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

Update: When does a condition restricting use remove PD rights?

Last month we blogged on the High Court’s judgment in Dunnett, which refused to quash the Secretary of State decision not to grant a Certificate of Lawfulness in respect of the use of office to residential Permitted Development rights where a condition on the office consent was effective in excluding GPDO rights. The condition stated that “The use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained.”

The Court of Appeal has now upheld the High Court’s judgment.

The result? Uncertainty prevails.

Trump reigns

The Court of Appeal noted that there is no bar to (cautiously) implying terms into planning conditions: doing so is an objective, fact-dependent exercise in which the Court asks ‘what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole’ (applying Trump International ([2015] UKSC 74).

Deconstructing the condition

Against that backdrop, the Court of Appeal held:

  1. The words ‘and for no other purpose whatsoever’ were, in this case, enough not only to control the B use of the property, but also to exclude future reliance on PD rights. The wording that followed – ‘without express planning consent from the Local Planning Authority first being obtained’ (the “Tail”) – just made the exclusion ‘the more abundantly clear’.
  2. The Tail cannot sensibly include a planning permission granted through the GPDO. The appellant argued that it was necessary to read into the Tail ‘or the Secretary of State’ because of the unavoidable possibility of the Secretary of State granting planning permission on appeal against a refusal by the LPA. Once that is read in, the Appellant submitted, it must include Secretary of State decisions through the GPDO as well as Secretary of State decisions on appeal as there is no basis for including one but not the other. The Court rejected this: it is not necessary to imply ‘or the Secretary of State’ at all because appeal rights do not depend on conditions; they are conferred automatically by statute.
  3. Further, if the Court were to accept the appellant’s argument, the Tail would include all means of granting permission and would therefore have no limiting effect at all. The LPA could not have intended to include useless wording.
  4. The reason for the condition and the site’s planning history reinforced the findings above by reflecting the council’s intention to maintain close control over the site.

Comment – it depends

Unhelpfully, given Trump, implied meaning will always depend on context. That said, as a result of this judgment:

  • It will be very hard to show that stating that uses are ‘limited to’ a particular use will, alone, be enough to exclude PD rights.
  • Words such as ‘for no other purpose whatsoever’ will likely do the job, but ‘for no other purpose’ alone may hang in the balance.

The difficulty will be for wording that is more emphatic than ‘limited to’ but less emphatic than ‘for no other purposes whatsoever’.

It is not a great outcome for investors, who will have to puzzle over the endless and often pointless variations and contortions in condition wording pumped out by decision makers to understand what price planning freedom. A set of standard conditions embedded in the Planning Practice Guidance which make clear how PD rights should be dealt with and provide a level playing field would be welcome.

With thanks to Ralph Kellas for preparing the blog.

Planning TV: The Housing White Paper and Speeding Up Delivery


In this episode of Planning TV, Sam Stafford, Strategic Land Director at Barratt Developments PLC joins Jamie McKie, Dentons and Hannah David, Director of Planning Futures to discuss the measures for speeding up housing delivery suggested in the Housing White Paper. Will the new policies have any effect on housing completions and are the right issues being identified?

Dentons Planning TV is a new and innovative platform for engaging in and reacting to the latest developments in the dynamic world of planning. Its mission statement is simple: to provoke debate and facilitate engagement at all levels in the planning process.

Brought to you by Dentons and We Plan London, and Alice Lester MBE from Brent Council, it draws on the knowledge of a core panel of experts from across the sector, supplemented with special guests hand picked for their particular expertise. From Greenbelt to Brownfield, national planning policy to local plan-making and everything in between, Dentons Planning TV provides a unique insight into the thoughts of those involved at the sharp end.

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/.

 

Planning TV – Spotlight on the Housing White Paper

In this episode of Planning TV, Ian Fletcher, Director of Policy (Real Estate), British Property Federation, Richard Crawley, Planning Advisory Service and Stephen Ashworth, Partner, Dentons discuss the implications of the Housing White Paper released by the government in February.

Dentons Planning TV is a new and innovative platform for engaging in and reacting to the latest developments in the dynamic world of planning. Its mission statement is simple: to provoke debate and facilitate engagement at all levels in the planning process.

Brought to you by Dentons and We Plan London, and Alice Lester MBE from Brent Council, it draws on the knowledge of a core panel of experts from across the sector, supplemented with special guests hand picked for their particular expertise. From Greenbelt to Brownfield, national planning policy to local plan-making and everything in between, Dentons Planning TV provides a unique insight into the thoughts of those involved at the sharp end.