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Care needed in applying local green belt policies

In R (Lensbury Ltd) v Richmond-Upon-Thames London Borough Council [2016] EWCA Civ 814 the Court of Appeal disagreed with the High Court and agreed to quash permission for a hydro-power installation at a weir on Metropolitan Open Land (MOL). The appellant hotel owner succeeded on the grounds that the authority had, in applying its own policies on MOL development, failed to apply the stricter London Plan policies.

London Green Belt

The London Plan gives MOL equivalent status to green belt (applying NPPF policies – i.e. inappropriate development should not be allowed unless there are ‘very special circumstances’ (VSC)). The local plan policies allowed the development to be classified as ‘appropriate development’ in a way that the London Plan policy did not. The authority considered only the local policies.

Failing to refer to the specific (London Plan) policy in the committee report which provided the rationale for the decision was not fatal when considering the extent of compliance with the development as a whole (under Section 38(6) Planning & Compulsory Purchase Act 2004). The analysis did, however, have to make clear that “a particular policy has been brought into account“.

VSC need to be clear

By failing to identify the development as inappropriate in the context of London Plan MOL policy, the authority had failed to ask whether VSC existed which justified the exceptional grant of planning permission. The S.38(6) duty – to determine in accordance with the development plan as a whole, or identify reasons for a different approach – had therefore not been discharged.

The judgment is a reminder that the Courts are pragmatic on the application of S.38(6). The duty does not require a mechanistic treatment of each policy (City of Edinburgh Council v Secretary of State for Scotland [1977] 1 WLR 1447).  An overall finding of “compliance or conflict” with the development plan as a whole is sufficient, whether express or implicit.

The judgment notes that the dilution of the London Plan approach by the local plan policy appeared to have been overlooked. One oddity of the case is that agreement between the parties that the two policies did not take precedence over each other does not appear to reflect S.38(4), which provides that where there is conflict the most recently adopted policy trumps the older one.

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/

Neighbourhood Plans First But How Long Will They Last?

Judgment has been handed down in the first Neighbourhood Plan (NP) case to reach the Court of Appeal, reinforcing the position that NPs can come forward in the absence of up to date Local Plans.

As discussed previously, developer DLA Delivery Limited judicially reviewed the decision to hold a referendum on the draft NP as, in addition to environmental concerns, DLA claimed that the plan was not in accordance with the appropriate strategic policies.  The NP had been prepared in accordance with the policies of the unadopted, emerging Local Plan, rather than the expired strategic plan.

In the High Court, Foskett J dismissed the claim, allowing permission to appeal on the ground of conformity with strategic policies.  Permission was subsequently given to appeal on additional grounds.

Conformity with what?

On the first ground, whether the district council misunderstood and misapplied the requirement that the NP be in general conformity with the strategic local policies, Lord Justice Lindblom agreed with Foskett J that a NP could proceed in the absence of a strategic development plan document. Lindblom LJ added that where the local plan is historic, a NP cannot logically lack general conformity, as the plans are made for wholly different periods.  The judgment makes clear that a NP can come forward in the absence of an up to date local plan.  Both the National Planning Policy Framework (NPPF) and Planning Policy Guidance (PPG) references to a NP being in general conformity are intended to prevent the “mischief” of a NP frustrating an up to date local plan, rather than requiring a local plan to be in place first.

Properly assessed, but not explained

On the second ground, whether the NP failed to meet Habitats Directive requirements due to the lack of evidence that the Suitable Alternative Natural Greenspace (SANG) required to mitigate the proposed development would be provided.  Lindblom LJ found that the examiner was not irrational to have considered that SANG would have to be provided, despite the timing and location being uncertain (unlike the level of certainty needed when dealing with a planning application).  The examiner failed to address the lack of evidence for SANGs, and should have done, but Lindblom LJ did not consider this to be fatal, finding that addressing the lack of evidence would not have changed the conclusion.

Early Warning

This judgment clearly demonstrates that NPs can come forward in the absence of an up to date local plan. However, the groups preparing NPs in such areas should be aware of the risk that their NPs may become “out of date” when a local plan with a higher objectively assessed housing need is adopted.  The Written Ministerial Statement, as clarified by the Housing White Paper, provides protection for NPs unless there is a significant lack of delivery in the local planning authority area – but this will be outside the control of the NP group.  Many NP groups and local authorities will also be reassured by Lindblom LJ’s robust defence of the current way of appointing examiners.

The judgment also flagged other areas of caution for NP bodies. Lord Justice Lindblom found the consideration of the environmental mitigation by the examiner was not wholly correct, whilst concluding that it was not fatal to the plan.  The conclusion that the screening opinion was actually in breach of some habitats legislation will be a particular red flag.  Screening opinions and SEA considerations raise particular risks for NPs.  NP forums need to give careful attention to their proper preparation, which can be tricky where groups may have limited experience of such documents.

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.

Developer contributions – which way next?

We look at the government’s CIL review, and put forward alternative ideas for fixing a broken system.

The Housing White Paper promises a new approach to developer contributions, to be announced in the Autumn Budget. But the government’s parallel review of the community infrastructure levy (CIL), published in February 2017, is illustrative of a confused regime. The future for developer contributions deserves a clearer path, so planning can focus on place-making, not value capture.

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This article was first published in Estates Gazette (February 2017) and is also available at https://www.egi.co.uk/legal/developer-contributions-which-way-next/

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.

Planning TV: Local Planning Authorities – Capacity and Skills Gaps

In this episode of Planning TV, Hannah David, director of Planning Futures, joins Alice Lester MBE, Head of Planning at Brent Council and Jamie McKie, Dentons Planning and Public Law Team, to discuss the challenges local planning authorities face in finding skilled planners.

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 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.

 

Property Owner Business Improvement Districts

There are now over 200 business improvement districts (BIDs) in the country.  BIDs are democratic, business-led vehicles with an ability to raise a mandatory levy, based on rateable values, to invest in their areas.  They focus on issues of importance to local ratepayers, and the levy is paid by ratepayers.  Since BID legislation first emerged in 2003, there has been a lobby for a levy to be charged on property owners as well as on the payer of business rates. In many places property owners are able to bring a different perspective on, and longer term funding for, the changes necessary for a place to be successful.  After 14 years of waiting the Local Government Finance Bill now brings forward the right for property owners to start their own BIDs.  This builds on the experience of three London BIDs who, because of a happy coincidence back in 2009 of the business rate supplement and Crossrail, have been able to bring forward property owner BIDs earlier than anyone else.

The note, prepared by Dentons and the BIDsBusiness, sets out some of the challenges and opportunities that the draft legislation offers.  Most importantly it argues that it would be helpful to be able to separate ratepayer and property owner BIDs.  In many areas they will overlap but there should be an ability for a property owner BID to come forward without a ratepayer BID.  Separately there are issues in relation to BID set up, information requests and governance that need to be settled for both ratepayer and property owner BIDs.  The legislation could be used to address those issues.

With some refinement the Bill could genuinely help BID areas and provide a new energy for BIDs, an encouragement of long term vision and significantly deeper pockets to fund change.  Let’s hope that the opportunity is seized.

Planning TV: Looking Forward to 2017

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 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.

In this episode of Planning TV, Mike Kiely, Planning and Development Advisor at Bexley Council, joins Alice Lester MBE, Head of Planning at Brent Council, and Jamie McKie, Dentons Planning and Public Law Team, discuss the challenges likely to be faced in the planning and construction industry in 2017.