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Improving the use of Planning Conditions?

Too many unnecessary and overly restrictive conditions are still routinely attached to planning permissions, driving up costs and impeding development. It is against this backdrop that the Government proposed further reforms in the recently published Neighbourhood Planning Bill aimed at streamlining the use of planning conditions.

Long game

This is not a new objective. Since the Killian Pretty Review in 2008 successive Governments have been on a drive to minimise the use of unnecessary conditions. For instance, in April 2015 the Government introduced the concept of ‘deemed discharge‘, whereby an applicant can treat certain conditions as discharged if the LPA fails to reach a decision in the requisite time frame. Although the intention was admirable, it is debatable whether this reform has been effective given that the power is rarely relied upon in practice.  As we have pointed out before, part of the answer has to be improving the quality of some applications in the first place and giving a less risky route to appeal onerous conditions.

Current proposals

textThe DCLG consultation ‘Improving the Use of Planning Condition’ (the ‘Consultation’), which was launched in conjunction with the Neighbourhood Planning Bill, seeks views on the Government’s proposals to improve the use of planning conditions and closes on 2 November 2016.

There are 2 key elements to the Government’s proposals:

  1. Restriction on the use of pre-commencement conditions without prior approval by the applicant; and
  2. Prohibition of specific types of conditions.

1) Restriction on the use of pre-commencement conditions

LPAs would not be permitted to use pre-commencement conditions without prior approval by the applicant. By giving applicants an earlier opportunity to challenge unnecessary pre-commencement conditions, it is hoped that a consensus can be reached between the parties at the outset and the likelihood of appeals reduced.  Of course, there is a risk that front loading the process will lead to delays in planning applications being determined.  There are several practical implications:

  • Where an applicant refuses to accept a proposed pre-commencement condition the LPA will have a number of options at its disposal: (i) revising the condition so that it is agreeable to the applicant; (ii) allowing compliance with the condition post commencement; (iii) removing the condition in its entirety; or (iv) refusing planning permission.
  • The threat of refusal may do two things. Firstly, force applicants to consider whether they have really included adequate detail in the application itself. The answer will often be ‘no’. Secondly, accept unsatisfactory conditions in order to secure the permission (particularly where the grant of permission is a pre-requisite for the release of funds), and then use Section 73 to seek to remove the offending condition while avoiding an appeal scrutinising the merits of the entire application afresh.
  • The restrictions will not apply to outline permissions. The Consultation does not explain why.  However, the impact of delays caused by pre-commencement conditions is arguably lessened in the case of outline permissions given that development cannot commence until reserved matters have been approved in any event.

2) Prohibition of specific types of conditions

At present, LPAs have a broad power to impose “such conditions as they think fit” providing they meet the tests prescribed in the NPPF, its supporting guidance and case law.

The Government’s proposals are intended to provide greater clarity about conditions that do not meet these policy tests and should therefore be prohibited. The Consultation sets out examples of conditions that are categorised as unacceptable by existing planning practice guidance and seeks consultees’ views on whether such conditions should be expressly prohibited through legislation.

Given the relevant tests for using conditions are already enshrined in the NPPF and the example conditions set out in the Consultation are effectively prohibited (albeit through guidance rather than statute), the purpose served by this aspect of the reforms is questionable. A more productive use of this legislation would be to use the conditions as a benchmark for reasonableness, and allow binding decisions on them, via the mooted Dispute Resolution Service under the Housing and Planning Act 2016.

Conclusions

The reforms are unlikely to herald a new era in which conditions are used conservatively and pre-commencement conditions are consistently agreed upfront without the intention of resorting to Section 73. Bolder reform, providing a quicker right of appeal or up front, binding dispute resolution on this specific point, would be a much better outcome.

Neighbourhood Planning Unchained? The Neighbourhood Planning Bill 2016

Having lost its infrastructure component between the Queen’s Speech and publication, the slimline Neighbourhood Planning Bill had its first reading in the House of Commons earlier in September, and its technical consultation is open for responses until 19 October 2016.

The most interesting element of the Bill from a neighbourhood plan perspective is the process for modifying a neighbourhood plan – although the requirement for subsequent regulations means the precise effect is not yet known.

nhdChanges to bear in mind

This provision is helpful following the changes to the Planning Practice Guidance made earlier in the summer, which suggested that a fresh neighbourhood plan process would be needed (including a referendum) to update a plan where its policies become out of date.

The Bill provides a three tier process:

  • The local planning authority may make minor modifications with the consent of the neighbourhood planning body, without further consultation, examination or a referendum.
  • Where more substantial changes are proposed, a streamlined process is available (as long as the changes do not change the nature of the plan).  An examiner will then consider the amended plan (normally via written representations, and a further referendum is not required).
  • If the modifications would change the nature of the plan, a fresh neighbourhood plan process would be required. 

While it is questionable how streamlined this written representation process will be, and whether it would apply in circumstances where neighbourhood plans must be updated to be in general conformity with new local plans, the prospect of a quicker and simpler way of modifying a neighbourhood plan is to be welcomed.  Owners and developers will need to monitor carefully whether changes are being made that would prejudice their interests (and whether the process is being followed properly).

Weight

There are also several provisions which seek to give greater weight to neighbourhood plans, perhaps with political intentions. For example, provisions give weight to neighbourhood plans which have passed referenda but have not formally been “made” by the local authority.  It is not clear how much of an issue this has been, particularly given the current Planning Practice Guidance which states that emerging neighbourhood plans can be a material consideration, referring back to paragraph 216 of the National Planning Policy Framework weighing of emerging plans.  However, the Government is clearly keen to emphasise the importance of neighbourhood plans, and make it clear that local planning authorities cannot limit the consideration of neighbourhood plans by failing to “make” them. The Bill also requires local planning authorities’ statements of community involvement to set out their policies for giving advice and assistance with the making and modification of neighbourhood plans.

These changes demonstrate the continuing focus on and political will behind neighbourhood planning.

 

CPO – gentrification or regeneration?

The recent refusal by the Secretary of State to confirm Southwark Council’s CPO for the next phase of the Aylesbury Estate development demonstrates a meticulous adherence to  parts of the CPO Guidance which have largely been paid lip-service to in many previous CPO decisions.

The mantra that a compulsory purchase order should only be made in the “public interest” is often justified by the inevitable regenerative benefits of development projects.

And that should be good enough, should it not?  – when not a day goes by that the news is reminding us of our housing crisis, that our town centres are failing, of the social divides which exist within our local communities and, as we wait with bated breath, to see what long-term impacts Brexit will have on construction, funding and development, once that axe is finally swung.

Indeed, both the Secretary of State and Inspector agreed that the redevelopment of the Aylesbury Estate would provide social and economic benefits to the area.  However, it was concluded that these benefits were not so significant to justify the lawful interference with the Human Rights of those objecting to the Order.  This was largely based on the conclusion that existing leaseholders, without investing significant savings or taking out new mortgages, would not be able to afford to relocate into new properties provided by the redevelopment and therefore forced to move away from their local community.  He also reached the conclusion that not enough effort had been made to acquire the outstanding interests by agreement.

gentThe decision raises some real issues for the CPO industry.  It paints an uncomfortable picture of CPO being a tool of gentrification, driving residents and small businesses out of their communities on account of rising land values and rents; the polar opposite of what a CPO is intended to achieve, which should be to improve and restore vitality to a local area.

It also creates a real tension with the current reforms to CPO compensation, which essentially seeks to ensure that those subject to compulsory acquisition should not gain any benefit from any enhanced value created by the regeneration scheme underlying a CPO.

It raises the question of whether Council’s should wrestle back control from developers when seeking to engage with those affected by CPO.  Most CPOs are developer-led and their surveyors will be at the fore of seeking to negotiate acquisition of land by agreement, albeit with a duty of care to the Council.  This possibly creates the wrong perception that there is a lack of engagement by the Council.  Greater visibility of the Council promoting the CPO and a genuine strategy to engage will be important.

Whilst the decision is, in some respects, a breath of fresh air that reminds us the impact CPO and redevelopment can have on individuals and local communities must be given more careful consideration together with a thorough review of solutions which can be put in place to maintain the identity of the local community.  One does have to question how genuinely balanced the decision was when the majority of existing residents had raised no objection, the scheme was set to deliver over 800 new residential units and other benefits; yet the CPO failed on the back of only 8 outstanding objections.

Southwark Council has announced they will be judicially reviewing the decision; a sensible move given its ramifications.

Planning TV – Spotlight on Planning in London

Planning TV - LOGO PURPLE BACKGROUND

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.

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In this episode of Planning TV, Michael Lowndes (Executive Director at Turleys) joins Jamie Mckie to discuss planning challenges in London.

Planning TV – Spotlight on Section 106 Review Mechanisms

Planning TV - LOGO PURPLE BACKGROUND

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.

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In this episode of Planning TV, we briefly explain Section 106 review mechanisms.

Simply the best? A review of what ‘best consideration’ means in practice and how it is affecting the property market

In a world of increasing devolution and local responsibility, local authorities still need ministerial consent to dispose of land at less than best consideration. Why is this the case, and what does this mean in practice?

Read the full article

This article was first published in Property Law Journal (September 2016) and is also available at http://www.lawjournals.co.uk/

High Court clarifies application of presumption in favour in heritage harm case

high courtThe High Court has provided further guidance on the application of the presumption in favour of sustainable development (paragraph 14 of the NPPF) in Forest of Dean District Council v Secretary of State for Communities and Local Government & Another [2016] EWHC 421 (Admin). The case is helpful for authorities resisting appeals where there is an absence of five year housing land supply.

Permission was granted on appeal for a housing scheme in the absence of a five year housing land supply (HLS). The Inspector applied NPPF49 (which engages the NPPF14 presumption in the absence of a 5 year HLS). The presumption recommends approval where there is no 5 year HLS, unless “the adverse impact of doing so would significantly and demonstrably outweigh the benefits, … or specific policies in the NPPF indicate that development should be restricted.” That includes where the plan has only recently been adopted (Woodcock Holdings Limited v Secretary of State for Communities and Local Government and Anor [2015] EWHC 1173 (Admin)).  NPPF126 to 134 provide specific policies on designated heritage assets.  NPPF134 requires less than substantial harm “to be weighed against the public benefits of the proposal…“.

The scheme was acknowledged to cause ‘less than substantial’ harm to the character and appearance of a nearby Grade II listed farmhouse. The Inspector treated that harm as outweighed by the overall public benefits. The authority’s grounds of challenge under section 288 of the Town and Country Planning Act 1990 included that he had wrongly applied the presumption, by failing to treat NPPF134 as a policy indicating that development ‘should be restricted’.

Coulson J held that NPPF134 is a policy “restricting development” (despite the fact that it does not contain a restriction), interpreting that phrase broadly.  With the presumption disengaged, an “unweighted” cost-benefit balancing exercise must be undertaken.

The finding of harm (regardless of whether it is “substantial” for NPPF purposes) gives rise to a statutory, albeit rebuttable, presumption against the grant of consent (South Lakeland District Council v Secretary of State for the Environment and Another [1992] 2 AC 141) being outweighed by material considerations. Applying the first, weighted, limb on its own meant that it was likely that the wider statutory presumption of refusal where there is any harm to designated heritage assets had been lost.

There is likely to be a broadening of the search for ‘restrictive’ policies in defending refusals. That said, where the decision taker has concluded that there is inadequate HLS and the overarching legal hurdle to approving less than substantial harm has been cleared, it should ultimately make little difference to the outcome.

Troubled waters – Equalities Duty and Alternative Sites Failings Fatal

bridgeThe public sector equality duty under Section 149 of the Equality Act 2010 (PSED) is playing an increasing role in planning decisions. In LDRA LTD & ORS v Secretary of State for Communities and Local Government & ORS [2016] EWHC 950 the High Court quashed an Inspector’s decision to grant permission on appeal for an onshore office and warehouse facility to serve offshore wind farm installations.  The authority had refused permission on the grounds of unacceptable amenity harm to adjacent residential occupiers.  The Inspector considered the proposals at an Inquiry and attended an accompanied site visit, during which access to the riverside for local people and the existence of alternative sites with lesser potential impacts were pointed out.  The claimants challenged under Section 288 of the TCPA 1990.

The High Court agreed that the Inspector had failed to give effect to the PSED when considering effects on access to the riverside area for disabled people.

Equalities duties

Section 149 requires authorities to have “due regard to the need” to “eliminate discrimination […] [and] advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not […]” when exercising functions. Disability is a relevant “protected characteristic”.  The key principles are that:

  • The duty is not a duty to achieve a result but to have due regard to the need to achieve the statutory goals in a way that is integral to the decision making process (R (Baker) v Secretary of State for Communities and Local Government [2009] PTSR 809).
  • Decision makers must be properly informed and are under an inquisitorial duty, requiring rigorous enquiry and reporting (applying R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) and R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 94).

Process matters

Having concluded that only able-bodied people would have the “continuing opportunity to reach the riverside” near the development, the Inspector was held to have failed to discharge the PSED in the absence of: detailed consideration of the value of the existing amenity to disabled people, comparable alternatives, practical difficulties which disabled people and carers would experience and the loss of a resource (access to a car park) would not merely be less convenient, but may result in an inability to access the riverside at all.  The fact that the PSED issues had not been identified as a “main issue” in the appeal was irrelevant to the decision to quash.

Conflicting approaches

The Judge held that Section 31 Senior Courts Act 1981 – preventing a quashing order where it is “highly likely” the outcome would not have been substantially different had the PSED been applied – did not apply given that the PSED is concerned with process, not simply outcomes. This is presumably based on the public interest exception to Section 31(1) under Section 31(2B).  Contrast this with the Court of Appeal’s approach in West Berks accepting a retrospective Equalities Impact Assessment as ‘adequate and in good faith’ to be able to discharge the PSED because a different process “would not have led to a different conclusion“.

Alternative solutions

The Judge also held that the claimants had been substantially prejudiced by the Inspector’s failure to address an alternative site which may well have influenced the outcome. She rejected the suggestion that the Inspector was not required to absorb evidence during the site visit, holding that the purpose of the visit was to identify and view possible alternative sites.  Failing to take into account the identification of the alternative made during the site visit was a breach of natural justice/procedural fairness.

Planning TV – Spotlight on Neighbourhood Planning

Planning TV - LOGO PURPLE BACKGROUND

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.

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In this episode of Planning TV, we take a look at neighbourhood planning.  Liane Hartley FSRA (Director of Mend) joins Jamie Mckie (Dentons) to discuss the issues.

Lions and tigers and … Assets of Community Value

The first Asset of Community Value (ACV) case to reach the Upper Tribunal has upheld the listing of a field used by the local community without the permission of the landowner.  The decision will be of considerable interest to the owners of similar properties, considering the uses of land which can benefit the community for ACV purposes, and the bar to show a continuing community use.  The process for listing an ACV is explained here. The case has serious implications for owners allowing inoffensive use of land with development potential, including ‘meanwhile’ uses of buildings.

Backdoor village green?

fieldBedmond Lane field, located in the Green Belt and crossed by two footpaths, had been used informally by the local community for 40 years until 2014. A local residents’ association nominated it as an ACV in 2013, and it was listed by St Albans City and District Council without notice to the owner (Banner Homes) in March 2014.  Banner requested a review of the decision to list the field (and fenced the footpath/ erected notices stating “private land no unauthorised access”).  The Council decided to maintain the listing in September 2014.  Banner appealed to the First Tier Tribunal, which upheld the listing decision in April 2015.

Banner were then granted permission to appeal to the Upper Tribunal on two grounds:

  • whether the community use in Section 88(2)(a) of the Localism Act 2011 could include an unlawful use (Ground 1); and
  • whether there was a reasonable prospect of a community use in the next five years (Ground 2).

Unlawful community uses

Banner argued that use of land without permission could not meet the test for listing as an ACV.  Rejecting that, the Upper Tribunal pointed to:

  • the lack of specific exclusions in the ACV legislation for unlawful use (and allowance for criminal use in dealing with acquisition of rights by prescription);
  • the fact that the requirement for the use to further the social wellbeing or social interests of the local community provides some “inbuilt protection” from a public policy perspective; and
  • the fact that ACV registration does not create any private rights, unlike the Town and Village Green regime.

More than fanciful

On Ground 2, the Upper Tribunal rejected the argument that the ‘realistic reuse’ test under Section 88 of the Localism Act ACV regime requires anything more than a possibility (as opposed to a likelihood) of a main community use of the land in the future.  Noting Banner Homes’ insistence that it was not and never had been its intention to grant rights of access or use to the public, Levenson J concluded that the future use test was one for the local authority or the Tribunal, and “is not a matter for veto by the landowner”.

The First Tier Tribunal’s decision – that it was “not fanciful” that a community use could re-start if Banner had a change of heart – was upheld. Banner’s difficulties in securing planning permission to graze horses on the Green Belt land (and the limited chance of planning permission being obtained for other uses in the immediate future) was treated as relevant.

Planning prospects

Government guidance recognises that LPAs may treat ACV status as a material consideration.  The Upper Tribunal judgment suggests that “as a matter of planning policy any necessary permission is likely to be refused while land is listed”.  That is wrong but reflects the way that ACV listing is emerging as a trip hazard for developers.

The combination of a low bar to meet the future use test and the limited weight given to the representations of owners will be a matter of concern for the owners of potential ACV sites.  While it is sensible that the decision maker considers the property and its potential in the round, to avoid all owners promising they would never allow a community use and therefore defeating the listing of any asset, a sensible balance needs to be struck.

This case will be of concern to owners of similar development sites.  While the use of fences and notices may interrupt the creation of other rights, they may not prevent the prospect of ACV listing, and owners may wish to take concrete steps to show that it would be fanciful for the main use of the property to be a community use in the future – possibly by obtaining planning permission for a non-community use if possible.