Month: April 2023

Mind Blowing Decisions

“Mind blowing decisions causes head on collisions

Mind blowing decisions causes head on collisions”

(Heatwave, 1978)

Decisions, decisions.

The Secretary of State’s 6 April 2023 decision to refuse planning permission for Berkeley Homes’ proposed development of 165 new dwellings in Cranbrook, Kent (a decision in fact taken by planning minister Rachel Mclean on behalf of the Secretary of State) = a head on collision for sure.

Tunbridge Wells Borough Council had resolved to approve the scheme but Natural England, concerned as to the prospect of harm to the High Weald Area of Outstanding Natural Beauty, secured its call in by the Secretary of State.

The council has slightly less than five years’ housing land supply. The scheme included 40% affordable housing: 50/50 rented and shared ownership.

To cut a long story short (read the decision letter and inspector’s report), the Secretary of State disagreed with the inspector’s recommendation that planning permission be granted.

On the main issues:

⁃ AONB: “Overall the Secretary of State agrees with the Inspector at IR823 that there would be some harm to the HWAONB, which would be limited, and that the harm to the landscape and scenic beauty of the HWAONB attracts great weight.”

Tucked within his conclusions on AONB this turns out to be a crucial passage in the decision:

“The Secretary of State recognises that both the HWAONB Management Plan and the High Weald Housing Design Guide emphasise that housing development in the HWAONB should be landscape-led. Whilst he agrees with the Inspector that the proposed development would deliver landscape enhancements (IR826), he does not find the proposal to be of a high standard which has evolved through thoughtful regard to its context (IR723). Overall, he does not find that the scheme is sensitively designed having regard to its setting. He finds that the design of the proposal does not reflect the expectations of the High Weald Housing Design Guide, being of a generic suburban nature which does not reproduce the constituent elements of local settlements. He also considers that the layout of the scheme does not respond to its AONB setting. Rather than being a benefit of the scheme, as suggested by the Inspector, the Secretary of State considers that the design of the scheme is a neutral factor in the context of paragraphs 176 and 177 of the Framework and the planning balance.”

Not “sensitively designed”? “… of a generic suburban nature”? It’s worth looking at the scheme drawings, design and access statement etc on the council’s planning portal. I would disagree. More fundamentally, there is something very odd about a minister (and civil servants) arriving at a conclusion like this, in the face of the elected local planning authority and hands on consideration, site visits and so on conducted at that stage and in the face of the conclusions reached by an inspector after many inquiry days and a site visit. And in the face of Government assertions that it still wants to see 300,000 homes built annually. Frankly why bother with all that if this is the outcome?

⁃ Air quality: “…there would be very limited harm to air quality, and he affords this very limited weight in the planning balance.”

⁃ Site allocation strategy: Whilst he agreed with the inspector that the local plan policies should be treated as out of date because of the lack of five years’ housing supply, because the shortfall was slight he disagreed with the Inspector’s assessment that both the policies and the conflict with them carry limited weight.

⁃ Historic environment: “For the reasons given at IR767-774 the Secretary of State agrees with the Inspector at IR773 that the proposed development would not harm any significant historic landscape resource and all of the individual features which could be of potential interest would be retained.”

⁃ Sustainable transport: “For the reasons given at IR790-793 the Secretary of State agrees with the Inspector that the development would promote sustainable transport in the terms of the Framework and accord with relevant development plan policy in that regard (IR794).”

Turning to the benefits of the scheme:

⁃ Housing delivery: “For the reasons given at IR763-764 the Secretary of State agrees with the Inspector that there is a clear need for both market and affordable housing in the Borough and that the proposed development would make a significant contribution to the delivery of both (IR764).”

⁃ Biodiversity: “…the proposed development would secure significant BNG such that it would accord with the Framework, including paras 174, 179 and 180 and development plan policy, as well as the eLP, in this regard (IR747).

⁃ Other benefits: “The Secretary of State agrees for the reasons given at IR774, IR720 and IR811 that the proposed reinstatement of hedgerows along historic boundaries and of the shaw in the southern fields would be beneficial to the time-depth character of the HWAONB (IR774). Furthermore, the proposed re-creation of Tanner’s Lane would also be beneficial in heritage terms as it would reinstate a historic feature in the local landscape (IR774). The Secretary of State agrees for the reasons given at IR720 and IR811 that the new woodland planting and management of existing woodland would be to the benefit of the environment and landscape. He further agrees for the reasons given at IR786 that the proposed highway works may result in improving highway safety. In addition, for the reasons given at IR811 the additional footpaths and substantial new publicly accessible amenity space would enhance recreational opportunities.”

Overall conclusion on benefits:

“The Secretary of State has had regard to the Inspector’s view at IR824 as to weight attaching to the benefits of the scheme, and notwithstanding his conclusion at paragraph 36 below that there is not a ‘very compelling case’ for the need for development of this type and in Cranbrook, overall he agrees that the combined weight of the benefits is substantial. However, he does not agree with the Inspector’s characterisation at IR826 that it constitutes ‘a package of exceptional benefits’.”

So “the combined weight of the benefits is substantial”….

Application of policies in the NPPF relating to development in the AONB:

⁃ Great weight should be given to conserving and enhancing landscape and scenic beauty in AONBs – conclusion that limited harm but that harm should be given great weight.

⁃ Planning permission for major development in the AONB should be refused unless there are exceptional circumstances justifying the development, and where it can be demonstrated that the development is in the public interest – no exceptional circumstances, not in the public interest.

Overall conclusions:

“Weighing in favour of the development are the need for and delivery of housing, the Biodiversity Net Gain, enhanced recreation opportunities, improvements in highway safety, heritage benefits to the historic landscape and landscape benefits by way of woodland planting and management, which collectively carry substantial weight.

Weighing against the proposal is the harm to the landscape and the scenic beauty of the HWAONB which attracts great weight. There is further harm by way of conflict with the spatial strategy which attracts moderate weight, harm to air quality which is afforded very limited weight and harm to the plan making process through prematurity which is afforded very limited weight.

The Secretary of State has concluded for the reasons given above that exceptional circumstances do not exist to justify the proposed development in the AONB and that the development would not be in the public interest. Therefore, paragraph 177 of the Framework provides a clear reason for refusing the development proposed and as such under paragraph 11(d)(i) of the Framework the presumption in favour of sustainable development is no longer engaged.

Overall, the Secretary of State’s conclusion on section 38(6) of the Planning and Compulsory Purchase Act 2004 is that the conflict with the development plan and the material considerations in this case indicate that permission should be refused.”

The decision appears to have been the final straw for housebuilders, already riled by the overtly anti-housebuilding theme of the proposed amendments to the NPPF (final version soon to emerge). See for example Builders lambast Michael Gove after he blocks plan for ‘generic’ homes in Kent (The Times, 15 April 2023 – behind paywall).

There were no costs applications in this decision but I do note that costs applications and awards appear to becoming more frequent. Often of course these are in favour of appellants where the case against grant of planning permission simply has not been made out by the relevant local planning authority (particularly where the decision to refuse was against officers’ recommendations) – e.g for one example amongst many this decision letter dated 20 April 2023, plus accompanying costs decision letter in relation to a student housing scheme in Bath.

But it’s not just appellants who achieve costs awards. Did people see this recent costs decision letter where Mid Suffolk District Council achieved a full award of costs against the appellant, arising from flooding and access issues which led the inspector to conclude that the appeal had no reasonable prospect of success? Proceed with caution.

By way of reminder (ok gratuitous plug), if you sign up to our free Town Library appeal decisions service you get a list each week of the most recent major planning appeal decisions (namely all those arising from inquiries as opposed to hearings or the written representations process) with links to the decision letters themselves.

Oh finally, another mind blowing decision: the Government continuing to press on with the proposed Infrastructure Levy. Truly a terrible proposal. You may have logged on to our recent clubhouse discussion (hopefully soon to emerge as a 50 Shades of Planning podcast), ahead of the 9 June deadline for responses to the Government’s current technical consultation. If there is anyone out there who can articulate why IL would be an improvement over the current system I would love to hear from you.

Simon Ricketts, 22 April 2023

Personal views, et cetera

Short Term Thinking

DLUHC published a consultation paper on 13 April 2023 setting out its proposal to create a new use class,  “C5 Short Term Let“,  to cover short term lets, and on related proposals to introduce new permitted development rights. So there will be a distinction between use classes C3  and C5. The Government will at the same time introduce permitted development rights into the General Permitted Development Order to allow changes from C3 to C5 and vice versa without the need for planning permission, unless the relevant local planning authority disapplies one or both of the permitted development rights by way of an article 4 direction.

It is vital that all those engaged in relevant businesses understand what is proposed, for instance serviced apartment operators; Airbnb type businesses and individual hosts, and build to rent businesses where there is a short-term letting element. There are opportunities, but also risks.

The tl:dr appears to be that in principle any flat or house in England (outside London) would be able to be used for Airbnb style short-term accommodation up to 365 days a year without the need for planning permission unless the local planning authority makes, with the necessary justification, an article 4 direction.

But it is all a bit confusing! At least, a number of us at Town Legal have been scratching our heads. Thanks incidentally to my colleague Aline Hyde for much work on this today – and for some of the text which follows.

 I think some of the confusion is down to the way that the proposal is trying to be all things to all people. The press statement is headed:

“New holiday let rules to protect local people and support tourism

New proposals will introduce a requirement for planning permissions for short term lets in tourist hot spots”

It explains:

“The government has listened to calls from local people in tourist hotspots that they are priced out of homes to rent or to buy and need housing that is more affordable so they can continue to work and live in the place they call home. The proposed planning changes would support sustainable communities, supporting local people and businesses and local services.

The proposed planning changes would see a planning use class created for short term lets not used as a sole or main home, alongside new permitted development rights, which will mean planning permission is not needed in areas where local authorities choose not to use these planning controls.

Both of these measures are focussed on short term lets, and therefore the planning changes and the register will not impact on hotels, hostels or B&Bs.”

On the face of it then, the Government is both seeking to regulate use of residential properties as short-term, Airbnb type accommodation but also to liberalise the use of residential properties for that purpose. Hmm.

First word of warning: this is not just about “tourist hot spots”. Subject to the ability for local authorities to make article 4 directions (more below), the proposals cover the whole of England.

Second word of warning: can we first be clear as to what exactly is a “short term let”? The consultation paper states:

“The term “short term let” can encompass a range of activity associated with a dwelling. Some short term lets may be let out for a limited period while the owner themselves go on holiday. Others may be properties that provide for a series of lets for holidays etc or very short term overnight sleeping accommodation including renting an individual bedroom while the owners are in situ.“

So DLUHC envisages the term as covering situations:

  • where a property is let for a limited period whilst the owner is away
  • where the owner remains in situ and rents out an individual bedroom on a short-term basis (NB not longer term lodgers are excluded) or
  • where a property provides for a series of lets to holidaymakers.

However, its proposed wording for the new “short term let” C5 is as follows:

“Use of a dwellinghouse that is not a sole or main residence for temporary sleeping accommodation for the purpose of holiday, leisure, recreation, business or other travel.”

Nothing about short-term lets beyond the title itself. Nothing about the letting out of individual bedrooms on a short-term basis whilst the owner remains in residence , which appears to be unrestricted by the proposals. And why list those purposes except perhaps so that the list excludes reference to asylum…?

The anachronistic word “dwellinghouse” beloved of planning lawyers can confuse as well. It just means “dwelling” and so includes flats as well as houses.

How will it be determined whether a property falls within use class C5? The consultation document explains that at the time of commencement of the proposed secondary legislation, properties used for this purpose will automatically fall within use class C5 and that there will therefore be no need to apply for planning permission, though of course an application for a lawful development certificate may be advisable if there is any uncertainty. Thereafter, where there is no article 4 direction disapplying the permitted development right to switch between C3 and C5, the Government intends to require that the local planning authority is notified by the developer when a change of use occurs, but it does not propose that there be a requirement to seek prior approval. There will be no site size limits and no constraint-based exclusions.

DLUHC suggests that, where there is a local problem with the number of short term lets, one or both of these permitted development rights could be removed by way of an Article 4 direction. It is clearly anticipated that most areas will wish to retain the right allowing for change of use from short term let to dwellinghouse, even if they remove the opposing right. The consultation confirms that the policy tests for making an Article 4 direction, to be found within paragraph 53 of the NPPF, will not be amended and so an authority hoping to make one will need to be based on robust evidence and apply to the smallest geographical area possible.

Properties which fall within use class C5 will benefit from the permitted development rights which currently apply to the curtilage of a dwellinghouse such as rear and upward extensions, alterations to the roof, porches and outbuildings.  

Another proposal the subject of consultation is for a limit on the number of nights for which a property within use class C3 and is a sole or main dwellinghouse may be let without there being a material change of use. DLUHC tells us it is open to suggestions as to how many nights this should be, but it will apparently only consider numbers divisible by 30 – listing 30, 60 and 90 as potential options. Two legal mechanisms for achieving this are proposed: the first is to create a new permitted development right allowing for the use of the C3 dwellinghouse for temporary sleeping accommodation for a fixed number of nights per year, the benefit of this being that the right could be removed by Article 4 direction. The second and alternative means is by incorporating the limitation on the number of nights into the wording of use class C3 itself.

DLUHC appears to be trying to be helpful by proposing a specific number of nights for which a property may be let, within which it says a material change of use will not have occurred. There is an obvious attraction to giving homeowners certainty that they may do this without planning consequence. Trying to achieve it in this way, however, reveals what must be a basic misunderstanding as to the law relating to material change of use. Supposing that the Government eventually settles on a limit of 30 days: it is not necessarily the case that the use of a dwellinghouse for short term let for, say 31 or 35 (or any other number of) days, will result in a material change of use. A change of use is only development if it is material, and materiality is assessed with reference to a range of factors which are often site- or proposal-specific. To make the use of a dwellinghouse as a short term let for 31 or 35 days a material change of use, would need specific legislative provision, absent which subjective judgments will remain determinative.  

This has already been done in respect of properties in London, which can already be let for up to 90 days per year. Beyond 90 days, an application for permission to make a material change of use is required and the consultation confirms that this provision will be unaffected by the changes proposed within this consultation. One infers that DLUHC haven’t simply mirrored this approach across the country so that individual local planning authorities may elect to remove the permitted development right to let a main residence for the limited number of nights if they consider it necessary to do so.

Of course, the ability to use a dwellinghouse as a short term let is subject to the planning conditions and obligations which affect the site, and might be separately restricted, for example by way of covenants in a lease. Whether the changes proposed in the consultation affect the operation of existing planning conditions or obligations may depend on their specific wording.

So, stepping back for a moment, how is all this really going to work? So much is going to come down to the extent to which local planning authorities introduce article 4 directions removing the proposed permitted development right to go from C3 to C5 and indeed the Government intervenes (as it has in the past ) to restrict the scope of directions which it considers to be too wide or unjustified.

If there is no article 4 direction in an area, C3 properties will be able to be used for C5 short term let use without the need for planning permission – liberalising the current position where more than ancillary short-term accommodation use (more than 90 days of that use in London – a restriction which would remain) would amount to a material change of use. In such areas, use of properties in Airbnb type use could be maximised.

The onus is going to be on local planning authorities to do the work and justify appropriate article 4 directions.

There is a separate but related consultation currently underway on a registration scheme for short term lets, led by the Department for Culture, Media and Sport. Having conducted a recent call for evidence, it considers that a registration scheme is necessary to enable local authorities to effectively police the limit on the number of nights.

I wrote a blog post Time To Review The “C” Use Classes? back on 1 July 2016. It is obvious that a more comprehensive review is needed than what is currently proposed.

Simon Ricketts, 14 April 2023

Personal views, et cetera

Sinclair C5, courtesy wikipedia

The “We’ve Extended The Conservation Area” Gambit

Once a building is included within a conservation area, the permitted development right to demolish it, by virtue of Schedule 2, Part 11, Class B of the General Permitted Development Order, no longer applies.

What a coincidence it would be if, after redevelopment of a building was proposed (in the face of local opposition), a local authority were to extend an existing conservation area so as to include the building, so as to prevent its demolition without the need for planning permission….

Which brings us to the interesting case this week of Future High Street Living (Staines) Limited v Spelthorne Borough Council (Lane J, 28 March 2023).

The claimant owns the former Debenhams store in Staines. Its application for planning permission for demolition and redevelopment was submitted on 10 November 2021 and elicited 268 objection letters, including objections on the basis that this would represent the “loss of an iconic building” and that there would be “heritage impacts on nearby conservation areas and listed building”. The application was subsequently refused on 6 June 2022, the reasons for refusal including “harm to the significance of designated heritage assets (including the [adjoining Staines Conservation Area]) and non-designated heritage assets” and “overdevelopment causing harm to the character and appearance of the area”.

Prior to the refusal, presumably to narrow the points in contention in relation to the planning application, on 25 February 2022 the claimant made an application to determine whether prior approval was required for the demolition of the building under the GPDO. On 24 March 2022 the council confirmed that prior approval was required (not in itself a big issue in that the prior approval process cannot engage with the principle of demolition as opposed to how it is carried out). But it then extended the Staines Conservation Area to include the building, before refusing prior approval on the basis that the building was now in a conservation area and therefore the GPDO permitted development right to demolish was no longer available.

Before deciding to extend the conservation area, the council had carried out a consultation process and it was reported internally within the council that there were no material objections to the proposal. Somehow, the council had overlooked detailed representations submitted by a heritage specialist (Pegasus’ excellent Gail Stoten) on behalf of the claimant.

When the claimant issued a pre-action protocol letter threatening to judicially review the decision to extend the conservation area, the council then prepared a supplementary report that purported to consider the overlooked set of representations, before concluding that the points made did not change the council’s decision.

The claimant relied on four grounds in its subsequent claim for judicial review:

Ground 1 – The council acted unlawfully in making the decision to extend the conservation area in that its true purpose was to prevent its demolition and redevelopment – an improper purpose and therefore contrary to law.

Ground 2 – The council failed to take into account the claimant’s representations.

Ground 3 – The officers’ reports were seriously misleading in not referring to the fact that Historic England had declined to list the building “on the basis that the Building did not possess the quality of design, decoration and craftsmanship to merit being of special architectural interest”.

Ground 4 – The purported reconsideration of the decision by way of the supplementary report was unlawful.

The claimant was represented at the hearing by Paul Tucker KC leading Jonathan Easton (now KC but not earlier in the week when judgment was handed down!).

On the first ground the judge stated:

“Since the purpose of designating or extending conservation areas is to preserve or enhance areas of “special architectural or historic interest”, the designation or extension of a conservation area which is motivated principally by a desire to protect a specific building and prevent its demolition will be unlawful.”

The judge considered that on the basis of the case law the question was whether the desire to protect the building from demolition was one impetus for the designation (which would be lawful) or the only impetus (unlawful). This is obviously a high bar for a claimant to clear. On the facts he concluded that it was the former and so ground 1 failed.

However the claim succeeded on the other grounds.

In relation to grounds 2 and 4:

“(i) the defendant failed to take account of the claimant’s representations in response to the consultation at the proper time; (ii) it did not do so in a legally adequate manner in the SR (if that was what the defendant purported to do in the SR); and (iii) having regard to (ii), it cannot be said that it is inevitable or even highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.”

In relation to ground 3:

“…there was a clear need to provide Members with a fair and balanced analysis of the architectural worth of the Building. This included informing them of the outcome of the approach made to Historic England regarding possible statutory listing.” It was also obviously material that “in both 2004 and 2016, the Building had not been regarded as sufficiently important to merit even local listing.” Nor could members have been expected to know about these matters. “It has not been shown that their local knowledge extends to being aware of negative decisions on potential listing on the part of Historic England. Likewise, Members may not have been aware (or may have forgotten about), the previous local list review exercises.”

Given a local planning authority’s breadth of discretion in deciding whether to designate or extend conservation areas, this was quite a win for the claimant, basically down to the council’s administrative own goals (full credit to PT KC and JE KC of course…).

Let’s not forget the wider issues swirling around on the question of demolition of buildings, in the context of embodied carbon (we still await the Secretary of State’s M&S Oxford Street decision). See for example this campaigning piece Could a Grade III listing for buildings halt the UK’s tide of demolition? (22 November 2022) by Will Arnold, head of climate action at The Institution of Structural Engineers or this contrary view Why grade III listings should be avoided at all costs (Edward Clarke in The Times, 12 March 2023 (behind a paywall). But it surely brings the heritage system into disrepute when conservation designations are relied upon as a convenient means of controlling demolition for other purposes, whether those may be a reaction to the spectre of redevelopment or arising from laudable concerns about climate change.

Discuss…

Simon Ricketts, 1 April 2023

Personal views, et cetera

Debenhams, Staines

Credit: Ruth Sharville, Wikimedia Commons (Creative Commons Attribution-ShareAlike 2.0 Generic licence)