Month: April 2025

Fires

Two sad stories, presented without further comment.

Fire 1

Everyone will remember the case of the Crooked House pub in Dudley.

For a summary of the relevant facts, I turn to Mould J, in the opening passages of his judgment in ATE Farms Limited v Secretary of State (Mould J, 5 February 2025):

“The Crooked House used to operate as a public house well known for its tilted appearance both within and outside. The causes of the differential settlement resulting in that appearance and evident in the building are possibly various, including the underlying natural geology and the impact of historic mining activity. The pub closed in July 2023 apparently following a burglary which had caused considerable and costly damage. The appellant purchased the land on 21 July 2023.

On 5 August 2023 the building was seriously damaged by fire, the cause of which, and in particular whether it was caused deliberately by criminal action, are currently the subject of a police investigation. On 7 August 2023 the fire-damaged building was demolished by contractors acting on the instruction of the appellant.”

South Staffordshire Council issued an enforcement notice on 27 February 2024, alleging that without planning permission the Crooked House, an unlisted building, was demolished and that this was unauthorised development constituting a breach of planning control. “The appellant’s case is that those demolition works were initially agreed to by the second respondent, but that they led to an urgent risk of collapse and justified the immediate demolition of the remaining structure.”

“The enforcement notice requires the Crooked House to be rebuilt effectively so as to reinstate it in facsimile.”

“On 27 September 2024 the [council] requested that the appeal inquiry be adjourned until after the police investigation into the fire had been concluded, because the cause of the fire and whether it had occurred through human agency could be a key issue for the inquiry to resolve. On 18 October 2024 the Crown Prosecution Service wrote to the inspector notifying him that their current expectation was that the criminal investigation and any decisions on prosecution would be completed by the end of 2024. That letter included the following:

“As the Appeal touches upon an issue a criminal court may be asked to determine, we request that consideration be given to adjourning the appeal to allow time for the CPS to conclude its review. While we appreciate a decision not to charge a person with any criminal offence will not assist either party to the Appeal, a decision to prosecute may have a bearing on the Appeal and could also impact the criminal proceedings should the appeal be held in tandem.”

“On 15 November 2024 the appellant requested that the inspector postpone the start date for the inquiry on the grounds of fairness and prejudice to the criminal proceedings and pending completion of any criminal process.”

Following further representations by both parties, the inspector issued a note:

“As I am sure you understand, the Inspectorate has a duty to determine appeals in a timely manner, in particular where there is considerable local interest, hence our reluctance to postpone the inquiry. Timescales for the outcome of investigations and any subsequent Court proceedings are uncertain. If there is a court case this could take several years before we even began to consider the planning merits of the demolition of the building. Such a delay also ignores the question, how relevant is the issue of responsibility to the determination of the various grounds of appeal? This is still a matter of dispute between the parties.

In this regard, before I consider who was responsible for the fire, should that become necessary, there are a number of more fundamental questions to answer:

1.Can a fire be an act of demolition for the purposes of the 1990 Act?

2. If it can, does it matter who was responsible for the fire in so far as this may be relevant to the grounds of appeal?

3. Is there a difference between a genuine accident (an act of God) and a deliberate act – regardless of who carried out the deliberate act in so far as it relates to the considerations under appeal?

The three questions above are essentially legal and interpretational issues (and I have already had your outline views on them) which should, I would suggest, be dealt with by way of submissions. Consequently, in order to continue with the current, agreed, timetable, I suggest the following process is followed. Both parties provide submissions on the above questions which will cover grounds (b) [whether the matters have occurred which are alleged to be in breach of planning control] and (c) [whether, if they did occur, they amounted to a breach of planning control] at the same time as proofs are submitted. Proofs of evidence should then be limited to grounds (a) and (g) which will be the only matters examined at the inquiry.

Without prejudice to my determination of the appeal, I consider, at this stage, that there are three likely outcomes of grounds (b) and (c). Firstly, that ground (b) succeeds so there has been no demolition in which case the notice will be quashed. Secondly that ground (b)/(c) succeeds to the extent that the allegation needs to be corrected so that demolition is restricted to the part of the building that remained after the fire; and, thirdly, the grounds fail and it is unnecessary to correct the notice. This last outcome is the main component of ground (a), should planning permission be granted for the demolition of the building?

For the inquiry ground (a) should be considered on the basis of either the second or third outcomes.

Should you consider any additional outcomes may arise from grounds (b) or (c), relevant to ground (a), these should also be addressed in your submissions and proofs of evidence. Having heard the evidence on grounds (a) and (g) [whether a longer period for compliance should be allowed] and discussed conditions I will then discuss how best to proceed.

At present I consider the best way forward would be to adjourn the inquiry to allow me to consider the written and oral evidence. If it turns out that further evidence is required concerning the identity of those responsible for the fire this can either be dealt with by way of further written representations or I can re-open the inquiry. It may be possible to reach a decision without further evidence in which case I could close the inquiry and issue the decision letter. I will ensure both main parties have an opportunity to address me on this before I adjourn the inquiry and before any final decision is issued.”

The appellant argued that the inquiry should be postponed pending the outcome of the criminal investigation but the inspector issued a final ruling, confirming that the inquiry would start on 11 March 2025.

The appellant challenged the inspector’s ruling by way of judicial review and Mould J agreed that it should be quashed and remitted to the inspector for reconsideration:

“Firstly, it is the appellant’s case that the question whether they were responsible for the fire which occurred on 5 August 2023 is central not only to the determination of the enforcement appeal generally, but in particular to the evaluation of, and the determination of, the issue raised under ground (a). Whether the fire was accidental or was caused by human agency, their case is that they are innocent of its occurrence. They therefore, understandably, contend that it would be grossly disproportionate to their rights protected under Article 1 of the First Protocol of the European Convention of Human Rights to require them to reinstate the building at very considerable cost, in the event that the answer to that first question was in their favour. The appellant says that would be a powerful material consideration in support of the grant of planning permission retrospectively for the demolition of the building.”

“There is simply no realistic possibility that consideration of the ground (a) appeal at the forthcoming inquiry, let alone its determination, will be able to proceed without the inspector grappling with those questions of fact and causation. In my view, the inspector clearly misdirected himself in proceeding on the basis that he may be able to determine the enforcement appeal on ground (a) or at all, independently of inquiring into and finding facts as to the cause of the fire, on a true understanding of the evidence.”

“I have considerable sympathy for the inspector in his desire to avoid unnecessary delay and postponement of the inquiry. Not only does that objective flow from the Procedure Rules, as I have indicated, but it was in any event an entirely reasonable and understandable objective for him to pursue. The question though is whether he has misdirected himself in seeking to achieve that.

It seems to me, for the reasons that I have given, that the approach that he has followed cannot, in truth, avoid delay in relation to the determination of the ground (a) appeal. In order to determine the ground (a) appeal, it is inevitable that the inspector will have to hear evidence and make findings of fact on the cause of the fire: in particular, as to whether the appellant was responsible for it. He must do so in order to establish the true factual matrix against which to determine whether retrospective planning permission is merited in vindication of the appellant’s Article 1 Protocol 1 rights. On a true analysis of the position, there is no proper basis upon which the inspector can avoid hearing such evidence in the context of the ground (a) appeal.”

And so the appeal remains in abeyance, pending the outcome of the criminal investigations.

Fire 2

Many of you will also have read about the more recent fire that destroyed a grade II* listed World War 1 aircraft hangar, hangar 3,  at Old Sarum Airfield, Salisbury,  on 17 April 2025. See for instance Protecting airfield is about ‘protecting heritage’ (BBC, 24 April 2025) and Council seeking legal advice after fire rips through Grade II-listed site with permission for hundreds of homes (Inside Housing, 23 April 2025).

The fire coincided with the final outcome of a planning appeal inquiry (appeal decision letter dated 9 April 2025 and costs decision letter dated 17 April 2025).

The appeal was for a mixed use scheme at Old Sarum Airfield including 315 dwellings and was allowed, albeit with the inspector rejecting the appellant’s case that the development could not viably support any affordable housing, instead concluding that the proposed development could viably deliver 25%. Condition 17 imposed a restriction on occupation of more than 160 dwellings until hangar 3 had been restored. There were no awards of costs.

For a more personal narrative (which I am in no position to verify), you may be interested to read Hashi Mohammed’s recent LinkedIn post, Hashi having appeared for Wiltshire Council at the inquiry.

Simon Ricketts, 27 April 2025

Personal views, et cetera

Tripwire In Greenfields

This is the tripwire: Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 provides that a local planning authority’s planning register must contain, amongst other things, in relation to a planning application “a copy (which may be photographic or in electronic form) of any planning obligation or section 278 agreement proposed or entered into in connection with the application.”

The requirement should not be news for any local planning authority but it is often honoured in the breach. Until now it has not formed a basis for the quashing of a planning permission. But that could well be the outcome, subject to the court’s final order, of the Court of Appeal’s judgment yesterday (16 April 2025) in R (Greenfield (IOW) Limited v Isle of Wight Council , which concerned a challenge to Isle of Wight Council’s decision to grant planning permission for a development comprising 473 dwellings and related development, in circumstances where the proposed or completed agreement had not been placed on the planning register before planning permission was issued. One can see the problem arising from the particular facts:  the planning committee’s resolution to grant planning permission was subject to prior completion of a section 106 agreement, one of the heads of terms of which was to be a financial contribution (amount unspecified although at the time of the committee the developer had indicated that the costs could be in the region of £777,000) but then only when planning permission had been granted did it transpire that the section 106 agreement, subsequently negotiated, provided for a contribution of £406,359. 

The court made it clear that the implications of failure to comply with the duty are fact-specific. Here the heads of terms in the committee report were insufficient to inform the reader as to the nature of the contribution (namely its quantum) and the overwhelming evidence was that the claimant and others would have wished to make representations had they known what figure was proposed. Whilst the court found that the claimant had not made any request of the council a copy of the proposed obligation, it was accepted that they had searched the online planning register for sight of it. Lastly, the court could not conclude that even if the duty had been complied with it would have been highly likely that the outcome would have been the same. 

At first instance HHJ Jarman KC had found this ground of challenge to be unarguable. Ah the uncertain joys of litigation. 

What practically should we take from the judgment? These are just my own personal thoughts:

  • It is prudent for a local planning authority to place a copy of the draft and/or completed planning obligation (i.e. section 106 agreement or unilateral undertaking) on its planning register before the document is completed and permission issued. 
  • This is particularly the case where the substantive contents of the agreement or undertaking are not already summarised in an officer’s report (and, if relevant planning committee resolution) which is in the public domain  
  • The duty is to put the document on the register rather than to undertake further consultation and there is no minimum period specified as between placing the document on the planning register and issuing the permission, although in my view it would be sensible to allow at least a few days (e.g. when the document is probably in any event being engrossed and doing the rounds for execution – complying with this duty should not be an excuse for further delay in the process).
  •  The question often arises as to whether successive drafts of a planning obligation need to be put on the register. What, after all, is the version of the document which is, in the vague words of the statutory duty, “proposed or entered into“? In my view successive drafts certainly do not need to be put on the register and it is sufficient to place on the register the version that the authority intends to enter into or (in the case of a unilateral undertaking intends to rely on) as a basis for granting planning permission. 

None of this should be news, but local planning authority practice to date has often been rather more laissez faire, perhaps partly because the courts have previously declined to quash permissions in not dissimilar circumstances (see for instance R (Police and Crime Commissioner for Leicestershire) v Blaby District Council  (Foskett J, 27 May 2014) and maybe partly because, well, this is a statutory duty, tucked away in the Development Management Procedure Order, that it can be easy to overlook.

Happy Easter. 

Simon Ricketts, 17 April 2025

Personal views, et cetera

Building Safety Levy Latest

You will remember that the Building Safety Act 2022 introduced powers to impose a levy on new residential buildings requiring certain building control approvals in England, to raise revenue to be spent on building safety. The levy is now planned to come into effect in Autumn 2026 and we will see the necessary regulations laid before Parliament later this year. The levy is targeted to raise £3.4 billion.

On 24 March 2025 the Government published an updated version of a response to the technical consultation that had been carried out by the previous government from 22 November 2022 to 7 February 2023 and initially responded to by the previous government and further informed by a further technical consultation that was carried out from 23 January 2024 to 20 February 2024. This has all been a long time coming.

The 2022 Act empowers the Secretary of State to make regulations which will apply to a “relevant building”, payable to the Secretary of State or their nominee and applied in relation to applications or notices filed for building control approval. The Act defines “relevant building” as one, in England, consisting of or containing one or more dwellings or other accommodation (“including temporary accommodation, for example in a hotel or hospital”, although the Government now intends to exclude hotels and hospitals from the levy, as well as, for instance care homes and all types of affordable housing as defined in the NPPF).

To quote from the 24 March 2025 version of the government’s technical response to consultation:

“The levy charge will depend on the floorspace of the development. Rates per square metre will be set per local authority area to capture the geographical variation in house prices, so that levy rates will be highest in those areas with the highest house prices, and lowest in low-house-price areas. This measure is designed to protect the viability of house building across England. There will be a discounted levy rate of 50% for developments built on previously developed land (PDL), also known as ‘brownfield’ land.”

Certain residential buildings which provide important community facilities and certain types of communal accommodation will be exempt from the levy charge, so as not to deter their development. These include affordable housing, non-social homes built by not-for-profit registered providers, NHS hospitals, care homes, supported housing, children’s homes, domestic abuse shelters, accommodation for armed services personnel, criminal justice accommodation, and developments of fewer than 10 units (as a protection for small and medium-sized sites and enterprises).

The sanction for non-payment of the levy will be the withholding of a building control completion certificate, or rejection of a final certificate. As completion certificates are a legal requirement for buildings over 18m in height, and are required by many mortgage lenders, this means that the developer will struggle to sell and occupy that building upon completion if the levy is not paid.”

Annex A to the document sets out the relevant levy rate per square metre of chargeable development for each local authority area, with separate columns for the previously developed land rate and the non-previously developed land rate.  The highest I could see was £50.17 and £100.35 respectively for the Royal Borough of Kensington and Chelsea; the lowest that I could see was for County Durham: £6.35 and £12.70 respectively. Annex A starts with this worked example:

“For example, a building control application is submitted for 20 identical houses in Dover. Each house has a gross internal area of 100m2, so the total chargeable floorspace for the building control application is 2000m2. The houses are being constructed on previously developed land. The levy rate for works on previously developed land in Dover is £15.19. To calculate the total levy liability for the building control application, the total chargeable floorspace (2000m2) is multiplied by the levy rate for works on previously developed land (£15.19). The total levy liability for the building control application is £30, 380.“

There will be no indexation although the rates will be subject to review by the Secretary of State on a three-yearly basis (but it can be more frequent than that).

What about any transitional provisions, you may ask? The November 2022 consultation document indicated that the previous Government was minded to make transitional provisions which apply to the first year of operation of the Levy and will be dependent on the stage within the building regulations processed that the development has reached at the time that the Levy comes into effect. The Government response to that consultation provided that a development which had begun the building control process as at the launch date of the levy would be exempt. Developments which enter the building control process after the levy is launched will be subject to it. There is no mention of any transitional provisions in the more recent consultation, or in the Government’s latest response.

How do you work out whether a site amounts to previously developed land? The NPPF definition of previously developed land is to be used. “Where 75% or more of the land within the planning permission redline boundary falls within the definition of PDL all levy-chargeable development on the site will qualify for the discount rate. We propose a 75% threshold as this will mean that sites which have a clear majority of land that constitutes PDL qualify for the discount. The developer will apply for the discount rate as part of the levy information provided as part of the first commencement notice and will submit supporting evidence to illustrate the site falls within the levy definition of PDL.“

The levy is to be payable to the local authority and passed onto the government. Local authorities’ role as tax collector continues to expand.

The developer will need to file information with their building control application or notice. At the initial notice stage, the developer will need to include reference to the planning permission pursuant to which the development is being carried out and the number of dwellings which will be created as a result of the development. At the stage of filing a commencement notice, the developer will need to confirm:

(a)          whether in its view any exemptions from payment apply;

(b)          whether the development is on previously developed land; and

(c)           the gross internal area of the chargeable floorspace.

Supporting evidence will need to be filed at both stages, but exactly what is required is not yet known. The Government has indicated that it will prepare guidance to assist on this point. If insufficient evidence is provided, the local authority will be empowered to reject the application or notice. The local authority will not verify all information provided to it but will carry out spot checks.

Having received the information from the developer (and subject to a spot check) the local authority will issue a levy liability notice to confirm the amount payable. The amount will then need to be paid before a completion certificate is issued or final certificate is approved. The Government does not intend to provide for phasing of payments.

In the event that an amendment notice is filed, or a further application is made for building control approval, the developer must provide information which reflects any change of consequence for the levy liability calculation – i.e. an increase or decrease in chargeable floorspace. The developer may also file updated information if they believe that the development has become eligible for an exemption from the Levy. Where the levy liability changes:

  • if the original liability sum has been paid, the payment already made will be credited against the new total; and
  • where the levy liability decreases as a result of a change, the developer will be entitled to a refund within 2 weeks of the issue of the updated Levy liability notice.

The regulations will provide for a review procedure and subsequent appeal where there is a dispute between the developer and the local authority as to the levy liability amount.

Many thanks to my Town Legal colleague Aline Hyde for much of the above detail. There is a lot here for us all to start to take in, both in terms of the additional regulatory requirements but also, for clients (whilst we should not forget the human tragedies that led to the need for this levy in the first place) the potentially significant financial implications of the levy for current and future development projects.

Simon Ricketts, 5 April 2025

Personal views et cetera