The court ruled that a condition on a planning permission cannot as a matter of law require land to be dedicated as highway. Unless a realistic interpretation can be given to the condition which avoids that outcome, and if the condition is not considered to be severable from the permission as a whole, in some circumstances the validity of the planning permission may be at risk.
Such a requirement needs instead to be included in that endangered species, the section 106 agreement.
The case arose from the first planning permission to be granted for part of the Swindon New Eastern Villages urban extension (“NEV”), which will eventually comprise 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses. The planning permission in part authorised the construction of a section of spine road envisaged eventually to connect through the wider development.
The report to committee in relation to the planning application explained “that the application site was part of a wider development proposal. It was to “integrate physically and functionally” with adjoining development. The NEV was to come forward as “a series of new interconnected villages.” Each scheme had to demonstrate how it fitted into the wider NEV. The proposal “must provide connections to future development within the [NEV] in the interests of enabling the comprehensive and sustainable development of the NEV as a whole”.
A condition was attached to the planning permission, condition 39:
The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use.
Reason: to ensure that the development is served by an adequate means of access to the public highway in the interests of highway safety.”
The developer took the position that this condition did not require the dedication of the roads as public highway. I do not know why: perhaps wishing to retain greater control over their maintenance as private roads, perhaps wishing to retain the ability to charge a premium to those who might in the future wish to connect into the roads, including other developers.
As explained by Lewison LJ in the judgment, “the developer applied to Swindon for a certificate under section 192 of the Town and Country Planning Act 1990 that the formation and use of private access roads as private access roads would be lawful. Swindon refused the certificate; and the developer appealed. On 6 November 2018 Ms Wendy McKay LLB, an experienced planning inspector, allowed the appeal. She certified that the use of the access roads for private use only would be lawful.”
The council challenged the decision and at first instance Andrews J quashed it.
The Court of Appeal disagreed in no uncertain terms, regarding itself as bound by a 1964 Court of Appeal judgment, Hall & Co Ltd v Shoreham by Sea Urban DC:
“In Hall & Co Ltd v Shoreham by Sea Urban DC  1 WLR 240 sand and gravel importers and the owners and occupiers of land in an area scheduled for industrial development, applied for planning permission to develop part of their land for industrial purposes. The land adjoined a busy main road which was already overloaded. The highway authority intended to widen it at a future date and to acquire for that purpose a strip forming part of the developer’s land. The planning authority granted planning permission subject to a condition requiring the developer to “construct an ancillary road over the entire frontage of the site at their own expense, as and when required by the local planning authority and shall give right of passage over it to and from such ancillary roads as may be constructed on the adjoining land.” It is to be noted that the condition did not require the transfer of the land itself.
This court held that the imposition of that condition was unlawful. At 247 Willmer LJ summarised the developer’s argument as follows:
“It is contended that the effect of these conditions is to require the plaintiffs not only to build the ancillary road on their own land, but to give right of passage over it to other persons to an extent that will virtually amount to dedicating it to the public, and all this without acquiring any right to recover any compensation whatsoever. This is said to amount to a violation of the plaintiffs’ fundamental rights of ownership which goes far beyond anything authorised by the statute.
“The defendants would thus obtain the benefit of having the road constructed for them at the plaintiffs’ expense, on the plaintiffs’ land, and without the necessity for paying any compensation in respect thereof. Bearing in mind that another and more regular course is open to the defendants, it seems to me that this result would be utterly unreasonable and such as Parliament cannot possibly have intended.”
“Harman LJ said at 256: “It is not in my judgment within the authority’s powers to oblige the planner to dedicate part of his land as a highway open to the public at large without compensation, and this is the other possible interpretation of the condition. As was pointed out to us in argument, the Highways Acts provide the local authority with the means of acquiring lands for the purpose of highways, but that involves compensation of the person whose land is taken, and also the consent of the Minister.”
In the light of Hall, Lewison LJ concluded:
“I consider that, at least at this level in the judicial hierarchy, a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be an unlawful condition. Whether the unlawfulness is characterised as the condition being outside the scope of the power because it requires the grant of rights over land rather than merely regulating the use of land; or whether it is a misuse of a power to achieve an objective that the power was not designed to secure; whether it is irrational in the public law sense, or whether it is disproportionate does not seem to me to matter. In my judgment Hall establishes a recognised principle which is binding on this court.”
“If the judge interpreted [advice in a previous Government circular] as authorising the imposition of conditions which not only required a developer to provide an access road, but also to dedicate it to public use as a highway, I consider that she was wrong. Such an interpretation would be flatly contrary to consistent government policy for nearly 70 years. In my judgment Hall does impose an absolute ban on requiring dedication of land as a public highway without compensation as a condition of the grant of planning permission. I also consider, contrary to Mr Harwood’s submission, that there is no difference for this purpose between dedicating a road as a highway and transferring the land itself for highway use. As I have said, the condition in Hall did not require the land itself to be transferred, yet it was still held to be unlawful.”
The reference to “at least at this level in the judicial hierarchy” is interesting – has the council the appetite to apply for permission to appeal to the Supreme Court? Hall was decided in another time and is it right that the operation of conditions should continue to be constrained in this way? Whilst Hall and Symmetry were both cases about conditions that potentially required the dedication of land as highway, the same principle would apply to conditions requiring the dedication, disposal or transfer of land for other purposes, e.g. open space or affordable housing. Care is required! The distinction nowadays between the “imposition” of planning conditions and the “agreement” of section 106 planning obligations is surely somewhat artificial – on major schemes, conditions are negotiated by the parties to almost an equivalent extent as planning obligations may be – and if the applicant isn’t happy with a condition that has been imposed, section 96A and section 73 are always available. Furthermore, Willmer J’s 1964 reference to the relevant condition amounting to a “violation of the plaintiffs’ fundamental rights of ownership which goes far beyond anything authorised by the statute” looks quaint from a 2020 perspective, where the price of planning permission for any significant scheme entails multiple violations of those so-called “fundamental rights” – and, on proposals within areas allocated for comprehensive development, in my view “anti-ransom” arrangements are essential planning prerequisites – why shouldn’t a condition be enabled to achieve that objective?
Once the Court of Appeal had concluded that the condition could not lawfully have the effect of requiring roads to be dedicated as public highway, it needed to consider whether another interpretation could realistically be given to the condition.
“In her decision letter, the inspector expressed her conclusion at  as follows: “Whilst the term “highway” usually means a road over which the general public have the right to pass and repass, the phrase “fully functional highway” cannot be divorced from the beginning of the sub-clause which states “shall be constructed in such a manner as to ensure…”. In my view, Condition 39 simply imposes a requirement concerning the manner of construction of the access roads and requires them to be capable of functioning as a highway along which traffic could pass whether private or public. It does not require the constructed access roads to be made available for use by the general public. I believe that a reasonable reader would adopt the Appellant’s understanding of the term “highway” as used in the context of the condition with the clear reference to the construction of the roads as opposed to their use or legal status. The distinct inclusion of the term “public highway” in the reason for imposing Condition 39 reinforces my view on that point.”
“I do not think that the judge really appreciated the consequences of her decision. In my judgment, if the judge was right in her interpretation of the condition, the condition (and probably the whole planning permission) is invalid. In those circumstances, the validation principle comes into play. The question, then, is whether the inspector’s interpretation of condition 39 was realistic (even if not the most obvious or natural one).”
“In my judgment, the interpretation adopted by the inspector is, to put it no higher, a realistic one even if it is not the most natural. The validation principle therefore applies; and condition 39 should be given the meaning that she ascribed to it.”
Surely if the court had not managed to get to this interpretation of the condition it would not have quashed the whole consent? For the council that would have certainly been a “You’re only supposed to blow the bloody doors off!” moment.
What if the condition had been negatively worded: not to occupy more than x dwellings until defined roads had been constructed and satisfactory arrangements had been made for their adoption as public highway? Any different outcome?
The obvious practical lesson is to document these sorts of dedication and land transfer requirements other than by condition but let’s see if there’s a further appeal.
More E words: the English planning and property community was immediately, depending who you spoke to, exercised/excited by the changes to the Use Classes Order and General Permitted Development Order this week. Surprisingly so perhaps, given how heavily the changes had previously been trailed (although, it must be said, in terms of the Use Classes Order changes, not consulted upon). Inevitably and by contrast, the wider public appears to be oblivious as to what lies ahead, despite the potentially far-reaching implications of the creation of the new “commercial, business and service“ class E within the Use Classes Order in particular.
There are many good summaries already of the changes. My Town colleagues Nikita Sellers, George Morton Jack and Meeta Kaur have prepared a detailed summary.
I am not going to consider the rights and wrongs of the changes in any detail. I have referred previously to my disappointment that the Government has not required for example its nationally described minimum space standards to be applied in relation to the creation of new dwellings by way of permitted development rights (despite having published, with curious timing, a report Research into the quality standard of homes delivered through change of use permitted development rights, on the same day as publishing legislation which does not take into account the recommendations of that work, with no explanation for the discrepancy). The Use Classes Order changes do provide some overdue flexibility given the structural changes underway in our town centres in the light of changed shopping patterns (not just Covid-related but of course now accentuated), but they are extremely wide ranging and I query whether the various permutations of potential consequences have been adequately considered. But that is all for another day.
Instead, I wanted to pull us back to some planning law fundamentals – in what circumstances may owners find that they cannot rely on the expanded use rights after all?
First, in order to move within a use class, the initial use first has to have been instituted, so if for instance you have an as yet unimplemented planning permission for a shop, or if the development has been built but not yet been occupied, the development will first need to have been used as a shop before there can be a change to another use within the new class E (e.g. offices).
Secondly, there must not be a condition on the planning permission authorising the current use that has the effect of preventing use changes that would otherwise have been enabled by way of the Use Classes Order and/or General Permitted Development Order. This is familiar but not straightforward territory. There is much case law as to whether particular phrases in conditions actually achieved what the local planning authority intended and indeed whether the benefit of the condition was lost through the grant of subsequent permissions which did not expressly impose it.
The general answer is that it depends on a careful analysis of the existing planning permission (and of course any provisions within any section 106 agreement).
“The retail unit hereby permitted shall be used for the retailing of goods for DIY home and garden improvements and car maintenance, building materials and builders’ merchants goods and for no other purpose (including any other purpose in Class I of the Schedule to the Town and Country Planning (Use Classes) Order 1972 or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”
It was then amended to read:
“The retail use hereby permitted shall be used for the retailing of DIY home and garden improvements and car maintenance, building materials and builders merchants goods, carpets and floor coverings, furniture, furnishings, electrical goods, automobile products, camping equipment, cycles, pet and pet products, office supplies and for no other purpose (including the retail sale of food and drink or any other purpose in Class A1 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 (as amended) or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order).”
The council then approved by way of section 73 a further change so that it was to read:
“The retail unit hereby permitted shall be used for the sale and display of non-food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking and re-enacting that Order with or without modification), for no other goods.”
However, the council neglected to include that wording in a condition. It was simply part of the description of the development.
The Supreme Court held that the permission was to be interpreted as constraining the use of the retail unit so that it was for the sale of non-food goods only. But for our purposes, this is an example that the courts (1) routinely treat conditions as able validly to restrict the operation of the Use Classes Order and/or General Permitted Development Order and (2) are perhaps currently more benevolent towards the local planning authority’s position than has previously been the case where there has been procedural imprecision, as long as what was intended was clear.
“This use of this building shall be for purposes falling within Class B1 (Business) as defined in the Town and Country Planning (Use Classes) Order 1987, and for no other purpose whatsoever, without express planning consent from the Local Planning Authority first being obtained“.
The court held that “express planning consent” did not include prior approval pursuant to the “office to residential” permitted development right. The restriction applied.
So care is needed! Where there are restrictive conditions which would restrict the flexibility that the new class E would otherwise give, of course consideration can be given to applying to remove those conditions by way of section 73 application.
Thirdly, when applications for planning permission are now to be determined, careful consideration will need to be given to the proposed description of development and no doubt there will be issues arising as to whether decision makers are justified in imposing conditions which restrict the operation of the new Use Classes Order and General Permitted Development Order flexibilities. It will be the B1(a), (b) and (c) arguments all over again, but writ large.
I hope that we will have updated Planning Practice Guidance. In the meantime, the current Planning Practice Guidance has passages such as these:
“It is important to ensure that conditions are tailored to tackle specific problems, rather than standardised or used to impose broad unnecessary controls.”
2. relevant to planning;
3. relevant to the development to be permitted;
5. precise; and
6. reasonable in all other respects.”
“Is it appropriate to use conditions to restrict the future use of permitted development rights or changes of use?
Conditions restricting the future use of permitted development rights or changes of use may not pass the test of reasonableness or necessity. The scope of such conditions needs to be precisely defined, by reference to the relevant provisions in the Town and Country Planning (General Permitted Development) (England) Order 2015, so that it is clear exactly which rights have been limited or withdrawn.Area-wide or blanket removal of freedoms to carry out small scale domestic and non-domestic alterations that would otherwise not require an application for planning permission are unlikely to meet the tests of reasonableness and necessity. The local planning authority also has powers under article 4 of the Town and Country Planning (General Permitted Development) (England) Order 2015 to enable them to withdraw permitted development rights across a defined area, where justified.
Will that guidance be sufficient to avoid disputes? I doubt it.
Am I entitled to apply for planning permission simply for Class E use? Given that Parliament now deems changes within class E not be material, why not? How will such applications be determined as against development plan policies which are likely to be at odds with such an approach, and how will CIL be calculated, given that many CIL charging schedules distinguish as between, for instance, retail and office use?
Fourthly, planning permission will still be required for operational works that materially affect the external appearance of the building. To what extent will local planning authorities seek to exert control by that route, as we have sometimes seen with office to residential conversions? How to guard against plainly substandard conversions of shops to offices and of, for instance, units on out of town business parks to shops?
Fifthly, there is going to be much focus on how precisely the General Permitted Development Order operates in relation to the new class. For an initial period, until 31 July 2021, the GPDO will operate as against how the relevant use was categorised before the changes to the Use Classes Order became effective. Are we to expect further changes to the GPDO in the coming period?
Sixthly, quite apart from these planning law constraints, private law constraints imposed by way of, for instance, restrictive covenants and user covenants in leases will still apply.
But, there’s no way round it, class E has huge implications for much of the world around us, from central business district to market town, to out of town retail or business park. It also brings with it, and this is its very point, huge opportunities to allow for adaptation and for entrepreneurship. How is all this going to work out in practice? Will people start using the new freedoms and then find that inevitably in due course the rules tighten again, by which time the horse has bolted, or, that for land owners, they may have unwittingly lost the right to the use which was most valuable in investment terms? E is also for experiment.
Simon Ricketts, 24 July 2020 (expanded version 25 July 2020)
The following is a summary prepared by my Town colleagues Victoria McKeegan, George Morton Jack and Meeta Kaur. I will leave any commentary as to the implications for another week.
The Bill contains temporary provisions to facilitate the extension of the duration of certain planning permissions and listed building consents. This ensures that relevant permissions and consents will remain extant, enabling development to commence following delays caused by Covid-19. As well as extending the time limit for permissions and consents expiring between enactment of the new provisions and 31 December 2020, these measures also have retrospective effect, facilitating the revival of permissions which expired since 23 March 2020, subject to an ‘additional environmental approval’. The local planning authority may only grant such approval if it is satisfied that EIA and habitats assessments remain up to date. In all cases, the time limits for commencing development are extended until 1 April 2021.
The Bill introduces a fast-track planning application process for the temporary variation of both planning conditions limiting construction site working hours and documents approved pursuant to planning condition containing such limitations. The fast-track process is facilitated through a requirement for the local planning authority to respond to the application within 14 days from the day after submission, and deemed approval in the event of no response.
The Bill also introduces measures introducing flexibility for the Planning Inspectorate to use more than one of the procedures to determine planning appeals in-combination. Appeals could take a hybrid form, combining elements of written representations, hearings and planning inquiries.
The final planning measure affords the Mayor of London temporary flexibility to make the London Plan available for inspection by appropriate electronic means, rather than having to make copies available for inspection at the Greater London Authority’s offices and to distribute copies when requested.
The Regulations amend permitted development rights (“PDR”) – the rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) that effectively grant planning permission for specific types of development with no need for a planning application, although subject to prior approvals from the local planning authority (LPA) – and certain advertising and other regulations.
The principal changes to PDR are:
o a new requirement for provision of adequate natural light where PDR are exercised for changes of use to housing. This provision relates specifically to all habitable rooms, and is intended to improve the quality of homes delivered under existing PDR for changes of use to housing;
o new PDR for temporary use of land, including temporary use of land by developers for any purpose subject to several restrictions (with this right in force from 25 June 2020 to 31 December 2020), and by local authorities for holding a market (with this right in force from 25 June 2020 to 23 March 2021);
o new PDR for construction of new homes on detached blocks of flats, where the permitted development consists of works for construction of up to two additional storeys of new dwellinghouses (meaning flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys. This new PDR permits various related works including reasonably necessary engineering works to construct the additional storeys and the new flats, and is subject to several restrictions.
The PDR amendments also include some minor, more technical or clarificatory updates to the GPDO.
The Regulations include some minor amendments to advertising and compensation regulations.
The Regulations come into force in two stages: first, on 25 June 2020 (including changes to PDR for temporary use of land); and second, on 1 August 2020 (including changes to PDR for residential development).
1.1 Part Three of the Bill relates to planning. This main section 1 provides a brief summary of those planning matters.
Automatic extension of planning permissions
1.2 The Bill introduces three new sections to the TCPA 1990 on a temporary basis up until 1 April 2021. New section 93A modifies any condition attached to a planning permission imposing a time limit for the commencement of development which is due to expire between the day on which the enabling provision of the Business and Planning Act (the “Act”) comes into force and 31 December 2020. The time limit for the commencement of development is automatically extended to 1 April 2021.
1.3 New section 93B has the same effect as section 93A (extending the time period for implementation until 1 April 2021) for any planning permission subject to a condition that the development must be commenced by a time falling between 23 March 2020 and the day on which the enabling provision of the Act comes into force, if an ‘additional environmental approval’ is granted or deemed to be granted in respect of that permission. As such, it is section 93B which creates retrospective effect, effectively reviving planning permissions which expired during the lockdown period (subject to ‘additional environmental approval’).
1.4 As regards the ‘additional environmental approval’, an application must be made to the local planning authority and contain sufficient information to enable it to determine whether approval should be granted . There is provision for deemed approval of the application within 28 days (or a longer agreed period) if the local planning authority does not issue its decision within this period. The local planning authority may only grant approval if the ‘EIA and habitats requirements’ are met. The EIA requirement is met if either the development is not EIA development or the development remains the subject of an up-to-date EIA assessment. The habitats requirement is met if the development would not presently require an appropriate assessment (if planning permission were being granted for the development now) or, if it would, the development was previously subject to assessment which ascertained that the development would not adversely affect the integrity of a European site / offshore marine site and the local planning authority is satisfied that the assessment remains up to date.
1.5 An ‘additional environmental approval’ is absolute and may not be granted subject to condition. Further, no ‘additional environmental approval’ may be granted following 31 December 2020, unless granted on an appeal lodged on or before that date. There is a right of appeal against a refusal of an ‘additional environmental approval’.
Automatic extension of outline planning permissions
1.6 The Bill introduces further new sections to the TCPA 1990 in relation to outline planning permissions, which have similar effect to those mentioned above in relation to full planning permissions. Again, the new sections are introduced on a temporary basis up until 1 April 2021.
1.7 New section 93D modifies any condition attached to an outline planning permission that imposes a time limit for the submission of an application for approval of any reserved matter which falls between 23 March 2020 and 31 December 2020. The time limit for submission of such applications is extended to 1 April 2021.
1.8 New sections 93E and 93F have the same effect as new sections 93A and 93B, but apply in relation to outline planning permissions. They extend the time period by which development must be begun to 1 April 2021 for those outline planning permissions due to expire between the date on which the enabling provision of the Act comes into force and 31 December 2020. Further, the extension of time for implementation and the ‘additional environmental approval’ process is the same as for full planning permissions in the case of outline planning permissions which expired between 23 March 2020 and the date that the relevant enabling provision of the Act comes into force.
Automatic extension of listed building consents
1.9 The Bill introduces a new section 18A to the Planning (Listed Buildings and Conservation Areas) Act 1990. This modifies any condition attached to a listed building consent which imposes a time limit for the commencement of works which expires between 23 March 2020 and 31 December 2020. The time limit for commencement in such cases will be extended to 1 April 2021. Again, the temporary modifications expire on 1 April 2021.
1.10 The Secretary of State may make regulations to extend the time periods set out in these new sections facilitating the automatic extension of planning permissions and listed building consents, along with their expiry date.
Modification of conditions relating to construction working hours
1.11 The Bill introduces three new sections to the TCPA 1990 in order to facilitate a new fast-track application process for the temporary variation of planning conditions relating to construction site working hours. The Explanatory Notes to the Bill state that the new process is designed to enable the facilitation of safe construction working practices in line with social distancing guidance issued by the Government. The fast-track process expires on 1 April 2021.
1.12 New section 74B applies to planning permissions which impose a condition specifying the times during which construction activities may be carried out or where a similar restriction is contained in a separate document approved by a local planning authority pursuant to a planning condition. It allows an applicant to apply to modify the restrictions imposed either by way of condition of approved document so as to allow construction activities to be carried out for a longer period than permitted on a particular day or on a day which is currently not permitted.
1.13 The application must specify the date from which it is proposed that the modifications should take effect which can be no earlier than the end of the period of 14 days from the day after submission of the application. Such an extension may only be for a temporary period not extending beyond 1 April 2021.
1.14 New section 74C provides that the local planning authority can approve the application, refuse the application or determine, with the agreement of the applicant, different modifications or alternative dates during which they will have effect. There is provision for deemed approval of the application if the local planning authority does not respond within a period of 14 days from the day after submission of the application, hence this being termed a ‘fast-track’ process. There is a right of appeal against refusal of an application under the new procedure.
Procedure for certain planning proceedings
1.15 The Bill amends the power of the Secretary of State to determine which procedure (i.e. written representations, hearing or local inquiry) should be adopted in various appeal proceedings. The amendments effectively facilitate a combination of these proceedings and are permanent. They are described in the Explanatory Notes as providing flexibility for a Planning Inspector to use more than one procedure to determine planning appeals which is required to enable the Planning Inspectorate to deal with cases quickly and effectively during the coronavirus pandemic. However, they are also described as providing ‘ongoing efficiencies to the work of the Planning Inspectorate’. The amendments apply to section 319A(2) of the TCPA 1990, section 88D(2) of the LBC Act and section 21A(2) of the Planning (Hazardous Substances) Act 1990.
Electronic inspection of spatial development strategy
1.16 The Bill temporarily modifies the effect of section 43 of the Greater London Authority Act 1999 until 31 December 2020. Section 43 of the GLAA requires the Mayor of London to take steps to give adequate publicity to various strategies and to make the current versions available for public inspection at the GLA’s offices, as well as provide copies where requested. The amendments apply solely in relation to the Mayor’s spatial development strategy, namely the London Plan. In respect of the London Plan, the Bill removes the requirement to make the current version of the London Plan available for inspection and to provide copies if a copy of the current version of the strategy is available for inspection free of charge by appropriate electronic means.
1.17 The Bill provides that the permission extension changes would come into force 28 days after the Act is passed, the construction site working hours proposal would come into force six days after the Act is passed, while the appeal procedure flexibility and GLAA amendments would come into force on the day on which the Act is passed.
1.18 MPs will next consider all stages of the Bill in one day on Monday 29 June 2020. The Government is aiming for it to pass into law by 4 July 2020.
2. THE REGULATIONS
2.1 This main section 2 provides a brief summary of the Regulations’ amendments.
Definitions of “dwellinghouse” and “flat” (Regulation 3, in force on 1 August 2020)
2.2 Regulation 3 updates article 2 of the GPDO’s definitions of “dwellinghouse” and “flat” applying to the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (which is introduced by Regulation 22, for which see the comments below on Regulation 22).
Extension of determination period for prior approval applications (Regulation 4, in force on 1 August 2020)
2.3 Regulation 4 amends article 7 of the GPDO (“Prior approval applications: time periods for decision”). It allows an applicant and an LPA to agree a period longer either than 8 weeks for the authority to determine prior approval applications, or than a time period otherwise specified in the GPDO.
New prior approval fee (Regulation 5, in force on 1 August 2020)
2.4 For the existing PDR “Enlargement, improvement or other alteration of a dwellinghouse” (GPDO Schedule 2, Part 1, Class A), in relation to development of certain dwellinghouses where prior approval is required for a larger single storey rear extension, there is a new a prior approval fee (which is set out in the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012).
Additions to roof of a dwellinghouse (Regulation 6, in force on 1 August 2020)
2.5 For the PDR “additions etc to the roof of a dwellinghouse” (GPDO Schedule 2, Part 1, Class B), in relation to alteration of a house’s roof, a rear or side extension now includes an original projection or a subsequent extension of the house that extends from the rear or side of the principal part of the original house.
Limit on new PDR for new dwellinghouses (Regulations 5 to 12, in force on 1 August 2020)
2.6 Regulations 5 to 12 amend PDR under Schedule 2, Part 1 of the GPDO.
2.7 They operate to limit the new “Class A” PDR (“New dwellinghouses on detached blocks of flats”) in Schedule 2, Part 20 of the GPDO (for which see our comments below on Regulation 22).
2.8 Regulations 5 to 12 ensure that a new home built under that new “Class A” PDR cannot use PDR under Schedule 2, Part 1 of the GPDO (“Development within the curtilage of a dwellinghouse”).
2.9 They do so in relation to the following classes in Schedule 2, Part 1:
(a) Class A – Enlargement, improvement or other alteration of a dwellinghouse;
(b) Class B – additions etc to the roof of a dwellinghouse;
(c) Class C – other alterations to the roof of a dwellinghouse;
(d) Class D – porches;
(e) Class E – buildings etc incidental to the enjoyment of a dwellinghouse;
(f) Class F – hard surfaces incidental to the enjoyment of a dwellinghouse;
(g) Class G – chimneys, flues etc on a dwellinghouse; and
(h) Class H – microwave antenna on a dwellinghouse.
Adequate natural light in homes (Regulations 13 to 19 and 27, in force on 1 August 2020)
2.10 To improve the quality of homes delivered under existing PDR for changes of use to housing, the Regulations introduce a new requirement for provision of adequate natural light in all habitable rooms (defined as “any rooms used or intended to be used for sleeping or living which are not solely used for cooking purposes, but does not include bath or toilet facilities, service rooms, corridors, laundry rooms, hallways or utility rooms”).
2.11 This requirement applies to development under the following change of use classes under Schedule 2, Part 3 of the GPDO:
(a) Class M – retail, takeaways and specified sui generis uses to dwellinghouses;
(b) Class N – specified sui generis uses to dwellinghouses;
(c) Class O – offices to dwellinghouses;
(d) Class PA – premises in light industrial use to dwellinghouses; and
(e) Class Q – agricultural buildings to dwellinghouses.
2.12 The new requirement for provision of natural light involves, as part of the prior approval application process, mandatory submission to the LPA of design details, in a floor plan indicating the dimensions and proposed use of each room, the position and dimensions of windows, doors and walls, and the elevations of the dwellinghouses. Further (under Regulation 18), “the local planning authority must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses”.
2.13 Regulation 27 has transitional provisions accounting for where developers, as of 1 August 2020, have already submitted a prior approval application in respect of Classes M, N, O, PA and Q as above. These transitional provisions ensure that any such applications submitted before 1 August 2020 will be determined in accordance with PDR in force before that date. Regulation 27 also covers certain circumstances where a developer may, after 1 August 2020, continue to rely on the PDR in force before that date.
2.14 The same requirement for provision of natural light in respect of Classes M, N, O, PA and Q as above applies to the new “Class A” PDR in Schedule 2, Part 20 of the GPDO, for which see our comments below on Regulation 22.
Additional temporary use of land (Regulation 20, in force on 25 June 2020)
2.15 Regulation 20 creates a new PDR for “additional temporary use of land” (as the new “Class BA” in Schedule 2, Part 4 of the GPDO). This new right permits temporary use of land for any purpose.
2.16 There are the following additional points to note in relation to use of land under the new right:
(a) the right is in addition to use under the existing Schedule 2, Part 4, Class B PDR for temporary use of land;
(iii) the right includes the right to place on the land any moveable structure (such as a stall or a marquee) for the purposes of the permitted use;
(b) any use of land for any purpose must be for not more than 28 days in total during the period 1 July 2020 to 31 December 2020; of those 28 days, no more than 14 days in total may be for the of (i) holding a market, (ii) motor car and motorcycle racing including trials of speed, and practising for these activities;
(c) development is not permitted if the land in question is a building or is within the curtilage of a listed building; if the use of the land is for a caravan site; if the land is, or is within, a site of special scientific interest and the use of the land is for: (i) motor car and motorcycle racing including trials of speed or other motor sports, and practising for these activities; (ii) clay pigeon shooting; or (iii) any war game, or if the use of the land is for the display of an advertisement;
(d) the right will cease to have effect from 1 January 2021.
PDR for local authority markets (Regulation 21, in force on 25 June 2020)
2.17 The Regulations introduce a new PDR “Class BA” to part 12 of Schedule 12 of the GPDO, for local authorities to use land for holding a market (including provision of any moveable structure related to the market use). This PDR lasts until 23 March 2021.
PDR for Construction of new homes on detached blocks of flats (Regulation 22, in force on 1 August 2020)
2.18 This PDR follows from the MHCLG consultation “Planning Reform: Supporting the high street and increasing the delivery of new homes” (October 2018).
2.19 The Regulations introduce a new PDR to Schedule 2 of the GPDO inserting a new Part 20 Class A. It allows development consisting of works for construction of up to two additional storeys of new dwellinghouses (which means flats for this new PDR), immediately above purpose-built detached block of flats of three or more above-ground storeys.
2.20 It also permits, in connection with this, the following works:
(a) reasonably necessary engineering works to construct the additional storeys and the new flats;
(b) replacement of existing or installation of additional rooftop plant reasonably necessary for the new flats;
(c) Construction of safe access and egress including additional external doors or staircases to escape fire;
(d) Construction of storage, waste or other ancillary facilities reasonably necessary for the new flats.
2.21 There are limitations on these connected works, as well as a significant number of other limitations which render the PDR unavailable, including those in the following list. Hence, development is not permitted if:
(a) the permission to use any building as a dwellinghouse was granted by PDRs set out in any of classes M, N, O, P, PA or Q of the GPDO, which are those that permit changes of use from various uses to residential (and includes the contentious office to residential PDRs);
(b) the building was constructed before 1 July 1948 or after 5 March 2018 (the latter being the date on which the government first announced its intention to introduce the upward extension PDR);
(c) the extended building would be greater than 30m high;
(d) it does not comply with limitations on floor to ceiling heights of the additional storeys and the overall height of the roof of the extended building;
(e) the site on which the building is located is or forms part of a conservation area, National Park, AONBs, or SSSI, a listed building or a scheduled monument or land within their curtilage.
2.22 The PDR is also conditional on a number of matters which include the following:
(a) before beginning the development prior approval must be sought as to the following impacts: transport and highways, air traffic and defence assets, contamination and flooding risks, external appearance, provision of adequate natural light in all habitable rooms and amenity of existing and neighbouring buildings including overlooking, privacy and loss of light and impacts on protected views.
(b) the development must be completed within 3 years and the LPA must be notified of completion;
(c) a report must be submitted to the LPA setting out how the construction will be managed.
2.23 There is a specific procedure set out for applications for prior approval for this PDR which includes a list of information that must accompany the application and the bodies that must be consulted on for the purposes of the specified impacts (see (a) above). The LPA must publicise the application by way of site notice and notice to owner/occupiers of the existing building and neighbours.
2.24 It is worth noting that applications must be accompanied by detailed plans that show (amongst other things) the position of the windows and doors and the LPA must refuse prior approval if adequate natural light is not provided in all the habitable rooms.
2.25 The LPA can require further information in order to determine the application which may include assessments of impacts or risks or how those may be mitigated having regard to the NPPF. When determining the application the LPA must have regard to representations received in response to consultation and the NPPF so far as is relevant to the prior approval application, in the same way as if it were a planning application.
2.26 The LPA must determine a prior approval application within 8 weeks but unlike some other PDRs there is no deemed approval if the LPA fails to issue a decision within that period. There is however a right of appeal for non-determination. The development must not begin before prior approval is received and must be carried out in accordance with the approved details. Prior approval can be granted unconditionally or subject to conditions reasonably related to the subject matter of the approval.
2.27 The new flats may only be used for Class C3 residential purposes and do not benefit from any of the existing PDRs for dwellinghouses in Part 1 of the GPDO.
2.28 This new PDR can be withdrawn (by way of a direction under article 4 of the 2015 Order), and as a result the Regulations amend “The Town and Country Planning (Compensation) (England) Regulations 2015” so as to limit a LPA’s compensation liability in the event it issues an article 4 direction.
2.29 The Planning Practice Guidance may yet be updated to reference this new PDR but no update has been issued at the time of writing. CIL will be payable on the new floorspace and, in accordance with the existing PPG, a LPA can require planning obligations, but the PPG currently requires that these should be limited to matters requiring prior approval and should not for example seek contributions for affordable housing.
Advertising (Regulations 23 and 24, in force on 1 August 2020)
2.30 Regulations 23 and 24 amend the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 in order to correct the Town and Country Planning Permitted Development, Advertisement and Compensation Amendments) (England) Regulations 2019. They do so by means of inserting definitions of “electronic communications apparatus”, “electronic communications service” and “telephone kiosk”.
Compensation (Regulations 25 and 26, in force on 1 August 2020)
2.31 See the comments above on the Town and Country Planning (Compensation) (England) Regulations 2015 in relation to Regulation 22.
2.32 The Explanatory Memorandum to the Regulations notes in relation to the new PDR for homes on detached blocks of flats (Regulation 22) that “Government also intends to introduce further permitted development rights for building upwards, including for new and bigger homes”.
Validation and determination of applications for planning permission
No changes have been made to the timescales for determining planning applications. Developers are however encouraged to agree extensions of the period for determination. Local authorities have been urged to give priority to validating urgent COVID-19 related applications for planning permission and associated consents.
Publicising applications for planning permission
Temporary regulations (expiring on 31 December 2020) were made and came into force on 14 May to supplement existing publicity arrangements for planning applications, listed building consent applications and environmental statements for EIA development. There is now flexibility to take other reasonable steps to publicise applications and environmental statements if the usual specific requirements cannot be discharged relating to site notices, neighbour notifications, newspaper publicity or availability of hard copy documents. Steps can include the use of social media and electronic communications and they must be “proportionate to the scale and nature of the development”. Guidance has also been issued on this topic.
MHCLG has made it clear that planning conditions should not be a barrier to allowing developers and site operators flexibility around construction site working hours to facilitate safe working. Where only short term or modest increases in working hours are required, LPAs are encouraged to use their discretion to not enforce against a breach of working hours conditions. Where longer term measures or other significant changes are required, applications to amend conditions should be made, which LPAs should prioritise and turn around in 10 days. Requests to work up to 9 pm Monday to Saturday should not be refused without very compelling reasons.
Community infrastructure levy
The existing CIL regulations of course allow charging authorities limited flexibility to defer CIL liability. Amendments will be made to the regulations “in due course” to increase flexibility, but that will still depend upon charging authorities deciding to exercise the new discretion available to them. Authorities will be able to defer payments, temporarily disapply late payment interest and provide a discretion to return interest already charged. However, these changes will only apply to small and medium-sized developers with an annual turnover of less than £45 million. It remains to be seen how this limitation will be addressed in the regulations, for example where a special purpose vehicle, potentially offshore, has assumed liability. The new instalment policies for deferred payments will only apply to chargeable development starting after the changes come into effect, but they are anticipated to apply to “phases“ of the development starting after that date. The announcement on 13 May added that “existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control.”
Section 106 planning obligations
Local planning authorities are encouraged to consider the deferral of section 106 obligations, e.g. financial payments. This will require variations to existing section agreements and undertakings. Local planning authorities are encouraged generally to take a “pragmatic and proportionate” approach to the enforcement of section 106 planning obligations
PINS issued a further update on 13 May. Site visits are being commenced and PINS is considering whether there are types of cases that can proceed without a site visit. The first digital appeal hearing took place on 11 May as a pilot and PINS is aiming for 20 further examinations, hearings and inquiries in May and June. It is also exploring hybrid options – a mix of in person and by video public/telephone hearings and is considering “social distance” events.
MHCLG is working on ways to address the local plans process in order to meet aspirations to have all local plans in place by 2023. In particular, the use of virtual hearings and written submissions is being considered.
Regulation 12 of the Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 prevents any neighbourhood planning referendum from taking place until 6 May 2021. Updated guidance was issued in April allowing neighbourhood plans awaiting referendums to be given significant weight in decision making.
Nationally Significant Infrastructure Projects
The government is working with consenting departments to support the continuation of decision-making to minimise the impact of current restrictions on the consideration of DCO applications and the Planning Inspectorate has updated its guidance.
Compulsory purchase orders
There is now pragmatic advice as to the service of documents. Acquiring authorities are encouraged to allow more time for responses to requests for information about interests in land or submitting objections to CPO. There is also encouragement to authorities to act responsibly regarding business and residential claimants, particularly regarding the timing of vesting orders and payment of compensation, which is particularly relevant when considering evictions. Authorities are reminded of their obligation to make advance payments of compensation in accordance with statutory time limits given cash flow difficulties which claimants may currently face.
To my mind, this is all welcome and congratulations are due in particular to the relevant civil servants. Of course, there is more to be resolved, for instance the vexed question of extending time limited planning permissions (see my 4 April 2020 blog post Pause Not Delete: Extending Planning Permissions) as well as the Regulations in relation to CIL, but it is good to see this progress. No wonder MHCLG’s Simon Gallagher was prepared to come on this week’s Have We Got Planning News For You!
We’re hosting a workshop for London First this week, as part of its London’s Transforming High Streets programme.
Usual mistake of agreeing to say a few words and then reading what it’s about:
“The aim of the workshop is to bring together London First members and stakeholders to investigate the barriers to town centre transformation thrown up by the licensing system, and whether there is a disconnect between the places envisioned by the planning system and the permissions given to operators through licensing. Too often we hear examples of businesses trying to create the kind of vibrant live-work-eat-play, 24h places that consumers increasingly demand, only to be actively shut down through licensing. Or developers berated for not incorporating bold design into their regeneration plans, knowing full well the suggested outdoor spaces would never get permission to be used for anything mildly interesting. Are there good examples of where licensing is actively enabling change and growth, and how can we make sure this becomes standard practice to support our a fast-changing retail and hospitality sector?”
This is all close to my heart. Opportunities for socialising and cultural activity, theatres, live music, all make London what it is. I walked through the latest phase of Argent’s Kings Cross development last night, the area already buzzing with people enjoying the spaces and venues. And, whilst some change is always inevitable, even more important are London’s existing pubs and venues, under threat by any combination of the five Rs: rents, rates, regulation, residents and redevelopment.
But I realised how much a planning lawyer like me operates in a professional silo, trained to think of the statutory regimes for alcohol and entertainment licensing, just like Building Regulations, as “not planning law”.
Which is a bit odd.
If town and city centres are to retain their central economic and social role they have to be about more than working and shopping. And that needs legislation and policy to be focused on common objectives.
When becoming London Mayor in May 2016, one of Sadiq Khan’s early steps was to appoint Amy Lamé as London’s “night czar”. Aside from presenting her excellent Sunday afternoon BBC6 Music show (at a time when even I am still awake), she has played an active role in encouraging all aspects of London’s night time economy and the Mayor has made steady progress, including on TfL’s important night tube strategy. Could more have been done? I would be interested to hear views.
“RECOMMENDATION 1: The Mayor should put the night at the heart of London policy- making. He should introduce a Night Test for all new policies to rate their impact on London’s culture, sociability, wellbeing and economy at night.
RECOMMENDATION 2: The Mayor should produce Night Time Guidance for boroughs. This will help them develop holistic Night Time Strategies that go beyond the night time economy and cover all aspect of their town centres and other areas between 6pm and 6am.
RECOMMENDATION 3: The Mayor should set up a London Night Time Data Observatory. This central hub of data on the economy, transport, licensing, infrastructure, safety and health would help boroughs create their Night Time Strategies and inform local decision making
RECOMMENDATION 4: The Mayor should publish an annual report on London at Night. It should include a series of night time metrics that show his progress in implementing the Night Time Commission’s recommendations and achieving the ambitions of his 24-Hour City Vision
RECOMMENDATION 5: The Mayor should establish a Night Time Enterprise Zone fund that boroughs can bid into, starting with a Pathfinder Zone in 2020
RECOMMENDATION 6: The Mayor should carry out research to establish the case for longer opening hours across London
RECOMMENDATION 7: The Mayor, should help establish new partnerships across the capital to improve safety, reduce violence and make London welcoming for everyone at night
RECOMMENDATION 8: The Mayor should develop guidance to help boroughs, landowners and developers create welcoming, safe and vibrant public spaces at night
RECOMMENDATION 9: The Mayor should set up a Late Night Transport Working Group to ensure that workers, visitors and customers can get around London quickly and safely at night. The group should consider extending night services, introducing a ‘Night Rider’ fare that allows workers to move between bus, tube, train, DLR or tram in a single fare, and encourage more use of TfL’s land and buildings at night
RECOMMENDATION 10: The Mayor should extend the remit of London & Partners so that they can promote London’s night time offer to Londoners
The Mayor’s responses to the recommendations have included:
“• The Night Czar convening a quarterly 24-hour London delivery group at City Hall to assess the impact of policies on London at night
• The Night Czar and Night Time Borough Champions Network working together to produce guidance for boroughs to develop night-time strategies
• Creating a Night Time Data Observatory to build a full picture of the capital at night
• Reporting progress on the Commission’s recommendations as part of the Mayor’s Annual Report
• Creating a Night Time Enterprise Zone pilot scheme to help a borough develop its night-time offer
• Conducting research into the benefits of longer opening hours across London
• Championing partnerships across the capital that support the night-time economy and investing in the creation of the Safer Sounds Partnership
• Including guidance on improving public spaces at night as part of the work to develop borough night-time strategies
• Establishing a Late-Night Transport Working Group to ensure transport meets the needs of London’s night workers
• Continuing to support London & Partners in their work to promote the capital’s 24-hour tourism offer”
In June the Mayor launched a bidding process to select a pilot Night Time Enterprise Zone, as well as establishment ofthe Safer Sounds Partnership, led by the music industry and part of the Safer Business Network, aimed at developing better liaison between venue operators and event organisers with police and council licensing teams, together the night czar (see his 7 June 2019 press release).
On 10 September 2019, the Mayor announced that Walthamstow High Street had won the bidding process to be London’s first Night Time Enterprise Zone. According to the Mayor’s press release:
“The pilot, which runs from October to January, will see Waltham Forest try out a range of proposals for the high street, including:
• Offering entrepreneurs low-cost and flexible business spaces to hire in the evenings
• Establishing a new fund to help business and community groups host events after 6pm
• Running a ‘shop local late’ campaign
• Hosting a ‘reclaim your high street event’ with activities for all ages
• Creating a step-by-step guide for night-time businesses to help them apply for planning and licensing approval
• Encouraging late shopping with a new evening map and events listings
• Encouraging local people and night-time workers to have their say on how to make Walthamstow work better for them after 6pm.”
I would be interested to hear how all this going. There is relatively little on line – and no sign yet of the “step-by-step guide for night-time businesses to help them apply for planning and licensing approval”.
The draft London Plan has policy HC6 (“supporting the night-time economy”):
• Boroughs should develop a vision for the night-time economy, supporting its growth and diversification, in particular within strategic areas of night-time activity (see Table A1.1 and Figure 7.7), building on the Mayor’s Vision for London as a 24-Hour City.
• In Development Plans, town centre strategies and planning decisions, boroughs should:
1. promote the night-time economy, where appropriate, particularly in the Central Activities Zone, strategic areas of night-time activity, town centres, and where public transport such as the Night Tube and Night Buses are available
2. improve inclusive access and safety, and make the public realm welcoming for all night-time economy users and workers
3. diversify the range of night-time activities, including extending the opening hours of existing daytime facilities such as shops, cafés, libraries, galleries and museums
4. address the cumulative impact of high concentrations of licensed premises and their impact on anti-social behaviour, noise pollution, health and wellbeing and other impacts for residents, and seek ways to diversify and manage these areas
5. ensure night-time economy venues are well-served with safe and convenient night-time transport
6. protect and support evening and night-time cultural venues such as pubs, night clubs, theatres, cinemas and music and other arts venues.
• Promoting management of the night-time economy through an integrated approach to planning and licensing, out-of-hours servicing and deliveries, safety and security, and environmental and cleansing services should be supported. Boroughs should work closely with stakeholders such as the police, local businesses, patrons, workers and residents”
But how effective is this in the short-term, given how long it will take for the policy to be reflected on borough plans/licensing policies, and the various planning policies at all levels (national, London-wide and borough) that point in potentially conflicting directions?
I would be interested to hear how joined up, or not, boroughs’ planning and licensing strategies are, in practice, at present. Operating hours for a development will often for instance be set down in planning conditions, only for a different set of hours to be set out in the eventual premises licence – or detailed operating strategies required which should be the domain of the licensing process.
The formal procedures and statutory criteria to be applied are certainly very different.
• “anyone that provides any entertainment between 11PM and 8AM;
• anyone that provides amplified live or recorded music to an audience of more than 500 people;
• anyone that provides recorded music to an audience on premises not licensed for the sale or supply of alcohol;
• anyone that puts on a performance of a play or a dance to an audience of more than 500 people, or an indoor sporting event to more than 1,000 spectators
• anyone that puts on boxing or wrestling
• anyone that screens a film to an audience”
The Home Office has published guidance (April 2018) as to how licensing authorities are to discharge their functions.
There are four licensing objectives:
• The prevention of crime and disorder;
• Public safety;
• The prevention of public nuisance; and
• The protection of children from harm.
The guidance goes on to explain that “the legislation also supports a number of other key aims and purposes. These are vitally important and should be principal aims for everyone involved in licensing work. They include:
• protecting the public and local residents from crime, anti-social behaviour and noise nuisance caused by irresponsible licensed premises;
• giving the police and licensing authorities the powers they need to effectively manage and police the night-time economy and take action against those premises that are causing problems;
• recognising the important role which pubs and other licensed premises play in our local communities by minimising the regulatory burden on business, encouraging innovation and supporting responsible premises;
• providing a regulatory framework for alcohol which reflects the needs of local communities and empowers local authorities to make and enforce decisions about the most appropriate licensing strategies for their local area; and
• encouraging greater community involvement in licensing decisions and giving local residents the opportunity to have their say regarding licensing decisions that may affect them.“
Each licensing authority must publish a statement of its licensing policy at least every five years. Here, by way of example, is Camden’s statement of licensing policy 2017 – 2022, with much detail as to its expectations of operators, examples of licensing conditions for different kinds of venues and framework hours. How many of us, or our clients, get involved in this process?
Licensing applications are publicised and consultations take place with the police and other bodies. Contested applications are likely to go to a hearing before a licensing sub-committee, with appeals heard by the Magistrates’ Court.
A practitioner recently explained to me some of the differences that he sees. For instance:
⁃ a premises licence is automatically granted where there are no objections. Imagine the planning system working like that!
⁃ the grant of a premises licence is a material consideration in the determination of a planning application, but not vice versa.
⁃ there is a greater focus at premises licence hearings on evidence of actual, rather than potential, impact.
⁃ There is ongoing regulatory control as to a premises licence – not a once and for all event in the way that the grant of planning permission is.
⁃ Licensed premises form only a small part of planning officers’ workload (especially outside central London) and there can be little knowledge of the detailed ways in which the licensing regime works, often leading to a “belt and braces” approach.
A House of Lords Select Committee considered the operation of the 2003 Act licensing regime in an April 2017 report.
One of the Select Committee’s main areas of focus was whether the licensing and planning regimes should be better integrated:
“In our call for evidence we asked: “Should licensing policy and planning policy be integrated more closely to shape local areas and address the proliferation of licensed premises? How could it be done?” An overwhelming majority of respondents criticised the current lack of coordination between licensing and planning, and thought that there should be better integration. We were given numerous examples of the absurdities caused by the separation of the systems, especially for applicants for new premises which need permission for both planning and licensing, and for whom permission for one without the other is of no use.
This example given to us by the London Borough of Hounslow is just one illustration:
“One recent problem is a restaurant who built a structure in their garden without planning permission. Planning permission was subsequently applied for and refused. There was fierce opposition to the structure from local residents and in our view the concerns of the residents were valid. The owners have also applied for a premises licence which includes the structure. Planning could not object because the regimes are supposed to be separate and the licence was subsequently granted with restrictions. We now have a situation where the planning permission is refused and the licence is granted. Residents have commented on their confusion and the premises licence holder has received an approval and a refusal for the same structure from the same local authority.”
Their conclusion was: “The whole process is confusing for our residents and we would support a change in the position so that planning permission can be considered when determining licence applications.”
The Select Committee concluded:
“If, as we think, it is not only permissible but logical to look at licensing as an extension of the planning process, it would have been sensible for the Licensing Act to transfer the powers of licensing justices to the planning committees of local authorities, rather than set up a new and untried system of licensing committees with a new and different procedure, new staffing, and a new appellate process. Instead the result has been that each local authority has been able to deal with all aspects of land use through a planning committee with the single exception of licensed premises, which require a separate committee and a separate mechanism. Now that the system has been in operation for 11 years, we believe that this can be seen to have been a mistake and a missed opportunity.
We recognise that a suggestion that licensing committees should be abolished and their work amalgamated with that of planning committees is a radical one. It is not a change which should be made without first being trialled over a small but representative sample of local authorities over perhaps two years.”
“While the Government rejects some recommendations and conclusions, there are several recommendations which are a spur to further work, particularly in respect to how the system of licensing can be made to function more effectively and the lessons that can be learned from the planning system.”
“We accept that improvements could be made in some local areas and that the synergies between planning and licensing should be part of an ongoing discussion about how we can support local improvements. Instead of transferring the functions of licensing committees to planning committees, we are focusing on improving training and providing stronger guidance on how licensing hearings should be conducted.
The basic structures of the planning and licensing system are similar and our focus will be on improving how the two regimes communicate and interact at local level. There is good practice in many local areas that we will disseminate and build on, for example whether there is additional support that local residents could be given to frame and present their concerns about a licensing application to the committee effectively.”
Will this separation hold firm? Is it sensible for statements of licensing policy to be prepared separately from local plans? Is it sensible for licensing and planning matters to be dealt with by different committees and sub-committees? Is this efficient and understandable both by potential users of the systems, by local authority officers and members, and by local residents? Is there another way of reconciling the desirability of encouraging the night-time economy with legitimate local concerns as to amenity?
You tell me.
Simon Ricketts, 30 November 2019
Personal views, et cetera
Detail from Port of London, Night by Maximilien Luce, 1894
Examination question: Was the Supreme Court’s ruling in Wright v Resilient right or resilient?
The problem is a practical one, and frequently arising. If an applicant promises that it will provide specific benefits for a community if it secures planning permission, and the decision maker takes into account those promises in approving the application, is any subsequent planning permission unlawful?
I covered the Court of Appeal ruling and the issues more generally in my 2 June 2018 blog post Community Benefits.
It is a difficult tight rope for developers – in promoting an unwelcome scheme they may be facing suspicion or even anger from local residents, and may be quite prepared to make funds available so as to be “seen to be doing the right thing”, to be “good neighbours” or simply reduce the extent of objection. But is this likely to lead to the risk of legal challenge?
In Resilient, an application was made for planning permission for a wind turbine.
“In its application for planning permission, Resilient Severndale proposed that the wind turbine would be erected and run by a community benefit society. The application included a promise that an annual donation would be made to a local community fund, based on 4% of the society’s turnover from the operation of the turbine over its projected life of 25 years (“the community fund donation”). In deciding to grant planning permission for the development the Council expressly took into account the community fund donation. The Council imposed a condition (“condition 28”) that the development be undertaken by a community benefit society with the community fund donation as part of the scheme.”
There would also be “the opportunity for individuals in the community to invest in the project by subscribing for shares in the proposed community benefit society, with estimated returns of 7% pa”.
There is Department of Energy and Climate Change best practice guidance from October 2014 in relation to “community benefits from onshore wind developments”, encouraging arrangements of this nature, albeit on a voluntary basis.
Mr Wright, an objector to the project, challenged the grant of planning permission on the grounds that the promised community fund donation was not a material planning consideration and the Council had acted unlawfully by taking it into account.
Lord Sales’ judgment follows the position of the High Court and the Court of Appeal in quashing the permission.
He takes a conventional route through the case law. To simplify:
“… the conditions imposed must be for a planning purpose and not for any ulterior one, and … they must fairly and reasonably relate to the development permitted. Also they must not be so unreasonable that no reasonable planning authority could have imposed them …” (Viscount Dilhorne in Newbury District Council v Secretary of State, House of Lords, 1981).
“…a planning purpose is one which relates to the character of the land”. (Lord Scarman in Westminster City Council v Great Portland Estates plc (House of Lords, 1985).
“A principled approach to identifying material considerations in line with the Newbury criteria is important both as a protection for landowners and as a protection for the public interest. It prevents a planning authority from extracting money or other benefits from a landowner as a condition for granting permission to develop its land, when such payment or the provision of such benefits has no sufficient connection with the proposed use of the land. It also prevents a developer from offering to make payments or provide benefits which have no sufficient connection with the proposed use of the land, as a way of buying a planning permission which it would be contrary to the public interest to grant according to the merits of the development itself.”
The question of whether something is a material consideration is a question of law. Lord Sales referred to the statement by Lord Hodge in Elsick Development Company Limited v Aberdeen City and Shire Strategic Development Planning Authority (Supreme Court, 25 October 2017): “The inclusion of a policy in the development plan, that the planning authority will seek … a planning obligation from developers [to contribute money for purposes unconnected with the use of the land], would not make relevant what otherwise would be irrelevant”. Lord Sales applied the same principle to the DECC guidance.
“In the present case, the community benefits promised by Resilient Severndale did not satisfy the Newbury criteria and hence did not qualify as a material consideration within the meaning of that term in section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. Dove J and the Court of Appeal were right so to hold. The benefits were not proposed as a means of pursuing any proper planning purpose, but for the ulterior purpose of providing general benefits to the community. Moreover, they did not fairly and reasonably relate to the development for which permission was sought. Resilient Severndale required planning permission for the carrying out of “development” of the land in question, as that term is defined in section 55(1) of the 1990 Act. The community benefits to be provided by Resilient Severndale did not affect the use of the land. Instead, they were proffered as a general inducement to the Council to grant planning permission and constituted a method of seeking to buy the permission sought, in breach of the principle that planning permission cannot be bought or sold.”
Judicially, that is the final word on the issue until such time as there is a change in legislation. I hold to the practical, but not risk-free, suggestions set out in my June 2018 blog post as to how community benefits may safely be provided.
However, in my slow brain, the position remains unsatisfactory. The Supreme Court pretty much slapped down the submission by Martin Kingston QC for Resilient Energy that the meaning of “material consideration” is always being updated in line with changing government policy. Why wasn’t he right? I have read the ruling a few times and don’t understand the distinction the court draws with the case law establishing that material considerations can include, for instance a requirement to provide affordable housing or a requirement that there should be local procurement. Similarly the submissions by Richard Kimblin QC for the Secretary of State (Richard has generously made public his skeleton argument via LinkedIn) that the court might “wish to restate and clarify the meaning of “for a planning purpose” (or, “in planning terms”) in a manner which is fitting to modern planning circumstances”.
The final point to bear in mind is that of course this case concerned whether the offer of the proposed community benefits package was a “material consideration” which the decision maker could lawfully take into account (and a subsidiary issue as the lawfulness of a planning condition that sought to require that package to be delivered). If the arrangement had been secured by way of section 106 planning obligation, that would have engaged the even tougher test set out in regulation 122(a) of the Community Infrastructure Regulations 2010 – that the obligation is “necessary to make the development acceptable in planning terms” (part of Mr Kimblin’s case was that the court should bring the common law Newbury test into line with the statutory regulation 122 test).
In my previous blog post I referred to what may be at least part of the solution to this uncertainty, section 155 (still not yet switched on) of the Housing and Planning Act 2016:
“Finally, the way in which all of this to be reported to committee will be tidied up as and when section 155 of the Housing and Planning Act 2016 is brought into force, in that “financial benefits information” will need to be included in officers’ reports, including “a list of any financial benefits (whether or not material to the application) which are local finance considerations or benefits of a prescribed description, and which appear to the person making the report to be likely to be obtained” by the authority or third parties within a description to be prescribed, as a result of the proposed development, together with “in relation to each listed financial benefit, a statement of the opinion of the person making the report as to whether the benefit is material to the application” as well as any other prescribed information about each listed financial benefit.”
Mike Best at Turley made the point most concisely in a tweet this week:
Two themes to this blog post:
⁃ the, partly inconsistent, changes to the planning system announced over the last week;
⁃ the difficulty of sieving out from this a lot more media chaff.
The pre Conservative party conference briefings in relation to planning reforms started last week with stories in the Sun, Mail and Telegraph. What a textbook example of choosing the media (Tory), the language (middle aged “turbo charged” concept) and the interests emphasised (home-owning families):
Robert Jenrick’s conference speech on 30 September 2019 says very little as to the detail:
“…I will simplify the system.
I’m announcing new freedoms, including to build upward so that your home can grow as your family does too.
Reducing conditions, speeding up consent. Better funded local planning in return for efficient service. The beginning of a planning revolution.
Thirdly, no new home will be built in the country from 2025 without low carbon heating and the highest levels of energy efficiency.
We want better homes – and a better planet to match.
And fourthly, these new homes must be well-designed, safe, and rooted in places to which people can belong.
I am announcing the first national design guide and asking every community to produce their own. Empowering people to make sure that development works for them, in keeping with the local heritage and vernacular, with each new street lined with trees.
So, under the Conservatives, more environmentally-friendly homes, more beautiful homes, faster and simpler planning, and a leg up on to the property ladder.”
“This consultation sets out our plans for the Future Homes Standard, including proposed options to increase the energy efficiency requirements for new homes in 2020. The Future Homes Standard will require new build homes to be future-proofed with low carbon heating and world-leading levels of energy efficiency; it will be introduced by 2025.
This document is the first stage of a two-part consultation about proposed changes to the Building Regulations. It also covers the wider impacts of Part L for new homes, including changes to Part F (ventilation), its associated Approved Document guidance, airtightness and improving as-built performance of the constructed home.”
Update as to the proposed Accelerated Planning green paper:
“The government has also confirmed proposals to speed up the planning system, including the potential for more fees to be refunded if councils take too long to decide on specific planning applications.”
“Local residents will no longer have to contend with a complicated and outdated planning system, but a more user-friendly approach designed to simply the process. Small developers will similarly benefit from the simplification of guidance, with the introduction of a new tiered planning system.
Application fees will also be reviewed to ensure council planning departments are properly resourced, providing more qualified planners to process applications for new homes and other proposals.”
“The accelerated planning green paper will be published in November 2019. Government has also set out its ambition to reduce planning conditions by a third, and will take forward proposals to allow homes to be built above existing properties as well as seeking views on demolishing old commercial buildings for new housing, revitalising high streets in the process.”
So what can we expect?
Further reform of the application fees system
Greater use of technology in the application process
“reduce planning conditions by a third”? Search me. Sensibly framed conditions are a crucial mechanism both in ensuring timely approval of applications without requiring unnecessary details at a premature stage and in ensuring that what is approved is what is built.
That there will be further work on the very difficult and not at all new ideas, supported by successive ministers, to expand permitted development rights “to allow homes to be built above existing properties” and “demolishing old commercial buildings for new housing”. I have covered the problems in various blog posts, for instance Permitted Development: Painting By Numbers Versus Painting The Sistine Chapel? (8 December 2018) and The Up Right (13 October 2018).
What is quite interesting is the additional detail in one of the Mail’s stories, although who knows whether any of it has any factual basis:
“The right will be afforded first to purpose-built blocks of flats, but will eventually be rolled out to all detached properties.” [This right was originally framed around the creation of additional homes, not about home extensions. What possible justification is there for a massive extension in domestic permitted development rights?]
“Ministers will also try to accelerate the conversion of disused and unsightly commercial properties into residential homes.” [except that we know that the criteria will not include whether the commercial properties are indeed “disused” and “unsightly” – see equivalent terminology before the existing office to residential permitted right was introduced]
“Under a ‘permission in principle’ system, developers will not have to get detailed planning permission before the bulldozers can move in.“ [Interesting use of terminology – do we think that the changes might in fact be introduced by way of the “permission in principle” procedure rather than by amendments to the General Permitted Development Order? Even so, I don’t see that the problems would be reduced – how to arrive at a light-touch procedure which properly addresses legitimate and inevitable concerns as to for instance design, townscape, daylight and sunlight, overlooking and section 106 requirements such as affordable housing]
The purpose of the national design guide is to address “the question of how we recognise well- designed places, by outlining and illustrating the Government’s priorities for well-designed places in the form of ten characteristics.
It is based on national planning policy, practice guidance and objectives for good design as set out in the National Planning Policy Framework. Specific, detailed and measurable criteria for good design are most appropriately set out at the local level. They may take the form of local authority design guides, or design guidance or design codes prepared by applicants to accompany planning applications.”
This is how the ten characteristics are introduced, before being addressed in turn:
“Well-designed places have individual characteristics which work together to create its physical Character. The ten characteristics help to nurture and sustain a sense of Community. They work to positively address environmental issues affecting Climate. They all contribute towards the cross-cutting themes for good design set out in the National Planning Policy Framework.”
Part 3 of the national design guide, a “national model design guide”, is “to follow”.
In the meantime of course the Building Better, Building Beautiful Commission is working on its final report, anticipated in December 2019, following on from its interim recommendations that I covered in my 27 July 2019 blog post New Cabinet, Poor Doors, No Windows.
Christopher Hope in the Telegraph should also know better than describe planning practice guidance (that’s all it is, guidance, not even policy) as a “legal right”.
The inevitable challenge, obvious but so far unacknowledged by Government, is how to reconcile this earnest work that seeks to improve the quality of our places, with its continued attachment to deregulation via expanded permitted development rights.
Is it any wonder the public are confused and sceptical as to the planning system operates? They are continually being misled.
Who hasn’t felt the same helplessness? You’re faced with a planning permission which does not say what the local planning authority plainly meant it to say. Do you go by what the document says? Or is its literal meaning changed by reference to what the authority intended?
Spoiler alert: Lambeth doesn’t provide the answer. It is specific to its facts. However it does provide another pointer as to the courts’ likely reaction to these sorts of issus. Following the approach of the Supreme Court in Trump International Golf Club Limited v Scottish Ministers (Supreme Court, 16 December 2015), Lord Carnwath indicates:
“In summary, whatever the legal character of the document in question, the starting-point – and usually the end-point – is to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.”
The facts of Lambeth are well set out in the Supreme Court’s press summary. A section 73 permission was issued which recited in the description of development the precise change that was authorised to be made to a condition on a previous 2010 permission restricting the types of goods that could be sold from a Homebase store but the local planning authority, whilst reimposing some conditions that were on the 2010 (including a condition imposing a three years’ implementation deadline) neglected to reimpose the condition restricting what types of goods could be sold and neglected to reimpose to other conditions (in relation to refuse and recycling and in relation to management of deliveries and servicing).
I summarised Lang J’s first instance ruling in my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions. She restricted herself to a formalistic interpretation of the permission. There was no condition restricting the types of goods to be sold. The description of development on the permission does not operate as a condition. There was therefore no operative restriction – there was nothing to prevent the shop being turned into, for instance, a food superstore. Some mistake on the part of the authority. Some windfall for the owner of the store, Aberdeen Asset Management. I speculated that the ruling might be overturned by the Court of Appeal but in fact they took the same line, in a judgment by Lewison LJ (Court of Appeal, 20 April 2018).
However, the Supreme Court has allowed the authority’s appeal. It found that the very nature of a section 73 permission is that it grants permission subject to a condition as varied. The document was “clear and unambiguous”, with the description of development setting out the “original wording” of the condition to be varied and the “proposed wording”. ““Proposed wording” in this context must be read as a description of the form of condition proposed in the application and “hereby” approved. In other words, the obvious, and indeed to my mind the only natural, interpretation of those parts of the document is that the Council was approving what was applied for: that is, the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other. There is certainly nothing to indicate an intention to discharge the condition altogether, or in particular to remove the restriction on sale of other than non-food goods.”
This reasoning will apply to other situations where the nature of the amendment proposed to a condition is set out precisely in the description of development. Where there is not that precision, clearly there will still be room for argument.
What about the two conditions which were not reimposed? I find this part of the court’s reasoning difficult, or at least potentially opening up further areas of uncertainty:
“It will always be a matter of construction whether a later permission on the same piece of land is compatible with the continued effect of the earlier permissions…In this case, following implementation of the 2010 permission, the conditions would in principle remain binding unless and until discharged by performance or further grant. Conditions 2 and 3 were expressed to remain operative during continuation of the use so permitted. The 2014 permission did not in terms authorise non-compliance with those conditions, nor, it seems, did it contain anything inconsistent with their continued operation. Accordingly, they would remain valid and binding – not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation.”
So a potentially difficult exercise is required on a site with successive permissions (including section 73 permissions) – of working out which conditions from previous permissions continue to apply, even though the planning permission itself may have been superseded.
Two last points:
⁃ What of the reimposed time limit condition? People sometimes get themselves in an intellectual knot in relation to section 73 permissions granted after the physical development authorised by the previous permission has been completed. Does the section 73 permission need to be implemented in some way? Can an authority in fact grant a section 73 permission in these circumstances. Thankfully, the Supreme Court didn’t have any concerns along these lines. It agreed with the Court of Appeal that the condition was invalid, in circumstances where the development had already been carried out.
⁃ another worry sometimes – was the purported permission such a nonsense that it was of no legal effect despite no-one having challenged its validity in the six weeks’ JR time limit? Again, the Supreme Court showed no worries on that score:
“If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition. The validity of the grant might perhaps have been subject to a timely challenge by an interested third party or even the Council itself. That not having been done, there is no issue now as to the validity of the grant as such. All parties are agreed that there was a valid permission for something. That being the common position before the court, the document must be taken as it is.”
On the facts I do support the outcome. The lower courts’ approach seemed to fly in the face of common sense – of the meaning that any reader of the document (other than a planning lawyer perhaps!) would have given to it. But I do recognise the difficulties that can arise, as identified in a post by Zack Simons.
The tension between literal versus “following the formalities regardless of the words” interpretation will always be there. We have all seen so many variants of permissions that do not quite say what they are meant to say, and who can blame planning officers for sometimes not getting it quite right.
For instance, despite the provision in section 73(5) of the 1990 Act, preventing section 73 permissions from varying the time limits that were imposed on the original permission for implementation or reserved matters submissions, the restriction is overlooked from time to time and fresh time limits are set. Once free from the risk of JR, can the new time limits be relied upon? On the approach in Lambeth, my provisional view is that I don’t see why not. The natural and ordinary meaning of the permission is clear and once free from legal challenge surely there is a valid permission. Even where a permission is issued in a flawed state without legal authority, as in the Thornton Hotel case (see my 18 May 2019 blog post Slow Claim Coming: Limiting JRs https://simonicity.com/2019/05/18/slow-claim-coming-limiting-jrs/ ), the courts will apply strict criteria before the validity of a permission to be challenged after the usual deadline.
Two more planning law cases are heading to the Supreme Court. Whilst permission to appeal was refused in the air quality case, Shirley, we can look forward to the Supreme Court justices applying their minds on 22 and 23 July to the vexed area of community benefits in Resilient Energy and, on a date to be fixed, to the question of what is a listed building in Dill.
In the Rhydcwmerau wind turbines case there was a planning permission granted where the description of the development that was thereby approved was as follows:
“Installation and 25 year operation of two wind turbines, with a tip height of up to 100m, and associated infrastructure including turbine foundations, new and upgraded tracks, crane hardstandings, substation, upgraded site entrance and temporary construction compound upon a site situated to the north of the village of Rhydcwmerau, Carmarthenshire”
The description of development appears simply to have been incorporated in the permission by reference to the description of development on the application form, but I don’t think anything turns on that.
The permission was subject to a number of conditions. Condition 2 provided that the development was to be carried out in accordance with a number of approved plans and documents which were specified. One such was a “figure” described as “3.1 Typical Wind Turbine Elevation 1:500 @ A3“. It is common ground that this showed a wind turbine with a tip height of 100m.”
The promoter of the project then made an application under section 73 of the Town and Country Planning Act 1990 to substitute plan 3.1 with a plan showing a wind turbine with a tip height of 125m. The local planning authority treated the application as valid but refused it. An inspector allowed the promoter’s appeal.
The claimant challenged the inspector’s decision:
“It is argued that the Inspector should not have allowed the appeal because she had no power under section 73 to amend a condition pursuant to which a prior planning permission had been granted which had the effect of directly contradicting the description of the development permitted in that earlier permission. Further or alternatively, the Claimant asserts that the Inspector failed to consider at all (as she should have done in accordance with established legal principles) whether the application before her constituted a “fundamental alteration” of the prior permission“.
On the first ground of challenge, Sir Wyn Williams held that “the only proper interpretation of the judgment in Wet Finishing Works, is that a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application.” The section 73 permission was not unlawful simply because necessarily the permission entailed a change to the original description of development which had referred to a tip height of 100m rather than 125m.
He also referred to the test formulated by Sullivan J in R v Coventry City Council, ex p. Arrowcroft Group plc (2001): “the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.”
Applying that test to the decision letter:
“Although I am not entirely convinced that the Inspector had in mind that it was necessary for her to consider in terms whether the variation sought would create a fundamental alteration to the original proposal I am prepared to conclude, on balance, that she was aware of that obligation and considered it.”
But even if she had not, it was highly likely that the decision would have been the same. “I have no doubt that had the Inspector considered whether the variation to the condition would have constituted a fundamental alteration to the original proposal she would have concluded that it did not. The whole tenor of her decision letter leads inexorably, in my judgment, to that conclusion as a careful reading of it makes abundantly clear.”
So, a pretty clear signpost for us all to follow – particularly a number of local planning authorities which presently take a plainly too restrictive approach to the use of section 73.
All change on Monday, with sight of the draft revised NPPF, but this blog post focuses on a more fundamental issue: how unnecessarily hard it can be to make changes to a scheme that has planning permission without having to go back to the very beginning again.
Why do schemes change post-permission in the first place? It’s unsurprising when you consider:
– the time that it takes to obtain planning permission for a large project, during which market demand or other circumstances may have changed;
– the extent to which relatively detailed parameters need to be fixed at such an early stage even for an outline application;
– the opportunities that often arise to increase densities or make other improvements once a house-builder or end-user takes over the reins from the initial applicant (for the avoidance of doubt strategic land promoters are a good and necessary thing – often no-one else is going to fulfil that upfront, high risk/high cost, role at the outset of long-term projects beyond a certain scale).
These scheme changes are often to be welcomed and yet sometimes it seems as if the planning system conspires to prevent them. See Philip Barnes’ blog post ‘A simple way of increasing housing delivery‘ (11 January 2017) for an excellent articulation of the practical frustrations from a house-builder’s perspective.
Of course there are two mechanisms available:
– section 73 of the Town and Country Planning Act 1990 enables “applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.”
– section 96A of the 1990 Act enables a local planning authority to approve a “change to any planning permission relating to land in their area if they are satisfied that the change is not material.”
But there are limitations to both procedures, some in the legislation itself (for instance section 73 applications cannot be used to extend the life of a planning permission and section 96A applications can only be made “by or on behalf of a person with an interest in the land to which the planning permission relates“), some by way of case law and some (the most problematic, because so uncertain) by reason of the breadth of discretion that local planning authorities have in determining whether the particular changes sought fall within the ambit of either procedure – not assisted at all by vague and unnecessarily restrictive advice in the current Planning Practice Guidance.
The detailed position is set out in Town partner Clare Fielding’s 2015 paper to the Oxford Joint Planning Law Conference From concept to construction: the law and practice of amending planning permissions. It is disappointing that we are still in as uncertain a place as we were then.
The main problem is the lack of any firm rules as to the extent of changes to a planning permission which can be secured under section 73. The leading case remains Coventry City Council ex p Arrowcroft Group plc (Sullivan J, 21 July 2000), where there is the often quoted passage from Sullivan J: “It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local authority ‘… shall consider only the question of the conditions subject to which planning permission should be granted’…Thus the Council is able to impose different conditions upon a new planning permission, but only if they are conditions which the Council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.”
So the guiding principle is what is a “fundamental” alteration? “Fundamental” is a big thing as far as lawyers are concerned – think from the law of contract the principles of “fundamental mistake”, “fundamental breach” and “fundamental lack of consideration – it’s not just millennial adjective-inflation along the lines of fabulous, awesome and great!
And yet successive Governments have since 2009 described the procedure as the making of “minor material amendments” (hence for those of us in the trade the inevitable acronym of “MMA” for section 73 applications – lose that please folks!). The current Planning Practice Guidance says this:
“There is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved.”
The roots of this are in the (now cancelled) document published first in 2009 and then updated in 2010, Greater Flexibility For Planning Permissions – a proportionate and timely response at the time to the financial crisis and its implications for house building and economic development more generally. Aside from re-introducing for a temporary period the ability to extend the duration of planning permissions, the document gave guidance on the use of the then new section 96A procedure for non-material amendments (introduced by the Planning Act 2008) and sought to “streamline and clarify” the section 73 procedure in the light of the Killian-Pretty review which had recommended that “the Government should take steps to allow a more proportionate approach to minor material changes in development proposals after permission has been granted” and some further work carried out by WYG, in which WYG had come up with that problematic wording:
“A minor material amendment is one whose scale and nature results in a development which is not substantially different from the one which has been approved”
The purpose of the guidance and the thrust of the Killian-Pretty and WYG work was not in any way to cut back on the use of section 73 but, by incorporating in guidance those references to “minor material amendment” and “not substantially different” the Government introduced confusion. “Minor material amendment” may be a handy phrase but a more accurate one, reflecting the law, would be:
“less than fundamental amendment, whether material or not“.
As a result of the confusion we have a patchwork situation where many authorities have been comfortable approving significant changes by way of section 73 (for instance Barnet Council at Brent Cross Cricklewood) but others have been running scared or seeking legal advice which is ultimately of little assistance – the authority must consider whether the changes are a “fundamental alteration of the proposal put forward in the original application”. That is a matter of planning judgment, albeit in my view “fundamental” means “fundamental”!
There has been surprisingly little case law, although two cases from last year are helpful:
– R (Vue Entertainment Limited) v City of York Council (Collins J, 18 January 2017) where the court upheld a section 73 permission relation to a mixed use development, where the changes to the permitted scheme included increasing the size of a proposed cinema from 12 screens with a capacity of 2,000 people to 13 screens with a capacity of 2,400.
– R (Wet Finishing Works Limited) v Taunton Deane Borough Council (Singh J, 20 July 2017) is also interesting – not just because a challenge to a approved change from 84 to 90 dwellings failed (how could that have been fundamental in anyone’s mind?) but because the 84 dwellings figure was included in the approved description of development and that was still not a bar on the change being approved via section 73. An area of repeated debate is whether a section 73 permission can achieve amendments to conditions which are inconsistent with the approved description of development and often a section 96A application is made to amend the description of development, replacing any reference in the description to numbers of, for instance, dwellings, with a condition to the same effect, so that that condition can then be amended by section 73. You begin to see the unnecessary bureaucracy, legalism (caused by fear of judicial review) and scope for uncertainty.
So why not simply make a fresh application for planning permission rather than seeking to proceed under section 73?
First and most importantly, inevitably there is less risk of being drawn back into a prolonged consideration of the merits of the proposal itself. This is of course another area that is not black and white. Whilst section 73(2) states that “[o]n such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted“, inevitably if policies have changed since the existing permission was approved the decision maker may seek to use the section 73 application as a means of applying them, asserting that the section 73 permission should only be granted with those additional or tightened conditions or obligations.
Secondly, rather than starting afresh with another full set of application documentation, it is likely to be acceptable simply to supplement the existing material where necessary, reducing significantly the scale of the application package for all concerned. Where the existing permission was supported by a viability appraisal that process will need to be updated (in London there is guidance on this in the affordable housing and viability SPG and policy H6 paragraphs G to J of the draft London Plan). A deed of variation to the existing section 106 agreement is more likely to be accepted, rather than requiring a fresh section 106 agreement.
Thirdly, a section 73 application may be the only way of avoiding being hit for CIL on top of existing section 106 obligations which were intended to contribute to the same infrastructure requirements, where the local planning authority has adopted a CIL charging schedule since the original planning permission was issued.
Fourthly, a flat £234 application fee rather than a fee of up to £150,000 for an application for outline planning permission. Maybe that £234 figure is too light, particularly where more than one condition will be changing from the original permission, but there is no basis on an amended scheme for paying the same fee as first time round.
Of course, care is needed by the authority in drafting the section 73 permission (see my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions).
Why are there also arguments, in the context of section 96A, as to whether amendments are “material” or not? Well, section 96A is an extremely useful procedure, in that there a 28 day determination timescale (rather than the normal application timescale that applies for section 73 applications), there are no consultation requirements and it does not result in a fresh planning permission, meaning that there is no need to vary the existing section 106 agreement. Of course, again what is material (ie material in planning terms) is for the local planning authority to determine and as long as its determination on the issue is reasoned, any potential challenger to an approval faces an uphill struggle. Conversely, the applicant has no right of appeal to the Secretary of State. The authority is in a position, of (to be cynical) much power or (to be more realistic) being unclear as to what approach it should take – which again is a reason to consider whether clearer, more positive, guidance in the PPG is required rather than this:
“There is no statutory definition of ‘non-material’. This is because it will be dependent on the context of the overall scheme – an amendment that is non-material in one context may be material in another.”
In unveiling the draft revised NPPF (and potentially draft revised PPG alongside it) on Monday, will the prime minister take the opportunity to clarify for us that “non-material” means “non-material” and that “fundamental” does indeed mean “fundamental”? Probably not, she will focus on grander matters I’m sure, but the section 96A and section 73 procedures are two of the dull, forgotten but necessary, nuts and bolts of the process that have the most tendency to jam. Jam today, no homes tomorrow.
Simon Ricketts, 3 March 2018
Personal views, et cetera