This is the tripwire: Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 provides that a local planning authority’s planning register must contain, amongst other things, in relation to a planning application “a copy (which may be photographic or in electronic form) of any planning obligation or section 278 agreement proposed or entered into in connection with the application.”
The requirement should not be news for any local planning authority but it is often honoured in the breach. Until now it has not formed a basis for the quashing of a planning permission. But that could well be the outcome, subject to the court’s final order, of the Court of Appeal’s judgment yesterday (16 April 2025) in R (Greenfield (IOW) Limited v Isle of Wight Council , which concerned a challenge to Isle of Wight Council’s decision to grant planning permission for a development comprising 473 dwellings and related development, in circumstances where the proposed or completed agreement had not been placed on the planning register before planning permission was issued. One can see the problem arising from the particular facts: the planning committee’s resolution to grant planning permission was subject to prior completion of a section 106 agreement, one of the heads of terms of which was to be a financial contribution (amount unspecified although at the time of the committee the developer had indicated that the costs could be in the region of £777,000) but then only when planning permission had been granted did it transpire that the section 106 agreement, subsequently negotiated, provided for a contribution of £406,359.
The court made it clear that the implications of failure to comply with the duty are fact-specific. Here the heads of terms in the committee report were insufficient to inform the reader as to the nature of the contribution (namely its quantum) and the overwhelming evidence was that the claimant and others would have wished to make representations had they known what figure was proposed. Whilst the court found that the claimant had not made any request of the council a copy of the proposed obligation, it was accepted that they had searched the online planning register for sight of it. Lastly, the court could not conclude that even if the duty had been complied with it would have been highly likely that the outcome would have been the same.
At first instance HHJ Jarman KC had found this ground of challenge to be unarguable. Ah the uncertain joys of litigation.
What practically should we take from the judgment? These are just my own personal thoughts:
It is prudent for a local planning authority to place a copy of the draft and/or completed planning obligation (i.e. section 106 agreement or unilateral undertaking) on its planning register before the document is completed and permission issued.
This is particularly the case where the substantive contents of the agreement or undertaking are not already summarised in an officer’s report (and, if relevant planning committee resolution) which is in the public domain
The duty is to put the document on the register rather than to undertake further consultation and there is no minimum period specified as between placing the document on the planning register and issuing the permission, although in my view it would be sensible to allow at least a few days (e.g. when the document is probably in any event being engrossed and doing the rounds for execution – complying with this duty should not be an excuse for further delay in the process).
The question often arises as to whether successive drafts of a planning obligation need to be put on the register. What, after all, is the version of the document which is, in the vague words of the statutory duty, “proposed or entered into“? In my view successive drafts certainly do not need to be put on the register and it is sufficient to place on the register the version that the authority intends to enter into or (in the case of a unilateral undertaking intends to rely on) as a basis for granting planning permission.
None of this should be news, but local planning authority practice to date has often been rather more laissez faire, perhaps partly because the courts have previously declined to quash permissions in not dissimilar circumstances (see for instance R (Police and Crime Commissioner for Leicestershire) v Blaby District Council (Foskett J, 27 May 2014) and maybe partly because, well, this is a statutory duty, tucked away in the Development Management Procedure Order, that it can be easy to overlook.
A list of the 25 or so current statutory consultees in relation to relevant planning applications is set out in table 2 of the government’s guidance, here.
The previous government appointed Sam Richards in December 2023 to carry out an independent review of the role of statutory consultees in the planning system, since when that, er, consultation disappeared into a large hole. Would the new government take up the cudgels? Sam Stafford’s 6 November 2024 blog post On Stat Cons is good on the subject, referring back to previous concerns raised by the RTPI and a series of suggestions that had been made by the Competition and Markets Authority. On 26 January 2025, the Deputy Prime Minister and the Chancellor announced a moratorium on the creation of new statutory consultees and committed to reviewing the existing arrangements.
Anecdotally, the statutory consultees where issues most frequently arise are surely National Highways, the Environment Agency and Natural England. True, the issues within their domain are often technically, and sometimes legally, complex, but how often does the local planning authority or applicant receive a relatively standard holding response or objection and then have to engage in lengthy chasing process to resolve the issue?
“Review of statutory consultee system to promote growth and unblock building
Consultation on limiting the scope of statutory consultees and removing a limited number of them, including Sport England, Theatres Trust and The Gardens Trust in planning decisions, while ensuring necessary community facilities and needs continue to be met
Will also establish a new performance framework with greater ministerial oversight
Reforms will reduce delays and uncertainty on planning proposals, demonstrating the government’s Plan for Change in action”
The government will be:
Consulting on reducing the number of organisations, including the impact of removing Sport England, the Theatres Trust and The Gardens Trust.
Reviewing the scope of all statutory consultees, to reduce the type and number of applications on which they must be consulted – and making much better use of standing guidance in place of case-by-case responses.
Clarifying that local authorities should only be consulting statutory consultees where necessary to do so, and decisions should not be delayed beyond the 21 day statutory deadline unless a decision cannot otherwise be reached or advice may enable an approval rather than a refusal.
Instituting a new performance framework, in which the Chief Executives of key statutory consultees report on their performance directly to Treasury and MHCLG Ministers.”
“The purpose of our statutory planning remit is to protect playing fields and community spaces for sport and physical activity.
“Britain’s childhood obesity crisis is rising and low physical activity levels cost our economy £7.4billion a year, making it vital we protect the places that local communities can be active.
“We support growth and exercise our powers carefully and quickly, ensuring local neighbourhoods are designed to help people live healthy, happy and active lives.
“We look forward to taking part in the Government’s consultation exercise and arguing the importance of protecting playing fields and places where local people can keep active.“
It perhaps has a reason to feel sore. The government’s press statement picks out a particular incident where “In Bradford, a development to create 140 new homes next to a cricket club was significantly delayed because the application was thought to have not adequately considered the speed of cricket balls.” I decided to look into this one. It was in fact widely publicised, for instance in a 12 November 2024 piece Speed of cricket balls could stump housing scheme. Sport England had queried the applicant’s consultant’s conclusions as to risk, based on the consultant’s assumptions as to the speed at which the balls might travel. Was this so wrong in principle or was the problem one of the slowness or over-rigidity of Sport England’s reaction? It is not clear.
I am a past trustee of the Theatres Trust and I was disappointed to see that the Trust is being considered for removal from the list. It is difficult to see how the Trust can effectively fulfil its statutory role under the Theatres Act 1976 of protecting theatres (widely defined) without being consulted on any planning application involving land on which there is a theatre or which will have an impact on theatre use. The Trust responded to 289 applications last year and, from my now admittedly historic knowledge of how the Trust operates, I would be surprised if any of those responses were late or unhelpful.
The written ministerial statement gives this further detail as to the government’s intentions:
“…we will review the range and type of planning applications on which statutory consultees are required to be consulted and consider whether some types of application could be removed, or addressed by alternative means of engagement and provision of expert advice. In some cases, this could be done through undertaking more effective strategic engagement at the local and strategic plan level, reducing the need for comments on individual planning applications, and increasing the role of standing advice. We will consult on these changes in the Spring alongside the impact of removal of the organisations identified above, before taking forward any resulting changes in secondary legislation later this year.”
There is also the advice in the WMS that: “local planning authorities should limit consultation of statutory consultees to only those instances where it is necessary to do so. Local planning authorities must still consult with statutory consultees where there is a legislative requirement to do so, noting that if there is relevant and up to date standing advice published with respect to that category of development, then consultation is not required. Applications may need to be referred to particular statutory consultees outside of the statutory requirements where their expertise is required, given the nature of the development, but should not be referred where standing advice is sufficient.”. “Decisions should not be delayed in order to secure advice from a statutory consultee beyond the 21 (or 18) day statutory deadlines unless there is insufficient information to make the decision or more detailed advice may enable an approval rather than refusal.” “In those limited circumstances where the statutory consultee is expected to provide advice on significant issues and it is necessary (for example, on safety critical issues), appropriate extensions to the 21 day deadline should be granted so that sufficient and timely information is available to inform the decision.“
“To support timely and effective engagement with the planning system, we will also institute a new performance framework. As part of this framework, an HM Treasury and MHCLG Minister will meet annually with Chief Executive Officers of key statutory consultees in order to review their performance.” “Finally, the Government recognises that statutory consultees need to be resourced adequately, and on a sustainable basis to enable them to support the government’s growth objectives in full.”
Much of this is surely to be welcomed but I think we need to focus on ensuring that the main statutory consultees respond positively, effectively and quickly rather than simply cutting out those which look a little niche (they are – and when your proposals are in that niche that’s where their specialist input is so important).
It is very difficult to think of a “one size fits all” policy intervention that would achieve what the government is looking for, namely “further action that we could take through the planning system to support the development of brownfield land in urban areas.” The paper “proposes options for a form of ‘brownfield passport’, which would be more specific about the development that should be regarded as acceptable, with the default answer to suitable proposals being a straightforward “yes”. It seeks views in particular on the following questions:
“Could national policy be clearer if it were explicit that development on brownfield land within urban settlements is acceptable unless certain exclusions apply?
What caveats should accompany any general expectation that development on brownfield land within urban settlements is acceptable?
How best can urban areas be identified and defined if this approach is pursued?
Could national policy play a role in setting expectations about the minimum scale of development which should be regarded as acceptable in accessible urban locations?
What parameters could be set for both the scale of development and accessibility?
Could more use be made of design guidance and codes to identify specific forms of development that are acceptable in particular types of urban area?
What sort of areas would be most suited to this approach, and at what geographic scale could such guidance and codes be used?
How could Local Development Orders be best used with these proposals?
Are there any other issues that we should consider if any of these approaches were to be taken forward, in particular to ensure they provide benefits as early as possible?
In addition to streamlining permissions on urban brownfield sites, where else do you consider this type of policy could be explored to support economic growth?”
“Passport” is undoubtedly over-optimistic branding, but I suppose even one of those Easyjet speedy boarding passes would be helpful.
Published after the paper, on 12 December 2024, the final revised version of the NPPF does of course contain a strengthened presumption in favour of brownfield development in paragraph 125 (c):
“Planning policies and decisions should:
(c) give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved unless substantial harm would be caused, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land”
“Substantial weight”; approval “unless substantial harm would be caused”: a strong signal one might think. However, it is interesting to see how the policy has been taken into account by appeal inspectors. Perhaps to state the obvious, it is not a “get out of jail free” card and in any event you do need to make sure you fit within the definition. We have found four examples but you may be aware of others:
Appeal reference APP/L1765/W/24/3344776 – decision letter dated 31 December 2024 dismissing an appeal for the demolition of existing office and ancillary buildings on site, conversion of an existing industrial warehouse and the construction of 9 residential properties in Denmead, Winchester. “…whilst the site comprises previously developed land, I do not find conflict with the substantial weight given within the Framework to the value of using suitable brownfield land within settlements for homes and other identified needs (Paragraph 125 c)) given the countryside location of the site and the market housing nature of the residential development proposed.”
Appeal reference APP/N5090/W/24/3345445 – decision letter dated 15 January 2025 dismissing an appeal for a proposed care home in Barnet. “In addition to outlining the […] benefits of the proposed development, the appellant has drawn my attention to NPPF paragraph 125 c) which states that planning decisions should give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved unless substantial harm would be caused, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land. Furthermore, the appellant has highlighted the removal from the NPPF of what was paragraph 130 in the 2023 NPPF, which made reference to the possibility that significant uplifts in the average density of residential development may be inappropriate if the resulting built form would be wholly out of character with the existing area.” However, the inspector “found that there would be harm to the character and appearance of the area resulting from the proposed development. That harm stems from both the bulk and massing of the proposed development in a sensitive context, but also in relation to the retention of trees along the site’s frontage.”
Appeal reference APP/F2605/W/24/3344783 – decision letter dated 30 January 2025 dismissing an appeal for a single detached dwelling in Breckland. “The appellant has identified that the site, as part of the garden of 1 Sandfield Lane, constitutes brownfield land. The Framework, at paragraph 125 c) states that planning decisions should give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be approved. The site, as identified above, lies outside of any defined development boundary. It does, however, lie within a grouping of buildings focussed around the pedestrian level crossing. However, I have identified that the proposal would rely almost totally on the private car for transport. Thus, the site is not suitable, as it would, through the generation of greenhouse gasses, have an adverse effect on the natural environment.”
Appeal reference APP/W3520/W/24/3352607 – decision letter dated 4 February 2025 dismissing an appeal for 11 dwellings and a commercial unit in Mid Suffolk. “In line with paragraph 125c of the Framework I give the housing, in this context, substantial weight. Although not in a settlement, it is in an accessible location.” However, the “proposal would be contrary to the Council’s spatial strategy with houses of an unacceptable mix, would fail to secure 10% BNG together with appropriate affordable housing, infrastructure requirements, habitat mitigation and has not demonstrated that it would not increase or cause flooding elsewhere. Consequently, it conflicts with the development plan as a whole.”
Given the range of questions raised by MHCLG, what might be additional appropriate interventions look like? Because I’m sure there will need to be various interventions. This is the part where I can plug last week’s Homes for Britain publication, Brownfield Planning Passports: The Fast Track To Growth, sponsored by Berkeley Group, which contains 14 essays with practical ideas from a wide range of public and private sector people (including me, returning to some of the themes of my 5 January 2025 blog post, How About A Five Yearly Review Of The Use Classes Order & GPDO, Starting This Year?). As you prepare your responses by 28 February, do have a read and it may spark some additional, or perhaps better, ideas.
PS I couldn’t mention blue sky without mentioning Blue Sky again. If you’re still looking for a replacement for whatever the present unpleasant tense of Twitter may be, come join. Link here.
Changes in the law relating to e.g. tripe shops, maggot breeding and bone grinding were my special subject as a late 80s young lawyer so please hear me out, because this is all central in my view to thinking with regard to the government’s (currently rather all shades of grey) “brownfield passports” concept (see my 28 September 2024 blog post Brownfield Passports…To What? When? How? ).
Two things I find interesting about the UK (now, for the purposes of this post, English and Welsh) town and country system:
The stability of its underlying structure: Many of the provisions of the Town and Country Planning Act 1947 are there, as the kernel of the current, much amended, 1990 Acts. Compare for instance section 12 of the 1947 Act (defining “development”) with section 55 of the Town and Country Planning Act 1990 or section 13 of the 1947 Act with section 59 of the Town and Country Planning Act 1990 (“development orders”).
The continual sets of amendments, large and small, that have been made, within that framework, to reflect differing political priories and economic and social pressures. Drafting by committee? What we have now is the almost impenetrable result of many generations of that. It always helps to understand who added, amended or removed what, when and why.
The tension for law makers is always the same: how to retain what works but ensure, without unnecessary complexity, that the system remains fit for purpose.
Maybe nowhere is this more so than in relation to the concepts of use classes (changes of use within a use class not amounting to “development” requiring planning permission) and permitted development (classes of development which have the benefit of automatic, deemed, planning permission).
When I first studied planning law (at bar school in 1984-85: course run by Victor Moore, as of “A Practical Approach To Planning Law”), we were all operating under the Use Classes Order 1972 (which was largely in the same form as the first Use Classes Order in 1950) and under the General Development Order 1977 (again largely in the form of the first General Development Order in 1948). This truly makes me feel old. These were the 1972 Use Classes Order use classes, dominated by all of those special industrial groups, and with those references to tripe shops, cats-meat shops and the like.
The categories of permitted development rights in the 1977 Order will look very familiar:
The brevity of the “changes of use” category, less familiar:
Conservative governments have been responsible for two major revisions of the system.
The first was shortly after I qualified, with the introduction of the (now amended many times) Town and Country Planning (Use Classes) Order 1987 the main functions of which do not nowadays appear very controversial: (1) lumping together office, light industrial and research and development uses within a new use class B1 and (2) abolishing the use classes containing all those old special industrial groups. Alongside this was the Town and Country Planning General Development Order 1988.
That system then survived without major reform for around quarter of a century.
The second set of changes to the system has been the multiple waves of deregulatory changes made between 2013 and 2024, particularly the creation of class E for a wide range of commercial uses in 2020 (see my 24 July 2020 blog post E Is For Economy) and the various new permitted development rights enabling residential conversion and demolition/rebuild in relation to commercial (and in some instances agricultural) buildings. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) is a shape-shifting monster.
The system is in desperate need of reform:
what should be the core objectives behind removing the need for planning permission for certain categories of use and works, given the Government’s missions?
How can the system operate with simplicity but also appropriate flexibility and reflecting local circumstances where appropriate?
What areas of the current system need modernising to reflect current economic or social pressures, priories and ways of living and working?
Depressingly, my 1 July 2016 blog post Time To Review The C Use Classes remains more relevant than ever. It’s still time! The nettle has not been grasped.
As for permitted development rights, perhaps the big political question is whether the concept of automatic planning permission for the conversion of certain types of commercial buildings to residential use should be rejected outright, based on the experience since May 2013, or can be made to work acceptably.
In 2023-24 8,825 of England’s 198,610 new dwelling completions were by way of permitted development rights . Between 2015/16 and 2022/23, 102,830 new homes were delivered by way of permitted development rights, around 6% of new homes. This is a not insignificant contribution, by numbers at least.
To this we add the Government’s drive towards brownfield development in urban areas (that brownfield passports document I mentioned); the extent to which commercial space is surplus to market requirements, and the carbon benefits of finding new uses for existing buildings (although query how this squares with the “demolish commercial and rebuildas residential” permitted development right).
Of course a big problem is that much of the resulting accommodation has not been of a decent standard (see e.g. Research into the quality standard of homes delivered through change of use permitted development rights by Dr Ben Clifford, Dr Patricia Canelas, Dr Jessica Ferm and Dr Nicola Livingstone Bartlett School of Planning, UCL and Professor Alex Lord and Dr Richard Dunning, Department of Geography and Planning, University of Liverpool, July 2020, published by MHCLG in 2020, strangely alongside yet further deregulatory measures). The Town and Country Planning Association is lobbying for a “Healthy Homes Bill”, describing permitted development rights as creating “slums for the future”.
Is there a middle ground? Do permitted development rights have a role in delivering homes, in the quantity needed but also to the necessary quality – decent, healthy?
The previous government consulted on further changes to permitted development rights in February 2024 . The outcome of that process was never published. We await Labour’s next steps.
What went wrong with commercial to residential permitted development rights?
For a start the measure seemed to be seen by ministers as a short-term tactical intervention rather than based on any longer-term strategy or analysis. In May 2013 the right was first introduced (initially just for three years) to allow changes from office use to residential use, the twin objectives being to boost housing and to help regeneration by way of putting vacant or under-utilised office space to productive use. The “prior approval” requirements were minimal, with no minimum space standards, no minimum standards for daylight and no protection in relation to noise, for instance. As is still the case, local planning authorities could not impose requirements as to affordable housing or require contributions towards for instance education or health facilities. Authorities could make “article 4” directions limiting the areas within which the permitted development right would apply but at risk of these being cancelled or amended by the government (as has frequently happened).
The right was extended to shops and to financial and professional services uses in April 2014 and made permanent in Autumn 2015. Adequacy of daylight was introduced as a prior approval requirement in August 2020 and minimum space standards in April 2021. Initially buildings of any size could be converted to residential. A 1,500 sq m cap was introduced in September 2020 (at the same time that there was the separate but related de-regulation measure of gathering together most commercial uses within a single use class, the new class E) and then that cap was removed in March 2024. Similarly, a requirement was also introduced that the building should have been vacant for at least three months before the application was made, only for that also to be removed. Are you keeping up? (Incidentally, I am grateful to my colleague Gregor Donaldson for reminding me of some of these twists and turns).
One might conclude from this chopping and changing that from the outset the process has lacked a proper strategic foundation, core objectives and a commitment to ensure that resulting development is not of poorer quality, or having a free ride at the expense of development achieved by way of the traditional planning application route. Care is needed with criticism of outcomes: to what extent did these result from the initial wave of conversions, before additional prior approval safeguards had been introduced? Also remember that these developments do have to comply with the Building Regulations and with housing legislation. Not every failing is down to the GPDO.
Before we give up on removing unnecessary matters from the planning application process and on this streamlined route for delivering new accommodation on urban brownfield land, surely there is an urgent need to examine whether the system can indeed ensure, by way of objective criteria, that:
– (possibly by way of an article 4 direction process following better national guidance and the opportunity for public consultation) development locations are sustainable for their residents, with access to public transport, schools, health and community facilities;
– schemes should pay their way in terms of affordable housing and other section 106 agreement requirements in the same way as schemes delivered by way of planning application.
But more widely, surely we need to embed a rhythm within government of reviewing the operation of the Use Classes Order and General Permitted Development Order regularly, in an orderly rather than ad hoc way, so as to ensure that we have both a reasonable level of stability but also a proper regular process for reflecting emerging economic, social and indeed technological trends?
I want to share with you my colleague Susannah Herbert’s summary today of yesterday’s Court of Appeal judgment, Test Valley Borough Council v Fiske . It will form part of our next weekly case update (subscribe for free here).
What follows is all Susicity rather than Simonicity:
The Court of Appeal has clarified the scope of variations that can be made by an application under section 73 of the Town and Country Planning Act 1990. Lord Justice Holgate’s leading judgment also contains guidance on the Wheatcroft principle as well as the scope of section 96A.
In the High Court, Morris J had held that the use of section 73 was subject to two restrictions and that conditions imposed under section 73 would be unlawful if:
(1) they are inconsistent in a material way with the operative part of the original permission (“restriction 1“);
(2) if they make a “fundamental alteration” of the development permitted by the original permission, reading that permission as a whole (“restriction 2“).
This was in contrast to the case of Armstrong v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 176 (Admin) decided earlier that year which had concluded that the only restriction on the use of section 73 was restriction 1 and that there was no “fundamental alteration” test.
The Court of Appeal has confirmed that restriction 1 does apply to section 73 permissions and restriction 1 is the correct test (paragraph 121) and that restriction 2 does not apply (paragraph 126).
Restriction 1
In respect of the scope of restriction 1, paragraph 130 explains that “Restriction (1) is not limited to conditions which fundamentally or substantially alter the operative part of the earlier planning permission. Whilst a de minimis alteration of an operative part may not be ultra vires s.73 (see Lane J in R (Atwill) v New Forest National Park Authority [2023] EWHC 625 (Admin); [2023] PTSR 1471 at [64]), that concept only refers to trifling matters which are ignored by the law. It would not apply, for example, to the alteration of that part of a grant which relates to incidental or ancillary development.”
It was accepted that Finney v Welsh Ministers [2019] EWCA Civ 1868; [2020] PTSR 455 had decided that the operative part of a planning permission granted under s.73 cannot differ from the operative part of an extant permission. The planning permission that was the subject of this case stated in the operative part that original 2017 full planning permission was granted for “for the above development in accordance with the approved plans listed below” and the section 73 planning permission also used this formulation. The ”above development” included reference to a substation and the effect of the plans approved pursuant to the section 73 permission was to exclude the substation from the development authorised by the permission. This therefore breached restriction 1 because this exclusion of the substation means that the conditions of the section 73 permission are inconsistent with the operative part of that consent (paragraph 36).
Extent of the operative part of the permission
In terms of what is to be considered the extent of the operative part of the permission, the judgment also notes (at paragraph 37), that there were various other changes made to the plans that had been referred to in the operative part of the permission which would “At first sight … appear to infringe the [Finney] principle”. The court did not hear argument on this point so this was not elaborated on. However, this suggests that where plans are listed or directly referred to in the description of development, such plans would be included in the scope of the operative part of the permission and therefore, it would not be possible to amend them by way of a section 73 application.
Wheatcroft
The judgment also addressed the relevance of the Wheatcroft principle that had been cited in many of the relevant cases. The judgment explains “The important point here is that the Wheatcroft principle is concerned with the effects of altering a development proposal on the process for assessing and determining the merits of a planning application (or appeal), including procedural effects on parties participating in that process. By contrast, the limits of the power conferred by s.73 are concerned with the relationship between the alteration of conditions in an existing planning permission and the protection of substantive development rights granted by that permission. This is a completely different matter, which is subject to the express language of s.73.”
Restriction 2
In respect of restriction 2, paragraph 126 states that “Provided that a s.73 permission does not alter the operative part of an extant permission, there is nothing in Finney to suggest that conditions imposed under s. 73 may not have the effect of substantially or fundamentally altering the earlier planning permission.”. The reasoning (paragraph 129) explains that:
(1) Section 73 is limited to applications to develop land without complying with conditions attached to a permission previously granted (s.73(1)). Parliament has empowered a LPA to grant a s.73 permission without any of the conditions to which the original permission was subject. What the planning authority may consider is limited by s.73(2). Parliament has expressly provided for specific situations where the power may not be used (s.73(4) and (5)). But it has not restricted the power to vary or remove conditions previously imposed to non-substantial or non-fundamental alterations;
(2) Parliament has inserted s.96A into the TCPA 1990, allowing for an application to be made to alter both a grant of planning permission and the conditions imposed, subject to a restriction to non-material amendments. In addition, the new s.73B will allow for the grant of a new permission “not substantially different” from an existing permission. If Parliament had wished to prohibit the imposition under s.73 of conditions which make a “fundamental” or “substantial” alteration to a permission without changing the operative part, it would have said so in the legislation;
(3) The power in s.73 is subject to the restriction that it may not result in a permission, the operative part and/or the conditions of which are inconsistent with the operative part of the earlier permission, either in terms of the language used or its effect. No justification has been identified for imposing restriction (2) as an additional limitation on the power of s.73, in the light of the statutory purpose of that provision;
(4) Parliament has provided what it considers to be adequate procedural protections for the consideration of s.73 applications, including consultation and an opportunity for representations to be made;
(5) Although a substantial or fundamental alteration may be sought under s.73, that does not dictate the outcome of the application. The planning authority has ample jurisdiction to determine the planning merits of any such application
This is also helpful in confirming that s96A allows for non-material amendments to both the description of development and the conditions attached to a permission. Points 4 and 5 are also a helpful reminder that the LPA does have discretion in deciding whether a section 73 application is acceptable in planning terms.
Conclusions
A section 73 permission cannot be granted if it would conflict with the operative part of the permission in a way that is more than de minimis (restriction 1).
There is no test of “fundamental alteration” applicable to section 73, and therefore, provided that the conditions are not in conflict with the operative part of the permission, a section 73 permission may include conditions that allow for a development that would otherwise be considered a fundamental alteration to the original permission.
The operative part of a planning permission may be considered to include plans referred to in that part of the permission which may reduce the scope of potential section 73 applications depending on the specific wording of the permission.
It is also important to note that section 73 applications are still subject to consultation and they should be decided in accordance with the development plan and any material considerations.
The government has not confirmed a timetable for bringing section 73B into force. This would allow local planning authorities to grant permission under this section if they are satisfied that its effect will not be “substantially different” from that of the existing permission. Section 73B will allow for amendments to both the operative part of the permission and the conditions which should allow for a more straightforward process in many cases, but subject to that “not substantially different” limitation.
Thanks Susannah. Back to me for a final brief comment: Dear MHCLG, this is all unnecessary complexity and a significant cause of delay in the delivery of development. Yes to bringing section 73B into force but it could be improved upon (whisper the additional complication of “Hillside” for scheme amendments) and the forthcoming Planning and Infrastructure Bill would surely be an early opportunity!
“Modernising planning committees” is one of the promised objectives of the Planning and Infrastructure Bill, likely to be introduced into Parliament this Autumn.
The Government has not yet provided any colour as to what modernisation means in this context but the general assumption is that it is likely to include moving to a national scheme of delegation, setting out which categories of planning applications should not be determined by planning committee but should instead be taken by planning officers by way of delegated powers.
Appropriate use of delegation is a good thing. Indeed, that is already reflected in the Government’s Planning Practice Guidance, unchanged for the last ten years:
The exercise of the power to delegate planning functions is generally a matter for individual local planning authorities, having regard to practical considerations including the need for efficient decision-taking and local transparency. It is in the public interest for the local planning authority to have effective delegation arrangements in place to ensure that decisions on planning applications that raise no significant planning issues are made quickly and that resources are appropriately concentrated on the applications of greatest significance to the local area.
Local planning authority delegation arrangements may include conditions or limitations as to the extent of the delegation, or the circumstances in which it may be exercised.
Paragraph: 015 Reference ID: 21b-015-20140306
Revision date: 06 03 2014”
The Local Government Association has published this piece which sets out examples of categories of applications included in individual authorities’ schemes of delegation as requiring determination by committee – together with a brief analysis of the advantages and disadvantages of including each category. As we know, almost every authority has a slightly different set of rules – and sometimes it takes some website burrowing (a particular curse upon every authority which does not a clear index to its constitution) to ascertain what they are…
However, despite what it may seem like to practitioners focused on larger applications, nearly all planning applications are of course already delegated to officers. This is a list of the authorities which last year delegated the lowest proportion of decisions to officers:
And yet still there is the sense that even more applications could be determined by officers. For instance, the RTPI published this press statement on the day of the King’s Speech (17 July 2024):
“The Institute believes planning committees need modernisation and could include a national scheme of delegation, allowing planning officers to make some decisions themselves. Qualified planners should be able to implement agreed planning policy, freeing up councillors’ time to focus on the most challenging planning cases. This change would help to unblock many applications and speed up the planning process.”
Definitely, in a more perfect system, with clear policies in an up-to-date local plan, surely applications for planning permission which accorded with the local plan should be able to be approved by officers without reference to committee, and those not in accordance refused. Local democracy should be focused on the plan rather than its implementation.
The previous Government’s 2022 Planning For The Future white paper of course took this to the max, envisaging allocations which had the effect of granting the equivalent of outline planning permission and that thereafter “the delegation of detailed planning decisions to planning officers where the principle of development has been established, as detailed matters for consideration should be principally a matter for professional planning judgement”.
Maybe indeed, we should be heading in that direction (although it is all of course predicated on having that clear, up-to-date, plan!). Is legislation required to achieve greater delegation of decision making? I’m not sure. I shall be interested to see the “one size fits all” outcome. And as with any suggested legislative change, have we looked at whether behaviour can be changed without resorting to the law? By all means come up with a scheme of delegation template – but why not then include it immediately in Planning Practice Guidance and advise authorities that they adopt it? That could make a difference by as early as next year. Legislation won’t.
In the meantime, two of the many things which keep planning lawyers busy are (1) the behaviour at meetings of planning committee members and (2) the interpretation of local authority constitutions as to how committee meetings should be run. Two recent cases of interest:
Read about the agony of prolonged debate of a contentious application at a committee meeting, allegations of predetermination and bullying and a councillor changing their mind at the last moment…
More agony, with successive planning committee meetings in relation to another contentious application and arguments as to which members could participate. The Court of Appeal (and before that the High Court) determined that was lawful for a local authority’s constitution to restrict voting by members on a deferred application for planning permission to those who had been present at the meeting(s) at which the application had previously been considered. However, the Supreme Court heard the subsequent appeal on 25 July 2024 and we await its final ruling.
As a sorbet course to be enjoyed as a palate cleanser between the excitement last week of the general election and associated announcements and the excitement of further announcements promised by MHCLG (RIP DLUHC) later this month (plus this Wednesday’s King’s Speech), I thought we might look at a couple of Planning Court rulings this month which provide reminders as to some development management procedural fundamentals.
R (Gurajena) v London Borough of Newham (Deputy High Court Judge Timothy Corner KC, 5 July 2024) – what is the extent of the duty on a local planning authority to (1) notify “adjoining” owners and occupiers of an application and (2) publicise changes made to an application after initial consultation has taken place?
This case concerned a planning permission for works to a terraced house at 5 Silver Birch Gardens, West Ham. The proposed works comprised the construction of a rear extension, rear garden decking and an outbuilding. The grant of permission was challenged by way of judicial review by the next door neighbour at no 6 and another neighbour two houses away at no 8. They had objected to the application on grounds of privacy, overlooking and effect on visual amenity (although no 8 had not been notified of the application by the council, despite having been consulted in 2022 in relation to a proposed dormer loft extension and associated works to the roof).
Once the permission had been issued the claimants had realised that amended drawings had been submitted after their objections had been received, changing the location of the stairs to the decking and replacing a close boarded timber fence between numbers 5 and 6 with the retention of a low picket fence. The claimants argued that there was (1) a breach of Article 15 (5) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (which requires that “adjoining” owners and occupier be notified) given that no 8 had not been notified (2) a breach of no 8’s legitimate expectation that they would be consulted (having been consulted over the 2022 application) and (3) procedural unfairness by way of the council’s failure to carry out any further consultation despite a material change to the application after the close of the consultation period.
The judge held:
“”adjoining” in Article 15 of the DMPO embraces not just properties which are contiguous, but also those which are “very near to” or “lying close to” the application site”…”Whether one site is “very near to” or “lying close to” another requires judgement, and that judgement is one for the local planning authority. The court will interfere with the authority’s judgement only if it is Wednesbury unreasonable, by reason of being a judgement that is so unreasonable that no reasonable authority could have reached it.” The council’s decision in this case could not be impugned as being unreasonable.
“In my judgement the Second Claimant did not have a legitimate expectation that she would be consulted about the Application. The reality is that a judgement was reached in the case of the 2022 application as to whom to consult, based on the anticipated impact. The Application in the present case was different, being at ground floor level only. The fact that no. 8 was consulted once about a planning application different in nature from the Application does not amount to a practice of consultation sufficiently settled and uniform to amount to a clear, unambiguous and unqualified promise to consult the Second Claimant on a planning application having the nature of the Application.”
The application plans were confusing and there was clearly confusion as to what was shown on the original application plans and therefore as to the extent to which the revised plans amounted to changes to the proposals which had previously been consulted upon. The judge found that the first claimant had already made clear in her objections that even a close boarded fence in place of the existing low picket fence would not be acceptable so there was no requirement to re-consult her on that aspect. However, in relation to the stairway to the decking: “I accept that an assessment of whether the outcome for the First Claimant might have been different (i.e. refusal of the Application) had she had the chance to comment on the realignment of the stair must take account of the context, which is the Application as a whole. The Application comprised erection of an extension, with raised timber deck and a new outbuilding on the deck. The stair to the deck was only a part of the Application as a whole. However, in my judgment the position and orientation of the new stair is capable of having an important effect on the privacy of no. 6.”
The permission was quashed on that final ground. Lesson: local planning authorities (and applicants) should be careful to ensure that plans are accurate and comprehensible and that revisions which may have a material effect on potential objectors are adequately publicised.
For the detail please see my colleague Sophie Bell’s Town Library summary but, very briefly, the case concerned competing planning applications for supermarkets in Horncastle. There would be a significant adverse impact on the town centre if both developments were to proceed. Lidl’s and Aldi’s applications were both due to go to the same committee meeting but there was a hold-up with Aldi’s application and so only Lidl’s application was taken to the committee, where it was approved. The judge held that the council was required to consider the competing merits of the two schemes but failed to do so properly by considering the applications separately: “the need for a comparison was “so obviously material” as to ” require direct consideration“.
This was certainly “store wars” nostalgia for some of us! It is a useful case to help guide what should be done where applications for competing developments have been submitted, although the judge does warn that his “decision is not based on accepting [the] proposition that there is a special category of cases which applies to rivals. I consider that this contention underplays the importance of the particular facts of the case. To make generalisations about categories of cases risks oversimplification. It fails to heed the warnings that there is no “one size fits all” approach (per Sullivan LJ in R (Langley Park School) v Bromley LBC [2010] 1 P&CR 10 at para 52) and that categorisation can be “dangerous” (per Oliver LJ in GLC)… the specific evidential circumstances of this case is one in which there are two proposals before the authority aiming to address what on the evidence has been found to be finite retail capacity (without causing significant adverse impact on the town centre). Those are the uncontentious facts which mean that in the specific circumstances of this case a comparison was necessary (and was not undertaken). Moreover, as I have found, the reason for declining to undertake it reveals a logical gap in the Defendant’s decision making.”
There, I hope you’re suitably refreshed. I’m sure something more substantial will be served up before too long.
Whether tis nobler in the mind to suffer the slings and arrows of outrageous fortune. Or to take arms against a sea of troubles by amending your permission to reflect current market or occupier requirements? Because, of course, in the equally timeless words of Gary Barlow, everything changes.
The main part of this blog post is a detailed examination by my Town Legal colleague Susie Herbert of the potential opportunities arising from use of section 73B of the 1990 Act, introduced by way of the Levelling-up and Regeneration Act 2023, and its potential limitations and ambiguities versus section 73. It’s an important part of DLUHC’s current consultation as to an accelerated planning system which I said I would come back to in my 9 March 2024 post that covered the rest of the proposals.
But first, an interesting appeal decision letter from last week. You may remember that for a temporary period (2013 to 2016) there was a specific statutory procedure, section 106BA, which allowed developers to apply to modify or discharge planning obligations in a section 106 agreement on the basis that they made the development unviable.
Since the repeal of section 106BA the question often arises as to how we might still achieve the same ends. After all, an application under section 106A to amend a section 106 agreement can only be made if the agreement is at least five years’ old. Otherwise, in proposing a deed of variation to the existing agreement, you are in the local planning authority’s hands with no right of appeal.
The alternative options would be to make an entirely fresh application for planning permission (an onerous process) or, conceivably, to make an application under section 73 for removal or variation of a condition attached to the previous planning permission and to use the application as a vehicle for proposing an amended form of planning obligation. The section 73 route was accepted by an inspector in a decision letter dated 25 March 2024 in relation to a proposed development in Thornton Heath, Croydon. There is an existing planning permission for 57 new dwellings , with a section 106 agreement requiring 35% of the homes to be delivered as affordable housing. A Section 73 application was made to amend condition 2 attached to the permission which set out a list of the approved drawings, proposing amended drawings increasing the proportion of three bedroom homes and external alterations to fenestration and elevations. A section 106 unilateral undertaking was put forward proposing no affordable housing, on the basis of a viability appraisal, which had been reviewed and accepted by the local planning authority. The application was not determined within the statutory period and the developer appealed. The authority resisted the appeal on the basis that a section 73 application was not the appropriate means to reduce the level of affordable housing previously secured.
Having reviewed the relevant case law in relation to section 73, the inspector allowed the appeal:
“In this instance, a change in policy has not made it appropriate or essential to amend the obligation. However, there has been a significant change in circumstances relating to the viability of the scheme. It seems to me that it is a matter of planning judgment whether the change in circumstances makes it appropriate, essential or desirable to enter into a planning obligation in different terms to the original. Given the case law outlined above, the terms of a new obligation may be connected to or intertwined with the amendments sought to the drawings, but there is nothing of substance to suggest they must. Consequently, it would be going too far to suggest an amended obligation must be a consequence of, or directly related to, changes flowing from the proposed alterations detailed on the new drawings.
There is no dispute between the Council and appellant that since the original permission was approved, and the evidence underpinning it prepared, construction costs have rapidly risen whilst house prices have remained static. This has had a significant impact on the viability of the scheme. As mentioned above, the situation is so altered that the Council and appellant agree the scheme can no longer provide affordable housing and remain viable. Moreover, there is also common ground that the provision of affordable housing is not a benefit, alone or taken with other factors, which is required to outweigh any harmful impacts emulating from the scheme. Indeed, the Council has only identified limited harm in respect of the housing mix, which is outweighed by other considerations in any event. In these circumstances, altering the level of affordable housing would not be a fundamental change to the proposal.
Therefore, the current circumstances are such that there is a need for a planning obligation in different terms to the original to facilitate delivery. The altered terms of the planning obligation would be consistent with the development plan taken as a whole. The consequence being that the change would not have a bearing on whether the scheme would be acceptable. Thus, the amended planning obligation is necessary, reasonable, supported by development plan policy and proportionate in the context of the prevailing circumstances. Therefore, it is desirable, essential and appropriate to consider a planning obligation in different terms to the original, namely the provision of 0% affordable housing with a review mechanism as required by the LP. In conclusion, the s73 application is an appropriate means in this instance to reduce the level of affordable housing relative to that previously secured.”
The case is another example of the potential flexibility of the existing section 73 procedure, notwithstanding the constraints imposed by the courts – particularly by way of Finney (the inability to use section 73 where the desired changes would be inconsistent with the description of development on the face of the existing permission (leading to a workaround in practice, with a willing authority, by way of use of section 96A in conjunction with section 73 – see my previous blog post here for more information).
Section 73B
So will the new section 73B procedure be the solution. Over to my colleague Susie Herbert for the detail…
On Budget Day, 6 March 2024, DLUHC launched a consultation on accelerating the planning system which closes on 1 May 2024. As well as proposals relating to the application process, this includes a consultation on the implementation of section 73B to vary planning permissions and on the treatment of overlapping permissions. This post concentrates on the proposals concerning variations to planning permissions via the new section 73B and the proposals for overlapping permissions.
Section 73B was introduced by the Levelling-up and Regeneration Act 2023 (“LURA”). The provision is headed “Applications for permission not substantially different from existing permission”. It is not yet in force and secondary legislation is required to specify the application procedure including consultation arrangements, information requirements and the application fee as well as amendments to the CIL regulations. The government proposes to implement section 73B following the consultation “as soon as parliamentary time allows”.
The consultation asks questions on:
The scope of the proposed Planning Practice Guidance relating to section 73B;
Procedural arrangements for a section 73B application;
Application fees for section 73B applications;
CIL and section 73B applications.
As background, the introduction to this section of the consultation notes “The ability to vary planning permissions in a proportionate, transparent and timely manner is an important feature of the development management system. It is common for developments, particularly if they are large, to require variations to the planning permission in response to further detailed design work, new regulatory requirements, and changing market circumstances. Without this flexibility, development risks being delayed or abandoned as the only option would be the submission of a brand new application for the development which would create uncertainty, delay and further costs.”
The consultation notes that the current legislative routes to varying planning permissions are section 73 and section 96A. In 2009, guidance was introduced on “Greater Flexibility for Planning Permission”. It was at this point that section 96A was introduced into the legislation to allow for “non-material” amendments to existing planning permissions. The guidance envisaged that section 73 could be used for “minor-material” amendments by varying a condition that listed the approved plans by substituting new plans that showed the varied scheme.
However, in 2020, the Courts confirmed that section 73 cannot be used to amend the description of development (Finney). Therefore, the scope to use section 73 to make “minor material amendments” by varying a condition which lists the approved plans is limited.
Although not expressly explained in the consultation document, the reason that the inability to use section 73 to amend the description of development causes such difficulties in practice is because the case law has established that a permission granted under section 73 cannot introduce a condition which creates a conflict or is inconsistent with the description of development. It has therefore become standard practice to minimise the level of detail provided in the description of development and thereby reduce the potential for future scheme amendments to conflict with the description. In some cases an original description of development can be amended via s96A to remove detail from the description of development into a condition and thereafter amend this condition via section 73.
Section 73B is intended to deal with this issue by allowing both the description of development and the conditions to be varied in a single process. The restriction on the use of section 73B is that the amended development cannot be “substantially different” from the existing development.
“Subtantially different”
A key point in the consultation is that the Government does not propose to provide prescriptive guidance on is what is meant by “substantially different”. The consultation notes that section 73B does not provide a definition of the test and that it will depend on the scale of the changes required in the context of the existing permission. Factors that could be relevant are location and the scope of the existing permissions and the proposed changes.
It is not clear where “substantially different” will sit on the scale of potential changes. We note that this term was used in the 2009 guidance on flexible planning permissions in respect of what was meant by a “minor material amendment” which stated:
“We agree with the definition proposed by WYG: “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.” This is not a statutory definition.”
This suggests that the intention may have been that section 73B was intended to align with the minor material amendments that the guidance envisaged to be made under section 73 with the additional ability to amend the description of development (to make “non-substantial” changes).
However, since this drafting was introduced into the Levelling Up and Regeneration Bill, the Armstrong and Fiske cases have confirmed that section 73 is not restricted to minor material amendments. It is helpful that at footnote 4, the document expressly states that “the department acknowledges that section 73 is not limited in scope to minor material amendments” following the recent cases of Armstrong and Fiske. The judge in Fiske held that there is a restriction on the scope of section 73 which is whether the alteration is fundamental (while in Armstrong the judge had considered that even this restriction did not apply and the only restriction is consistency with the description of development).
Therefore, if the scope of changes allowed by section 73B is intended to be similar to “minor material amendments”, there is the possibility that section 73 would actually allow more flexibility as it extends to “not fundamental” amendments (provided always that it is possible to remain within the description of development).
While it is understandable that the Government does not propose to provide prescriptive guidance on the meaning of “substantially different” because it will be a matter of judgement dependent on the context (as for section 96A), it is clear that the application and interpretation of this provision by each LPA is going to be a key to how useful this provision is in practice.
The consultation states that the government’s proposed objective is for the section 73B route to replace the use of section 73 to deal with proposals for general material variations while the use section 73 would return to focus on the variation of specific conditions and that it proposes to introduce guidance to this effect.
It would therefore be helpful if the scope of changes allowed under section 73B was not less that the scope of changes that could be made via a section 73/ section 96A approach: otherwise the end result of the changes would be more complexity but less flexibility. It does not seem that it would be overly prescriptive for the Government to provide guidance to this effect. It would also be consistent with the general proposed approach of treating a section 73B application in a similar way to a section 73 application in terms of procedure (as detailed below).
Features of section 73B
The consultation summarises the key legal features of section 73B as follows:
a section 73B application must identify the existing permission (which cannot be a section 73, section 73A or other section 73B permission, or permission granted by development order), and can propose conditions for the new permission;
as an application for planning permission to a local planning authority, the determination of a section 73B application is subject to section 70 and other decision making duties. But the local planning authority cannot grant permission for a section 73B application if the effect of the section 73B permission would be substantially different from the existing permission, and when determining the application, they must limit their consideration to the variation between the application and the existing permission; and
like a section 73 permission, a section 73B permission is a separate permission to the existing permission (and any other section 73 or 73B permissions related to the existing permission) so the granting of a section 73B permission does not affect the validity of the existing permission (or other section 73 or 73B permissions).
The provision also applies to applications for permission in principle.
Proposed general approach
As noted above, the Government’s proposed objective is for the section 73B route to replace the use of section 73 to deal with proposals for general material variations while the use section 73 would return to focus on the variation of specific conditions. The consultation notes that because section 73 cannot be used to amend the description of development, it has become common practice to submit generic descriptions of development which do not specify key feature such as the number of dwellings with those details set out in conditions to allow them to be varied via section 73. The consultation identifies that a benefit of using section 73B would be to allow a return to clear and more specific descriptions which would help improve the transparency of development proposals for local communities.
The Government therefore proposes to use Planning Practice Guidance to encourage the use of clearer, more transparent descriptors of development and the use of section 73B to deal with general material changes to development granted planning permission. The consultation asks “do you agree that guidance should encourage clearer descriptors of development for planning permissions and section 73B to become the route to make general variations to planning permissions (rather than section 73)? (Question 26)” and “also for any further comments on the scope of the guidance (Question 27)”. This includes the question of whether the guidance should discourage the use of the, now standard, condition which lists approved plans which was introduced to facilitate minor-material amendments via section 73. The consultation states that they are not minded to discourage the use of this condition and that it is beneficial to help support effective planning enforcement, particularly in relation to design.
Procedural arrangements
The aim is for the procedural requirements set out in regulations for a section 73B application to be “proportionate reflecting the position that the development proposed in the application is a material variation to an existing permission while still ensuring there is transparency about the proposed variation” and that “Local communities should be aware of proposed variations so they can make representations: the section 73B route is not a mechanism to undermine scrutiny.”
The proposal is:
information requirements will be generally the same as other applications for planning permission but certain requirements (such as a design and access statement) will not be required.
publicity requirements will be the same as other applications for the type of development (i.e. if it is a variation to major development, the major development publicity requirements would apply).
Consultation with statutory consultees would follow the approach of section 73 applications where there is a duty on the local planning authority to consult a statutory consultee if they consider appropriate (reflecting the position that a proposed variation may only engage specific issues which of an interest to only some statutory consultees and so it would be disproportionate to require those statutory consultees without an interest to respond) although the footnote states that applications would automatically be in scope of the consultation duty between counties and district LPAs, the consultation arrangements for parishes and neighbourhood forums and the arrangements for applications of potential strategic importance under section 2A TCPA 1990 for the Mayor of London and those combined authorities which have section 2A powers.
EIA and HRA requirements would apply as for section 73 permissions and a similar approach would be taken to Biodiversity Net Gain.
The consultation asks whether consultees agree with this proposed approach to procedural requirements.
Fees
The proposal is to align the fee for a section 73B application with the fee for a section 73 application. The alternative approach of setting a higher fee for a section 73B application was considered on the basis that the section 73B route could be the default route for general material variations while section 73 focuses on the variation of a specific condition. However, the higher fee could encourage applicants to continue to use section 73, undermining the purpose of the reform.
However, it is proposed to change the current flat fee approach for a section 73 application (£293) so that there would be three separate fee bands for householder, non-major development and major development.
The householder fee would be reduced to £86 (double the fee for discharge of condition and removing the anomaly that an original householder application fee is lower than the section 73 fee). The non-major development fee would remain at £293.
For major development, there would be a higher fee which would be less than the fee for the original application and proportionate to the work necessary to consider the proposed variation (without exceeding full cost recovery). The consultation asks for views about where this fee should be set, including evidence from local planning authorities for the typical work which is involved dealing with an average section 73 application for a major development.
CIL
It is proposed that CIL would apply to section 73B in the same way that it applies to section 73 permissions. This would mean that “if the section 73B permission does not change the CIL liability, the chargeable amount is that shown in the most recent liability notice issued in relation to the previous permission. But if the section 73B permission does change the CIL liability, the most recently commenced or re-commenced scheme is liable for the levy.”
Overlapping permissions and section 73B
The consultation refers to the recent Hillside and Dennis cases on overlapping permissions [see previous simonicity blog posts respectively here and here] and how these judgments have questioned the ability to use ‘drop in’ permissions where a subsequent permission is granted for an alternative development on a section of a larger development previously granted permission and still being implemented.
It summarises Hillside as confirming existing caselaw that “full planning permissions are not usually severable. That is to say, parts of the permission cannot be selectively implemented and that, if a new permission which overlaps with an existing permission in a material way commences, should the carrying out of the new permission make it physically impossible to carry out the rest of the existing permission, it would be unlawful to continue further development under the existing permission. The Court then went on to say, if someone wanted to change part of the development, they should seek to amend the entire existing permission.” And notes that Dennis considered the implications for outline planning permissions and the question of severability further.
It notes that “drop in permissions have often been used during the implementation of outline planning permissions for large scale phased residential and commercial developments where a new development is proposed through a separate application for a phase outside the scope of the outline planning permission while the rest of the phases continue to be implemented under the outline permission. This approach has provided a flexible way of enabling changes to a specific phase to be managed through planning without having to seek a new planning permission for the entire development, particularly when the scale of change is outside the scope of a section 73 application.”
In terms of section 73B, “The government believes that the new section 73B route provides a new way of dealing with such changes to a specific phase of a large scale development granted through outline planning permission in many cases. While the use of section 73B is constrained by the substantively different test, these changes often continue to fit within the existing masterplan which underpins the outline permission and do not necessarily fundamentally change this permission – for instance, changing a phase of commercial development (use class E) to a cinema (use class – sui genesis) where the outline permission only allows class E uses. In this case, the section 73B application would provide details of the proposed variation to the outline planning permission and the consideration by the local planning authority would focus on the merits of this variation.”
However it is recognised that “there could be circumstances where the section 73B route may not be appropriate – for instance, if the change could be considered to be substantially different or there are wider financial and legal relationships between the master developer, land owners and investors which makes the preparation of a section 73B application difficult.”
The consultation asks for views about the extent to which the section 73B route could be used to grant permission for changes for outline planning permission in practice and what the constraints are.
It is clearly helpful that the consultation acknowledges that a new use could be introduced via section 73B which gives more potential flexibility and simplicity than a section 73 approach. However, as noted, changes may well be considered “substantially different” even if they allow the remainder of a masterplan to be developed without amendment. There are also undoubtably complications in obtaining a new planning permission (even a section 73B) for an entire site where development has started and different plots are being developed by different developers, particularly if a section 106 agreement is required to be varied.
The final section of the consultation is a proposal to create a framework through a new general development order to deal with circumstances that cannot be addressed via section 73B. This general development order would deal with overlapping permissions in certain prescribed circumstances. It notes that the Secretary of State has broad powers under section 59 of the Town and Country Planning Act to provide for the granting of planning permission through an order, including classes of development. This may be for a specific development or for a class of development.
The consultation asks for views on whether the focus of such an approach should be on outline permissions for largescale phased development or whether there are any other categories of development which could benefit from an alternative approach.
The consultation questions are:
Question 33. Can you provide evidence about the use of the ‘drop in’ permissions and the extent the Hillside judgment has affected development?
Question 34. To what extent could the use of section 73B provide an alternative to the use of drop in permissions?
Question 35. If section 73B cannot address all circumstances, do you have views about the use of a general development order to deal with overlapping permissions related to large scale development granted through outline planning permission?
It is not clear what the general development order proposal would entail but it is clear that an alternative approach for circumstances where section 73B cannot be used would be valuable and it is encouraging that the government is exploring further options to address the Hillside issue.
Thanks Susie for the above. Given ongoing concerns that I suspect many of us have both as to the need for a proportionate procedure for amending permissions but also more specifically to find a solution to the unnecessary complexities we all face by way of Hillside and Dennis, this is going to be an important consultation process.
The uncertainties as to whether “minor material” “substantially different” and “fundamental alteration” also bring to mind the consideration given recently by the Planning Court to whether, in the NPPF, “substantial” has a different meaning to “significant“, in Ward v Secretary of State (Lang J, 25 March 2024) (answer, after lengthy and unnecessary confusion which could have been prevented by accurate language used at the outset: nope).
Simon Ricketts, 1 April 2024
Personal views, et cetera
Edwin Booth as William Shakespeare’s Hamlet, circa 1870, courtesy Wikipedia
How clear do you think you are on the various pulleys and levers that make up the English development management system? A further series of proposed alterations were announced this budget day.
1. introduce a new Accelerated Planning Service for major commercial applications with a decision time in 10 weeks and fee refunds if this is not met
2. change the use of extensions of time, including ending their use for householder applications and only allowing one extension of time for other developments, which links to a proposed new performance measure for local planning authority speed of decision-making against statutory time limits
3. expand the current simplified written representations appeals process for householder and minor commercial appeals to more appeals
4. implement section 73B for applications to vary planning permissions and the treatment of overlapping permissions”
I will leave the 4th strand of that, section 73B, for another day as in order to do that justice I would need to go into some heavy legal engineering detail, but today I will summarise the main components of the rest of the proposals and then wrap up with a few guesses at the more obvious risks to be avoided, if acceleration is indeed to be achieved without unintended adverse consequences.
The Accelerated Planning Service
“9. All local planning authorities will be required to offer an Accelerated Planning Service for major commercial applications [i.e. applications for major commercial development which create 1,000 sqm or more of new or additional employment floorspace, including mixed use developments if they meet the employment floorspace criteria]. The applicant would pay a higher planning fee to the local planning authority which, in exchange, will be required to determine these applications within 10 weeks (rather than the 13-week statutory time limit), with a guarantee that the fee would be refunded if the application is not determined within this timescale.
10. We are exploring two options for the detailed design of this service. Under the first discretionary option, applicants could choose to use the Accelerated Planning Service where their application meets the qualifying criteria or they could use the standard application route for a major development (with a lower fee and longer timescales). A second mandatory option could be that the Accelerated Planning Service is the only available application route for all applications in a given development category. This would have the benefit of clarity and certainty for applicants and local planning authorities but remove the element of choice for the applicant.”
The service would not apply to applications which are for EIA development, although DLUHC is “interested to receive views on whether there is scope for EIA development to also be covered by an Accelerated Planning Service that offers a guaranteed decision before the 16-week statutory time limit.”
“The service would apply to section 73 and 73B applications which seek to vary existing planning permissions for relevant commercial development.”
“Over time, we are keen to explore the extension of the Accelerated Planning Service to similar major infrastructure and residential developments. But we want to ensure the Service works for commercial development before any extension is made, given that there are significantly more residential applications and often a larger number of matters to be considered with these types of applications.”
“The key aim is to ensure that these applications are prioritised through the local planning authority’s own internal processes faster. This would require local planning authorities to: set up efficient case work systems; ensure validation teams, lawyers and internal expertise are on hand; and, where relevant, convene planning committees on time. The availability of a higher planning fee (discussed below) is intended to ensure that local planning authorities have the resources to do this.”
The ten weeks’ deadline would be “used as the trigger point for when appeals can be made against non-determination and for monitoring the performance of local planning authorities”.
DLUHC recognises that it is “crucial that the applications submitted are of good quality with the right information” and to that end proposes that:
“local planning authorities should offer a clear pre-application service to potential applicants so they can discuss their proposals, key issues, information requirements and any other issues (such as EIA screening), and we will strongly encourage applicants to use these services…We will ensure best practice is disseminated across the sector building on the work the Planning Advisory Service has been undertaking on pre-application services”
“prior to submitting their application, applicants should notify key statutory consultees which are likely to be engaged that they are making an application under the Accelerated Planning Service… The government will look to use its oversight of statutory consultees to prioritise applications under the Accelerated Planning Service and to monitor their performance. In the meantime, we welcome views about how statutory consultees can best support this accelerated service. In most cases, early pre-application engagement will be important”
“To cover the additional resourcing costs, we propose to set a premium fee for an application through the Accelerated Planning Service… It is proposed that an applicant or the local planning authority would still have the ability to propose an extension of time to the determination of the application (for instance, if there is an outstanding matter which could be readily resolved to make an application acceptable). But such an extension of time should be an exception. An extension of time would not affect any potential refunds… We propose that either all or a proportion of the statutory application fee must be refunded by the local planning authority to the applicant if the application is not determined within the 10-week timescale, even if an extension of time has been agreed. This refund policy differs from the existing Planning Guarantee where a refund is not provided if an extension of time has been agreed.
We have considered whether it is appropriate for the whole fee to be refunded if the application is not determined within the required 10-week period and recognise that if the whole fee is refunded at 10 weeks, in cases where no decision has been made, and the performance target is therefore missed, there is no further incentive for the local planning authority to make a decision on the application. To mitigate this, we consider that there is an alternative option, to stagger the fee refund. For example, if no decision has been made within 10 weeks, the premium part of the fee or 50% of the whole fee could be refunded at that point with the remainder of the fee refunded at 13 weeks, if the application was still undecided.”
As part of the consultation, views are sought as to whether the accelerated planning service should be optional or mandatory.
Planning performance and extension of time agreements
“the government has published a new Planning Performance Dashboard . This dashboard displays performance figures over a 12-month period and includes performance within statutory time limits, excluding extension of time agreements, so a true picture of local planning authority performance figures is accessible. We expect local planning authorities to report on their data from the Planning Performance Dashboard to their planning committees and other stakeholders, in order to drive continual improvements in performance, identify areas of weakness at an early stage, and help inform priorities for service delivery.”
“It is proposed that the new performance thresholds would be:
major applications – 50% or more of applications determined within the statutory time limit; and
non-major applications – 60% or more of applications determined within the statutory time limit
The proposed thresholds do not preclude the use of extension of time agreements and planning performance agreements, but the expectation is that such agreements are used only in exceptional circumstances. The proposed threshold is also lower for major applications in recognition that, in more instances, extension of time agreements may still be required due to the more complex nature of the applications and major applications are also more likely to be subject to a planning performance agreement.”
“Following a transition period, it is proposed that we measure performance against both the current measure, which includes extension of time agreements and planning performance agreements, and the new measure, which would cover decisions within statutory time limits only. We would continue to measure major and non-major applications separately.
Local planning authorities would be at risk of designation for speed [of] decision-making in the following circumstances:
1. if a local planning authority does not meet the threshold for the current measure, inclusive of extension of time agreements and planning performance agreements (as per current regime), or
2. if a local planning authority meets the threshold for the current measure, inclusive of extension of time agreements and planning performance agreements, but does not meet the new threshold for the proportion of decisions within the statutory time limit, or
3. if a local planning [authority] does not meet the threshold for both the current and the new measure
Where a local planning authority is designated, applicants may apply to the Planning Inspectorate (on behalf of the Secretary of State), rather than the local planning authority, for the category of applications (major, non-major or both) for which the authority has been designated.”
It’s worth clicking into that Planning Performance Dashboard which will provide some welcome transparency as to individual authority performance.
Performance for speed of decision-making is currently assessed across a 24 month period. DLUHC is seeking views as to whether the assessment period should be reduced to 12 months.
Incidentally, whilst there is a reference in the general introductory passages of the consultation paper to only allowing one extension of time, I couldn’t find it in the actual section on the proposals (paragraphs 40 to 46) – can you?
The proposed assessment periods and measures of performance for speed of decision-making are as follows:
DLUHC proposes to remove the ability to use extension of time agreements for householder applications and is considering prohibiting their use where a repeat application is submitted.
Simplified process for planning written representation appeals
There is already an accelerated appeals procedure for householder and small commercial appeals, with for instance no opportunity for additional information to be provided at the appeal stage by the main parties or other interested parties. DLUHC proposes to expand this to a far greater range of written representations appeals, namely:
appeals relating to refusing planning permission or reserved matters
appeals relating to refusing listed building consent
appeals relating to refusing works to protected trees
appeals relating to refusing lawful development certificates
appeals relating to refusing the variation or removal of a condition
appeals relating to refusing the approval of details reserved by a condition
appeals relating to the imposition of conditions on approvals
appeals relating to refusing modifications or discharge of planning legal agreements
appeals relating to refusal of consent under the Hedgerow Regulations
appeals relating to anti-social high hedges
Time limits for appealing would remain unchanged but “appeals determined through the simplified route would be based on the appellant’s brief appeal statement plus the original planning application documentation and any comments made at the application stage (including those of interested parties). There would be no opportunity for the appellant to submit additional evidence, to amend the proposal, for additional comments to be made from interested parties or for the main appeal parties to comment on each other’s representations.”
Non-determination appeals would still follow the existing procedure.
What do we think about all this? From a development industry perspective I suspect that the proposals will be cautiously supported, but we all know it is all going to be about the actual implementation, about the proactive management and resources available to authorities and about closing off the obvious loopholes:
If there are hard-edged consequences for authorities of not determining applications within ten weeks, won’t some authorities be tempted to persuade applicants to delay submission until they can be sure that the application is oven-ready, or to delay validation (NB we really do need controls on local validation lists which have become lengthy shopping lists)?
Won’t we see more refusals where the authority is approaching the relevant determination deadline without being in a position to agree an extension of time and should the appeal costs regime be updated to ensure that authorities do not take this step unreasonably?
What about where any delay is not down to the authority (or the authority alone), as is often the case? The exhortation to approach statutory consultees at pre-application stage may not be enough to ensure a timely response.
Wouldn’t it be helpful for any guidance to encourage that a greater proportion of decisions are taken by way of delegated powers, particularly where applications are consistent with the relevant local plan?
How do we ensure that section 106 agreements are completed in a timely manner, given the lack still of any recommended template and, in particular, the delays caused by the push and pull of negotiations in two tier areas, whether county and district, or London Mayor and borough?
Does the idea of excluding third parties from written representations appeals accord with the principles of natural justice if issues arise or arguments made by the main parties which could not have been foreseen at the application stage?
Will there be time to introduce the necessary legislation before the election, whenever that may be, and how many of these proposals may in fact ultimately have cross-party support?
In the meantime, two further authorities have been designated for their poor speed in determining applications for non-major development: St Albans and Bristol, meaning that applications for minor development other than householder development and retrospective applications may be made direct to the Planning Inspectorate.
I was going to call this blog post National Lottery but then I remembered I’ve already used that strapline back in 2019. 7 years of this blog, 408 posts – round and round the same track we go.
Much has already been written about the Secretary of State’s decision letter dated 6 February 2024 in which he granted planning permission for the redevelopment of the former London Television Centre, on London’s south bank (NB paragraph 1 of the Secretary of State’s letter curiously describes it as an appeal against refusal of the application by Lambeth Council, which it was not – Lambeth was supportive and had resolved to grant planning permission before the Secretary of State intervened by calling in the application).
See eg Zack Simon’s post as to what the decision may tell us as to the question of “beauty”, Nicola Gooch’s post on severability (although maybe the applicant didn’t have Hillside severability in mind so much as simply phasing for CIL purposes?) and Andy Black’s post on the some of the wider implications of the decision.
I’m not going to duplicate any of those posts. I’m just going to use another aspect of the decision as a jumping off point both for sympathising with all parties who spend vast amounts of time and money at risk on these sorts of application and appeal processes and for giving a small jab at us lawyers.
Because the decision essentially turned on one thing: the Secretary of State having (crucially) found that there was compliance with the development plan as a whole (despite some conflict with individual policies), the pivot was whether there were material considerations which indicated that the proposal should be determined other than in accordance with the development plan – or, more basically, how much relative weight the Secretary of State decided to apply to the public benefits arising from the scheme as against the harms arising from the scheme (whilst applying the appropriate tests in relation to elements of “heritage” harm, for instance requiring “clear and convincing justification” by way of the public benefits arising). To quote the key paragraphs:
“35. Weighing in favour of the proposal are the employment generating opportunities for the Borough in the construction phase as well as the operational phase of the development, which both carry substantial weight, the placemaking benefits delivered by the public realm strategy which carry substantial weight, and the commitment towards an employment and skills strategy over and above the policy requirements as well as the provision of affordable creative workspace which carries moderate weight.
36. Weighing against the proposal is the less than substantial harm to the significance of the designated heritage assets of the RNT, the IBM building, Somerset House, the South Bank CA and the Roupell Street CA, which carries great weight. The Secretary of State has also found that the proposal would not provide a positive contribution to the townscape of the South Bank, which carries moderate weight.
37. The Secretary of State has considered the heritage balance set out at paragraph 208 of the Framework (formerly paragraph 202). He has noted public benefits deriving from the public realm strategy, as well as the other public benefits identified in paragraph 35 above. However, he has also identified less than substantial harm to the significance of the RNT, the IBM building and Somerset House, and to the South Bank CA and Roupell Street CA. Having carefully weighed up the relevant factors, he has concluded that the public benefits of the proposal do outweigh the harm to designated heritage assets. Therefore, in his judgement, the balancing exercise under paragraph 208 of the Framework (formerly paragraph 202) is favourable to the proposal.
38. Overall, in applying s.38(6) of the PCPA 2004, the Secretary of State considers that the accordance with the development plan and the material considerations in this case indicate that permission should be granted.”
Of course, a huge amount of expert evidence was given at the inquiry over 12 sitting days by the parties as to each of these matters and the weight to be applied to each of them, but if the Secretary of State had chosen to give less weight to the public benefits set out in paragraph 35, the decision would probably have gone the other way. How much weight the Secretary of State (or any decision maker) gives to such considerations is very difficult to predict – it is quintessentially a matter of planning (whisper political) judgment. (Similarly his decision as to whether, despite non-compliance with some individual policies, there was compliance with the development plan as a whole).
The weighting is particularly interesting, given that he was more bearish than the inspector (who had recommended that permission be granted) on various aspects, including:
whether “the scale of the building and the proposed massing provides an appropriate response to the site”
finding negative elements to the effects on townscape
disagreeing that “the proposed palette of materials and the aesthetic appearance of the building is appropriate for what is a very prominent and sensitive site. He disagrees with the Inspector that an attractive development would be delivered.”
The Planning Practice Guidance summarises the legal position as to the weight to be given to material considerations:
“What weight can be given to a material consideration?
The law makes a clear distinction between the question of whether something is a material consideration and the weight which it is to be given. Whether a particular consideration is material will depend on the circumstances of the case and is ultimately a decision for the courts. Provided regard is had to all material considerations, it is for the decision maker to decide what weight is to be given to the material considerations in each case, and (subject to the test of reasonableness) the courts will not get involved in the question of weight.
Paragraph: 009 Reference ID: 21b-009-20140306
Revision date: 06 03 2014”
And as for public benefits:
“What is meant by the term public benefits?
The National Planning Policy Framework requires any harm to designated heritage assets to be weighed against the public benefits of the proposal.
Public benefits may follow from many developments and could be anything that delivers economic, social or environmental objectives as described in the National Planning Policy Framework (paragraph 8). Public benefits should flow from the proposed development. They should be of a nature or scale to be of benefit to the public at large and not just be a private benefit. […]
“Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion.”
We often pretend that planning decision-making to be a quasi-scientific, quasi-judicial process. But it’s really nothing of the sort. We lawyers can seek to ensure that all material considerations are taken into account, that immaterial considerations are not taken into account, that thresholds and criteria in specific statutory and policy tests are taken into account and that the decision-maker’s reasoning is adequate and rational. We can apply our forensic experience to ensure that the necessary evidence is brought forward and is presented as persuasively as possible – and can stress-test the evidence against us. But beyond that, rather than anything resembling the scales of justice, there is a black box in which there is simply the exercise of planning judgment. (I’m not complaining about that – that is the essence of the role of the planner I would have thought).
My jab at us lawyers is simply that perhaps we do not stress strongly and frequently enough to clients how unscientific the planning application and appeal process is. We are often asked to indicate what the odds are on a proposal finding favour with the decision-maker: what are the percentage prospects of success? This is an entire reasonable question to ask, because otherwise how can the client carry out a proper cost benefit analysis of whether the process is likely to be a worthwhile investment? But save for rare examples of cases which mainly turn on the correct interpretation of a particular policy, we have so little to go on other than analysis (which is often not sufficiently objective and evidence-based and possibly infected by eg optimism bias) of previous trends in decision-making to see what weight has previously been applied to various material considerations, in differing circumstances and permutations – trends which in any event do not amount to formal precedents.
I’m not even sure that appeal odds can be given which are much more than, say:
Less than 35 – 40% ie very unlikely to succeed given significant technical or legal hurdles to be overcome.
Circa 50% ie yes it’s arguable but it’s going to come down to whether there has been development plan compliance as a whole and the weight that the decision-maker gives to competing material considerations
Circa 60% – 65% ie a scheme which appears to be policy compliant and to meet the relevant legislative and policy tests
Would anyone be prepared to bet good money on the basis of assuming prospects materially higher than 65%? In my view it would need to be an unusual case turning on relatively binary issues.
Factors which lead to additional variability:
The scale of the development proposal, the range of potential issues and process timescale (will the decision maker or other circumstances in fact change along the way?!)
Cases where the principal live issues give rise to a large element of subjectivity, in relation to matters such as design or townscape
Is this a Secretary of State decision (ie in relation to an application which he has called in or an appeal he has recovered for his own determination)? – again this inevitably makes the outcome less predictable, both due to the influence of “politics” but due to the additional delays thereby arising (see above)
Political/media interest or pressure
Unusual proposals and/or where the decision-maker does not have a relevant or consistent track record.
When set against the scale of investment required to promote a large scheme at inquiry or indeed to defend against it, these may be sobering thoughts.
Simon Ricketts, 9 February 2024
Personal views, et cetera
PS Since I left Twitter I have experimented with a few social media platforms. None are ideal but, now that it is finally public access, you could give Bluesky a go. I share these posts there (my account is here) and on LinkedIn and you may find some related content.
SIMONICITY 