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Planning and Judicial Review Reforms Announced in the Queen's Speech

The Queen, in her speech of 11 May 2021, set out the Government’s priorities for the upcoming year and a number of bills which will be debated in the near future. These include the Planning Bill which, if all goes according to the Government's plans, promises to deliver some of the deregulation of the planning system set out in the White Paper of July 2020.

The Government's accompanying document to the Queen's Speech states that the main elements of the Planning Bill will be:

  • Changing local plans so that they provide more certainty over the type, scale and design of development permitted on different categories of land.
  • Significantly decreasing the time it takes for developments to go through the planning system.
  • Replacing the existing systems for funding affordable housing and infrastructure from development with a new more predictable and more transparent levy.
  • Using post-Brexit freedoms to simplify and enhance the framework for environmental assessments for developments.
  • Reforming the framework for locally led development corporations to ensure local areas have access to appropriate delivery vehicles to support growth and regeneration.

It is likely that the proposals in the White Paper to divide or ‘zone’ local areas into growth, restriction or renewal areas will be pushed forward in some form, with the allocations to be set out in the local plan. The White Paper states that growth areas will benefit from an automatic outline permission or permission for the principle of the development, with Councils left to determine such details as layout, landscaping, scale and appearance.

Restricted areas will include areas where special protections continue to apply, and development will continue to be scrutinised in those areas much the same as they are now. In renewal areas, there will be a presumption that planning permission will be granted for the type of development set out in the local plan in that area. We await the detail as to how deregulation in renewal areas will be achieved, and how they will differ from areas currently allocated in the local plan.

Achieving the benefits of zoning (like certainty and time as well as money savings) will be dependent on speeding up the process for making and reviewing local plans. The White Paper proposes shorter statutory time limits for adopting local plans – 30 months as opposed to the five year average, as reported by the Government, and moving some of the content in local plans to national policy as well as digitalising the system.

The proposals in the White Paper and now the announcement of the Planning Bill have attracted differing views from various sectors and stakeholders within the planning system. There is likely to be some impact on local democracy. For instance, the introduction of growth areas may remove the ability for local residents to get involved in debates about the principle of major development in their area, if such development already benefits from outline permission by the time their local Councils have to make a decision. This will make it more important to increase and monitor local involvement in the local plan process.

Developers and housebuilders hope the reforms will curtail the kind of organised objections to development they see as a drain on time, resources and the ability to bring forward much needed development, including affordable housing. Some interest groups are concerned about the potential loss of local residents’ ability to be involved at application level, while other groups are concerned about the standards of houses that will be brought forward, whether the issue of impact on neighbouring properties will be side-lined and whether development will be allowed to override critical and sometimes global environmental challenges.

The Judicial Review Bill has also been the subject of debate which is wider than planning. The Queen’s speech and accompanying paper state that the Government is concerned that judicial reviews are being over-politicised and judges are being dragged into the political arena inappropriately. The purpose of the Bill is stated to be to “introduce reforms to Judicial Review to protect the judiciary from being drawn into political questions and preserve the integrity of Judicial Review for its intended purpose – which is to hold the Government and public authorities to account, apply the intent of Parliament, and protect individuals’ rights.”

Judicial Review is obviously relevant to planning and is the only way in which an affected third party can hope to reverse a planning approval which they think is flawed. The planning courts have always been concerned to maintain the division of planning decisions, which they leave to planning decision-makers such as Councils and the Secretary of State, and legal issues which are the remit of the courts, and to restrict the ability of disgruntled members of the public and developers to re-open planning arguments via Judicial Review applications. This appears to be consistent with the Government’s aspirations above. The proposals in the Bill are said to be to:

  • Allow the court to suspend quashing orders in Judicial Review to allow the authority to rectify the identified decision. This is relevant to planning as the usual position is that if a planning decision is quashed or cancelled because of a legal error, the decision has to be made again by the decision-maker. Therefore, the application has to go through the whole process again if the developer wishes to proceed with development. Potentially, with these reforms, the planning permission could be kept safe in abeyance while the decision-maker corrects its errors. Correcting the errors may mean the planning permission can be saved or it may not.
  • Reversing the decision in Cart v The Upper Tribunal which allows certain decisions of the Upper Tribunal to be reviewable by the High Court.

The devil (or the saviour) as they say is in the detail. We know what the Government’s priorities are, we know which parts of the White Paper and Judicial Review reform proposals they want to bring forward – the question is how they’re going to do it?

E’ is for Easter and for Use Class E

Easter this year not only represents arguably the most important date on the Christian calendar but also society as a whole stumbling into the light as we approach (hopefully!) the end of the restrictions on movement that we have learnt to live with over the last 12 months. In the world of planning, the government has, for the last year, rolled out several pieces of legislation – some to ease the economic and social impact of lockdown and others to make the planning system more flexible in general. On 31 March 2021, right before Easter, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021, which grants permitted development rights to convert use class E buildings into dwellinghouses, was added to the group.

Use classes were created to allow the change of uses within a group of uses without the need to engage the planning system. The Use Class Order 1987 sets out what those the use classes are. The Permitted Development Order creates further flexibility by granting permitted development rights for changes between certain use classes. These changes do not require planning permission but may be subject to a less detailed prior approval process as well as limitations and conditions.

Use class E was created in September 2020 by regulations which reconfigured and changed the use class system. The following uses have been subsumed in the new use class E:

  • Display or retail sale of goods, other than hot food (shops)

  • Sale of food and drink for consumption (mostly) on the premises (restaurant and cafés)

  • Provision of financial services, professional services (other than health or medical services), or other appropriate services in a commercial, business or service locality

  • Indoor sport, recreation or fitness (not involving motorised vehicles or firearms)

  • Provision of medical or health services (except the use of premises attached to the residence of the consultant or practitioner)

  • Crèche, day nursery or day centre (not including a residential use)

  • Uses which can be carried out in a residential area without detriment to its amenity comprising offices to carry out any operational or administrative functions, research and development of products or processes and industrial processes - use classes: planning portal

  1. switching the use of buildings and land between the above uses does not require any consent under the planning system. The permitted development rights for changes between certain use classes will remain based on the old use classes until 31 July 2021, pending new legislation from the government.

In December 2020 the government consulted on a number of proposals including a proposed new permitted development right for the change of use from use class E use to houses stating:

Where there is a surplus of retail floorspace, quality residential development will help diversify and support the high street. It will create new housing opportunities including for those who will benefit from close proximity to services, such as the elderly and those living with disabilities. It will also make effective use of existing commercial buildings, bring additional footfall from new residents, and assist in the wider regeneration of town centre and other locations.”

As stated, on 31 March 2021, the latest amended order for permitted development rights was enacted. The order applies to England and Wales according to regulation 1(2) and despite the title of the order and the scope of the consultation in December.

It grants permitted development rights (Class MA of Part 3 rights in the permitted development order) for the change of use from use class E buildings to dwellinghouses. Before development is started, an application must be made to the local authority so that they may determine if prior approval is required as to the transport impact and flooding and contamination risks of the development, the impact on the intended occupiers of noise from a commercial area or effects from an industrial area, the impact on the characteristics and sustainability of a conservation area (if relevant) and the impact of the loss of certain services. Prior approval applications for this new right can be made from 1 August 2021.

The new use class is a significant step in simplifying the planning system and is something, along with the raft of legislation enacted in 2020 and 2021, on which lawyers and planners as well members of the public, whether applicants or objectors, will continue to need education and clarification. At Lanyon Bowdler, our planning team can assist in navigating through the use classes and linked permitted development rights. Please contact us for more information.

Commencement in Any Language

When it comes to development which has been authorised by planning permission, commencement means different things at different stages. If a planning permission is in danger of expiring, commencement of the development in time is crucial to keep the permission alive. If a developer is wondering whether a section 106 obligation may have been triggered, the question becomes whether commencement has occurred or whether any works are merely preliminary works which have been excluded from the definition of commencement in the section 106 agreement. Finally, for the purposes of the Community Infrastructure Levy (‘CIL’), payment, which may in full or in instalments, becomes due from the date that a chargeable development is commenced.

Commencement is known by different names, depending on which procedure is under consideration. In relation to preserving a planning permission, the relevant legislation requires that development “must be begun” within a time period specified in the planning permission or a default period of three years for England and five years for Wales. This consequence of not beginning development within that time period is that the permission will expire, in the sense that any development carried out after the time period will not be authorised by the permission.

Development begins when a material operation which is comprised within the authorised development starts. A material operation is defined in section 56(4) of the Town and Country Planning Act 1990 and essentially means any work of construction or demolition of a building, certain works for the foundation of a building, any operation for laying out or constructing a road and a change of use (subject to certain exceptions).

What are Pre-commencement Conditions?

In order to come within the planning permission, the development must be begun in accordance with conditions attached to it, including conditions which prohibit the start of development until certain procedures are carried out, known as pre-commencement conditions. This is an area of planning that has been the subject of much case law debate which is outside the scope of this article. However, one point which is relevant to this article is that, as long as pre-commencement conditions are complied with and what the developer does is within the development permitted by the permission, minor works can be sufficient to start and therefore preserve planning permissions.

Section 106 agreements or undertakings, if required, are almost always completed before the grant of planning permission. They contain obligations on the developer, which could be restrictions, obligations to carry out works or to pay contributions, which the planning authority requires to make the development acceptable.

Section 106 agreements refer to the commencement or implementation of development in two ways. Firstly, section 106 agreements will often not become effective or ‘in force’ until the planning permission is granted and development commences. This is an acknowledgement that a developer does not have to implement a particular permission, just because it is granted, and can choose to develop their land under alternative permissions or schemes.

Section 106 agreements also often carve out certain works to avoid triggering obligations which are due on commencement of development while the developer is carrying out preliminary site works. Therefore commencement of development is often a slightly different concept, depending on whether you are talking about preserving a planning permission or triggering an obligation in a section 106 agreement. It means different things and is called different things, much like ‘Love’ in the 1980s song ‘Love in Any Language’ by Christian singer Sandy Patti, from which I made up the title of this article to make it seem even more interesting than it already is.

What Else Should Developers Consider?

In addition to the above, developers building in authorities which have adopted a CIL charging schedule have to consider the definition and consequences of the commencement of a development within the CIL Regulations. They are under an obligation to notify the charging authority (which is the same as the LPA) of their intentions to commence development at least a day before commencement. The CIL charges become due on commencement of development. A lack of awareness of this process can attract surcharges and have the consequence of moving forward payments which were supposed to be made in instalments.

In the appeal decision of Anon v Cotswold District Council, decided on 3 March 2021, the inspector considered whether the widening of an access fell within the definition of commencement as set out in the CIL Regulations. The regulations state that, subject to certain exceptions, development is commenced on the earliest date that a material operation is carrying out on the development site. ‘Material operation’ has the same meaning in the regulations as in section 56(4). The exceptions relate to situations where a permission has previously been granted for the same development, for instance section 73 permissions which relate to the variation of conditions on a previously granted permission.

The development was for the conversion of a gospel hall. The authority concluded, after a routine visit, that the presence of some metal fencing, a pile of rubble, a portable toilet, a small digger and a skip was sufficient evidence that development had commenced without the developer serving a commencement notice. A demand notice was served on the developer for the CIL charges and a surcharge.

The developers appealed and countered that the photographs of the items above, which were produced by the authority during the appeal, did not demonstrate commencement of the development. They stated that some of the items were there so that an existing vehicular access could be widened to enable equipment to be delivered to the site to allow development to commence on a certain date. The inspector upheld the appeal because the widening of the vehicular access did not form part of the development authorised by the permission.

It could be that the authority did not give the developer a chance to put forward this reason for the skips etc, did not properly consider what the developer had to say or did not believe the developer. However, it should be noted that that is the kind of evidence that is often presented to LPAs to demonstrate that a development under a planning permission has been commenced within the time relevant time period. The key issue is the wording in section 56(4), which was highlighted in the inspector’s decision, that the material operation (however minor) had to be ‘comprised within the development’ authorised by the planning permission.

Whether the question at hand is keeping a permission alive, CIL liability or the triggering of a section 106 obligation, commencement is an issue that sometimes requires the help of experts. The planning team at Lanyon Bowdler is able to assist with this or any related issues. Please contact us for further information.

Planning Enforcement: Beware of the PCN

Local planning authorities have various powers to compel a landowner to provide information about land in their areas. This includes the power to serve Planning Contravention Notices (PCNs), the purpose of which is to obtain information about alleged unauthorised development. PCNs, although discretionary, are an important step in planning enforcement investigations.

PCNs are not actual enforcement notices, which require the person who receives them to stop or remove unauthorised development. Therefore, there might be a temptation for landowners or other recipients of PCNs, and even local planning authorities, to be somewhat relaxed about responding to them or following them up. However, failing to respond properly to a PCN attracts criminal liability and the case of Russnak-Johnston v Reading Magistrates Court [2021] EWHC (Admin) 112, which was decided on 26 January 2021, demonstrates why stakeholders overlook the importance of PCNs at their peril.

The purpose of a PCN is to find out information about an allegation of breach of planning control, which could be an unauthorised change of use or building or other operations without planning permission or a failure to comply with a condition that is on a planning permission. A PCN can require the landowner or occupier to provide a wide range of information including what is going on the land, when the allegedly unauthorised activity started, who is carrying out the unauthorised activity and what interest they have in the land. As wide as this power is, case law is clear that a PCN is not to be used as a “fishing expedition” in that the authority must have some evidence beforehand of unauthorised development and the information sought in the PCN must be aimed towards that development. The recipient of a notice has 21 days to respond.

What Will Be the Consequence If the Landowner Fails to Respond to the PCN?

Failure to respond to a PCN or to intentionally or recklessly provide false information in response is a criminal offence as is failure to comply with any subsequent enforcement notice. While the PCN-related offence carries a limited fine and is a ‘summary offence’, which means it can only be tried in the magistrates’ court, the offence related to the enforcement notice is more serious. Failure to comply with an enforcement notice carries an unlimited fine (as in there is no limit on the fine that can be imposed on the defendant) and can be tried in either the magistrates’ or Crown Court.

Therefore local planning authorities focus quite naturally on the enforcement notice. If somebody blatantly lies in response to a PCN, it is more common for authorities to use that fact to attack their credibility in an enforcement appeal than to go through the trouble of prosecuting the person. Also because it is a summary offence, the authority has six months, from the commission of the offence, to prosecute. However, it should be noted that failure to comply with a PCN (like an enforcement notice) is what is known as a ‘continuing offence’ which means that there is an ongoing obligation to provide the information requested by the PCN, even after the end of the initial 21-day deadline.

What Happened in the Case of Russnak?

The case of Russnak centred around a site, that had permission for the keeping of horses for recreational use, which the local planning authority suspected was actually being used for residential purposes and as a commercial livery. The authority served two PCNs. The first one related to residential use and the second to commercial livery uses. In the second PCN, the claimant was asked to provide leases, agreements and other documents relating to the commercial use which she did not.

An enforcement notice was served and the documents requested were produced during the appeal. The enforcement notice was withdrawn but the local planning authority decided to prosecute the claimant for failing to provide information and providing false information in response to the PCNs. The claimant applied for a judicial review and quashing of the magistrates’ decision to proceed with the prosecution.

The first point the claimant took related to the definition of ‘information’. In my experience, a PCN usually consists of a list of questions and it is more unusual to see requests for documents as in Russnak. The High Court did not accept the claimant’s argument that asking for documents fell outside the definition of ‘information’ in the legislation and that therefore the authority had exceeded its powers. The court decided that that the word "information" clearly included information in the form of the document.

The next point from the claimant was that the six-month time limit to prosecute the offences had long expired by the time the local planning authority started the prosecution. The court interpreted the legislation to mean that the offence of failing to answer a question on the PCN was a continuing offence. This meant that the six-month time limit started afresh on every day after the initial 21-day period that the information was not provided. However, the offence of providing false information was committed once and for all when the false information was provided and could not a continuing offence.

The case is a good reminder to take PCNs seriously, even though they are not actual enforcement notices. Failing to respond to them could have a number of consequences, which include affecting future compensation rights, which are outside the scope of this note, and affecting the landowner’s credibility in any enforcement appeal. Finally, as the case says, a recipient of a notice cannot relax once the six-month period from the day that they are supposed to submit their response expires. The authority’s six-month time limit starts afresh every day that they fail to respond to the PCN and as the case demonstrates, in the right circumstances, authorities are willing to prosecute for the offence of failing to respond properly to PCNs.

Planning for the Future: Reforms to Watch Out For

With less than a month left to respond to the consultation on the Planning for the Future White Paper, now is a good time as any to remind ourselves of the major proposals for change and their practical implications.

The Current System

At the core of the current system is the principle that planning permissions should be decided in accordance with local planning policies, contained in local plans and other development planning documents, and material planning considerations.

Planning applications are usually decided by planning committees or senior planning officers, depending on the size of the development. When determining planning applications, planning committees have the benefit of officer’s reports which contain a technical planning assessment of the application and a recommendation of what the committee’s decision should be.

Members of the public, government departments and bodies, as well as various interest groups, have a right to make their views known, through consultation and representations when local plans are being made and individual planning applications are being decided. Planning determinations can be subjective and committee members, being elected councillors, can take into account the concerns of their electorate as long as they relate to relevant planning considerations. Therefore committee members can, and frequently do, deviate from their officer’s recommendations as to whether an application should be approved or rejected.

Unsuccessful planning applicants can appeal decisions to the Secretary of State for Housing, Local Government and Communities. Appeals are administered by the planning inspectorate known as PINS.

Development often creates need, in terms of infrastructure and this is met by developer contributions by way of Community Infrastructure Levies or infrastructure agreements – the most common of these are Section 106 Agreements, named after the same section in the Town and Country Planning Act 1990.

There is so much more to the planning system but the above should help people read the government’s reforms in context.

Here are seven proposed changes everyone should be aware of:

1 Rules Based System

The paper proposes a rules-based system whereby, the authority’s area will be divided up in the local plans into areas of growth, renewal or restriction. In growth areas, specific types of development will benefit from automatic outline planning permissions, which is an approval of the principle of the development. Developers of land in growth areas will only have to apply for approval of the detail of the development.

In renewal areas, developers will still have to apply for planning permission but will benefit from an assumption that suitable development, as set out in the local plan, will be approved. Also, if proposals in renewal areas comply with design guides and other criteria, they too could benefit from automatic or fast-track consents.

Development will still be restricted in areas such as the Green Belt, Areas of Outstanding Natural Beauty, conservation areas, local wildlife sites, areas of significant flooding risk and important areas of green space which could include gardens.

Currently local plans contain allocations as well as general policies on how to determine planning applications. The main difference with these proposals is the availability of automatic outline permissions for growth areas. The content of local plans will be limited to designations and standards specific to those designations while general development management provisions will be contained in national policy and guidance.

It is therefore crucial that everyone has a chance to participate in the local plan process as they will not be able to debate the principle of development at application stage in growth areas, and this is recognised by the government in the paper.

2 Local Plans

The government also wants to simplify and streamline the plan-making processes. This includes subjecting draft local plans to a single test of soundness instead of the current legal and planning tests and simplifying the environmental assessment procedures.

The paper outlines a five-stage process which is supposed to lead to the plans being adopted in 30 months instead of the usual up to five years. The paper also debates abolishing the right to be heard on the local plan and the possibility for Councils to assess plans themselves subject to auditing processes by PINS.

Local plans are proposed to be produced on a standardised digital model which will include an interactive web-based plan where people can search an area to find out what development is proposed within.

The obvious point is how the government factors increased engagement in the local plan into a more streamlined process.

3 Decision Making

The changes are geared towards dealing with planning applications more quickly and efficiently. Planning permissions have to be determined within certain statutory time limits. The government wants to curtail the right to extend those time limits by agreement, as is frequently the practice now.

The government also somehow wants to “integrate” the submission of planning applications with the validation process although it is not clear what they really want to do. Planning applications are validated when the authority has received all the information it needs to make a planning decision and the clock starts ticking in respect of the statutory time limit. It is unclear whether the intention is for the statutory time period to start when applications are submitted even if the information received is insufficient to make a decision.

The government is also considering whether applicants should receive a refund of their application fee if the applications are recommended for approval by officers, rejected by committee and successful at appeal. This would be a way of deterring committees from side-lining planning considerations in favour of the public views.

Other changes include reducing the amount of information received for major applications and expedited processes for routine and sympathetic changes to listed buildings and other historical assets.

4 Consultation

The government seeks to increase the level of consultation and public participation in local plans while minimising disruption caused by objections to planning applications. The proposals include a switch to digital methods of consultation. This will for instance, include a digital template for planning notices.

5 Digitally Driven

The government will support the use of digital tools for publicising applications and local plans. The aim is to make it easier for people to understand, using visual and digital tools, the impact of proposed development in their area and for them to give their views through social media and other digital methods. Local plans will be produced with a standardised digital model. The government also wants to make sure that all planning information is available online.

6 Developer Contributions and Affordable Housing

The government intends to replace the Community Infrastructure Levy and Section 106 Agreements with a new national Infrastructure Levy. Section 106 Agreements are seen to be complicated and uncertain since each agreement has to be negotiated between the developer and the authority in circumstances where every authority has slightly different rules. The Community Infrastructure Levy is more standardised but is dependant on an individual authority deciding to use it and is also complex in terms of the legislation governing it.

This new levy will be a uniform national rate set for development above a certain level. The aim is for it to be more user-friendly as the authority will not have to prove a direct link between each development and the expenditure of the levy and authorities will be able to borrow against the receipts of future levies to fund infrastructure projects.

The levy will also be wider in that it will apply to some permitted development rights and a proportion will be reserved for other functions of planning departments such as plan-making and enforcement.

It has always been difficult to deal with affordable housing by contributions alone because of the need for covenants to govern how the housing is to be provided on site. One option in the White Paper is for the developer to deliver the affordable housing on site using standardised agreements. The developer’s obligation to pay the levy would then be reduced by the difference between the market price of the house and the discounted price it is sold for to an affordable housing provider. If the on-site affordable housing cannot be sold because of its poor quality, the developer may have to pay the levy anyway. If there is a market fail, the authority could allow the units to revert to market housing and the developer would then have to pay the rest of the levy to the Council for affordable housing.

7 Design

The proposals are centred around a renewed effort to increase the importance of design and to generate development which is ‘beautiful’ as opposed to just being not harmful. On a national level, the government wants to produce a national design code, building on the design guide which they published in October 2019, as well as a revised manual for streets.

Local authorities will be required to produce design codes which will be binding on planning decision makers. Each planning authority will be expected to have a chief officer for design and place making. Design guidance will be required to be prepared locally with community involvement in order for them to be binding on decision makers. Where there are no local design codes, the national design code will be used for decision making.

From a development control perspective, there will be a "fast track for beauty” which is to be implemented in three ways. Firstly, the NPPF will state that compliance with the design code should lead to a swift approval. Compliance with local design codes could be a condition of a permission in principle. Finally, certain permitted development rights will be linked with compliance with design codes.

Paying for It All

The proposals include allowing a small proportion of the income derived from development contributions to cover overall planning costs including the preparation and review of local plans, design codes and enforcement activities.

The government also recognises that though it wants the majority of the new planning costs to be funded by landowners and developers, good planning also benefits the general public and therefore some of the reforms can be funded by general taxation.

Alternatives

It should be noted that many of the above proposals come with less radical alternatives.

Summary

It is difficult to deny that many parts of the planning system are unpredictable and complex. However, part of the reason for that is that local democracy is built into the system. Another reason is the inevitable tension of building enough houses and understanding the desire of local people to reject development which they feel impinges on their amenities.

Local plans have for a long time had policies stating what development goes in certain places, so the designations of sites is not exactly new. What is a shift is the fact that those designations will be more determinative. At the moment, the general test is to go along with the development plan unless material considerations indicate otherwise.

A significant part of the government’s task in implementing these reforms is to maximise engagement of local people as well as stakeholders in the local plan process and balance that against their ambitions to streamline the process.

In my view, this will require maximising non-digital as well as digital methods of consultations as people should not be excluded, based on their ability or desire, to access certain technologies.

Resourcing is an important issue in light of reduced funding to local authorities. Although streamlining the system may make it more cost-effective in the long run, the changes will need an initial boost in terms of staff and funding. It is reassuring that this is recognised by the government.

Whether you are a voluntary, developer, landowner or member of the public, everyone is affected by planning so there is still time to make your views known! At Lanyon Bowdler, we have the expertise to help you make sense of the rules, current or proposed, and to assist you in engaging the planning system.

2020: A Year of Planning Changes

This year has seen a rash of planning changes, particularly since March. Some changes have been made to enable the planning system to operate during the global pandemic, while others are more about using the planning system as a tool to restart the economy after three months of lockdown.

We have written in previous blogs about the time-limited right, introduced in March 2020, for restaurants, cafes and pubs, which were closed from 23 March to 4 July, to provide a takeaway service without the need for planning permission. Unless extended by the government, this right will end on 23 March 2021.

In April, new permitted development rights came into effect to allow local and health authorities to carry out development, whether erection of buildings or changes of use, to deal with health and other emergencies. These changes, which are a response to the global pandemic, are neither temporary nor confined to the coronavirus emergency.

We also wrote about the temporary relaxation of duties of planning authorities to publicise planning applications and documents and to make documents available at their offices for inspection by members of the public and the possible effects it was or could have. The changes make it possible for planning authorities to produce these documents online. Similar changes were made in July with respect to the obligation for authorities to keep physical copies of local plan documents for members of the public to inspect. The changes are in force until the end of 2020.

Regulations, which came into effect on 1 August, were made to tidy up parts of the 2015 General Permitted Development Order, to grant new permitted development rights in relation to residential development and also to extend certain temporary use rights for the holding of markets and for motor car and motorcycle racing.

The most significant change in these regulations is the new permitted development rights which allow for the construction of up to two story "new dwelling houses" immediately above the top floor of a block of flats.

There were also tweaks to the permitted development legislation which include clarifying that applicants and local planning authorities can agree to a longer period of determination for prior approval applications. We have reported on the on-going litigation about this issue. .

The regulations also introduce a further consideration for the relatively recent permitted development rights to convert buildings, including agricultural, office and commercial to residential buildings. The consideration is whether the building allowed for adequate natural light. The residential units that have resulted from these permitted development rights have been criticised for being sub-standard homes without basic amenities like natural light or garden space. These deficiencies have been very apparent during the lockdown to people who live in these units.

Two sets of regulations were made on 21 July. The first which took effect on 31 July, allows for the replacement of redundant industrial and office buildings with houses and blocks of 1990 flats as long as the building being replaced was built before 1 January 1990. The second due to come into force on 21 August, allows for the construction of two storeys of flats on top of dwelling houses or buildings in commercial and mixed uses.

The Town and Country Planning (Use Classes) (Amendment) (England) 2020 are due to come into force on 1 September. The regulations create a new use Class E which replaces use classes A1 (shops), A2 (financial and professional services), A3 (restaurants) and B2 (light industrial and business uses) so that developers will be able to change between these uses without the need for planning permission. The government hopes that this will have the effect of kick-starting the recovery of high streets across the country.

In addition, there will be new use classes F1 and F2 for learning non-residential institutions and local community uses which replace the previous non-residential and assembly use classes D1 and D2.

Finally, on 6 August 2020 the government launched a White Paper entitled’ Planning For The Future’. The documents and the recommendations within are branded as an overhaul of “an outdated planning system” and was described in gov.uk's press release as "landmark reforms to speed up and modernise the planning system and get the country building".

Significant proposals include the replacement of the planning system with a rules-based system and a new national levy to replace the current system of developer contributions which consist of Community Infrastructure Levy payments and Section 106 agreements. Land is proposed to be designated by local communities into the following categories-for growth, for renewal, and for protection.

Another significant proposal is an obligation on local authorities to agree their local plans within 30 months. The government's detailed brief (https://www.gov.uk/guidance/planning-for-the-future-explained) is critical of the fact that it often takes authorities several years to complete the local plan process but in my experience this is often a result of complying with the statutory requirements, ensuring sufficient public participation, dealing with planning and legal challenges and lack of resourcing within planning departments.

The government pledges to continue to protect Green Belt land and green spaces and states that the focus will be on small and medium sized builders and more building on brownfield, or previously used land.

As always with planning changes, a focus of the white paper is building more homes which are environmentally friendly and its aspiration is to ensure that everyone has a chance at a beautifully designed home, which is affordable and also in the area that they want to live. Its purpose is also to stimulate the economy and the construction industry.

The planning system has been over the decades subject to changes which amount to, in my view, more than "fiddling around the edges" as described in the forward to the white paper. The consistent challenges with any changes are resourcing and implementing them and balancing them against local democracy, public participation and economic realities. Another challenge with any change to the system, whether the ones proposed in the white paper or the changes over the last decades is allowing enough time for the changes to have the desired effect.

Interested persons have 12 weeks, which is until 29 October 2020, to respond to the consultation on the white paper.

Please contact me for any advice in relation to planning issues.

Proposed Changes to the Planning System

At present the world of planning and development is at the forefront of government reforms. There is an ongoing consultation into many changes within the planning system. This consultation seeks input into proposed changes to the planning system, including: changes to the standard method for assessing local housing needs, securing of first homes through developer contributions, temporarily lifting the small sites threshold and extending the current Permission in Principle to major development. In the coming months, it is likely that major changes will be considered and that many of these will be implemented.

To prepare for these changes, it is useful to understand why they are necessary.

Why Are Changes Being Proposed?

Firstly, the planning system that we follow today was put in place in 1947. This means that our guidelines were put in place only 2 years after the Second World War. Since then, many changes have happened externally, and although it has been reformed many times, the basic system has not, in the government’s view, been updated to reflect the years of development.

Secondly, the system now works best for large investors and companies, and is often impenetrable for those without the resources to manage a costly process. To implement a simpler framework would allow for a better support system and a more fair and competitive market. With a greater diversity of developers, England is likely to house a stronger foundation for the planning communities.

Since 2010 the government has introduced planning reforms to improve the outdated system. In 2010 only 17% of local authorities had local plans in place and now 91% of local authorities have plans. These changes have helped to shape the consultation that is currently ongoing and the viewpoint of many individuals and developers countrywide.

What Are the Proposed Changes?

Currently, planning decisions are discretionary rather than rules-based. Almost all decisions to grant planning permission are decided on a case-by-case basis. Given the number of applications that are being received daily in 2020, compared to the number in 1947, it is evident that this process needs to change. It is being proposed that a clear set of rules would be much more suitable for this process.

Secondly, it has been proposed to extend the current Permission in Principle to major development so that landowners and developers have a fast route to secure the principle of development for housing on sites without having to work up detailed plans first. This aims to speed up the planning process, encourage building and development during these uncertain times, as well as into the future, and to create a fairer system.

Furthermore, one of the most prominent proposals is the simplification of Local Plans, to focus on identifying land under three categories. These three areas are: ‘Growth’ areas suitable for substantial development, ‘Renewal’ areas suitable for some development and ‘Protected’ areas where development is restricted. The main aim of this proposal is to reduce the time it takes to secure planning permission. By having a simplified process in place, with an easier application process, it will be much less time consuming, for both the applicant and the local authority.

Subsequently, the plans refer to the local planning authorities being given greater responsibilities in terms of identifying sub-areas in their ‘Growth’ areas for self- and custom-build homes, so that more people can build their own homes.

As well as the above, temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing, will ensure adequate affordable homes are being built across the country.

What Changes Are Soon to Come into Force?

In the meantime, there is a lot of talk surrounding the planning sector at current and one of the main upcoming changes centres around how the planning system will work for commercial premises. From 1 September 2020 there will be a new Class E group, which will replace the following classes:

  • Class A1 - shops;
  • Class A2 - financial and professional services;
  • Class A3 - restaurants and cafes; and
  • Class B1 - business.

This will mean that planning permission will not be required for a change of use of premises within this new use class.

Given the current climate and the changes that have come about due to the Coronavirus Pandemic, many businesses and premises will perhaps become redundant and undesirable. Amending the rules in relation to planning consents is a first step to tackling the challenges that many commercial premises owners, and others, will face.

Help and advice

If you would like any guidance or advice on matters relating to any of the above, or otherwise, please do not hesitate to contact our property and planning departments at Lanyon Bowdler for more information.

Containers as Homes, Businesses & Shops: From a Planning Lawyer's Perspective

We have received a number of queries about installing and living in storage containers – so-called ‘container homes’ – particularly on agricultural land or within the countryside. Judging from the articles like these - https://www.sjonescontainers.co.uk/containerpedia/shipping-container-homes-uk-planning-permission-regulations/ and https://www.sjonescontainers.co.uk/containerpedia/shipping-container-homes-uk-planning-permission-regulations/ - container homes are being promoted as a quicker, less expensive alternative to traditional built brick and mortar houses.

The first article provides a useful definition of container homes stating:

“Container homes are homes made from the large metal shipping containers you see transporting goods on ships, trucks, and trains – or being used to store goods. Shipping containers are designed to travel long distances around the world, and as a result, are made from highly durable materials such as steel. This makes them extremely durable and enables them to withstand wear and tear and remain in excellent condition for many years. Container homes also have significantly lower construction and maintenance costs when compared to traditional homes, which makes them extremely appealing to potential housebuyers.”

There are obvious advantages to using ready-made container homes over having to actually build a house. However, a significant consideration is whether such a move requires planning permission. While the articles above attempt to outline the planning implications, people still come to us, as planning lawyers, for certainty as to whether container homes will deliver what they want: a home in a nice green area and perhaps a reduction of the some of the bureaucracy that comes with engaging the planning system.

To understand how planning controls relate to container homes, it is important to understand some basic planning principles. Planning controls, and therefore the need or otherwise to apply for planning permission, revolve around the concept of ‘development’. If one’s actions constitute ‘development’, planning permission will be required, unless specified exceptions apply. Another important principle is that planning permission can be granted individually, nationally, by virtue of permitted development rights or, less frequently, locally by a development and other types of orders.

‘Development’ is defined as either operational development or a material change of use of an area of land often referred to as a planning unit. Operational development encompasses building, engineering, mining and other operations – building operations being most relevant to this article.

How does this fit in with container homes? If you bring a container home on to your land, have you carried out ‘development’? Not necessarily. It is not usually classed as operational development as you haven’t built anything, nor is the simple act of bringing a container on land materially changing the use of the land. However, things can get complicated and if alerted, the local planning authority - the Council - may want to find out what is going on.

Firstly, there is a chance that the authority will class a container or any other mobile structure as ‘operational development’ if that structure is substantial, has been on (or is likely to be on) the same spot on the land for a long period of time or is physically attached to the land. There is a whole raft of complex case law about this and if this is likely to arise, the situation requires careful assessment by the landowner (or tenant or other occupier) or preferably their lawyers or professional advisers and the Council.

The more common issue revolves around what the landowner does with that container and whether it amounts to a material change of use and therefore development. If the container is used in conjunction with the main use of the land, there is unlikely to be a material change of use and planning permission will not be required. For instance, if a storage container is brought on to agricultural land to store animal feed, produce or medicine, planning permission will not be required. Planning permission will also not be required for a storage container brought on to residential land (or a house and garden) to store gardening or domestic items.

However, if the landowner wants to use the container for a use which is unconnected to the main use of land, the question may arise as to whether there has been a material change of use. An example of this is if someone places a storage container on agricultural land to live in. As the lawful use of the land is agricultural, that person would be introducing a residential use to that land. This is likely to amount to a material change of use, would require further investigation and may result in the need to apply for planning permission.

The person would also need to consider what other work may be required to make the container habitable, like hardstanding to place the container on, or to construct a drive or an earth bund for whatever reason. These may amount to building or engineering works which require planning permission.

The linked articles above also make reference to placing containers in gardens and measurements relating to covering more than half of the garden. This relates to certain procedures and limitations set out national permitted development rights, mentioned above, which the landowner will need to consider before taking advantage of those rights.

The question we often get asked goes something like this ‘I want to bring a container on to the land to live in. What is the best way of going about it?’ The landowner may want to know, having read articles such as the ones above, things like ‘Should I buy this container home? Will it really deliver what I want, which is a cheap, quick home without the hassle of engaging the planning authorities?’

The answer, rather than a quick guarantee over the phone, often includes some of the following: a detailed check about what kind of container you want to buy, what its dimensions are and where you want to put it; the lawful planning use of the land you want to put it in; planning laws regarding the definition of development; a risk assessment relating to planning enforcement, and a review of the planning policies in the area regarding land use, design and sustainability.

Planning & COVID-19

We have already published a blog and updated our website on this matter and the planning industries responses to the current crisis and in those articles we said how quickly things were changing. The planning industry is proving to be agile and responsive.

I was due to have a telephone conference with a barrister on Thursday last week, but it had to be changed at short notice due to the fact that the High Court had sprung on him an emergency hearing for an injunction at very short notice which needed to be conducted by telephone, hence I had the opportunity to write another brief blog on how the system is responding.

  • The government has now issued regulations for English local planning authorities to hold virtual public meetings, by phone or video link or other technological means during the current lockdown.
  • In England and Wales, separate legislation has been introduced for temporary Permitted Development Rights which will allow local authorities or health service bodies in England (and in Wales the NHS or any developer acting on its behalf) to use their buildings for public health emergency purposes without seeking Planning Permission during the crisis caused by the pandemic. This different wording and criteria in both sets of regulations highlights the continued divergences between the English and Welsh Planning systems.
  • One planning committee, in Waltham Forest, has already granted Planning Permission for a major - 750 home – residential development scheme at a virtual planning meeting. With such a large development it is possible that some of those who might otherwise have wished to object to such development may feel aggrieved at the mode of determination. They may feel that the Council’s process is undemocratic, although there is a counterargument to be put that such virtual meetings might also allow people to attend remotely to observe and possibly participate in proceedings when previously they might have been at work or otherwise unable to attend in person.

Generally speaking, the planning market, which tends to be ancillary to the property industry, seems to be holding up quite well with the current arrangements which are being put in place. The Planning Portal has introduced a COVID-19 business continuity plan to ensure it can maintain 'operations, service and support functions'. This goes hand in hand with ongoing government guidance. We are also starting to wonder how councils and developers will address the impact of delay on projects, which will necessitate flexibility on both sides, possible variation of conditions and planning obligations, as well as the Community Infrastructure Levy (CIL) regulations, but that’s a blog for another day.

We will continue to provide brief updates for clients as developments like this emerge, as they undoubtedly will in the coming days and weeks, but in the meantime please let us know if there is anything we can do to assist you or provide clarification on how you can participate and respond to planning issues.

Planning Decisions in a Global Pandemic

The coronavirus pandemic, lockdown measures and the need to practice social distancing will have a significant impact on the area of planning decision making, just like virtually every other area of public and private life right now.

The Rules

Determining planning applications and other planning decisions are local government functions which, despite the current crisis, still need to be made in accordance with public law rules, legislation and the Councils’ constitutions. Some planning decisions have to be made by planning committees while others, which are usually less complex or controversial, have been delegated to senior planning officers.

All local authority meetings, including full Council and committee meetings, have rules, set out by legislation relating to publicity. These include publishing the officer’s report to committee in advance of the meeting and making all documents which are relevant to the planning decision publicly available. Thanks to technology, many of these processes take place online and will perhaps be less vulnerable to disruption.

Planning committee meetings are required to be held in public with sufficient suitably trained members to make up a quorate. For certain types of decisions such as determination of planning applications, members of the public have rights to address the meeting (‘public speaking rights’).

Effect of Lockdown on Planning Committee Meetings

The laws enabling the nation-wide lockdown clearly make the usual planning committee meetings unfeasible. Regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (in force from 26 March 2020), states that “no one is allowed to leave their house except for specific reasons, which include travelling for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living”. Regulation 7 prohibits the gathering of more than two people in a public place subject to exceptions which include a gathering which is essential for work purposes. Contravention of regulations 6 and 7 are criminal offences.

While the exceptions in regulations 6 and 7 may, if there were no other means of meeting, possibly enable officers and members to meet, the regulations would definitely prevent any members of the public from attending those meetings. Since the crisis started, Councils have been preparing themselves for the obvious need for change and have mooted the idea of remote meetings. Some Councils already stream their planning committee meeting via live webcasts allowing a wider audience to attend.

New Regulations on Remote Local Government Meetings

Regulations have now been made to enable local authorities to hold meetings remotely and fulfil their constitutional and legislative requirements regarding public access. The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020, contain temporary measures, which specify that the definition of local authority meetings include meetings held virtually, online, by video conference or even telephone conference calling, so long as the members attending these meetings can be heard by, and where practicable, seen by other members and members of the public.

Under the regulations, a meeting is considered open to the public if it is accessible by remote means including video conferences and live webcasting. The regulations come into effect on Saturday 4 April.

Like working from home during this crisis, there is likely to be a practical difference between voluntarily making meetings accessible to some people online and having to conduct every planning meeting remotely. Adjustments will need to be made and resources, including staff time which itself is likely to be under strain, will be required to test systems, train members and ensure that everything runs smoothly. Notwithstanding this, it is extremely useful that technology has provided a potential solution to this particular aspect of the crisis which will hopefully prevent the system from grinding to a halt.

The rate of change is dramatic at the moment and we are all on a rapid learning curve to engage with new circumstances and technological solutions. What we will find is that local planning authorities’ responses will not be consistent and that the issues surrounding the delay caused by the crisis will impact on all aspects of the economy.

What is the Difference Between a Planning Lawyer and a Planning Consultant?

Our planning team prides itself on its ability to work alongside clients and their agents, architects or planning consultants, to achieve the best possible outcome when negotiating planning permissions and conditions, but one question we get asked a lot is ‘what is the difference between a planning lawyer and a planning consultant?’.

We are always happy to clarify the key distinction and to explain that there is an overlap between the respective skill sets of different professionals working in the same field of planning and development.

Our planning team is able to assist with:

  • Advice on the planning application process;
  • Assistance with negotiating the terms of planning permissions and conditions;
  • Guidance and legal advice regarding any appeals or enforcement action initiated against your business;
  • Any development agreements required as part of the planning process and associated topics, such as the Community Infrastructure Levy and Section 106 Agreements

We are more often called in to advise on the legal processes surrounding planning projects, which might include more non-contentious elements, such as development agreements made under Section 106 of the Town & Country Planning Act or Section 278 of the Highways Act.

We also regularly advise clients on a myriad of other planning processes, such as the variation of planning conditions using Section 73 of the Act, submitting and advising upon the evidence required for Lawful Development Certificates, submitting appeals against the refusal of planning permission and advising on challenges in the High Court, whether that is against the decision of the council or a planning inspector.

We work alongside planning consultants all the time, but the vast majority of our clients consult us about planning issues where an application has already been lodged and they either wish to make representations, or to obtain legal advice on specific aspects of the process.

Clients are businesses, developers, applicants for planning permission or other third parties that wish to make representations. Very often we are brought into a project by planning consultants where legal issues have arisen, and we also have excellent links with the barristers’ chambers that specialise in planning law.

In short, we know what we do best, but will always tackle the thorny and controversial issues which the modern planning system throws up. If you need legal advice regarding a planning issue please contact our expert planning team.

Legal Directory Recommendations

Lanyon Bowdler's planning team was established in 2015 and has since secured numerous accolades including the following comments from leading legal directories:

The 2020 edition of Chambers UK states: ‘David Brammer is a highly experienced lawyer with a wealth of planning knowledge. Market sources regard him as ‘highly competent and very experienced.’
David is also recognised in the 2020 edition of The Legal 500 which states he ‘is clearly a leader in his field. He can scythe through complex factual and legal detail to get straight to the pertinent issues. He is extremely good with clients and ensures that their case is always properly understood and articulated. A delight to work with.’

In 2018 and 2019, David was named in an independent survey as one of the top 25 planning lawyers in England.

Is Planning Permission Required for Camping Pods and Yurts?

One issue which raises its head from time to time, concerns the ever developing world and diversification of outdoor activities such as ‘yurts’ and other camping and leisure activities on land.

This can be particularly relevant to some of our farming and other clients in rural areas.

A recent planning appeal regarding camping pods

A recent planning appeal has considered the planning issues, which may apply to such activities, and a planning inspector’s decision has held that ‘camping pods’ were to be treated as buildings for the purposes of planning law and regulations.

In this case, a local planning authority took enforcement action against the erection of (four) camping pods which the appellant argued were not permanent but should be treated as caravans.

Unfortunately for the appellant and in the circumstances of this particular case, the independent planning inspector when considering the matter on appeal concluded that the pods did not fall within the definition of ‘caravan’ which is set out in the Caravan Sites and Control of Development Act 1960.

Why was the planning appeal dismissed?

His decision was based upon a number of factors, such as the degree of permanence of the pods and physical attachments to the ground.

He ruled that the pods would constitute ‘operational development’ under section 55 of the Town & Country Planning Act 1990.

Accordingly, the planning appeal was dismissed and the enforcement notice upheld which means that the appellant must now remove the pods within the terms specified in the council’s enforcement notice, or face prosecution.

We have previously published advice and articles about similar issues and would welcome any queries from clients who would like further clarification of the law and the relevant factors, which might apply to such initiatives.

Lanyon Bowdler has a team of specialist and experienced planning lawyers who are able to offer advice on such matters.

Planning Permission and Keeping Horses

In recent years development involving horses has become increasingly popular. Farm land and buildings are being sold or let to individuals hoping to use the land and buildings to keep their horses. What many individuals are unaware of is that this material change in use is likely to require planning permission.

Horses.jpg

So what is development and what is a material change in use?

Under the Town and Country Planning Act 1990 (TCPA 1990), planning permission is required for any development (section 57[1], TCPA 1990). Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land” (section 55[1], TCPA 1990). As such, there is a basic requirement for planning permission to be obtained if there is a material change of use of any buildings or land. However, the term ‘material’ is not defined by the TCPA 1990 and there is a substantial amount of case law on what constitutes a material change in use and what does not.

Some examples of what would constitute a material change of use are set out below:

  1. Use of land or buildings to keep horses for recreational use;

  2. Use of land or buildings to keep horses for commercial use;

  3. The erection of buildings to shelter horses or horsiculture equipment;

  4. The erection of buildings for the purpose of exercising horses.

Agricultural v Recreational

The Court has held that the term in the statutory definition of agriculture referring to the breeding and keeping of livestock does not apply to the breeding and keeping of horses (except in connection with any farming use). Therefore, unless the horses are simply turned out to the land with a view to feeding them from the land, it is likely that planning permission will be required.

Example

You purchase a plot of land from a local farmer intending to keep the family horses on, but the field is currently used by the farmer to graze sheep. If you use the field to house, graze and exercise the horses, will you need to seek planning permission?

Answer: Yes. As the horses will be exercised on the land planning permission is required.

What happens if you do not obtain planning permission?

Failure to obtain planning permission is commonly known as a ‘planning breach’.

It is likely that a retrospective planning application will have to be submitted if a planning breach has occurred. If this retrospective application fails then the Council can serve an enforcement notice which requires you to put things back to the way they were.

How can we help?

To avoid the risk of enforcement action you should always seek advice before carrying out any change of use or development. At Lanyon Bowdler we have a team of experienced planning solicitors who would be happy to discuss your proposals and advise on any planning queries you may have.

Latest News

30 Jan 2018

Planning Permission and Keeping Horses

In recent years development involving horses has become increasingly popular. Farm land and buildings are being sold ...

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