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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.

New Coronavirus Regulations - What Employers Need to Know

The Health Protection (Coronavirus Restrictions) (Self-Isolation) (England) Regulations 2020 came into force in England on 28 September 2020. They make certain failures in relation to self-isolation criminal offences.

The focus of initial reporting has been on the fact that individuals can be fined if they do not self-isolate following a positive test result for Covid-19, or if they are instructed by NHS Test and Trace (but not via the NHS Covid-19 smartphone app) to self-isolate because they have had close contact with someone who has had a positive test result. Also, if a person tests positive for Covid-19, it will be an offence to knowingly provide false information about their close contacts to NHS Test and Trace. Failure to comply with these requirements may result in a fine of up to £10,000.

Employers should also note, however, that (under regulation 7) it will be an offence for them to knowingly permit a worker, including an agency worker, who

  • has tested positive for Covid-19;
  • has been notified by that they have come into close contact with a person has tested positive for Covid-19; or
  • is required to self-isolate upon entry to the UK

to work, other than at home. Any employer who fails to do so will face a fine, starting at £1,000.

There is also an obligation (under regulation 8) on workers to tell their employer that they are self-isolating in such circumstances.

Self-isolating agency workers are required (under regulation 9) to inform either their agency, the principal (i.e. the party with who they are placed to provide services) or, if they are employed, their employer of the requirement on them to self-isolate under the new regulations. The regulations require whoever has received such a notification to pass the information on to the other parties.

Employers in England should remain mindful of the wider public health guidance that applies in England in respect of self-isolation from time to time; and, notwithstanding that (at least for the time being) there is no equivalent of the new regulations in Wales, employers in Wales should be mindful of public health guidance that applies in Wales.

It is an employer's duty to protect the health, safety and welfare of their employees and other people who might be affected by their business; and employers must do whatever is reasonably practicable to achieve this. If an employer knowingly allows any individual to attend work during a period when they should be self-isolating in accordance with public health guidance it may be in breach of that duty, even if it is not a criminal offence. Suspension may still be an option, but employers should consider whether they have a right to suspend in these circumstances. In the absence of an express contractual right to suspend, legal advice should be sought.

The Job Support Scheme

HM Treasury has published a factsheet to explain how the new Job Support Scheme, that was announced by the Chancellor of the Exchequer on 24 September, will work.

The new scheme will replace the Coronavirus Job Retention Scheme (”CJRS”) after that ends on 31 October, and will run for 6 months from 1 November.

Under the new scheme, employers will continue to pay employees for time worked but the cost of hours not worked will be split between the employer, the Government (through wage support) and the employee (through a wage reduction). Employers are to be liable for all employer’s national insurance contributions and pension contributions, including on the element of the wages funded by the State.

The Government will pay a third of hours not worked up to a cap of £697.92 per month, with the employer also contributing a third. This will mean that employees will receive 77% of their normal wages, where the Government contribution has not been capped.

The factsheet states “Our expectation is that employers cannot top up their employees’ wages above the two-thirds contribution to hours not worked at their own expense”. It seems odd that employers will be prohibited from making higher payments to employees at their own expense if they are to access the scheme, so query whether this comment was intentional and, in any event, whether it will stand.

The scheme will only apply in respect of employees who are working at least 33% of their usual hours and who were on the employer’s PAYE payroll on or before 23 September. This means a Real Time Information (“RTI”) submission notifying payment to that employee to HMRC must have been made on or before 23 September 2020. Employees will be able to go on and off the scheme and do not always have to be working the same pattern, but each short-time working arrangement must cover a minimum period of 7 days.

Eligible employers will be able to use the scheme irrespective of whether they have previously furloughed employees under the CJRS. Employers who have utilised the CJRS will still be able to claim the Job Retention Bonus in respect of employees who are subject to the new scheme, if the eligibility criteria are met.

Unlike the CJRS, the new scheme will not be open to all employers. All small and medium sized enterprises (“SMEs”), usually defined as businesses with up to 250 employees, will be able to access the scheme, but larger employers will only be eligible if their turnover has reduced as a result of the pandemic. Further, larger employers who access the scheme will be prohibited from paying dividends to shareholders. This goes some way to addressing a criticism of the CJRS that it benefited some businesses which continued to generate strong profits.

A further criticism of the CJRS, from some quarters, was that it can be utilised in respect of employees who are being made redundant in order to fund notice pay. In contrast, employers will not be able to give employees notice of redundancy while claiming under the new scheme.

The factsheet makes the point that “Employers must agree the new short-time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing. This agreement must be made available to HMRC on request”. Some employers will already have short-time working provisions in place upon which they will be able to rely in order to apply the scheme – but most will not. Those who do not already have short-time working provisions who wish to utilise the scheme are encouraged to obtain our advice in order to protect against such claims as for failure to consult collectively (where 20+ employees are affected at one establishment), breach of contract, unlawful deduction from wages and unfair dismissal.

The factsheet states that more detailed guidance will be published shortly.

Training Contract Selection

After all the late nights, coffee and frantic searches of your workshop notes trying to recall the cost consequences of failing to beat a defendant’s Part 36 offer, the obligatory LinkedIn graduation posts, you finally wave farewell to the academic period of your legal career. Then, if you’re anything like me, the search to secure your training contract begins.

You hunt for the upcoming application deadlines, subscribe to all the latest commercial awareness newsletters you can find and join the ranks of your fellow graduates in the search to find the golden ticket that is your training contract.

The Application

When I began applying to firms, I soon found it was the norm to be subjected to abstract assessments concocted by Messrs Watson Glaser. I was presented with endless multiple choices to assess my verbal and logical reasoning, each one an attempt to obliquely determine my suitability through a series of ones and zeroes. I began to see my career in law as a never ending list of lettered and numbered choices and my future employers as statisticians, reviewing every remark I made and running it through a system which processed my character and whether it was ‘optimal’, according to current industry trends.

That was until I applied to Lanyon Bowdler. For the first time in my search for a training contract I found a firm that was interested in me. Rather than being asked what order I would respond to events in a hypothetical situation, they wanted to know who I was and what I could do. I sat down and, for what felt like the first time, prepared my application based on my background and skillset.

The Interview

To my excitement, I received an invitation for an interview. I say ‘interview’ but the whole process felt like a chat with genuine people who wanted to get to know you. I was fortunate enough to be asked back for a second interview where my practical knowledge of the law was assessed, although not through abstract scenarios which were run through an algorithm and scored as a percentage – as had been my experience before – but through talking about a case study with real lawyers who had years of experience and who understood there was more than one answer to a situation.

As a mature candidate, having completed my LPC at 32 years old, I had a great deal of practical experience on my CV, which the interviewing partners were keen to discuss and which would not necessarily have translated through the impersonal approach adopted by a majority of firms.

Lanyon Bowdler’s Approach

The personal approach that LB takes in selecting its trainees is its greatest strength. You meet the partners early on; they talk to you, on a personal level, and see what sort of candidate you are for themselves. I remember, during my first interview, being told the reason the firm takes this approach is because they aren’t picking faceless trainees who just check boxes and don’t have any stake in the work they perform, they’re choosing future associates and partners.

I’ve found this ethos to be true in the work I had the privilege of completing during my training period. From my first seat I was involved in high level work which, admittedly, at first was daunting but I always had a direct line to my supervising partner and other experienced solicitors, so I was never put in a situation where I was out of my depth.

The team at LB wants to develop you to be the best solicitor you can. I found, during my training, that I was exposed to all aspects of life in practice; I was encouraged to take part in networking and business development early on and discovered that life in practice is more than just drafting, note taking and research. I was taught about the importance of making connections with clients and seeking out new business; not to just rest on your laurels and expect work to come to you.

At every point in my training I felt as if I were put at the centre of decisions, I was able to meet with partners regularly and have a say in which department I would gain experience in next. I felt I was able to shape my training to suit the career I wanted, and was actively encouraged by the firm to do so.

After all the time, effort and care which had gone into my training I felt I was ready to take on life as a newly qualified solicitor and was delighted to be given the opportunity to do so as a dispute resolution solicitor at Lanyon Bowdler.

For more information, please visit our training contracts page.

Unity Is Strength - Starting a New Job During a Pandemic

Starting a new job is always an exciting and nerve-racking experience; new surroundings, new people, new technology. Starting a new job just before we all went into lockdown due to the Covid-19 pandemic has added to those feelings and difficulties. This is the experience that I, and many more people in the country, have found to be the case.

Over the past few months, the Covid-19 pandemic has forced many workplaces to shift how they operate their business and think about new ways of working. We have now settled into a world of widespread remote work and also a new way of office life.

As a “new starter” I firstly had to meet my new colleagues and team and try to get a basic understanding of office procedures and the new job that I was starting. Following on from induction training and armed with this new information, I came into the office - for just over two weeks - and then the world changed, our domestic way of life changed and the office emptied overnight as many were advised to work remotely.

'Unity is strength…when there is teamwork and collaboration, wonderful things can be achieved.'
Mattie Stepanek

Despite the challenges that remote working versus office working has brought, new work friendships have emerged across the team and the wider workplace. The smaller group of people which has come in every day has become not just colleagues, but friends and teachers. The “new” office team has welcomed and helped me to adapt, offering both physical and mental support and advice; as has the remote team, advising and supporting from home via email, WhatsApp and Zoom. Covid-19 working has definitely brought a whole new outlook and way of thinking and working.

This renewed emphasis around collaboration has led to greater group support both mentally and physically; we have all been there for each other – even just a “morning” has helped to kick start the day. I am sure all “remote” office staff members have felt a renewed sense of community, as we have helped each other support the wider organisation. My advice to other new starters would be, try and meet other staff around your organisation; don’t be scared to ask for help and be supportive to others – you may have skills and advice which could help them.

Appendicitis – The Importance of Prompt Treatment

The average appendix measures 9cm in length and most of us have one. There has been much debate between scientists as to the purpose of the appendix from enabling us to digest a diet of leaves and tree bark once upon a time to protecting beneficial bacteria living in our gut. One thing they can agree on, however, is that we don’t necessarily need one.

So why am I dedicating a blog to what can essentially be viewed as a useless organ?

The answer is that having this tiny tube (it measures 6mm in diameter) can potentially be life threatening if it becomes inflamed; a condition known as appendicitis. Appendicitis is a common condition that develops when a blockage or infection develops in the appendix and, generally, will only become worse without treatment.

What Do the Symptoms of Appendicitis Include?

Symptoms of appendicitis include pain, nausea, vomiting (which is generally green), diarrhoea and fever. Classically, the pain comes and goes in the middle of the stomach before moving to the lower right hand side where the pain remains severe and constant.

If appendicitis is missed, the ‘bad’ bacteria continue to multiply causing the appendix to become more and more inflamed as it fills with pus. By on average 48 – 72 hours after the onset of symptoms, the appendix bursts under the pressure of the inflammation and the pus begins to spread throughout the abdominal cavity; a condition known as peritonitis which becomes fatal if the infection enters the blood stream. It is therefore vital that appendicitis is diagnosed and treated as soon as possible.

What Is the Treatment for Appendicitis?

Treatment for appendicitis almost always involves the removal of the appendix via keyhole surgery or a small incision in the right lower abdomen. However, when the appendix bursts and the infection becomes widespread, it can be necessary to operate through an incision along the middle of the abdomen. This is because in addition to removing the appendix, the surgeon will need to wash out the area thoroughly to remove the collections of pus that may have formed (abscesses) and to go some way to treating the infection. Patients who require this treatment will usually require a longer hospital stay, IV antibiotics and drains (either during the original surgery or subsequently). These patients will inevitably be left with an extensive scar and can be left with long term complications including altered bowel habits and in women and girls a compromise to their future fertility.

Not everyone presents with the classic symptoms of appendicitis and it is not uncommon for symptoms attributed to gastroenteritis (inflammation of the intestines) or a urinary tract infection by medical professionals. However, appendicitis should always be safely ruled out before conclusively reaching a diagnosis as to another cause of patient’s symptoms because of the serious complications that can occur if appendicitis is missed. This is usually done through a combination of blood tests, a CT and/or ultrasound scan.

Unfortunately, we act for a number of clients for whom this did not happen. As a result, their appendix burst and/or their infections continued to develop and they have suffered avoidable injuries as a result.

If you or someone you know has been affected by a delay in diagnosis and/or treatment of appendicitis which has resulted in them suffering a worse outcome than they might have otherwise had, please contact our specialist team for advice.

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.

Injury Prevention Week 17-21 August 2020

As Lanyon Bowdler is an Association of Personal Injury Lawyers (APIL) accredited firm, I was pleased to hear that APIL had decided to expand their Injury Prevention awareness campaign to a full week, 17 - 21 August. With schools going back in the coming weeks across the country due to the easing of lockdown, I have carefully been thinking about road safety, in particular concerning children. As a busy mum of three young children, road safety is always at the forefront of my and my husband’s mind whenever we are walking with our children. We are perhaps a little too cautious however and do not let them walk too far on their own. During lockdown, I have been able to spend more time with the children and have taken more family walks than we would previously have done (I will admit this shamefully!).

My eldest has just turned 11, meaning come 2 September she will be one of the cohort of new starters at her secondary school. The shear scariness of starting a new school aside, she was concerned about the walk to and from school, as were we. We gave this some serious thought as the route will require her to cross a busy major road and navigate her way around a large roundabout on the major road. Test walks have been carried out and a plan is in place for family Moulton come return to school time.

All of these considerations gave me pause for thought. I have been involved in many cases over my 10 years in the personal injury department at Lanyon Bowdler and have seen many child pedestrians injured by drivers not paying attention or driving too fast.

The Highway Code Rule 204 states that: “The most vulnerable road users are pedestrians, cyclists, motorcyclists and horse riders. It is particularly important to be aware of children, older and disabled people, and learner and inexperienced drivers and riders”.

Children are especially at risk during school pick up and leaving times, given their uniforms are generally of dark colour making them less visible when walking to or from school. A child is certainly less likely to be seen immediately by a driver than an adult would be.

Accidents involving pedestrians can cause injuries ranging from something minor to something more serious, leaving them with permanent physical and/or cognitive impairments and on occasion can be fatal. The Department for Transport conducted a review on child casualties in 2015 and concluded that children under 16 are the most vulnerable road users. This is due to them not being experienced and as well educated about using the road as most adults.

The charity, Brake, has also carried out research and in 2018 found that of 456 pedestrian deaths that year in the UK, 48 were children.

When faced with a personal injury claim, a Court will usually take the view that a vehicle is a lethal weapon, putting a high burden upon any driver when considering any reason they may put forward such as “they came from nowhere”. A Judge is often likely to take this as evidence that the driver was not sufficiently paying attention.

Even if a driver is found to be at fault insurers often allege contributory negligence against the pedestrian. Courts have to take into account the degree of blameworthiness and the contribution the negligence makes to the accident and injuries. A Court will assess the facts of each case to determine apportionment of liability between the parties. This is not easy to do between a child and a driver. This is where the burden is greater upon a driver of a “lethal weapon”.

Children are not adults and may not have the same level of self-control as an adult in dangerous situations. Case law indicates the level of contributory negligence increases as they get older.

Since no two cases are the same, this can be where the difficulty arises. Even though a Judge may find the defendant negligent for not keeping a proper lookout, they will also take into account the child’s age and actions, and apportion some blame to them as the Judge may be of the opinion that the child should have been aware of the dangers of crossing the road.

With the easing of lockdown I would urge parents to spend time during the remainder of the holidays in ensuring their precious little ones are up to speed on road safety by learning or being reminded of the Green Cross Code. I certainly will be. Prevention is better than cure as they say!

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.

Job Retention Bonus

On 31 July 2020, HMRC published a policy paper providing further details on the Job Retention Bonus (JRB), originally announced by the Chancellor on 8 July 2020.

The policy paper confirms that the JRB will be a taxable one-off payment of £1,000 for every employee who an employer previously claimed for, correctly, under the Coronavirus Job Retention Scheme (CJRS) and who remains continuously employed until 31 January 2021.

Employers may claim a JRB in respect of employees who transferred to them where either TUPE applies (or would have applied but for the previous employer's compulsory liquidation) or the PAYE business succession rules apply, only if the transferring employees were successfully claimed for under the CJRS by that employer (as opposed to only by the previous employer).

Employers will be able to claim for employees who:

  • Were furloughed and had a CJRS claim submitted for them that meets all relevant CJRS eligibility criteria.
  • Have been continuously employed by the employer from the most recent CJRS claim in respect of that employee to 31 January 2021.
  • Have been paid at least £520 a month on average between 1 November 2020 and 31 January 2021 (a total of at least £1,560 over the three months).
  • Have up-to-date Real Time Information (RTI) records for the period up to 31 January 2021.
  • Are not serving a notice period that started before 1 February 2021.

Subject to these criteria, employers can claim a JRB for all employees including office holders, company directors and agency workers (including those employed by umbrella companies).

Employers will be able to claim the JRB from February 2021 through a government website.

The policy paper states that more details of the process will be published in guidance by the end of September 2020. In the meantime, employers should ensure that their employee records are up-to-date, and that they correctly report their employees' details through RTI. Employers should also make sure their CJRS claims have been accurately submitted and any necessary amendments have been notified to HMRC.

Full Redundancy & Notice Pay for Furloughed Employees

The Department for Business, Energy & Industrial Strategy announced this morning that it is to change the law to ensure that all furloughed employees receive statutory redundancy pay and statutory notice pay calculated by reference to their normal pay, rather than a reduced furlough rate.

The changes will also apply to the calculation of:

  • statutory remuneration for time off to look for employment or arrange training;
  • compensation for failure to provide written reasons for dismissal;
  • basic awards for unfair dismissal and
  • compensation for failure to comply with an order for reinstatement or re-engagement.

The new rules are to be effective from tomorrow, 31 July. The full statutory instrument is here.

All of the above payments are calculated by reference to “a week’s pay”, as defined under employment legislation.

In very basic terms, a week’s pay in the case of employees who are salaried or otherwise normally entitled to fixed basic pay is a normal week’s pay as if they were working full hours (so 100% of normal pay), whereas in the case employees with fluctuating hours/earnings (and no core, normal minimum pay), it is based on the average of their pay during the last 12 weeks during which at any time they worked.

Prior to the introduction of flexible furlough, the average pay of the latter group would be affected by furlough only to the extent that furlough commenced or ended part way through a week within the 12 week reference period, as entire weeks spent on furlough would not affect the average pay calculation. However, since the advent of flexible furlough from 1 July, there has been more scope for the calculation to be adversely affected.

Under the new rules, for the purpose of calculating a week’s pay, time spent on furlough is to be treated as time spent working at the full rate of pay.

The statutory minimum notice periods that employees are entitled to in the event of dismissal (other than in the event of gross misconduct or some other fundamental breach of contract ) is, after the first month of employment, 1 week until the employee has been employed for 2 years, then a week for each complete year of service up to a maximum of 12 weeks. Employee’s are entitled to be paid not less than “a week’s pay” for each week of statutory minimum notice unless their contractual notice is at least a week longer than the statutory minimum.

For example, an employee with 12 or more complete years’ service who is entitled to 12 weeks’ notice will be entitled to full pay for the duration of their notice period, even if they are furloughed. However, this entitlement will not apply if their contractual notice entitlement is 3 months – in which event they will be entitled only to any reduced furlough pay.

Virus Isolation Period Extended from 7 to 10 Days But Shielding to End in England

The UK chief medical officer has announced that those with officially recognised symptoms of coronavirus, or who have otherwise tested positive for the virus, should now self-isolate for 10 days.

The updated NHS advice regarding self-isolation is here. This includes advice as to when isolation should be extended beyond the 10-day period from when symptoms first appeared.

It is recommended that those experiencing symptoms should be tested within 5 days. Of course, if a test is negative the person need no longer self-isolate. As a reminder, where this results in an employee missing fewer than 4 days of work, they will not be entitled to statutory sick pay (SSP). For further details of the special rules relating to SSP in the context of coronavirus, click here.

With effect from 1 August, the public health advice in England that those who are clinically extremely vulnerable to the coronavirus should shield will end, but advice in relation to shielding in Wales will remain in place at least until 16 August.

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