Permitted Development Rights Amended Again

The Town and Country Planning (Permitted Development, Advertisement and Compensation Amendments) Regulations 2019 took effect on 25 May 2019.

As suggested by the title, the Regulations, amongst other things, amend the Town and Country Planning (General Permitted Development) (England) Order 2015. The changes can be summarised as follows:

  • make permanent the time limited right to build a larger rear extension to a dwellinghouse;
  • allow for the erection of taller upstands for off street electric vehicle charging points;
  • amend the existing right to additionally allow the change of use from takeaways to residential use;
  • allow the change of use from retail, takeaways, betting offices, payday loan shops, and launderettes to office use;
  • amend the existing right to additionally allow the temporary change of use to specified community uses: exhibition hall, public library, museum, clinic or health centre, or art gallery (other than for sale or hire), and to extend the period of temporary use from two years to three;
  • remove the existing right which allows the installation, alteration or replacement of a public call box by or on behalf of an electronic communications code operator subject to certain conditions; and
  • amend Class C of Part 4 of Schedule 2 to ensure that where there is a temporary use of a building as a state-funded school, that the building retains its original use or use class and any associated rights to change to a permanent state-funded school.

As with all permitted development rights it is crucial to pay close attention to the limitation and conditions which apply to each right. It is all too easy when considering the lawfulness of a particular development to assume that something is permitted development because it falls within the wording of the “permitted development” part of each of the classes in the GPDO schedule.  Yet the limitations on that development are many and wide ranging and some are quite difficult to apply in practice. Failing to comply with a limitation or condition can render the development unlawful and run the risk of enforcement action by the local planning authority.

Court of Appeal Rules on Village Greens and ‘Trigger Events’

The Court of Appeal has rejected an appeal by a local authority in a key ruling on the trigger events that suspend the registration of village greens – Wiltshire Council v Cooper Estates Strategic Land Ltd [2019] EWCA Civ 840

By way of background, in April 2016 the interested party in the proceedings, applied to Wiltshire County Council to register an area of land adjacent to Vowley View and Highfold, Royal Wootton Bassett as a Town / Village Green. The owner of the land objected on the ground that its registration was precluded by section 15C of the Commons Act 2006 on the basis that the land had been identified for potential development in an adopted development plan document. Accordingly, a trigger event as defined in paragraph 4 of the table in Schedule 1A had occurred, and there had been no terminating event in relation to that trigger event.

Officers at the Council considered that objection and recommended to Members that it be rejected because the provisions of the development plan document were not enough to satisfy the definition of a trigger event. The land was duly resisted as a Town / Village Green.

The Owner applied to the Administrative Court to challenge the registration. The challenge succeeded in the High Court before Mr David Elvin QC, who accepted Cooper’s submission that: “… the Core Strategy through CP1 and CP2 identifies an area of land which includes the Land (i.e. the boundary of Royal Wootton Bassett) and identifies it for potential development by creating a presumption in favour of development within the settlement boundary.”

The Council appealed and the landowner sought to uphold the Administrative Court’s decision on additional grounds. The Court of Appeal has now dismissed the Council’s appeal.

Lord Justice Lewison said:

In my judgment the question is not whether the land has been identified ‘for development’ but whether it has been identified ‘for potential development’. [Counsel for Wiltshire] argued that the meaning of the word ‘potential’ did no more than reflect the fact that a development plan could not compel the development of a particular parcel of land.

However, in my judgment that gives no force to the ordinary meaning of the word. Moreover, even if a site is allocated, in the sense in which that term is used in town and country planning, the mere fact of allocation cannot compel development.

The judge added:

[In] the present case the development plan document does show that the land is identified for potential development. CP1 identifies ‘the settlements where sustainable development will take place.’ CP2 provides that within the settlement boundary ‘there is a presumption in favour of sustainable development.’ I agree with [counsel for Cooper Estates] that these policies clearly identify the land as having potential for development. This reading is supported by the explanatory text.

The judge also agreed with Cooper Estates’ QC that the wording necessarily implied that land within the settlement boundary was already developable land.

Mr Justice Lewison rejected the council’s argument that within the settlement boundaries there were parcels of land which may be governed by policies protecting open space, playing fields and areas of conservation values which would preclude development. Such land, Wiltshire’s QC submitted, was plainly not “identified for development” despite being within the settlement boundary.

This submission too, in my judgment, rests upon the false premise that the trigger event is identification of land ‘for development’ rather than ‘for potential development’

The registration authority would not be required to consider whether planning permission would be granted. I do not rule out the possibility that prima facie identification of land for potential development by one policy could be contradicted by countervailing policies elsewhere in the plan. But that is not this case. The Council does not rely on any countervailing policy which contradicts policies CP1 and CP2.

Lord Justice Lewison continued:

The phrase we are called upon to interpret is imprecise. Each side was able to point to potential difficulties if the other side was right. One of the few things on which both [counsel for the appellant and the respondent] were agreed albeit from completely different perspectives was that if we chose the other side’s interpretation we would be on a slippery slope. That makes it imperative, in my judgment, to interpret it in accordance with the policy underlying the change in the law. That policy, as I understand it, was that whether or not to protect a piece of recreational land with identified development potential should be achieved through the planning system and not by means of registration of a TVG.

It is clear from the development plan that the planning authority envisaged that during the currency of the development plan over 1,000 new homes would be needed in Royal Wootton Bassett. Paragraph 5.101 stated that it was not necessary to make specific allocations at the early stages of the plan. To allow a registration of a TVG within the settlement boundary would, in my judgment, frustrate the broad objectives of the plan. That is precisely the reason why Parliament decided that, in circumstances like the present, a TVG should not be registered; but, instead, the question of development should be left to the planning system.

Does the Consistency Principle Apply to Previously Quashed Decisions?

The High Court has recently considered the application of the principle of consistency in decision-making to a fresh decision following the quashing of a previous decision – Davison v Elmbridge Borough Council [2019] EWHC 1409 (Admin) and held that a previously quashed decision is capable of being a material consideration to which the principle of consistency set out in North Wilts applies.

By way of background, the case concerned a decision by Elmbridge Borough Council to grant planning permission for a new sports stadium in the Green Belt in circumstances where a previous grant of permission had been quashed by the High Court – R (Boot) v Elmbridge Borough Council [2017] EWHC 12 (Admin).

In the earlier decision, the Council found that the development would harm the openness of the Green Belt whereas in the latest decision the Council concluded that a development that was identical in all material respects would not. The Council’s planning judgment on the issue of openness was unaffected by the earlier decision to quash the permission.

The Claimant challenged the decision on the grounds that no reasons had been given from departing from the previous decision; and that the principle of consistency in North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P&CR 137 applied notwithstanding that the previous decision had been quashed.

The Defendant Council argued that the principle of consistency did not apply to previously quashed decisions and that, in any event, it was not unlawful on the facts of this case not to have given reasons for departing from the previous decision.

Thornton J said that:

It was incumbent on the Officer and the Planning Committee to address the change in position on openness between the two reports. The applications were identical in all material respects and related to the same site. Public confidence in the Council’s decision making was important given the earlier judicial criticism and given the Council was awarding permission to itself. It was both unsurprising and clear from the judgment in Boot that Court’s criticism of Permission 1 did not extend to the issue of Green Belt openness. The EIA Statement of Reasons and OR1 which contain the apparently inconsistent decision on openness remains in existence. In the absence of any explanation it is simply not possible to know whether the Planning Officer and especially the Planning Committee were even aware they had changed their position, let alone whether they had grasped the intellectual nettle of the difference in view. Nor was the explanation for the apparent inconsistency so obvious that a formal statement about it was unnecessary. The Court has been left to attempt to infer the reasons for the difference in view by a close scrutiny of both reports

Peyto Law Instructed to Advise Liverpool City Region Combined Authority on the Spatial Development Strategy

Peyto Law has been instructed by the Liverpool City Region Combined Authority to provide legal advice and assistance during the preparation and publication of its Spatial Development Strategy (SDS).

The Combined Authority’s lead officer for spatial planning recently told the Planning Advisory Service heads of planning conference that the SDS for the city region would be prepared within two years, beginning with a scoping and visioning consultation this summer.

As part of the agreed arrangements, the SDS could make strategic allocations, but will not de-designate land such as Green Belt. 

A social impact evaluation will also be carried out as part of preparing the strategy.

Reasons …. Who Needs Reasons?

Notwithstanding the considerable amount of the Parliamentary time currently being spent on Brexit, the Secretary of State for Housing, Communities and Local Government has still found space to issue a Written Ministerial Statement (WMS) on 26 March 2019 in which he announced that he will no longer give reasons for calling-in or declining to call-in planning applications. A copy of the statement can be found here.

Regardless of upon which side of the planning fence you sit, this is unlikely to be welcome news. But, perhaps the Minister had something else in mind …

Theirs not to reason why,

Theirs but to do and die

Alfred, Lord Tennyson – The Charge of the Light Brigade

The power to call-in planning applications under s77 Town and Country Planning Act 1990 gives the Secretary of State a wide discretion in his decision-making. In 2001, the then Government announced that it would give reasons for decisions to call-in or not to call-in planning applications “in the interests of transparency, good administration and best practice”. This practice was confirmed in March 2010 and no change was made when the policy criteria for calling-in was amended by WMS in October 2012.

The latest WMS is the, perhaps not entirely unexpected, fall-out from the case of Save Britain’s Heritage v Secretary of Statement for Communities and Local Government and others [2018] EWCA Civ 2137 in which Save successfully argued that under existing policy ministers were obliged to give reasons when they decline to call in planning applications. The Secretary of State’s position was that, at some unknown date early in 2014, a decision had been taken not to give reasons for decisions declining to call in an application and that, since then, such decision letters have been issued without giving reasons. Even leaving aside that this change in policy was not communicated to the wider public, it transpired that no-nobody in the Department recalled or had in mind the unequivocal promise made in 2001 (and repeated in 2010) – it had been forgotten.

Transparency, good administration and best practice be damned.

Planning Inspectorate Updates Appeal Statistics

The Planning Inspectorate published updated average appeal timescales on 14 March 2019.

According to the figures, the average for s78 appeals (excluding householder appeals) from valid appeal to decision is 23 weeks (written representations), 43 weeks (informal hearings) and 50 weeks (inquiries).

Whilst this is bad enough, enforcement and lawful development certificate (LDC) appeals fair even worse where the average times are 40 weeks (written representations), 58 weeks (informal hearings) and 48 weeks (inquiries).

However, as bad as these figures are they do not provide the full picture; for that you have to go to the average timescales breakdown by stage.

s78 Appeals (excluding householder)

Valid – StartStart – EventEvent – Decision
Written reps
9 weeks12 weeks5 weeks
22 weeks15 weeks4 weeks
Inquiries2 weeks37 weeks17 weeks

Enforcement / LDC Appeals

Valid – StartStart – EventEvent – Decision
Written reps25 weeks16 weeks4 weeks
Hearings31 weeks22 weeks4 weeks
Inquiries37 weeks28 weeks12 weeks

Unacceptable, no matter what side of the coin you are on.

We can only hope that the implementation of the recommendations in the Rosewell Report, and the recent appointment of two new Directors, will go some way to alleviate the problems, but absent additional resources at the Planning Inspectorate we fear it will be scratching at the surface.

Middlewich Neighbourhood Plan Rejected at Referendum

The Middlewich Neighbourhood Plan, prepared by Middlewich Parish Council, became just the third neighbourhood plan in the country to be rejected at the referendum stage yesterday (14 March 2019) following a recount.

1,085 residents voted against the plan whilst 1,063 voted in favour – a majority of just 22 votes. 3 ballot papers were rejected as being unmarked or wholly void for uncertainty. The turnout was 18.91% from an electorate of 11,376.

The first neighbourhood plan to be rejected at referendum was Swanwick Neighbourhood Plan in Derbyshire in October 2016. The second, last September, was Thornton Estate in Hull.

Planning Inquiries Set to Stay

Yesterday the government published the report of Bridget Rosewell OBE following her review into the planning appeal system.

At a time when backbench bills have promoted the idea of heavily restricting or removing the right of appeal from planning decisions, the report states that “there is much to commend in the current process” and identifies the perceived advantages of the public inquiry as follows:

The responses to the Call for Evidence confirm what we consistently heard at the stakeholder meetings that the ability to present evidence, and have it rigorously tested through cross-examination are very important for all the groups involved in the process. Other factors which were also highly valued were the ability for some matters to be examined in more detail than might be possible through either a hearing or written representation process and the opportunities available for the views of communities to be heard“.

It is therefore not unsurprising that the system is recommended to remain albeit with a series of reforms that are largely a common-sense introduction of good practice. That being said, the author frankly acknowledges the need for a culture change in the conduct of PINS as well as the provision of significant resources if the reforms are to work.

The statistics set out in the report all too clearly demonstrate the need for reform and additional resources:

  • An average of 315 inquiry appeals were decided each year in the last five years.
  • Around 81% of these were decided by a planning inspector (with the remaining decisions taken by the Secretary of State).
  • In 2017/18, average timescales for inquiries determined by an inspector were as follows:
    • Receipt to start letter – 7 weeks
    • Start letter to start of inquiry – 29 weeks
    • Start of inquiry to decision – 11 weeks
    • Receipt to decision – 47 weeks
  • Over the past four years, the number of appeals has reduced by 30% and the approval rate for appeal decisions has declined from 62% to 47% over the same period.

The report makes a total of 22 recommendations, ranging from committing the Planning Inspectorate to introducing a new online portal for the submission of inquiry appeals to setting out a strategy for recruiting additional inspectors so inquiries can be scheduled sooner, reducing the length of time they take to conclude.

According to the DCLG, the Planning Inspectorate will now prepare an implementation plan which will set out precisely how it will deliver these recommendations. Let’s hope that we do not wait too long!

Resident successfully challenges removal of Local Green Spaces status for playing fields

A local resident has won a High Court challenge over the removal of Local Green Spaces (LGS) status for playing fields from the London Borough of Richmond’s Local Plan.

The Teddington Society and Friends of Udney Park had applied for the status for Udney Park Playing Fields, a 12.5 acre site and following consultation, the Council adopted LGS status for the fields as part of the Richmond Local Plan.

During the public examination of the Local Plan the Council defended the LGS status while Quantum, a developer looking to obtain planning permission for 107 apartments, sought to have it removed.

In his report on the examination the planning inspector recommended a main modification removing LGS status from Udney Park. Richmond considered itself bound by the report and so gave effect to the main modification when it subsequently adopted the Local Plan.

The claimant argued that the main modifications did not make it clear that they included de-designation of the site, and therefore those in favour of retaining the designation were not given a proper or real opportunity to make representations on the point at this stage of the examination.

As a result, the claimant said, they were substantially prejudiced. Had they been made aware that this was a matter to be addressed in the consultation, they could and would have submitted further evidence and arguments on the point. They said it was conceivable in this event that the outcome would have been different, ie designation would have been retained.

Neither the Council nor the Secretary of State sought to defend the claim, but Quantum sought to resist the ground of challenge arguing that the de-designation of the site as LGS was not and could not have been the subject-matter of main modifications; accordingly, the Council, in undertaking the related consultation, was not obliged to refer to it. There was therefore no procedural error in the main modifications consultation process which was the only challenge made against the council, it added.

Mr Justice Waksman upheld the claim, saying that the claimant and Friends of Udney Park had suffered sufficient substantial prejudice as a result of the procedural defects. He quashed the relevant part of the Local Plan.

Richmond Council will now hold a six-week consultation on the inspector’s decision that had removed Udney Park’s LGS status from the Local Plan.