Is Green Belt Policy changing?
A number of recent Court cases have challenged the interpretation of the green belt policies set out in the National Planning Policy Framework (NPPF). The cases indicate that a shortage in land supply and housing need may constitute ‘very special circumstances’ for the purposes of the NPPF and justify development on green belt land. This will depend on the circumstances of the case and
particularly the area, the nature of any shortage in
housing supply and the status of the development
plan. The Courts have demonstrated a reluctance to
unduly interfere with decisions made on appeal with
various finely balanced factors weighing in the final
decision as to whether ‘very special circumstances’
exist.
In Hunston Properties Limited v Secretary of State
for Communities and Local Government [2013]
EWCA Civ 1610, the Court of Appeal held that
a shortfall of available housing was capable of
amounting to ‘very special circumstances’ and
justifying otherwise inappropriate development. The
Inspector, in relying on figures contained in a revoked
policy document to reach the conclusion that there
was no shortfall, had erred in law. Unfortunately, the
judgment did little to assist in the interpretation of
what constitutes ‘very special circumstances’ in this
context, stating that: “the ultimate decision may well
turn on a number of factors…including the scale
of the shortfall but also the context in which that
shortfall is to be seen, a context which may include
the extent of important planning constraints in the
district as a whole...ultimately, that is a matter of
planning judgment for the decision-maker.”
More recently, the High Court in Fox Land & Property
Ltd v Secretary of State for Communities and Local
Government [2014] EWHC 15 (Admin) upheld the
Secretary of State’s decision to reject an Inspector’s
recommendation that permission be granted for
housing on green belt land in Essex. The Inspector
concluded that ‘very special circumstances’ existed
because the potential harm to the green belt
was outweighed by the valuable contribution the
development would make to the shortage of housing
in the area.
The Secretary of State concluded that the proposal
constituted inappropriate development as the other
considerations, including the need for housing, did
not clearly outweigh the harm to the green belt.
The Court found that the Secretary of State was
emphasising the importance of green belt protection
in the NPPF. Reiterating that the Court’s role on such
an appeal was not to act as the decision maker,
and echoing the judgement in Hunston Properties,
Mr Justice Blake concluded that “planning policy
and the weight to be given to factors that may be
narrowly balanced on either side are for the decision
maker”. These cases confirm that the decision in relation to development
proposals in the green belt will depend on the material planning
considerations in each case and the balancing exercise undertaken
by the decision maker. The policies in the NPPF have not changed
but the shortage of housing supply is leading to some consents
being granted, that may not have otherwise been. That said, in
a Ministerial Statement dated 6 March 2014, Nick Boles stated
“we are re-affirming green belt protection, noting that unmet
housing need is unlikely to outweigh the harm to the green belt
and other harm to constitute very special circumstances justifying
inappropriate development” so changes may be afoot.
Heritage assets afforded special
status in planning decision-making
In Barnwell Manor Wind Energy Ltd v East Northamptonshire
District Council and others [2014] EWCA Civ 137, the Court
of Appeal upheld the High Court’s decision to quash planning
permission for a five turbine wind farm on the basis that the
Inspector, in granting permission, had failed to give sufficient
weight to the importance of preserving listed buildings and their
settings, as required by Section 66(1) of the Planning (Listed
Buildings and Conservation Areas) Act 1990.
In 2010, Barnwell Manor Wind Energy Ltd sought planning
permission for a five turbine scheme in the vicinity of a number of
heritage assets, including Lyveden New Bield which is a Scheduled
Monument and Grade I Listed Building. The local planning authority
refused permission, concluding that the wind farm would result in
unacceptable harm to the setting of the asset. Planning permission
was subsequently granted on appeal; the Inspector concluding
that whilst the wind farm would harm the setting of a number of
designated heritage assets (including Lyveden New Bield), the
harm would be less than substantial, would be reduced by the
temporary nature and reversibility of the development and would
be outweighed by the significant benefits of the wind farm in terms
of renewable energy production and the contribution it would make
towards meeting the Government’s energy and climate change
targets.
The planning authority sought to quash the Inspector’s decision on
the basis that special regard had not been given to the statutory
duty to preserve the setting of listed buildings as required by
Section 66(1).
Quashing the permission, the High Court held that the Inspector
had failed to fulfil his Section 66(1) duty. Mrs Justice Lang
concluded that “in order to give effect to the statutory duty under
section 66(1), a decision-maker should accord considerable
importance and weight to the “desirability of preserving the setting”
of listed buildings when weighing that factor in the balance with
other ‘material considerations’ which have not been given special
statutory status”. In her opinion (affirmed by Lord Justice Sullivan
on appeal), the Inspector had failed to give proper effect to Section
66(1) in that balancing exercise; for although he had weighed the
harm of the proposal against the wider benefits, he had treated
those two factors as being of equal importance, when the addition
of the word ‘desirability’ in Section 66(1) signals that preservation
of setting is to be treated as a desired or sought-after objective, to
which the Inspector ought to have accorded special regard.
National Planning Policy Guidance
As part of the ongoing effort by the Coalition Government to
simplify the planning system, on 6 March 2014, the Department for
Communities and Local Government (“DCLG”) released a suite of
practice guidance which sits alongside the National Planning Policy
Framework (“NPPF”). Published in draft form in August 2013, the
aim of the revised guidance is to consolidate previous guidance,
which included over 150 different documents dating back as far
as 1978. A full list of the cancelled guidance is available online and
includes Circulars 11/95 (Conditions), 02/99 (EIA) and 03/09 (Costs)
as well as the technical guidance to the NPPF.
In a written statement released on 6 March, Nick Boles MP
emphasised that, amongst other things, DCLG was issuing robust
guidance on flood risk, re-affirming green belt protection, making
it easier for local authorities to demonstrate adequate land supply
for policy purposes and incorporating the guidance on renewable
energy published during 2013.
The new guidance comprises a suite of web pages under 41
separate headings. Much of the guidance is presented in a
‘question and answer’ format. For example, the guidance on
rural housing sets out information in the format of an answer to
the question: “How should local authorities support sustainable
rural communities?” The 41 headings can be broadly categorised;
for example, some relate to procedural matters (e.g. ‘When is
permission required?’, ‘Before submitting an application’ and
‘Determining a planning application’), whilst others relate to
specific subject areas (e.g. ‘Conserving and enhancing the historic
environment’, ‘Hazardous Substances’ and ‘Noise’). A full list of
topics for which guidance is available can be viewed on the planning
portal at http://planningguidance.planningportal.gov.uk/.
Whilst the new guidance is undoubtedly more accessible than the
documents it replaces, how useful the consolidated guidance will
be for experienced applicants and their advisors remains to be
seen. Interpretation of the NPPF has already been the subject of
cases which have reached the Court of Appeal (see the two articles
above for examples), and there is a danger that the Government, in
pursuing the aim of making the planning system more accessible,
risks over-simplification which ultimately may need to be addressed
by applicants or local planning authorities through the Courts.
Now In! The ever changing CIL regulations
The Community Infrastructure Levy (Amendment) Regulations
2014 were laid before Parliament on 23 February 2014 and came
into force in 24 February 2014. As the CIL regime is constantly
changing, it is crucial to keep track of how it is developing over
time if it affects projects you or your clients are involved in. The
most recent amendments relate to the following:
Differential rates: authorities can set varying rates for different
types and uses of development and geographical zones. In
addition to this, the size of a development can now be used
to differentiate rates. This may impact decisions relating to
the scope of proposed developments on the basis of financial
viability.
Existing building credit: previously, if an existing building was
in continuous use for a period of 6 out of 12 months prior to
a consent being granted and was either being demolished or
retained, the area chargeable to CIL was reduced by the gross
internal area of that building. As a result of the changes, the
time period of 6 months out of 12 months has been extended
to 6 months out of 3 years to allow the ‘credit’ to apply to more
buildings.
Mandatory relief: the limited exceptions to the application of
CIL have been extended to apply to individuals building houses
for their own use (including communal development) and
residential annexes and extensions.
Phasing: previously, CIL payments could be phased in relation
to outline consents only. The Regulations set out that if any
planning permission (full or outline) is phased, each phase
will be subject to a different chargeable amount and attract a
separate payment.
In kind: CIL is capable of being paid in kind through the
acquisition of land for the purpose of facilitating infrastructure.
Charging authorities now also have the option to accept
payments in kind through the provision of infrastructure either
on-site or off-site for the whole or part of the CIL payable.
Pooling contributions: if an authority has not introduced
CIL, a planning obligation relating to a planning permission
granted on or after 6 April 2015 cannot provide for the funding
or provision of an infrastructure project if 5 or more separate
planning obligations relating to development within the
authority’s area entered into after 6 April 2010 already provide
for it. Regulations defer the deadline from the previous deadline
of 5 April 2014.
s.278 agreements: the Regulations stipulate that agreements
under s.278 of the Highways Act 1980 cannot be fund to fund
infrastructure for which CIL is earmarked, to ensure developers
do not contribute twice.
Despite the introduction of these recent amendments, there
remains a school of thought that the CIL regime should either be
radically amended or abolished altogether. The 2015 Elections are
likely to prompt a review of the system so further changes may be
on the horizon.
Judicial reviews of decisions relating to
nationally significant infrastructure projects
There have been interesting developments in the Nationally
Significant Infrastructure Project consenting regime, with the High
Court determining two judicial review claims in the past few months.
The first was An Taisce’s (the National Trust for Ireland) claim
against the Secretary of State’s decision to grant a development
consent order (DCO) for the Hinkley C nuclear power station (R (on
the application of An Taisce) v Secretary of State for Energy and
Climate Change [2013] EWHC 4161 (Admin)). An Taisce claimed
that the failure by the developer to consult with the Irish government
over possible trans-boundary effects (e.g. in the event of a UK
Fukushima type incident) did not comply with the requirements of
the Environmental Impact Assessment Directive. The potential for
transboundary impacts from NSIPs is something that the Planning
Inspectorate must consider and where such effects are identified
the Planning Inspectorate should consult with the bodies likely
to be affected. Those bodies can be invited to participate in the
examination of the project. With regard to Hinkley, the High Court
ruled that as the risk of a nuclear accident was between 1 in
50,000 and 1 in 33,000,000 this was not a “likely” occurrence. This
decision is also interesting in that it confirms that the appropriate
time to challenge a part of the NSIP process (here consultation) is
after the scheme has been determined.
The second decision was a claim brought by Halite Energy Group,
challenging the Secretary of State’s decision to refuse a DCO for
an underground gas storage facility
1
. The claim was successful
on the basis that although the Examining Authority (ExA) had
recommended approval of the scheme and in doing so was clearly
satisfied as to the likely impacts of the proposal, Halite had not
been given a ‘fair crack of the whip’ per Mrs Justice Patterson to
address issues raised by the ExA concerning the capacity of the
proposed salt mines used for gas storage, which were then relied
upon by the Secretary of State in refusing the application.
The process of examination is essentially a written one with
parties responding to questions raised by the ExA. The procedure
allows for issue specific hearings (ISH) or open floor hearings
(OFH) if the ExA think that is an appropriate way of proceeding.
This inquisitorial approach means the ExA sets the agenda for
examination and the applicant has limited control over what issues
are raised or evidence heard.
In this case the issue that resulted in a refusal was considered at an
ISH and the ExA considered how breaches of maximum working
gas storage capacity could be enforced. As nothing further was
mentioned of these concerns, Halite was under the impression that
the ExA had accepted the views set out in a joint expert report,
which turned out not to be the case.
Patterson J recognised that there is no obligation on the ExA
to share its provisional conclusions though she considered that
there is an obligation on the ExA to share with the Developer how
they reach such conclusions where they relate to a main issue
at the examination, that was especially the case where the ExA’s
approach was based on options that had not been put into the
public domain.
The Court considered that Halite’s opportunity to respond on
certain matters which might have made a difference to the
ultimate decision was restricted. As the Secretary of State did not
disassociate himself from the findings of the ExA and adopted its
approach to the evaluation of the geological evidence, the lack of
fair process affected his decision, which was a breach of natural
justice.
Whilst concerned with the NSIP regime, the decision highlights the
importance of decision makers giving all parties a fair crack of the
whip, especially in inquisitorial procedures such as hearings where
the Inspector is responsible for setting the agenda of the evidence
to be heard.
A new lease of life for agricultural buildings?
On 6 April 2014, The Town and Country Planning (General
Permitted Development) (Amendment and Consequential
Provisions) (England) Order 2014 (SI 2014/564) came into force
creating five new categories of permitted development:
new Class CA and IA allow a change of use from a shop to a
bank, building society, credit union or friendly society and new
Class IA allows shops or buildings used for the provision of
financial or professional services to change to residential use;
class K is expanded to allow buildings used for a variety
of uses to become nurseries and new Class MA allows
agricultural buildings to become schools or nurseries;
new Class MB allows agricultural buildings to change to
residential use.
The change to allow agricultural buildings to change to a dwelling
house has attracted the greatest interest. This amendment will
allow the change of use of a building and any land within its
curtilage from an agricultural building to a dwelling house, subject
to certain limitations. Prior approval from the Local Planning
Authority is also needed for both the proposed change of use and
any building operations needed to bring about the change.
Limitations
The change of use and or building operations will only be permitted
where:
1. The building was used solely for an agricultural use as part
of an established agricultural unit as at 20 March 2013 or
whenever it was last in use prior to that date and if after 20
March 2013, for a period of ten years before the date the
proposed change takes place;
2. The total floor space of the original agricultural building (and
the subsequent developed dwellinghouse(s)) does not exceed
450m². The ‘land within its curtilage’ cannot exceed 450m²;
3. The agricultural unit has no more than three separate dwelling
houses;
4. That the building operations used are restricted to the
installation of windows, doors, roofs, exterior walls, water,
drainage, electricity, gas or other services to the extent
‘reasonably necessary’ for the building to function as a dwelling
house;
5. No more than ‘partial demolition’ takes place to the extent
‘reasonably necessary’ to carry out the building operations;
6. The site is not designated in any way (i.e. it is not a listed
building or scheduled ancient monument or located in a
national park or site of special scientific interest).
If the conditions are not satisfied, planning permission will be
required for the change of use and ancillary building works.
Prior Approval Application
The LPA’s prior approval is required in respect of highways, noise,
contamination and flooding impacts / risks for the change of
use application and for ‘design and external appearance of the
building’ for the building operations application.
The changes allow the LPA to impose condition(s) on the approval.
It also allows the LPA to refuse the application where they consider
that it will be “impractical or undesirable” for the building to change
from agricultural use.
The reformed permitted development rights, to change agricultural
buildings to residential dwellings, creates a hybrid prior approval
process. Only time will tell whether there is a real take up of
agricultural buildings being converted or whether development is
refused by local authorities as ‘impractical’ and ‘undesirable’.
Introducing The Criminal Justice and Courts Bill
2013-14: Key reforms to Judicial Review and
Statutory Challenges
The Criminal Justice and Courts Bill 2013-2014 was published
in the House of Commons on 5 February 2014. Subject to its
progress in Parliament, the Government expects it to receive Royal
Assent by the end of this year. The Bill contains numerous reforms
to the judicial review (JR) system, which were contained in a 2013
consultation paper to streamline the process and make it more
efficient and less uncertain for all parties involved.
The reforms include the following:
“Substantially different outcome” test: changes will be made
to the test used by the High Court to determine whether to
grant permission for a judicial review. The Court may at present
refuse to grant permission or award relief on the basis that it
is inevitable that the error would not have made a difference
to the substantive outcome. As this is a high threshold, the
proposal is to lower this so that permission or a remedy should
not be granted where the court considers the grounds would
be highly likely not to result in a substantially different outcome
for the applicant.
Protective Costs Orders (“PCOs”): the grant of PCOs will
only be made following the grant of permission to proceed to
the substantive hearing rather than after the claim has been
lodged. This reform is aimed at discouraging speculative claims
and ensuring that the use of PCOs is limited to exceptional
cases with a clear public interest element.
Financial backers: applicants will be required to provide
details of any funding they may have access to in order to meet
their costs liabilities arising from judicial review proceedings
(including third party funding). By requiring such disclosure,
Judges will be able to make a more realistic assessment of an
applicant’s financial capacity when allocating costs.
Leave required for s.288 applications: statutory challenges
under section 288 of the Town and Country Planning Act 1990
(as amended) will be subject to a new permission stage, to
bring them in line with judicial review challenges and s.289
statutory challenges.
Leapfrogging: leapfrog appeals move from the High Court
to the Supreme Court, skipping the Court of Appeal. The
proposal is to allow a case to leapfrog if it raises issues
of national importance, where the result is of particular
significance or cases where the benefits of earlier consideration
by the Supreme Court outweigh the benefits of consideration
by the Court of Appeal and to remove the requirement for
all parties to consent. This should reduce the cost and delay
involved in multiple claims being made.
The consultation paper also included other proposals which have
not been taken forward in the Bill. These included limiting the
scope of locus standi (the interest a party has to demonstrate
in order to proceed with a judicial review claim) which the
Government considers too wide and establishing a planning
tribunal, led by specialist judges, to streamline planning judicial
reviews and remove them from the ‘clogged’ High Court list. This
proposal has been replaced with a proposal to introduce a new
Planning Court within the High Court later this year, which will be
subject to new timeframes for case progression. As ever, watch
this space
The outcome of the Supreme Court
challenge to HS2
Decision
The objectors to the HS2 Bill, which authorises the construction of
HS2 Phase One, have issued a series of legal proceedings hoping
to block its progression through parliament. The most recent and
substantive challenge was to the planning provisions contained in
the Bill.
On 22 January 2014, the Supreme Court dismissed the five
grounds of appeal brought by the group of objectors. The seven
Lord Justices unanimously decided that:
(i) the Command Paper detailing the HS2 Scheme (DMS) did not
"set the framework for development consent" as it was just a
proposal. As such, it did not require Strategic Environmental
Assessment;
(ii) there was no contravention of Article 7 of the Aarhus
Convention which requires provision to be made for the public
to participate in the preparation of plans and programmes
relating to the environment. Article 7 and the need for Strategic
Environmental Assessment were not intended to cover exactly
the same ground. Moreover public participation is secured
by the requirements contained in the Environmental Impact
Assessment (EIA) Directive and dealt with in the Hybrid Bill
procedure;
The outcome of the Supreme Court
challenge to HS27
(iii) the Hybrid Bill procedure satisfies the requirements of the EIA
Directive. The parliamentary procedure in respect of the Bill
(ie second reading, report to committee, third reading, Select
Committee hearings and the same process being followed in
the House of Lords) is sufficient to allow public participation.
The claim was seen as an attack on the UK's democratic
process (focusing on the undemocratic nature of the whips and
the party political process) which did not find favour with the
Lord Justices;
(iv) the Court could not comment on the validity of a Bill which is
before Parliament and subject to amendment;
(v) the clarity of the European case law meant that no reference
to the Court of Justice of the European Union (CJEU) was
required.
Comment
Constitutionally, the result is not surprising. The Court heavily
endorsed the supremacy of Parliament and reinforced its position
that it could not criticise parliamentary process.
The objectors have announced that they are going to pursue the
matter directly to the European Court of Justice and they may seek
to rely on Lady Hale's comments (paragraph 154 of the Judgment)
where she noted that had the submission been made to the Court,
she may have been inclined to make a reference to the CJEU
which considered whether or not a plan or programme which
sets the framework could include measures which would have a
powerful but necessary constraining or determinative effect upon
the ultimate decision maker.
In any event, and as the Court acknowledged, the legislative
process is well underway and it looks like there is little that can be
done to stop it. The Second Reading in the House of Commons is
taking place on 28 April 2014 with the petitioning deadline falling
shortly afterwards in May or June 2014.
Compensation for management time:
How to equate lost time with lost money?
What can and can’t be claimed under the head of disturbance
compensation in compulsory acquisition claims is at the best
of times confusing. The Court of Appeal (CA) has, however,
recently sought to clarify the position in respect of claims for ‘lost’
management time. In Thomas Newall Ltd v Lancaster City Council
(2013) the CA had to consider whether the Claimant (TNL) had
provided sufficient evidence to support its disturbance claim for
management time.
TNL’s evidence on management time was an undisputed schedule
of time spent by its directors which identified the date, nature
and time spent in dealing with the compulsory acquisition of their
land. TNL’s valuation witness also proposed what he considered
an appropriate hourly rate. In many cases, such evidence has
been accepted by an acquiring authority and an amount for
management time agreed on that basis. In this case, however,
the Council claimed that there was insufficient evidence to
demonstrate that the time spent by TNL’s directors had caused
actual loss to TNL.
The CA agreed, confirming that it is not enough to merely show
that a director of a company has devoted time to dealing with
compulsory purchase matters. It is necessary to also prove
how the director’s devotion of time impacted upon the company
and caused it loss. There must be evidence of the cost to
the company of the services rendered to it by its directors; for
example, by providing the contract of service/employment contract
including full details of the director’s normal duties and how time
spent on the compulsory acquisition could otherwise have been
spent profitably, details of how the director is remunerated i.e.
salary, fees or a dividend and details of the employment of any
additional staff or making overtime payments to deal with the
claim.
Whilst this clarification is very helpful to acquiring authorities, there
will of course be concern from the claimant’s perspective that
demonstrating a clear link between time spent and actual loss to a
company may prove extremely difficult, not least because evidence
gathering often takes place some years after the event. It is also
unusual, for example, for overtime payments to be made to senior
management as, in many cases, they will simply be expected
to deal with the fall-out from a compulsory acquisition as part
of their day to day job. It will be the responsibility of claimants’
professional advisers to ensure that claimants understand as early
in the process as possible what is expected of them and that they
keep appropriate records, not just of time spent but of how the
time has impacted the business.
Is immune development
subject to EIA?
The Court of Appeal in the case of Evans v
Basingstoke & Deane BC [2013] EWCA Civ 1635
recently considered this vexed question and has
provided what will hopefully remain a definitive ruling
on the matter. Vitacress occupied a watercress farm
which had previously been in agricultural use. In 2010,
the LPA granted planning permission for the change
of use of the site to mixed agricultural/industrial use,
on the basis of ten years continuous use, precluding
enforcement action being taken pursuant to the ten
year time limit under s.171B of Town and Country
Planning Act 1990 (as amended).
Vitacress conceded that the material change of use
was EIA development under Schedule 2 which should
have been, but was not screened, to enable the local
authority to determine whether the use was likely to
significantly affect the environment. The appellant
challenged the Council’s decision by way of judicial
review, contending that the ten year time limit for
taking enforcement action was incompatible with
the UK’s obligations under the EIA Directive and that
domestic courts should disapply the limits where
no screening or EIA had taken place. The appellant
also sought a discontinuance order to remedy the
breach of Directive. The Court of Appeal dismissed
the claim and held that the lime limits for enforcement
were not incompatible with the EIA Directive. In terms
of effectiveness, ten years provided ample time for
enforcement action to be taken to remedy breaches
under s.171B. Permission to the Supreme Court was
refused.
This confirmation by the Court of Appeal will be
welcomed by those seeking retrospective consent
for EIA development pursuant to ground (d) of an
enforcement notice appeal or via a certificate of lawful
use.