Planning update

Planning minister Nick Boles MP has made no secret of his determination to examine every stage in the planning process to simplify and speed up the system to facilitate development and impede Nimbies.

This process continues with the new national planning policy guidance, further changes to permitted development, major changes to judicial review and further tweaks to community infrastructure levy (CIL).

At the same time, the influence of the 2015 election can be felt in the continuing pressure on onshore wind farm developments and the preservation of the green belt despite enormous pressure from the housing crisis.

The long-awaited online national planning policy guidance was launched on 6 March 2014, comprising 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: environmental impact assessment (EIA); and 03/09: costs, as well as the NPPF technical guidance.

While 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 (LPA) through the courts.

The government continues to relax permitted development controls to encourage development, with new revisions coming into force on 6 April 2014. These are under the Town and Country Planning, General Permitted Development and Amendment and Consequential Provisions.

There are 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 LPA is also needed for both the proposed change of use and any building operations needed to bring about the change.

Legal challenge risks

A legal industry has grown up in the last 15 years whereby legal challenge risk has become a dominant consideration on major planning applications, particularly where they involve EIA.

This has often been pursued on a cynical basis to stop or delay development rather than to address a real failure in decision making. Many LPAs will now cave into threats of judicial review as it is easier than facing months or even years of litigation.

The government is determined to redress the balance with a set of proposals in the Criminal Justice and Courts Bill 2013–2014 and its intention to set up a specialist planning court within the High Court.

The reforms include the following:

• n ‘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. This will not, however, apply to environmental cases under the Aarhus Convention.
• n Leave required for section 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 exclude weak cases, to bring them in line with judicial review challenges and section 289 statutory challenges to enforcement notices. This is a major change as it was always anomalous that there was a right to bring a full challenge when a decision was made after appeal or call in, but not where it was granted or refused by the LPA.

CIL saga

It is rare for a legal regime in planning to have been amended quite as often as the CIL, and
there is a growing view that it has largely failed and should either be radically amended or abolished altogether. The 2015 elections are
likely to prompt a review of the system.

For the time being, the CIL(Amendment) Regulations 2014 came into force on 24
February 2014:

• 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.
• 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 five or more separate planning obligations relating to development within the authority’s area entered into after 6 April 2010 already provide for it. The regulations defer the deadline from the previous deadline of 5 April 2014.
• Section 278 agreements: the regulations stipulate that highway agreements cannot be found to fund infrastructure for which CIL is earmarked, to ensure developers do not contribute twice.

A number of recent court cases have considered the interpretation of the green belt policies set out in the 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.

At the same time, the courts have demonstrated the normal reluctance to interfere with the balancing exercise made on appeal, save where the reasoning is not coherent or supported by appropriate evidence.

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 by conducting an assessment of housing need beyond her remit.

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.” SJ

Julian Boswall is a partner and Sarah Sutherland an associate at Burges Salmon