October Planning Update - Planning Practice Guidance and recent case law

October Planning Update - Planning Practice Guidance and recent case law

Housing need, housing projection figures, housing delivery test, housing and economic land availability assessment and the jargon goes on! Everyone is focused on the revised NPPF and the recent guidance published on 13th September and when it comes to the new provisions relating to housing delivery and need it is all rather technical. I am not going to go into any of that here as there are 101 opinions and comments circulating on this at the moment. Instead I'm going to briefly touch on the revised guidance and update you on some other areas of interest.

Planning Practice Guidance updated, but there is more to come!

When the revised NPPF was published guidance was also issued in relation to viability and the consensus seems to be that viability should now be dealt with at the plan making stage and it is for the developer to make a case for the need for assessments during the application process. At last some further guidance was published on 13th September covering build to rent, plan making, housing need assessment, housing and economic land availability assessment, local plans and neighbourhood planning.

Whilst there is too much information in that update to go into as part of this update the headlines include confirmation that Councils will need to go through a three month process involving the Secretary of State before their 5 year housing land supply figure can be set for a year, that alternative types of housing need assessment which result in a lower housing need than the standard method will be considered "unsound", where recent assessments of need suggest a higher level of need than those proposed by the authority an assessment of lower need should be justified and in relation to build to rent, covenants to ensure that private build to rent homes are retained should be used where appropriate and future sale of homes from a build to rent development should not result in the loss of affordable housing without alternative provision being made.

If you are involved in schemes affected by any of these updates then a full review of the PPG is recommended as some of the guidance is quite detailed. A useful source of help for local authorities in understanding and applying the revised NPPF is the Planning Advisory Service who are running a series of training events. Details can be found here and there are specialist events for Councillors as well as planners. The events are free so get in quick!

Pre-commencement conditions

From 1st October all pre-commencement conditions will need to be agreed in writing with the applicant. This is to ensure that pre-commencement conditions are only used where it is essential. Provision has been made in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 for the Local Planning Authority to serve notice on the applicant of its intention to impose such a condition and if the applicant does not provide a "substantive response" before the expiry of the notice (ten working days) to issue the permission subject to the pre-commencement condition. If however a response is received and agreement cannot be reached the Local Planning Authority may refuse the application.

A reminder on decision making

Some recent cases have highlighted the need for consistency in decision-making and the duty to give reasons.

One of these decisions, R (Tate) v Northumberland County Council and Susan Leffers-Smith 2018 EWCA Civ 1519, in the judges own words, did not "raise any novel issue of law" but instead provides a reminder on established principles regarding decision-making and the duty to give reasons. The case confirmed that previous decisions are capable of being material considerations but will not bind a decision maker who must exercise judgement based on the facts. When reaching a different view on a case where there are previous relevant decisions a decision maker should explain the departure from the previous decision.

It therefore seems like good timing for the Local Government & Social Care Ombudsman to release its guidance on recording planning decisions. This is a concise and useful guide which planners may wish to review and is available here.

Planning Obligations back in the spotlight

In R on the Application of Mansfield District Council v SofS 2018 EWHC 1794 the High Court held that "a useful purpose" under Section 106A does not mean a "useful planning purpose". An inspector had decided that an agreement securing funding towards highway works no longer served a useful purpose because the road had already been constructed in 1998 and no longer bore a direct relationship to a housing development in 2010. The purpose of the agreement was to enable the Council to recover money spent on a new road to facilitate the same development albeit the original permission had not been implemented when the road was constructed. The Court however considered that this was still a "useful purpose" both in planning terms and otherwise and the agreement was enforceable.

In York City Council v Trinity One (Leeds) Ltd 2018 the developer argued that an affordable housing contribution was no longer payable because it could not be calculated under the terms of the agreement due to a change in the formula intended to be used to calculate the contribution. The Court stated that where something happens which judging from the language of the contract was not intended or contemplated by the parties the Court will give effect to the intention of the parties. The Court therefore considered that the developer should pay sufficient money to enable equivalent affordable housing to be provided.

Government Consultations

The Social housing green paper has been published with the aim of "affordable housing to be designed to the same high quality as other tenures". The Consultation is open until 6th November 2018 for comment.

Also relevant to social housing is the consultation on rents for social housing from 2020 - 21, open until 8th November 2018.

Cases of Interest

In Catesby Estates Ltd v Steer and Secretary of State for Communities and Local Government v Steer 2018 EWCA Civ 1697 the Court of Appeal set out general principles to be applied when considering the setting of a listed building.

Whilst not a planning case the decision in Broadway Homes (Cambridge) Limited v Marshall & Ors 2018. Is causing quite a stir in the property world. In the face of much opposition the high court lifted a restrictive covenant preventing more than one house being built on a plot of land in Cambridge on the basis that it "clearly impedes the reasonable use" of the plot in an area of growth.

In Cooper Estates Strategic Land v Wiltshire Council 2018 EWHC 1704 the Court quashed a village green registration on the basis that the land had been identified for development in the Council's Core Strategy which amounted to a trigger event preventing registration.

The case of Matthews & Anor, R (on the application of) City of York Council and Anor 2018 EWHC 2012 is another reminder on the need for clear and correct officer reports. In this case the permission was quashed because the officers report failed to clearly deal with the level of need for care homes in the area.

Finally in Squire v Shropshire Council 2018 EWHC 1730 it was held that manure was a material consideration!

Dates for your diary

  • 1st October 2018 provisions regarding pre-commencement conditions take effect
  • Social Housing green paper consultation ends 6th November 2018

A final thank you to those who attended our NPPF training event. It was great to catch up with old colleagues and put faces to names of new contacts. Still no news on whether Friends of the Earth have been granted permission to pursue the Judicial Review claim but the consensus is that the government won't take this lying down! The slides are available to anyone who couldn't make it so please get in touch.

If you would like further information or advice on any of the matters considered in this update please contact our head of planning, Nikki Fonseka at nfonseka@clapham-collinge.co.uk.

To receive our regular specialist planning update aimed at planning professionals email "sign up" to planningupdates@clapham-collinge.co.uk

*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.