Planning Update April 2018 - Legislation coming into force and a reminder on "fall-back"

Planning Update April 2018 - Legislation coming into force and a reminder on

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Spring has sprung (just ignore the weather!)

The new financial year is basically upon us and a swathe of legislation is also due to come into force. Everyone is grappling with 101 NPPF interpretations and there is now just over one month left to make your views known in response to the consultations.

New legislation coming into force

A selection of regulations and orders are bringing into force various provisions regarding compulsory purchase, rogue landlords and permitted development rights as follows:

  • Provisions dealing with Rogue Landlords and agents under the Housing & Planning Act 2016 come into force on 6th April 2018. The regulations (Housing and Planning Act 2016 (Commencement no. 8) Regulations 2018) bring into force Sections 13 to 48 of the above act which introduce "banning orders", the creation of a database of banned landlords and agents and provisions for rent repayment orders. Local Housing Authorities will have responsibilities in relation to these new functions.
  • Duties to review Local Plans and Statements of Community Involvement also come into force on 6th April 2018 as highlighted in the last update. This introduces a requirement for local planning authorities to review local development documents and statements of community involvement every five years from adoption. (Town & Country Planning (Local Planning) (England) (Amendment) Regulations 2017)
  • Changes to permitted development rights including extension to the provisions for change of use from storage or distribution to residential and amendments to the provisions for the change of use of agricultural buildings to residential come into force on 6th April 2018. The Regulations (Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2018) provide for prior approval to be available for development under Class P (storage / distribution to residential) until 19th June 2019 and for Class Q (agricultural to residential) to be amended to allow three dwellings with a larger floorspace of 465 square metres or up to five smaller dwellings with no more than 100 square metres of floor space or for a combination subject to a maximum of five dwellings with no more than three with the increased floor space.
  • Less publicised are changes to the agricultural buildings and land permitted development under Part 6 which will increase the area limit for the erection of new buildings or structures under Class A from 465 to 1,000 square metres and to increase the area limit for extensions or alterations to existing buildings, installation of plant, machinery or hard surfaces under Class B from 465 to 1,000 and to also allow an increase of up to 20% in the cubic size of an agricultural building.

A reminder on "fall-back"

Fall-back is an important material consideration in the decision making process. Its relevance when dealing with applications and advising developers is increasingly important bearing in mind the extensions to the permitted development rights mentioned above.

The "fall-back position" refers to what development could take place if planning permission under an application currently being considered is not granted. This might be as a result of permitted development rights or an existing planning permission for example. We are seeing more and more inspector decisions giving great weight to the existence of prior approvals for development under Class Q when considering applications for new dwellings on the site of agricultural buildings.

To be successful there must be a "real prospect" of the fall-back development coming forward (Mansell v Tonbridge & Malling Borough Council 2017) but it should also be noted that it is a matter for the decision maker to consider what weight should be given to a material consideration and the Courts will not interfere in this. With this in mind any proposed development which seeks to rely on the fall-back position is more likely to be given greater weight if it is more beneficial and has less impact than development which could take place under the fall-back position.

Cases of interest

The High Court have held that children under the age of 18 can be "residents" for the purposes of determining whether a house is a small or large "house in multiple occupation" under Class C4 of the Use Classes Order 1987 (Paramaguru v London Borough of Ealing 2018).

Dates for your diary

Changes to consultation periods to exclude bank and public holidays for certain applications come into effect on 1st June 2018 under the Town and Country Planning (Local Authority Consultations etc.) (England) Order 2018. The order has already introduced a requirement to include housing prior approvals on the planning register as at 1st April 2018.

Keep an eye open for our May Planning Update which will focus on Permissions in Principle.

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

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We can assist with a wide range of legal issues relating to planning and highway matters for developers, individuals and public bodies as well as offering a comprehensive service for developers in conjunction with our Commercial Property Team. For more information or to discuss your individual requirements in further detail, contact us by calling 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.