Planning Update – it's not all about the NPPF

Planning Update – it's not all about the NPPF

It's all about the National Planning Policy Framework (NPPF) around here, but what else has been happening?

Agricultural to Residential

Since the case of Hibbett v Secretary of State for Communities and Local Government 2016 which highlighted the difference between a "conversion" and a "re-build" for the purposes of development authorised under Class Q of the Town & Country Planning (General Permitted Development) (England) Order 2015 authorities and agents alike have been struggling to understand where the line now sits. On 22nd February National Planning Policy Guidance was updated to read:

What works are permitted under the Class Q permitted development right for change of use from an agricultural building to residential use?

Building works are allowed under the right permitting agricultural buildings to change to residential use: Class Q of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, as amended. However, the right assumes that the agricultural building is capable of functioning as a dwelling. The right permits building operations which are reasonably necessary to convert the building, which may include those which would affect the external appearance of the building and would otherwise require planning permission. This includes the installation or replacement 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; and partial demolition to the extent reasonably necessary to carry out these building operations. It is not the intention of the permitted development right to allow rebuilding work which would go beyond what is reasonably necessary for the conversion of the building to residential use. Therefore it is only where the existing building is already suitable for conversion to residential use that the building would be considered to have the permitted development right.

For a discussion of the difference between conversions and rebuilding, see for instance the case of Hibbitt and another v Secretary of State for Communities and Local Government (1) and Rushcliffe Borough Council (2) [2016] EWHC 2853 (Admin).

Internal works are not generally development. For the building to function as a dwelling it may be appropriate to undertake internal structural works, including to allow for a floor, the insertion of a mezzanine or upper floors within the overall residential floor space permitted, or internal walls, which are not prohibited by Class Q."

It will remain to be seen how much clarification this really gives but should be taken into account when advising in this area.

Other news

On 28th February 2018 the Compulsory Purchase process and Crichel Down Rules guidance was updated to take into account legislative changes since 2015 and is worth a review.

Regulations came into force on 23rd February enabling permissions to run with the land where a Local Planning Authority grants itself permission. Councils may wish to review their landholdings and developers should look to work collaboratively with Councils to enable housing delivery.

The Planning Inspectorate updated its guidance "Planning Appeals: procedural guide" on 31st January 2018 which details additional information required in relation appeals affecting traveller and gypsy sites, agricultural dwellings and telecommunication installations.

The Consultation on "improving the use of planning conditions" closed on 27th February. The proposals related to restrictions on pre-commencement conditions which would need to be agreed with the applicant before being imposed and if agreement could not be reached the application refused. The proposals are likely to come forward via regulations in April 2018 if all goes to plan.

The countdown to PIP continues with Council's starting to prepare appropriate application forms and policies. More to follow on these provisions before the implementation date.

The Draft National Planning Policy Framework (as promised)

The hotly awaited draft National Planning Policy Framework (NPPF) was released on Monday and everyone is talking about it. As expected, housing delivery is at the forefront but it is a completely new document comprising 17 chapters and therefore covers all aspects of national policy. The Consultation is open until 10th May 2018.

The revised document is in the most part a combination of previous consultations and announcements but does include some additional proposals. The draft includes a "Housing Delivery Test", a standard method of calculation of "local housing need", a policy for development of exception sites for first time buyers, reforms regarding viability assessments, greater emphasis on the use of small sites and changed policies relating to town centres, green belt, flooding and the natural environment amongst others.

Some paragraphs to note:

Paragraph 11 – presumption in favour of sustainable development

Paragraph 58 – Viability

Paragraph 61 – local housing need assessment

Paragraph 72 – entry level exception sites for first time buyers

Paragraph 74 - 75 – Housing supply

Paragraph 78 – conditions to shorten the time limit for implementation of planning permissions

Paragraph 81 – isolated homes in the countryside

Paragraph 87 – sequential test for town centre uses

Paragraph 123 – minimum density where there is a shortage of land

Paragraph 135 – 136 – exceptional circumstances for amendment to Green Belt boundary.

A revised definition of Affordable Housing is also proposed which now formally incorporates starter homes and "build to rent".

The National Planning Policy Framework (NPPF) itself isn't the only document however in what is actually a suite of drafts including draft guidance in relation to viability and the housing delivery test draft measurement rule book.

Released on the same day is the consultation document "supporting housing delivery through developer contributions". This 48 page consultation also closes on 10th May 2018. The proposals are intended to reduce the complexity of the current community infrastructure levy provisions, enable market responsiveness by allowing easier amendments to charging schedules, increasing transparency and introducing a new strategic infrastructure tariff. The proposals also include lifting the pooling restriction on Section 106 obligations for CIL authorities.

So, what next? Onward and literally upward as proposals to encourage upward development are expected with more consultations to follow.

Cases of interest

The High Court have held that "repair" can include re-building under the terms of an enforcement notice where requiring the removal of render and repair of a building which would in effect necessitate the demolition and re-build of the affected walls (Hargrave House Ltd and Chaim Reiner v Highbury Corner Magistrates Court and another 2018).

The High Court have confirmed that pole mounts which support telecommunications antennae are "radio masts" and are not therefore permitted development under Class A, Part 16 of the Town & Country Planning (General Permitted Development) (England) Order 2015. (T (Mawbey) v Lewisham Council 2018).

Another case before the High Court in relation to agricultural permitted development confirmed that an agricultural building partly for accommodating livestock does not fall within Class A of Part 6 and Paragraph D1(3) regarding temporary livestock accommodation does not apply. (R (Marshall) v East Dorset District Council and anr 2018)

Food for thought?

In my travels around the internet this month I found an article relating to "flexible permissions" under Class V of Part 3 of the Town & Country Planning (General Permitted Development) (England) Order 2015 and the ability for permission to be granted for multiple uses under one permission to increase the marketability and give flexibility to tenants. How many of you have utilized this option to give "best value" to your clients? Is this something Council's are generally supportive of?

What about Brexit?

It's still happening. The latest development being a speech by the prime minster on the UK's future economic partnership with the EU which was delivered on 2nd March. A wealth of speeches, reports and briefings are available for download via the government website covering agriculture, trade and defence to name but a few.

Finally, some dates for your diaries:

The Spring Statement 2018 will be delivered on 13th March 2018.

Duties to review Statements of Community Involvement and Local Plans under the Town & Country Planning (Local Planning) (England) (Amendment) Regulations 2017 come into effect on 6th April 2018.

Consultations on National Planning Policy Framework (NPPF) and the CIL reforms end on 10th May 2018.

As always exciting times in the world of planning and more to come over the coming months. 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

PS: Don't forget to send in your written consent to continue to receive the updates via email if you have not already done so.

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