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Planning and environmental legislation update - April 2017

21 April 2017

News

A roundup of notable recent policy developments, appointments, practice guidance and other changes.

Article 50 letter begins Brexit countdown

Only readers who have already left Europe could have failed to notice the UK has begun the process of leaving the European Union by triggering Article 50 of the Lisbon Treaty. Publication of a white paper on the Great Repeal Bill followed in short order. These milestones have fuelled speculation over what may or may not happen over the next two years and beyond, although the reality is that - despite government’s assertion that it is ‘committed to ensuring that we ... leave the environment in a better state than we found it’ - much remains uncertain and to be worked through.

The Planning and Environmental Law Committee wants to ensure that the repatriation of environmental law is undertaken effectively. We are keen to engage expert colleagues in this process - see the Committee News section below.

Thames Water soaked with £20 million fine

A crown court has imposed a record fine on Thames Water for numerous serious discharges of untreated sewage in 2013 and 2014. The case was the largest ever brought by the Environment Agency. The scale of the penalty also reflects a rising trend following reforms to sentencing guidelines.

PINS nails affordable housing position

The Planning Inspectorate has attempted to clarify its position on affordable housing contributions from small developments in a letter to the Royal Borough of Richmond. A written ministerial statement sought to exempt developments of 10 homes or fewer, but this was contested in court. The Court of Appeal eventually upheld the government’s claim but did not rule that the statement necessarily overruled local policy.

Supreme Court to hear Dover AONB housing case

Dover District Council and developer China Gateway International have been given permission to appeal the quashing of a planning permission for a large development in an Area of Outstanding Natural Beauty (AONB). The permission had been quashed by the Court of Appeal due to the inadequacy of reasons given by the council when giving approval against its own officials’ advice.

The adequacy of reasons for planning decisions has come to the fore in recent times: Planning and Environmental Law Committee member, Jamie McKie discusses the issues.

Registers of brownfield to be developed

The Environment Food and Rural Affairs, Environmental Audit, Health, and Transport Committees plan four evidence sessions to consider evidence on the health and environmental impacts of polluted air. The government has lost two UK court cases over its plans to tackle nitrogen dioxide (NO2). The High Court has ordered a new draft plan to tackle NO2 by 24 April, with a final document by 31 July.

Committees combine on air quality

Alongside the lifting of the holding direction on Birmingham's development plan, November saw increased pressure for a more flexible attitude to development in the green belt. The Telegraph reported that the forthcoming white paper will support 'green belt swaps', while the RTPI's 'Where should we build new homes' report proposed something similar. The LSE proposed changes to London's belt in its July report. Only 2 per cent of new homes were built on green belt between 2015 and 2016, according to recent data.

Neighbourhood Planning Bill between houses

The bill is now in the stage known as ‘ping pong’ where the House of Commons and the House of Lords pass amendments between each other. Late amendments during the bill’s passage through the upper chamber included the removal of permitted development rights for pubs, more power for local authorities to oversee new town development corporations and measures to increase dialogue between neighbourhood plan examiners and local communities.

In brief

Committee news

Newsletter

We’re keen to hear what you think about this newsletter and how we can improve it. The number, as well as the content, of responses is important so please take our very quick survey. Thanks to those of who’ve already responded.

Brexit

As mentioned above, we are keen to engage environmental specialists in the Society’s response to Brexit. The Planning and Environmental Law Committee wishes to form a dedicated Brexit reference group of existing Committee members alongside new faces who bring additional breadth and depth of expertise. It will operate largely as a ‘virtual’ group, responding to requests and consultations but also pro-actively identifying concerns and priorities, sometimes in conjunction with other organisations. Contact us for more information.

Committee members recruitment

In the recent newsletters we have encouraged you to put yourselves forward as potential recruits to the Committee. Applications have now closed, and we have a good range of candidates to consider - sadly more than we have space to accommodate this year. Many thanks to all who expressed interest, winners will be announced shortly.

Castle debate

On 25 April, the Society is hosting the Castle Debate on environmental rights under planning law. Places are free but must be reserved.

Legislation

The following regulations have recently come into force:

Consultations

The Planning and Environmental Law Committee regularly responds to official consultations on points of law and technical matters. We may not respond to all the open consultations listed below but if you have input you'd like to share please contact us.

Case law

In each newsletter we highlight a small number of notable judgments across a range of topical legal points. This month, the return of garden grabbing, office-to-residential conversions and a local masterplan successfully defended.

Dartford Borough Council v The Secretary of State for Communities and Local Government & Ors [2017] EWCA Civ 141
The Court of Appeal has upheld a 2016 High Court decision that rural gardens can be considered ‘previously developed land’ under the NPPF, whereas urban gardens cannot. Dartford Borough Council had refused permission for development in a garden on a farm in the green belt but that decision was overturned on appeal to the Planning Inspectorate. Dartford challenged the inspectorate's interpretation in the courts but was unsuccessful on both occasions, opening opportunities for ‘garden grabbing’ elsewhere outside built-up areas.

Dunnett Investments Ltd v The Secretary of State for Communities and Local Government & Anor [2017] EWCA Civ 192
The appellant sought to overturn refusal to grant a certificate of lawful development. Office to residential conversion is now usually permitted by the General Permitted Development Order (GDPO). However, the specific building in question was subject to a 2005 planning condition that any change of use from class B1 (business) would only be permitted with planning authority consent. Dunnett appealed unsuccessfully to the Planning Inspectorate, then to the High Court and Court of Appeal, that the 2005 condition could not take precedence over the current GDPO.

Persimmon Homes (North East) Ltd v Newcastle City Council & Ors [2017] EWHC 688 (Admin)
The Planning Court has rejected a triple challenge by housebuilder Persimmon to Newcastle's Callerton Master Plan and two related planning permissions. Persimmon claimed that the plan and permissions had failed to adequately consider the need to mitigate congestion. The court, however, accepted that the master plan would be delivered through a series of planning applications over time, and that the plan and the decisions which followed from it were sound.

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