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Planning and environmental legislation update - February 2017

9 February 2017


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

The housing white paper has landed

After repeated delays, the government's housing white paper was published on 7 February. The contents are wide-ranging, covering plan-making, planning permissions, measures to encourage the implementation of permissions, and proposals for changes in the rental sector.

Planning solicitors may be particularly interested in proposals to standardise methods for assessing local housing need, for compelling planning authorities to adopt and review plans, and in commitments to review the Community Infrastructure Levy, section 106 and compulsory purchase. Many will also welcome the intention to allow higher application fees to help enhance planning capacity.

Politically sensitive green belt policy seems to have escaped significant revision, although the paper focuses on when development is acceptable rather than on rhetoric about green belt land being 'sacrosanct'. Conversely, the government's earlier focus on starter homes seems to have been relaxed in favour of a more balanced approach to affordable housing.

Much of the content of the white paper is open for consultation until early May - the Planning and Environmental Law Committee will be responding. We are keen to hear what members think about the paper and how they can contribute to our response - please contact us.

More on housing

While we waited on tenterhooks for the unveiling of the white paper, the government confirmed changes to the New Homes Bonus just before Christmas, and began the new year by announcing its first 30 starter homes partnerships and the location of 14 garden villages . These were followed quickly by draft regulations for the new 'permission in principle', expected to come into force a few weeks later.

'Brexit means Brexit' means...?

The prime minister's recent speech on negotiating priorities for the UK's EU exit made no mention of the environment. The previous commitment to a Great Repeal Bill promised an effort to maintain the status quo - with the caveat that not all environmental legislation can be effectively transposed without amendment. The UK's intention to leave the single market means our obligations to maintain EU-derived environmental legislation will be diminished. However, parliament will have a vote on the UK's Brexit deal.

In advance of the prime minister's speech, the Environmental Audit Committee published its report on the future of the natural environment after the EU referendum. It recommended a new Environmental Protection Bill during article 50 negotiations to ensure that EU law is effectively transposed. More recently, the committee has expressed concern that Defra lacks the resources to deal with Brexit.

Airport national policy statement touches down

A third Heathrow runway moved closer to lift off with the publication of the airports national policy statement (NPS) on 2 February. The document explains the government's preference for Heathrow and sets out the planning framework for achieving it. A consultation exercise will run until 25 May.

A few days ahead of the NPS, the High Court struck out an application to judicially review the government's decision to favour Heathrow. Planning and Environmental Law Committee member, and NPS expert, Angus Walker explains.

Neighbourhood planning and conditions update

The government has responded to feedback from its consultation on improving the use of planning conditions. It intends to maintain the main proposals - requiring applicants to agree to pre-commencement conditions (within 10 days), and pressing ahead with prohibition of certain types of condition. Further consultation on the necessary draft regulations is promised, perhaps to allay concerns raised in the House of Lords.

The government has also published its response to an earlier consultation on modifications to the neighbourhood planning process.

The Society's Planning and Environmental Law Committee responded to both the planning conditions and neighbourhood plan consultations last autumn.

Neighbourhood plan changes challenged

A group of 18 is seeking judicial review of December's ministerial statement, which relaxed the requirements for housing land supply where there is a neighbourhood plan. The claimants say the change is at odds with national policy and should have been subject to consultation. An NLP blog discusses the implications of the (at that point unchallenged) changes.

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In brief

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Committee news

The Planning and Environmental Law Committee will soon be recruiting. The formal process (for all Law Society committees) does not begin for several weeks yet, but we are keen to receive expressions of interest from prospective candidates. This year, with Brexit in prospect, we are particularly keen to bolster our environmental expertise. Please contact us if you'd like to know more.

The committee has recently submitted responses to the following consultations:

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The following regulations have recently come into force:

The Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments) (England) Regulations 2017 have been published in draft.

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The Planning and Environmental Law Committee regularly responds to official consultations on points of law and technical matters. If you have input related to open consultations that you'd like to share please contact us.

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Case law

In each newsletter we highlight a small number of notable judgments across a range of topical legal points. This month, two cases which related to the Habitats Directive (which it seems likely the UK will no longer be obliged to implement, post-Brexit).

Secretary of State for Communities and Local Government & Anor v Wealden District Council [2017] EWCA Civ 39
This case involved two appeals concerning a planning application originally refused by Wealden DC in February 2014. The developer appealed successfully but the council then challenged that decision in the High Court. The permission was quashed in February 2016. Macfarlane LJ and Lindblom LJ considered whether the inspector had erred in his consideration of the effect on the nearby Ashdown Forest (a Special Area of Conservation and a Special Protection Area), and whether he had misdirected himself when considering alternative sites. The Lord Justices agreed that the latter question had been incorrectly handled by the inspector and thus dismissed the appeal against the High Court's 2016 decision.

Community Against Dean & Anor, R (on the application of) v Shire Oak Quarries Ltd [2017] EWHC 74
Cornwall County Council has successfully defended itself against a claim that its decision not to pursue enforcement action was unlawful. The claimants asserted that the council's decision not to act against Shire Oak Quarries meant it failed in its duties to the EC Council Directive 92/43/EEC (the Habitats Directive). The quarry firm had erected a fence around the quarry, despite having its permission for that and other development quashed in December 2015. A new application was subsequently submitted - and validated three days before the case reported here. Hickinbottom J refused permission to proceed with the challenge.

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