Planning law update – April 2021 part 2

Our planning experts are on hand to discuss in further detail what effects they could have for you and your organisation.

Government response to First Homes proposal

In August 2020, the government published its consultation on ‘Changes to the Current Planning System’.  This month, the government has published its response to the second of four policy proposals raised in that consultation, which relates to securing First Homes.

The response, available here, confirms that the Secretary of State for Housing, Communities and Local Government will lay a Written Ministerial Statement before Parliament in due course which will outline changes to national planning policy to ensure that First Homes are built, to take effect on an as yet unspecified date. In the meantime, the government is working towards producing planning practice guidance to advise on the implementation of the new requirements.

The response also comments on the consultation’s proposals to temporarily raise the small sites threshold for contributions to affordable housing, and extend permission in principle to major development. The response concludes that raising the small sites threshold does not appear to be necessary in the current market, but that the extension of permission in principle is still being carefully considered.

Inspector’s decision makes clear that sometimes when it comes to the description of a development proposal less is more

A Planning Inspector has found (click here) that a 2005 planning permission to convert a barn for holiday accommodation, that was subject to a condition restricting the use of the barn to short-stay holiday accommodation, could not be varied by an application to vary the said restrictive occupancy condition.

The Appellant made a s.73 application to vary this restrictive condition to allow the accommodation to be used throughout the year.

The Inspector considered the case of Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868 in which the Court of Appeal held that a s.73 application to vary a condition attached to a previous planning permission could only vary conditions and not the description of the development itself. The Inspector considered that the disputed condition to alter the permitted use of the appeal building would effectively vary the description of the development (which was for the ‘conversion of barn to holiday accommodation’) and could not therefore be entertained.

The Inspector went on to find that a new planning application was required to depart from the description of the previous planning permission and change the use of the barn to allow accommodation without limitations to occupancy. The Case demonstrates the importance of ensuring the description of a development proposal is drawn widely enough to ensure some flexibility in relation how a site is managed going forward.

Court advocates the use of “practical good sense” when considering whether an extended determination date had been agreed

In Gluck v Secretary of State for Housing, Communities and Local Government the Court of Appeal ruled in a Council’s favour regarding its seemingly “late” rejection of a prior approval of PD rights.

Similar to the determination of many minor planning applications, Permitted Development conversion applications are to be dealt with by the responsible planning authority within an eight week period under article 7(b). However, the Court of Appeal upheld the decision of a High Court judge that an extension could be agreed to the eight week period by agreement under article 7(c) which allows for extensions to be “agreed by the applicant and the authority in writing”.

The circumstances of that case were that the principle of an extension appeared to have been agreed during a phone conversion between the applicant’s agent and the case officer although the actual date to which the extension would relate had not been discussed. However, that phone conversation was followed by an email from the agent to the case officer confirming the extended determination date the applicant would be content with. That email was responded to and acknowledged albeit there was no express acquiescence by the case officer to the new date.

The date was of importance because the applicant subsequently sought to show that the express agreement by the council to the new determination date had not been given and as such the deemed prior approval provisions had been triggered such that permission was effectively granted for the proposal.

The Court found that although there had been no codified formal agreement to the extension, the agreement nonetheless was evidenced between the parties’ email correspondence and two of the Lord Justices provided some very cogent advice to developers and councils by emphasising that questions such as this should always be approached in the “spirit of practical good sense” and that legalism should be avoided when it comes to interpreting the planning system and the process of decision making within it. Although Hickinbottom LJ found that providing there is a written record from either the Council or the applicant to an extension there was no legal requirement for a written record from the both of them to the extended determination date, he nevertheless advised as follows – “to avoid potential difficulties in the future, it would be good practice (and a practice that I would certainly strongly encourage) for both applicant and authority promptly to acknowledge in writing any agreement to extend time to which they have come”.

If you have any questions on the issues covered in this update and how they will affect you, please do not hesitate get in touch.