Planning update: An end to Hillside woes and other key planning changes.
22nd March, 2024
In this planning update we look at the three key changes across the sector concerning Hillside park, nutrient neutrality and a new pre-application service for National Significant Infrastructure Projects.
Public consultation to end Hillside woes?
The Department for Levelling Up, Housing and Communities (DLUHC) has announced the launch of a public consultation on a number of issues in the planning system, including introducing a new Accelerated Planning Service for major commercial applications, changing the use of extensions of time, and expanding the use of simplified written representations appeals process for minor commercial appeals to more appeals.
However, the one issue that will turn heads is the bringing in to force of section 73B of the Town and Country Planning Act 1990 for applications to vary planning permissions and the potential for this to assist with the treatment of overlapping permissions.
There have been significant legal implications for overlapping or “drop in” permissions following the Supreme Court decision in Hillside Parks Ltd v Snowdonia National Park Authority [2022]. The consultation suggests that the new section 73B, which was introduced by the Levelling Up and Regeneration Act 2023, could potentially deal with any such issues although much will rest on the interpretation of the “substantially different” test which is not defined in the legislation. Of note is the suggestion in the consultation that changes of use that do not “fundamentally change” the nature of an outline permission may be permitted under s73B that would otherwise have required a standalone drop-in permission.
Equally welcome is the recognition that s73B will not be able to address all of the circumstances currently impacted by the Hillside Parks judgement and proposals for exploring an alternative mechanism by way of a new general development order to remedy the issues.
The Government does appear to have taken note that further legislation is required to enable overlapping or drop in permissions to proceed without risk, although in view of the general election that is to be held at some point this year, it does of course remain to be seen how quickly any such legislation will come forward.
Launch of new NSIP Pre-application service
The Planning Inspectorate has announced the launch of a new pre-application service for National Significant Infrastructure Projects (“NSIPs”).
The Inspectorate says that the new service is intended to “support the country’s future infrastructure needs” and will have three tiers of service that applicants may use: Basic, Standard and Enhanced. Each tier will have its own fee to be paid by the applicant and its own features. NSIPs that opt to use the Enhanced level of pre-application service will have the potential to have their proposals fast-tracked, although projects that are not fast-tracked will “still have their examinations completed in the least amount of time possible”.
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The DLUHC will publish a tranche of updated guidance from April 2024 reflecting reforms to the NSIP process.
After that, the Planning Inspectorate will publish an updated Pre-application Prospectus, describing the three different pre-application tiers and the service available in more detail. This will clearly be one to watch to get a greater understanding of the impacts on all stakeholders in the NSIP process of these tiers of service.
Fry Appeal Update
Nutrient neutrality is back in the spotlight as CG Fry & Sons Ltd v SSLUHC [2023] went before judges in the Court of Appeal earlier in the week. The case, and the issue of nutrient neutrality generally, has significant impacts on project delivery for developers and so is worth keeping an eye on.
The case concerns outline permission for 650 dwellings granted by Somerset Council, and subsequently the approval of reserved matters, for a Ramsar site. The Council refused to discharge several pre-commencement conditions attached to the permission because an “appropriate assessment” under the Conservation of Habitats and Species Regulations 2017 (“Habitat Regulations”) had not been carried out, relying on advice from Natural England issued in 2020 relating to issues of nutrient neutrality. The developer appealed to the Secretary of State, but the SoS’s Inspector refused the appeal for the same reason.
In the High Court last year, the developer (with the support of the House Builders Federation) advanced three grounds of appeal:
- whether an “appropriate assessment” must be undertaken at condition discharge stage if it hasn’t been done before;
- how that applies in the case of Ramsar Sites (which are not subject to the Habitats Regulations directly, but are treated in the same way by the NPPF); and
- whether the scope of any assessment is limited to matters which are affected by the particular conditions being discharged.
The developer and HBF are challenging the High Court’s decision on the same three grounds, and judgment will be eagerly anticipated in the hope that it may afford some relief to developers grappling with the difficulties of nutrient neutrality, in particular where they are currently caught at the discharge of condition stage.
If you have any questions about the topics raised in this update, please do get in touch with our expert Planning lawyers, who will be more than happy to help.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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