The right to recover appeals for determination by the Secretary of State: A question of effective directions
In R (on the application of Gleeson Developments Ltd) v Secretary of State for Communities and Local Government and another  EWCA Civ 1118, the Court of Appeal considered whether a Planning Inspector’s decision letter could be withdrawn after it was issued in error and whether the Secretary
of State had effectively recovered jurisdiction of a planning appeal.
Gleeson sought planning permission for a 180 home development in Wiltshire. The local planning authority refused permission and Gleeson appealed. On 18 March 2013, the Inspector’s decision to grant outline planning permission was mistakenly issued just hours after an officer for the Department for Communities and Local Government (DCLG) emailed the Planning Inspectorate (PINS) confirming that the Planning Minister had opted to recover the appeal for determination by the Secretary of State
due to the publication of a draft neighbourhood plan. Realising the error, PINS sent an email to Gleeson the next day explaining that the decision had been made in error and that the Secretary of State had already recovered jurisdiction of the appeal. PINS issued a further letter, on 20 March, confirming that the Secretary of State would determine the appeal.
Gleeson challenged the decision and the High Court ruled that the direction to recover the appeal was valid and that the Secretary of State had an implied power to withdraw the Inspectors decision. However, the Court of Appeal overturned that decision and upheld the permission despite the fact that it was sent out in error.
Lord Justice Sullivan ruled that the Secretary of State had not issued a proper ‘direction’ to
recover the planning appeal until after the Inspector made his decision. The email of 18 March did not constitute a ‘direction’ as it did not include any reasons for why it was made.
On that basis, the Inspector still had jurisdiction to decide the appeal when he granted planning permission. Lord Justice Sullivan also declared that there was no implied power to withdraw a valid planning permission on the grounds that there had been some administrative error in the decision-making process, commenting that the law provides a ‘highly prescriptive’ route for the
revocation of planning permissions with payment of compensation.
This decision will be welcomed by developers, not only because it provides clarification on the
requirements for effective recovery of an appeal but also because it confirms that planning permission cannot properly be revoked on the basis of an administrative error. Developers will take comfort
in the knowledge that they can rely on planning permissions, which can only be revoked under sections 97 to 100 of the Town and Country Planning Act 1990 subject to the payment of compensation.
For any queries regarding the revocation of decisions, please contact Kristen Read on 0117 307 6254 or email@example.com.
26 April 2015: D Day for CIL?
A day that many thought would never arrive is fast approaching; on 6th of April 2015 the key change to the planning system introduced by the Community Infrastructure Levy (CIL) Regulations 2010 will take effect.
Planning gain, or contributions towards improvements to local infrastructure and other community facilities, has always been a controversial subject. Whilst proposals for a flat rate development tax during the last Labour government were set aside, the 2008 Planning Act introduced a framework for the imposition of CIL, the detail of which is set out within the Regulations.
The keystone of the new CIL regime is the restriction on the pooling of planning obligations relating to specific pieces or types of infrastructure. The date on which that prohibition will take effect is 6 April 2015.
From that date, and where local authorities are yet to have introduced a CIL charging schedule, they will be prevented from seeking planning obligations relating to infrastructure where five or more planning obligations for that infrastructure have been entered into since 6 April 2010. This prohibition has the potential to severely curtail the ability of local authorities who have not
imposed charging schedules to ensure that developments can be consented subject to the payment of financial contributions which are considered necessary for planning purposes.
A recent study sets the proportion of local authorities that will have implemented a charging schedule by the cut-off date as 32%1.
There is a real concern that the remaining 68% of local authorities will not be in a position to secure appropriate planning obligations from developers in their area and as a consequence the determination of applications in those areas may be significantly delayed as a result.
Since the proposed introduction of the CIL in 2009, discussion of the possible (and even at times probable) abandonment of that regime in favour of a return to section 106 agreements has been part of the narrative. Whilst that prospect cannot be discarded, the regular amendments which have been made to the Regulations strongly indicate that the present Government has no intention to discard the CIL regime.
For any queries regarding CIL or s.106 agreements, please contact Alex Minhinick on 0117 307 6874 or alex.minhinick@ burges-salmon.com.
Case law update – Village greens
Two recent cases regarding the registration of land as a town or village green (“TVG”) on the basis that it is used for recreation “as of right” (without permission) illustrate the continued change of approach to TVG registration in favour of landowners.
The first case, R. (on the application of Barkas) v North Yorkshire CC  UKSC 31 involved an appeal against the upholding of a decision not to register a playing field as a TVG within the meaning of the Commons Act 2006. Under section 15 of the Commons Act 2006, land can be registered as a TVG if local inhabitants have indulged “as of right” in lawful sports and pastimes on the land for an uninterrupted period of over twenty years. For use to be “as of right” it must be without force, secrecy or permission.
In Barkas, the appellant applied to register a field, acquired by a local authority in 1951 as part of a housing development, as a TVG. Although the land had been used for informal recreation for over fifty years, the application was refused and the appeal dismissed as the use had been “by right” (with permission) because the public had a statutory right to use the land by virtue of section 12 of the Housing Act 1985. This enables recreational land to be provided as part of housing developments.
This case also overturned the landmark yet controversial Beresford decision which concluded the giving of permission by the landowner to use the land could be implied but required a positive act to communicate that to the public.
The case of Naylor v Essex CC  EWHC 2560, involved the request for a judicial review of a local authority’s decision not to register an area of land as a TVG. Under consideration was whether the use of land could fit the definition of “as of right”. It was held that the use of the land by the public was with permission (“by right”) because by virtue of an agreement with the land owner the land was managed, controlled and maintained by the Council as
if it were an area of public open space. This was communicated to the public by the mowing of the grass, picking up litter and the installation of a bin. Therefore, it was considered that for as long
as the agreement remained in place, neither the landowner nor the Council could assert that a member of the public using the land was trespasser. It did not matter that the Council did not own or have a legal interest in the land itself.
For any queries regarding these cases or TVGs, please contact Cathryn Tracey on 0117 939 2223 or Cathryn.tracey@burges- salmon.com.
1Savills, July 2014. CIL – The countdown to 2015: http://pdf.euro.savills.co.uk/residential---other/spotlight-cil-countdown-to-april-2015.pdf
Permitted development: further changes afoot
In July this year, the Government launched their “Technical Consultation on Planning”, which proposes further reforms to the planning system in England. The consultation closed on 26 September 2014 and included changes to the neighbourhood planning system, permitted development rights and changes of use, planning conditions, thresholds for statutory consultation
and environmental impact assessments and changes to the NSIP regime.
This article sets out proposals which will impact on permitted development (“PD”) rights.
The proposals form the third package of new PD rights which have been introduced by the current Government as part of the Red Tape Challenge and are designed to promote growth, deliver housing and support Britain’s high streets. They include:
Easier residential conversions - new rights to allow light industrial buildings (class B1(c)), storage and distribution (B8) and certain sui generis uses (such as launderettes, amusement arcades, casinos and nightclubs) to change to residential use (C3). This may be subject to floor space limits and a prior approval procedure for specified impacts. More flexibility for commercial premises - new rights for change of use from A1 and A2 use classes (shops and
financial institutions) and some sui generis uses, to restaurants and cafes (A3) or to assembly and leisure use (D2). Again, these rights would be subject to floor space limits and a prior approval procedure.
Making temporary rights permanent - some of the previously temporary PD rights, which attracted a degree of controversy, and are due to expire in May 2016, are to be made permanent, namely:
the change of use from office (B1(a)) to residential use (C3) (subject to existing restrictions);
the increased size limits allowed for single storey rear extensions on dwelling houses and extensions to certain commercial premises.
Widening of Use Classes A1 and A2 - it is proposed that the existing A1 class (shops) is widened to include a lot of the current A2 uses. The exceptions to this are betting shops and payday loan shops, which would remain in A2. This would enable changes of use to be made without planning consent between shops, banks, building societies and estate agents.
All PD rights relating to a change to A2 use would be removed, although changes from A2 to A1 would be retained.
Click and collect retail - new rights for ancillary buildings and alterations to retail premises to accommodate ‘click and collect’ style shopping are proposed.
Article 4 directions – it is proposed that the GPDO is amended so that PD rights cannot be removed from properties for which prior approval has been given but where the development has not yet taken place. In addition, developers may be entitled to compensation in certain circumstances where PD rights have been withdrawn by an Article 4 direction. Other relaxations - other amendments to PD rights are also suggested, including the use of solar and photo-voltaic panels on commercial buildings (up to one megawatt in capacity), waste management facilities, increasing the size limit of mezzanine floors within retail premises, location filming and new rights for sewerage undertakers.
The proposals will be welcomed by landlords and those wishing to assign business leases in terms of the flexibility they offer for future use of a commercial premises. However local planning authorities are likely to remain cautious of the proposed changes supporting conversion to residential uses and may rely on the restrictions in place and prior approval mechanisms to refuse proposed schemes. The new rights will apply to England only and the Government intends to implement the changes (subject to the results of the consultation) at the earliest opportunity.
On the subject of PD rights, the recent High Court case of Stentor Music v Reigate and Banstead BC (unreported) is also noteworthy. The Court held that the Council had properly assessed whether there was a realistic prospect of an applicant relying on PD rights which allowed the change of use from offices to residential as a fall- back position for the majority of the site if planning permission was refused. In assessing the fall-back position, it relied on the test from R v Secretary of State for the Environment ex parte Ahern (London) Ltd  Env LR 189, which involved asking whether the fall- back position was possible and then comparing it to the proposal for which planning permission was sought. It is likely that such arguments may be used by more developers seeking to promote schemes which may partially benefit from PD rights.
For any queries regarding PD rights, please contact Jen Ashwell on 0117 307 6063 or firstname.lastname@example.org.
Update on fracking consultation
Having run for two months over the summer, the Government’s consultation on underground drilling access closed on 15 August 2014.
Directly linked to the present media furore surround fracking; the most important (and controversial) element of the consultation was the proposal to introduce a statutory right of access for licensed petroleum operators to lay and maintain pipelines at depths in excess of 300m.
All other relevant consents would still need to be obtained by an operator (planning permission, environmental permits etc), together with any necessary rights to lay out a drilling pad on the surface and to lay a pipeline down through the first 300m of its journey. However, if implemented, the Government’s proposed solution would avoid an operator having to obtain any landowner’s consent to lay the deeper elements of the pipeline beneath their land.
Whilst community compensation provisions are likely to be
included for landowners adjacent to drilling pads, there will be no compensation payable for the underground access itself.
This follows the rationale of a previous House of Lords decision concerning an oil pipeline which transversed a third party’s land at the Wytch Farm oilfield without that third party owner’s consent. Whilst a trespass was found to have occurred, damages were held to be negligible. The purpose of the proposed statutory right of access would avoid such circumstances plaguing licensed petroleum operators in the future.
The Government’s response to the consultation is expected imminently, in order to allow any proposed legislative changes to be introduced into the Infrastructure Bill 2014 which is currently before Parliament.
For any queries regarding fracking, please contact Alex Minhinick on 0117 307 6874 or alex.minhinick@burges- salmon.com.
Enforcement case update:
Court of Appeal remedies breaches
In Newham LBC v Ali  EWCA Civ 676 the Court of Appeal addressed an injunction sought by the Council to cease the use of a faith centre run by a Trust. The centre was located within a strategic brownfield site allocated for mixed use development. Temporary permission for the centre had been granted following the parties entering into a s106 Agreement. The terms of this agreement provided for the submission of a planning application for a mixed use development (including an element of faith use) within 12 months, failing which the Trust would cease the use.
Following non-compliance with the terms of the s106, a mandatory injunction was sought by the Council, and granted, requiring the Trust to comply with that undertaking.
The decision of the Court of Appeal demonstrates the willingness of the Courts to grant injunctions to ensure compliance with planning obligations. The Court held that the Trust had materially failed to comply with its obligations under the agreement; to refuse an injunction in such circumstances would therefore entirely defeat the purpose of entering into the agreement. The Court reiterated the separation between the enforcement of s106 obligations as contractual obligations and planning enforcement. The existence of an ongoing appeal against refusal of planning permission was not relevant to the determination of whether the grant of the injunction was appropriate; however in the particular circumstances of the case it did justify suspending the terms of the injunction pending the decision on the planning appeal.
The Court of Appeal also considered the issue of over-enforcement in Ahmed v SoS for DCLG  EWCA Civ 566. This case
concerned an enforcement notice seeking the removal of a mixed use development which had been constructed larger than the consented scheme. The development as built included an extra storey, amended roofline and elevations and new roof terraces. It was deemed to be so far removed from the consented scheme as to comprise new development for which no permission had been obtained.
Over-enforcement can arise where there is an alternative means to remedy a breach, being acceptable in planning and amenity terms, which is less onerous on the landowner than the remedy being sought. The landowner in Ahmed contended that the Inspector ought to have considered whether modifying the development back to the scale of the previously consented building would render it acceptable as an obvious alternative to seeking complete removal of the development. The Court agreed that the Inspector should have had regard to this possibility.
Where appellants consider that there is a viable alternative remedy to the harm than is sought in the notice they should seek to set out such alternative arrangements as clearly as possible within their grounds of appeal. Ahmed makes it clear that the Inspectorate should look at such alternatives in the round and aim at a proportionate outcome to such appeal proceedings. The key message from this case for all parties is that the purpose of planning enforcement is remedial, not punitive.
For any queries regarding enforcement, please contact Paula McGeady on 0117 307 6253 or paula.mcgeady@burges- salmon.com.
The case of Redhill Aerodrome Ltd v Secretary of State  EWHC 2476 (Admin) clarifies the approach to take when considering any other harm to Green Belt under paragraph 88 of the NPPF. Paragraph 88 states that local planning authorities
should ensure that substantial weight is given to harm in the Green Belt and that very special circumstances to justify development will not exist unless the potential harm to the Green Belt by reason of inappropriateness and “any other harm” is clearly outweighed by other considerations.
The High Court considered the approach an Inspector took to determining an appeal relating to an application to construct a hard runway to replace existing grass runways. In her final
conclusions, the Inspector noted that the harm to the Green Belt by reason of inappropriate development, the loss of openness and encroachment into the countryside had substantial weight, the harm to landscape character moderate weight and the slight adverse visual impact a small amount of weight. The limited harm to the quality of life and learning environment and the failure to resolve transport issues provided additional weight against
the proposal and the overall weight against the proposal was very strong. On the positive side, the Inspector noted that the
contributions to the local economy had significant weight. Overall, she concluded that the other considerations when taken together did not clearly outweigh the potential harm to the Green Belt and other identified harm and that very special circumstances to justify the development did not exist.
Mrs Justice Patterson held that “any other harm” was limited to harm to the Green Belt and not to any other factors such as
landscape or transport impacts. Those other impacts would be considered separately in accordance with any relevant policies and the thresholds for refusal set out in the NPPF. She concluded that the non-Green Belt harm did not reach the individual threshold
for refusals as defined by the NPPF and that it was not right to take them into account as “any other harm”. She also held that individual factors could not be considered together as part of a cumulative analysis of harm even though individually the evaluation of harm was set at a lower level than prescribed for refusal in the NPPF.
This case provides much needed clarification on what matters can be considered under paragraph 88 of the NPPF and will, no doubt, be used by Inspectors in subsequent appeals as a guide for what should be included in the deliberations under paragraph
88. It should however be noted that it is currently the subject of a pending appeal to the Court of Appeal. The decision will be eagerly awaited by parties involved in Green Belt schemes.
For any queries regarding this case or green belt development, please contact Sarah Sutherland on 0117 307 6964 or email@example.com.
Modifications to NSIPs
and scale of the permitted development to be amended. The level of detail to be provided to justify if a proposed change is material
(e.g. providing supplementary environmental information) will also need to be clarified by Government.
The DIRFT III Project
The level of flexibility required will often depend on the type of development being promoted. Frequently, large scale projects take years to develop and requirements evolve with the scheme. A good demonstration of the need for flexibility is shown in the recently permitted Daventry International Rail Freight Interchange (DIRFT III) project. DIRFT III is practically the phased development of a strategic rail freight interchange. It is anticipated to take
up to 17 years to develop and will include the construction of the interchange itself, a private rail connection and substantial mixed-occupancy warehousing and storage. The applicant,
Prologis, recognised the need for flexibility in the DCO (mainly to accommodate for potential changes in commercial demand for the warehousing / storage) and, although proceeding on the Rochdale Envelope principle, sought additional provisions in the DCO to give it the flexibility it needed.
Given that the procedure to modify or vary a Development Consent Order (DCO) is lengthy, costly and unduly burdensome (see the results of the Government consultation response to the consultation on the review of the NSIP regime), the Government is proposing to introduce much needed flexibility into the process. The current procedure means a developer has to go through a time consuming route which is akin to submitting a full application for a DCO when seeking a variation to that order. Given the front loaded nature of the DCO process and the time it takes from the
conception of a proposed scheme to the issue of a DCO, projects inevitably evolve and circumstances change. The need to amend the development (both during the examination and post-consent) has long been called for by developers.
The Infrastructure Bill 2014-15 is currently going through the Committee stage of the House of Lords. Clause 19 of the Bill will introduce enabling powers into the Planning Act to allow the Secretary of State to create regulations which will permit him to
make non-material amendments to a DCO without the need to go through the special parliamentary procedure currently in place.
What constitutes a non-material (or material) amendment will require guidance from Government though it will undoubtedly be a matter of fact and degree in each case and depend on the size
The applicant sought a DCO which was akin to an outline planning permission, enabling the conditions attached to the schedule
of works to be discharged by the local planning authority rather than seeking amendments to the DCO through the Planning Act 2008 mechanism. The DCO also sought to include permitted development rights, justified on the basis that an absence of these rights would discourage potential occupiers.
The Secretary of State stated that the Planning Act regime provides sufficient scope for enabling alterations to be made to an approved DCO. Seeking further PD rights would be granting development beyond that assessed in the Environmental Statement and contrary to the applicant’s acknowledgement of the Rochdale Envelope principle agreed as part of the DCO. The Examining Authority “ExA” cited the fact that no developers have yet applied to change a DCO post-consent as evidence that the concerns surrounding the PA 2008 scheme are speculation and
further stated that if change is needed the appropriate step is for a legislative amendment to be carried out by Parliament.
The ExA did, however, agree to include ‘tailpiece clauses’ in the DCO (i.e. clauses which enable alternative details to be approved by the relevant planning authority on request from the applicant) but only for minor elements of the scheme. The draft DCO also included agreed powers to ensure that any grant of planning permission under the TCPA within the DCO limits would not constitute a breach and give rise to criminal liability in the unlikely event of a conflict.
For further information on NSIPs or DCOs, please contact Stephen Humphreys in our Planning team on (0117) 902 2709 or email him at firstname.lastname@example.org.
Earlier this year, the EU formally adopted amendments to the EIA Directive. The adopted proposals are somewhat diluted compared to the initial proposed amendments but the changes remain likely to lead to additional burdens on information provision and analysis, additional bureaucracy in decision-making and potentially greater challenge risks to projects. The amendments must be transposed into UK legislation by 2017 and it is anticipated that revised EIA Regulations will be put forward for consultation in approximately 12-18 months.
Some of the most notable changes to the Directive are:
Enhanced screening process
More detailed information and analysis of the likely environmental impacts and significant effects will need to be provided to the decision maker in accordance with the newly introduced ‘Annex II.A’. The detail of information required by local authorities in the UK can greatly vary so, in reality, this change should create a more level playing field across local authority areas, but it will also mean the timing of making a screening request will have to be carefully considered as proposed projects will need to be reasonably progressed before a screening opinion can be requested. The screening request can provide a description of proposed mitigation measures but where there is a negative screening decision
influenced by those proposed mitigation measures those measures must be clearly stated as part of the decision and will need to be carried through to the final development (i.e. by condition or s106 obligations). It is also worth noting that the Directive now requires
a screening decision to be made within 90 days – currently local authorities have 3 weeks for making a decision in the UK.
Mandatory monitoring post-consent Consents are required to include conditions setting out the mitigation and monitoring proposed in the Environmental
Statement and Member States have an obligation to ensure those measures are implemented. This will extend the life of EIA beyond the point of decision and may, for example, become an issue for developers wishing to ‘sell on’ a development shortly following consent due to uncertainty in the duration of the monitoring and a risk of unforeseen costs should the monitoring reveal that further mitigation is necessary beyond that anticipated. Local authorities will also need to consider the terms of their consents carefully
and put in place appropriate measures to ensure mitigation and monitoring are followed through post consent.
Expanded scope of EIA
The scope of the Directive has been expanded to encompass new topics such as human health, climate change and biodiversity. Amendments to Annex IV also requires a description of operational energy use and the quantities and types of waste likely to be produced. In reality, a lot of this information is already included in UK Environmental Statements but for some projects it may mean greater emphasis being placed on these areas.
Separate to the EU Directive Amendments, the Government is currently consulting (as part of its wider Technical Consultation on Planning) on proposed changes to thresholds for two Schedule 2 categories in the 2011 EIA Regulations, in particular the threshold for the wide category of Urban Development Projects is proposed to increase from 0.5ha to 5ha and above. If implemented, in terms of housing developments, this is anticipated to require
EIA for developments containing 150+ housing units rather than catching developments with approximately 15+ housing units. The consultation closed on 26 September.