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27th November 2024ViewsProperty Education & Training Specialists of the Year 2024! We’re thrilled to receive an award at the Southern Enterprise Awards 2024! We have been awarded ‘Property Education & Training Specialists of the Year 2024‘, a testament to our drive to provide quality education at all costs. This is the second time in a row we have taken home this award with the SME awards after winning back in 2023. In its seventh year, the Southern Enterprise Awards continues to showcase a mighty selection of businesses and individuals who are ultimately altering the trajectory of their industries. TPX aims to continue providing quality planning and property education, and this recent award highlights our dedication to this cause. We do this through a wide range of educational services including our 1-1 advice with Jon, our secret society, and other educational courses. READ MORE [...]
28th October 2024ViewsEvery 8 November, planners and communities worldwide come together to celebrate how good planning improves lives. On World Town Planning Day, held annually on 8th November, planners, and communities all over the world come together to celebrate how good planning improves the lives of people and benefits society at large, creating vibrant places to live, work, and play together. Argentinian professor Carlos María della Paolera started World Town Planning Day in Buenos Aires in 1949. This year marks the 75th anniversary of the event – an important milestone for the profession. On 8 November 2024, planners from over 30 countries will celebrate World Town Planning Day with lectures, school competitions, fundraisers, charity events, planning awards, and street festivals Find out more World Town Planning Day 2024: Homes Start with Planning World Town Planning Day 2024 will focus on the role of planning and planners in delivering housing that meets the needs of our communities, and in helping to create equitable, inclusive, and sustainable solutions for all. [...]
24th September 2024Latest NewsTown Planning Expert are pleased to report that Sutton Council have agreed that increasing the occupation of a 6 person HMO by a 7th Person is not development needing planning permission as it does not amount to a material change of use. This follows a growing burden of appeal evidence and is the first application of its type by this firm where the LPA has agreed without needing to refer the matter to the Planning Inspectorate. You can see the decision in full below: ufm2_Decision_Notice_Grant_CPUnDownload [...]
15th July 2024Latest NewsThe new Labour Government has taken power on a promise of change and sees Planning as a key cornerstone of its intentions to grow the economy. To achieve this it sees a need to free up development by making changes to the current planning system. Its manifesto states: The current planning regime acts as a major brake on economic growth. Labour will make the changes we need to forge ahead with new roads, railways, reservoirs, and other nationally significant infrastructure. We will set out new national policy statements, make major projects faster and cheaper by slashing red tape, and build support for developments by ensuring communities directly benefit. We will also update national planning policy to ensure the planning system meets the needs of a modern economy, making it easier to build laboratories, digital infrastructure, and gigafactories. Labour will ensure economic regulation supports growth and investment, promotes competition, works for consumers, and enables innovation. It is apparent that its vision for change is aimed at major developments and infrastructure projects which will take time to put in place. In our opinion a lot of change could be achieved, speeding up all levels of development by changes to the National Planning Policy Framework (NPPF), which does not require legislation. When our current planning system was introduced in 1948 it was seen as promoting development, not a brake upon it. A system which would permit the right type of development, in the right place and at the right time. This presumption in favour of development has been carried through to the latest NPPF. In the intervening period however, many factors have been added, such as public participation, ecological matters, pollution etc., all of which are laudable but which means that even minor development such as house extensions get tied up in lengthy considerations and may incur additional costs due to additional reports being required or dealing with spurious objections. The NPPF requires local planning authorities to be proactive, but this has been watered down by advice from the civil service that the addition of a meaningless paragraph appended to all decisions, saying that the authority has an up to date plan and offers a pre-application service will suffice. We would remove this and instead provide what the public wants, namely that the system is truly proactive and that planning officers should sit down and negotiate to improve schemes where appropriate. We have yet to meet a planning officer who does not claim to have entered the profession to improve the environment, but if this is the case why is there such a negative attitude to negotiation? Part of the problem is that the planning system has been hijacked by other departments so that matters which can be dealt with under other legislation, such as licensing and environmental health, are passed on to planning. Planning officers should stop acting like postmen passing on such concerns and instead determine which matters are truly relevant, and send back matters to those departments as appropriate. Councillors are particularly bad at this raising issues which are not relevant to the planning considerations but dealt with in other legislation. Better training and clarification that issues which are covered by policies, such as duplication on standards through housing and planning should not arise. Recording of voting by members on the Planning Committee may help to focus minds that spurious decisions may result in action against those members. Consideration needs to be given to the Local Plan process which is too complicated for the layman to truly understand, and which gets bogged down in challenges and objections. There are two elements in a Local Plan, the qualitative and the quantitative, that is the subjective matters such as landscape and heritage, and those which are objective such as the number of new houses required and where they are to be permitted. Anyone who has worked across several authorities will know that the qualitative matters differ very little across the country. As such national guidance could suffice leaving the local planning authority to consider how it wishes development to take place locally. Currently the draft Local Plan has to be approved by a Government Inspector, but if s/he finds it unsound, even if it is only on one issue, it can be thrown out and the whole lengthy process has to start again. Inspectors should be proactive and where they find a policy unsound they should be tasked to working with the local authority to address the concerns, or if this is not possible to suggest alternatives. We could go on and on, but this paper hints at several of the inherent problems which can be quickly addressed. We could add more as we are sure anyone who has had the misfortune to take on the planning system can also. by Keith Oliver [...]
2nd May 2024Latest NewsThe snappily titled The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2024 was released unto the world (or England at least) on the 30th April 2024, published on the 1st May 2024 and comes into force for England on the 21st May 2024. For those in Wales, Scotland and Northern Ireland you need to send your complaints to your own First Ministers (if you have one at the moment!). The changes build on the consultations that were released last year and are the second in that packet of changes proposed. Obviously now other knotty legal issues have been addressed the Government is somewhat free to manoeuvre. Classes Q – Agricultural to Residential (Q) The amendments build on the existing allowances and close existing loopholes relating to the total number of units and the total floor area allowed to be converted. This closes an obvious mathematical loophole that broke the 465sqm/5 unit ceiling within the previously amended Class Q. The provisions also open the door for agricultural buildings that were agricultural but are no more and extensions to agricultural buildings that are being converted to residential. The highlights are: The 10 year use provision still applies but with a new starting date of 24th July 2023The maximum floorspace for any dwelling created is now 150sqmThe maximum number of dwellings is now 10. Provisions in this respect also allow developers to return to previous Class Q sites if there is the floorspace within other buildings to do it.The maximum cumulative floor space of dwellinghouses including any extensions is 1,000 square metres,Extensions are allowed but are heavily restricted The normal restrictions in terms of National Parks, SSSI, a safety hazard area, a military explosives storage area, scheduled monuments and listed building’s apply in full. As will all prior approvals the nationally described space standard issued by the Department for Communities and Local Government on 27th March 2015 applies in full. The permitted development allowance to go from house to HMO (no idea why you would want this in the countryside anyway but whatever!) is also removed in line with all of the other prior approval allowances meaning you need a further planning permission if you wish to do so. In addition the requirement that the building must have suitable existing access to a public highway is imposed to reinforce the need for safe access to these agricultural sites. Class R (Agricultural to Commercial uses) is amended to incorporate Class B2, Class B8, Class C1 (hotels), Class E (commercial, business or service) or Class F.2(c) (outdoor sport or recreation); or for the provision of agricultural training. The floor area under Class R is increased to 1,000 square metres to match the amendments within Class Q. Finally the Class B2 (General Industrial Use) is limited to the processing of—(i) raw goods, excluding livestock, which are produced on the site and are to be soldon the site, or(ii) raw goods mentioned in paragraph (i) together with goods ancillary to theprocessing of those raw goods. All very sensible Class A and B Part 6 – Agricultural Buildings Whilst the minister is dishing out some countryside love farmers have also had a bit of a break with an increase in their allowances for new agricultural buildings under Class A – now 1,500 square metres and replacement agricultural buildings under Class B – now 25% more or 1,250 square metres (whichever the lessor). A Mr J Clarkson of West Oxfordshire may actually be happy with them for once! Missed opportunities Sadly the promised releasing of the prior approval burden under Classes A, B and R! has not been lifted and there is no mention of raising the limit of 150sqm under Class R2 within the regulations so this may well fill as a missed opportunity to support the farming community further. Sorry Jeremy you still have to deal with West Oxfordshire. In addition the conversion of agricultural buildings within National Parks and National Landscapes (Nee Areas of Outstanding Natural Beauty) is still locked down so the buildings that would actually not result in new buildings as dwellings in the countryside are prevented from becoming dwellings. Opportunity missed in my view. By Jon McDermott [...]
25th April 2024Latest News / OpinionAs Government cries out for more housebuilding it is often stymied by local restrictions, whetherit be landscape such as National Parks or Areas of Natural Beauty, wildlife or water restrictions.All these are to a degree based on objective criteria. One of the biggest constraints however, are Green Belts, which are defined locally and haveentered the public consciousness as a no-go area for development. Despite its name Green Belts don’t even have to be green! They were originally conceived as ameans to prevent coalescence of towns and villages and to allow urban populations easyaccess to the countryside. Government advice as set out in the National Planning PolicyFramework (NPPF) sets out 5 objectives of which 4 still hold to this concepta) to check the unrestricted sprawl of large built-up areas;b) to prevent neighbouring towns merging into one another;c) to assist in safeguarding the countryside from encroachment; d) to preserve the setting andspecial character of historic towns; ande) to assist in urban regeneration, by encouraging the recycling of derelict and other urban land. While some still serve this purpose others, applied with a broad brush, have effectively becomelittle more than a barrier to development, with large swathes of land so designated. In total theUK’s Green Belt covers an area of 1.6m hectares, which is about 12% of the area of EnglandWithin these areas there can be a wide variety of uses, from agriculture and forestry, sports andleisure and even residential uses. Council’s can review their Green Belts when updating their local plans but so entrenched is theconcept that to propose any reduction is often political suicide, yet it is estimated that the loss ofjust 1% of the Green Belt would solve the housing crisis. Most developers will have come across sites within the Green Belt which are eyesores butwhich cannot be redeveloped due to being so designated. It is often quoted that to ensuresomething deteriorates it is only necessary to designate it in one form or another. This has beenthe case for over half a century in the Green Belts. Crumbling buildings, unused agricultural land and inappropriate, often unlawful, uses can befound but remain due to being within the Green Belt. A more pragmatic approach is neededwhich recognises the original purpose, but allows for the area to be tidied up. By allowing these sites to be redeveloped or offered up in mitigation for building elsewhere thecountryside could be tidied up with land put to beneficial use or restored to a moreenvironmentally acceptable purpose. The debate is long overdue but offers potential solutions to many of the country’s challenges in the comingyears. By Keith Oliver [...]
31st January 2024Latest NewsThe Government is continuing with it’s legislative programme and has started to release commencement regulations for changes to the English Planning System under the Levelling Up and Regeneration Act. These regulations are found under: The Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024 2024 No. 92 (C. 6) UK Statutory Instruments The Elections Act 2022 (Commencement No. 11, Transitional Provisions and Specified Day) and Levelling-up and Regeneration Act 2023 (Commencement No. 1) Regulations 2023 The Levelling-up and Regeneration Act 2023 (Commencement No. 3 and Transitional and Savings Provision) Regulations 2024 No. 389 (C. 21) The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (CommencementNo. 4 and Transitional Provisions) Regulations 2024 The Levelling-up and Regeneration Act 2023 (Consequential Amendments) (No. 2) (England) Regulations 2024 Here is the combined list of commencement provisions. This list will be updated as more regulations are brought forward. The following provisions of the 2023 Act came into force on 26th December 2023— Section 226 – Enforcement of requirements Section 228 – Registration of short-term rental properties Section 229 – Pavement licenses The following provisions of the 2023 Act came into force on 31st January 2024— Section 78 – Capital finance risk management Section 81 – Alteration of Street Names England Section 94 – National development management policies: meaning Section 106 – Street votes, so far as it confers a power to make regulations and so far as it relates to the provisions of Schedule 9 brought into force by paragraph (q) Section 107 – Street votes: community infrastructure levy, so far as it confers a power to make regulations Section 123 – Duty in relation to self-build and custom housebuilding Section 129 – Hazardous substances consent: connected applications to the Secretary of State Section 140 – Enforcement of community infrastructure levy Section 180 – Acquisition by local authorities for purpose of regeneration Section 181 – Online publicity, so far as it confers a power to make regulations Section 184 – Corresponding provision for purchases by Ministers, so far as it relates to the provisions of Schedule 19 brought into force by paragraph (r) Section 185 – Time limits for implementation Section 186 Agreement to vary vesting date Section 187 Common standards for compulsory purchase data Section 188 ‘No-scheme’ principle: minor amendments Section 189 Prospects of planning permission for alternative development The following provisions of the 2023 Act came into force on 12th February 2024— Section 135 – Biodiversity net gain: pre-development biodiversity value and habitat enhancement The following provisions of the 2023 Act came into force on 31st March 2024— Sections 84, 85, 86, 89 – Planning Data Standardisation Section 91 – Definitions of key terms that are used throughout Chapter 1 of Part 3 of the Act Section 111 – Planning Commencement Notice Section 171(7) – New section 135A into the Local Government, Planning and Land Act 1980 (c. 65). The effect of this new section is to give the Secretary of State the power to make regulations setting out how an oversight authority is to oversee the regeneration of a locally led development area Sections 182 and 183 – Amendments to the operation of Compulsory Purchase Orders Sections 203, 205, 206, 214, 215 – Local Rental Auctions Schedule 22 – Amendments to Pavement Licenses The following provisions of the 2023 Act come into force on 25th April 2024— Section 103 – temporary stop notices in relation to listed buildings Section 115 – time limits for enforcement The amendments made to the 1990 Act by section 115 of the 2023 Act (time limits forenforcement) do not apply where—(a) in respect of a breach of planning control referred to in section 171B(1) of the 1990 Act (5) (time limits), the operations were substantially completed, or(b) in respect of a breach of planning control referred to in section 171B(2) of the 1990 Act (time limits), the breach occurred, before the day on which that section comes into force Section 116 – duration of temporary stop notices Section 117 – enforcement warning notices Section 118 – restriction on appeals against enforcement notices Section 119 – undue delays in appeals Section 120 – penalties for non-compliance Section 122 -Consultation before applying for planning permission Section 124 – Powers as to form and content of planning applications The following provisions of the 2023 Act come into force on 30th April 2024— Section 190 – Power to require prospects of planning permission to be ignored, Compulsory Purchase. The remainder of section 181 – Online publicity of documents within the CPO Process The following provisions of the 2023 Act come into force on 7th May 2024— Section 230 – Historic environment records The following provisions of the 2023 Act come into force on 25th July 2024— Section 105 – Removal of compensation for building preservation notice [...]
13th November 2023Latest NewsFrom the 6th December 2023 the Planning Fee’s in England will be updated and increased. All existing fees payable to local planning authorities under the 2012 Fees Regulations are increased in respect of applications made, or deemed to be made, on or after these Regulations coming into force. Fees to be paid in respect of applications, deemed applications, requests or site visits relating to major development are increased by 35%. All other existing fees are increased by 25%. A new provision is added to the 2012 Fees Regulations so that, from 1st April 2025, all fees under those Regulations can be increased annually (new regulation 18A). The amount of any increase will be in line with inflation, or if lower, 10%. Further amendments are made to the 2012 Fees Regulations to remove the exemptions from fees for repeat applications and to introduce a fee for an application under Part 19 of Schedule 2 to the Town and Country Planning (General Development) (England) Order 2015. In addition, provision is made so that where the statutory determination period for a planning application is 8 weeks, a refund of any fee paid may be obtained, under regulation 9A, if the application is not determined within 16 weeks and an extension of time has not been agreed with the applicant The headline fee’s for applications submitted on or after the 6th December will be as follows: £120 for Discharge of Planning Conditions £293 for Certificates of Proposed Use or Development £578 for each dwellinghouse or for a material change if use (below 10 units) Between 10 but no more than 50 dwellinghouses – £624 for each dwellinghouse. No ‘special fee treatment for applications for prior approval under the General Permitted Development Order 2015. The regulations are set out in full within SI 2023 No. 1197 The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2023 [...]
29th September 2023Latest News / Opinion / ViewsThere is a phrase in the lexicon of each and every planning professional in the country that is the ultimate curse! Forget ‘Avada Kedavra’ from the Harry Potter novels and films or Kahn spitting ‘from hells heart I stab at thee’ in Star Trek II. Even mentioning the Scottish play to a Shakespearean actor does not come close! This one curse in planning law and practice will get everyone’s back up and once uttered there is often no reputational return! Planning Precedent! (Herein referred to as PP in order not to upset planning colleagues) There is nothing in the world of planning law that is more incorrectly used and relied upon that this simple term and nothing will destroy a developers reputation quicker than the use of the phrase in front of a planner or planning officer. The term is used as a form of panacea to all ills by developers, architects and even estate agents to enshrine the idea that all cases must be considered alike. It comes from the idea of legal precedents when a case’s circumstances and legal requirements match those of a contemporary legal dispute; unless a party can demonstrate that it was incorrectly resolved or that it differed materially, the precedent will typically govern the outcome of a later similar case. It is often used by those who utter the curse to somehow hamstring the LPA. Those who use it believe that if the LPA allows a form of development in their area they have effectively allowed that form of development everywhere in their area and must therefore allow their planning permission. The use is understandable if the attitude of the developer is “well they got it thirty miles away so I can have it too” The whole concept of PP is, in fact, planner made. When I was trained as a town planner in 2002 we were encouraged to consider whether there was a case for stating that the development would set an undesirable precedent for other such decisions to be allowed. This clumsy set of words that appeared in appeal decisions of the time were always ultimately swept away by the Planning Inspectorate as ultimately the concept of PP essentially flies in the face of planning’s ‘Prime Directive’s’ which are; Planning permission should be granted unless policy or material considerations dictate otherwise and Every planning permission must be considered on their own and individual merits. Ultimately a search of the case law does not reveal a judicial direction on the existence of PP because it cannot in fact actually exist. That is why, when cited, a developer or other professional must be corrected stating that PP does not exist or PP is not a material planning consideration. So what is person actually trying to get to when they use the PP curse? What developers hope PP is, is actually two discrete and much more open principles of decision making behaviour and the principle of consistency. Lets deal with the latter first. The Principle of Consistency In planning law, there is a “principle of consistency” in decision-taking. The principle is not that like cases must be determined alike, but a decision-taker ought, when considering a materially similar proposal, to have regard to the principle of consistency, to have good reason if deciding to depart from the previous decision, and to give reasons for any such departure. The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency . Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.” Two further recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise. The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre. Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.” In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier. The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date. These two further court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable. Consistency is still not the panacea than PP pretends to be. The principle importantly requires the decision maker to consider previous planning decisions but importantly, unlike the PP curse, they are not bound to them and can deviate from them if material considerations dictate otherwise. In essence then the decisions have to be so similar in all respects for the true principles of consistency to take effect and for us to get close to the effect of the PP curse. Decision Making Behaviour The concept of decision making behaviour builds on the principles of consistency and applies them over a number of applications within the same LPA area. This requires a much greater understanding of the likes and dislikes within a particular planning authorities area and gives some credence to the old adage that a local town planner may be better informed about the LPA’s decision making behaviour than a planner that operates nationally. However in today’s modern age of planning data online this can easily be established. Decision making behaviour is often identified as an rational or irrational dislike for specific forms of development. In Portsmouth in the 2000’s it was the Hip-to-Gable roof conversion that was very much on the Council’s hit list. They refused almost every single one and won almost every single appeal. It stemmed from an established hatred of that particular form of development based on the fear that it would disrupt the symmetrical appearance of pairs of semi-detached properties within Portsmouth’s regimented suburbs. This policy only died when the government altered the householder permitted development allowances and allowed for hip-to-gable developments. Nominally decision making behaviour is negative however it can come from a policy impetus that is ultimately positive. Croydon, between 2015 and 2018, displayed a decision making behaviour that perversely sought to demolish houses within the suburbs and replace them with small blocks of 7 and 8 flats. This was a politically motivated policy to assist the Council in disposing of some of their own stock. The positive nature of this policy meant that every developer in south east London appeared to be gravitating towards Croydon in order to buy a suburban house and turn it into a small block of flats. Policy and behaviour were confused and the PP curse was used on a number of occasions. Ultimately the behaviour changed and a number of developers were left carrying the corpse of existing or prospective developments that had been bought at an overinflated price or where the GDV no longer represented the reality of the situation. Ultimately the decision making behaviour lead to a housing market in Croydon that was no longer sustainable. But at least the Council were consistent! As a town planner I would dearly love for PP to be deleted from the English language and I spend time correcting clients and others that the term has no effect in law. Hopefully by this article you dear reader will also understand why PP is just not to be used and why the ultimate curse is ultimately…pointless! By Jon McDermott Image of Lord Voldemort attributed to Warner Home Video / Warner Home Video [...]
12th September 2023Latest News / OpinionI have a dilemma at the moment! We are looking at a scheme for a client and the architect is insisting that we are going to make a Section 73 application to vary the original planning permission. Now, there are three legal ways to amend a planning permission that has been granted and is still extant. Section 96(a) applications fall into the ‘non-material alteration’ space and are for very minor changes that do not alter the material considerations applied to the scheme. Whilst there is no statutory definition of a non-material amendment you can think of it as something that no one would actually notice. Where these modifications are fundamental or substantial, a new planning application under section 70 of the Town and Country Planning Act 1990 will need to be submitted. This is exactly what it says it is. A new application with everything to be considered again but with the reassuring fallback of the original application. Section 70 applications are for where you are increasing (or decreasing) the number of units or changing the description of development. Between S96(a) and S70 of the Act is Section 73. Section 73 of the Town and Country Planning Act 1990 allows you to apply for planning permission for a similar development but not subject to the conditions imposed on the original scheme. A new planning permission is created as a result and the two schemes exist together within the planning history and at the same time as twins. You may, of course, then choose which twin you go with as they are both valid approvals. When Considering a S73 the Council is only allowed to consider the changes you propose rather than the totality of the scheme again. This is the dilemma I find myself in! The Government’s Planning Practice Guidance advises that In contrast to section 96A, an application made under section 73 of the Town and Country Planning Act 1990 can be used to make a material amendment by varying or removing conditions associated with a planning permission. There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission. Provisions relating to statutory consultation and publicity do not apply. However, local planning authorities have discretion to consider whether the scale or nature of the change warrants consultation, in which case the authority can choose how to inform interested parties. Planning permission cannot be granted under section 73 to extend the time limit within which a development must be started or an application for approval of reserved matters must be made. Section 73 cannot be used to change the description of the development. The government guidance on the use of S73 was the subject of the recent High Court decision of Armstrong v Secretary of State for Levelling-up, Housing and Communities & Anor EWHC 176 (Admin). Mr James Strachan KC, sitting as a Deputy Judge of the High Court, found that the planning inspector erred in law in his interpretation of the scope of section 73 and quashed the appeal decision. The Deputy Judge in his decision clarified that: “Section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission. But provided there is no inherent conflict or inconsistency with the “operative part” of the planning permission – in this case the construction of a single dwelling – the planning merits of that proposed change can be assessed on its merits. No such assessment has occurred. As part of that assessment, the decision-maker will be able to consider whether the proposed change (fundamental or otherwise) is acceptable or not in planning terms, taking account of any representations received.” The operative part of the planning permission being the description of the development granted. In the Armstrong case that was the construction of a dwelling on the site for which the Deputy Judge found that the redesign of the dwelling would cause no conflict. S73 applications have a marked benefit in terms of the planning fee associated with them. The Fee’s guidance is clear and states: What fees are payable for applications to vary conditions? In order to vary the terms of a condition or to implement a planning permission without an imposed condition, it will be necessary to make an application under section 73 or 73A(2)(c) of the Town and Country Planning Act 1990. The fee for an application under section 73 or 73A(2)(c) is a flat rate fee of £234 as set out in paragraphs 5 and 6(b) of Part 1 of Schedule 1 to the 2012 Fees Regulations. More than one condition at a time can be removed or altered on the same application without any multiplication of the fee to be paid. So whilst it is clear that S73’s can go far beyond the scope of the minor amendment they were meant to address it is also clear that one cannot sneak in more dwellings or change the description of development using them. Dilemma solved then! Well, not quite. As is my clients wish they want to increase the number of dwellings from 1 to many and alter the components associated tin the application they will need to step away from the flexible options on offer and bite the bullet of a full planning permission. At least the fallback position is in place. [...]
4th September 2023Latest News / Opinion / ViewsOn the 26th January the snappily titled Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2023 came into force in England. Buried within the order was an amendment to part 4 (temporary buildings and uses). Class BC – temporary recreational campsites. This new allowance builds on the former 28 day temporary change of use of land provisions to provide for a discrete allowance on ANY land for the provision of a temporary residential campsite. The allowance provides for no more than 50 pitches and any moveable structure reasonably necessary for the purposes of the permitted use. This can include a movable toilet block, movable shower block, or movable office. These new campsites are not allowed everywhere. The provision of ANY land excludes the logical places that you would not want to see a campsite such as; on a site of a scheduled monument; in a safety hazard area; in a military explosives storage area; on a site of special scientific interest; on a site of a listed building and for the siting of any caravan except a caravan which is used as a motor vehicle designed or adapted for human habitation. Basically statics are not allowed but touring caravans are! The conditions of the use make clear that this is a prior approval allowance but with only matters of compliance and flood-risk considered! The developer must make on-site provision for users of the campsite of toilet and waste disposal facilities and needs to submit a plan showing how these facilities will work together with the dates that the dates on which the site will be in use. The LPA will be required to notify the Fire and Rescue Service and the EA if the land is within Flood Zone 2 or Flood Zone 3. Finally this prior approval only last for a calendar year. Developers must re-apply every year before commencement of development in each calendar year. Like with most of the PA’s within the GPDO the application is subject to the 56 day rule putting pressure on the LPA to understand what is going on and reach before they run out of time. This is especially pertinent as the objections they can raise appear exceptionally limited. WOW! Whilst the lack of joined up thinking at the Department for Levelling Up, Housing & Communities is profound with its present war on SA and proposed PD for Hotels to Resi this actual PD allowance provides for new campsites and caravan sites to be developed each year by landowners and developers to somewhat reinforce the tourism industry! Once you have run one of these 60 day cycles and demonstrated that you know what you are doing without substantial harm it is only a short hop for a little more time and…permanency! Granted through a planning permission off the back of a prior approval allowance. Mansell vs Tonbridge and Malling all over again! I, for one, am going to be considering this new allowance with interest and see how it is applied in practice. [...]
20th August 2023Latest News / NewsThe recent fire and subsequent demolition of The Crooked House public house at Himley in theWest Midlands has resulted in much anger, but unless criminal intent can be proven mayultimately considered a fait accompli. Details of the building’s demise have been followed by the national media and certaininformation has come to light. Although built in the 18th century the building does not appear to have been listed. It hadacquired its unique appearance due to subsidence from underground mining during the 19thcentury but was saved from demolition by the addition and subsequent strengthening ofbuttresses. In recent weeks it was sold to an adjoining landowner, who we are told wanted it for alternativepurposes. Within days of purchase however the building went up in flames. This is beinginvestigated by the police as possible arson. Almost immediately the building was demolished, without planning permission and according tothe Council contrary to its advice to only demolish the upper floor which was considereddangerous. The Council, faced with local and national uproar, is investigating what action it cantake. At present suspicion falls on the new owner, although proving this may prove difficult althoughthe timing of the fire and the speed at which the building was demolished would appear toindicate a premeditated act. Given the pub’s location in the countryside it is unlikely that the Council would grant planningpermission for any significant redevelopment so the motive for the loss of the public house isquestioned. Proving who was responsible may be difficult to prove in court and there is little likelihood orrequiring the public house to be rebuilt. The case once again flags up weaknesses in theplanning system where unscrupulous developers cover their tracks to gain something whichmay not otherwise have been granted. Removal of protected trees or travellers setting up homeon greenfield sites are all too common and may take years to resolve if ever. Given the local outrage one may question why the local authority had not sought to get thebuilding listed or at least designated a Conservation Area, both of which would have afforded adegree of protection. Undertaking work without planning permission is not a criminal offence which opens it up topotential abuse and this case may prompt calls for greater control. I have been told that in France where suspicions arise due to buildings being demolished or burnt down the site cannotbe redeveloped for five years, thus removing any financial incentive. Whether true or not it is the sort of legislation which is needed if we are to protect our heritagefrom similar events in the future. By Keith Oliver [...]
31st July 2023Latest NewsMarching our way to September when the last VICTORY day of 2023 will be held in Exeter, Devon! It will be exactly a year since we did the first VICTORY day in Camden in 2022 and this will be our 5th running of the day since that first sailing. Here is what you can expect VICTORY fully updated for nutrient neutrality, biodiversity net gain, new use classes and new permitted development allowances that are being consulted upon right now! NONE of the normal NLP or upsell that the PropEd industry is known for. A process that we use day to day in each one of our cases to get to the high success rate that we are known for. If you want to join us for the last sailing of the season then go to the victory page and sign up! All hands, brace for action! [...]
25th July 2023Latest News / ViewsPresumably under instructions to show the Government is fulfilling its promises on housing,Michael Gove is proposing to relax the planning system still further to allow more town centrepremises to be converted to housing, and to develop brownfield sites.This despite much of thecountry being under a housing embargo and a general opposition to new housing because ofthe lack of infrastructure. The Government has a target of 400,000 new homes per year. A target it has consistently failedto achieve. Margaret Thatcher created much of the problem by not allowing Councils to buildnew housing while also making it easy for tenants to buy their houses, effectively turning off thetaps while removing the plug. This is especially so in the affordable housing market. The expectation was that the private housebuilders would pick up the slack, but despite theirprotestations they have no interest in flooding the market with new houses which would reducetheir profits. Although some provision has been made for Councils to build houses it is to little to late.In recent years embargos due to impacts on wildlife, water and power supplies have effectivelystopped development in much of the country. Where development has gone ahead it does little to persuade the public to support moredevelopment. The re-use of empty buildings makes a good sound bite but has resulted in manycases of poor quality housing, often with minimal parking provision and no regard to thelocation. Michael Gove sees taking more control away from local councils as the solution, but in reality islikely to alienate the public still further unless some of the problems of the last ten years can beaddressed. Mr Gove is seeking to promote a major development in Cambridge as an example of the wayforward, notwithstanding that the area has severe water supply problems. Even so Mr Govebelieves he can persuade local decision makers to approve the scheme. This despite localsseeing the rivers running dry and the likelihood of water rationing in the future. Who in their rightminds would vote for proposals that will lead to the taps running dry? To achieve this the Government proposes to send in teams of planners. Anyone who has madea planning application will now that Councils have too few staff and are unable to fill vacancies.Thirty years of cutbacks, redundancies and early retirement has cut deep into the bone of theservice. There is no large pool of planning officers to draw on. Finally in a throwback to 2008 the Government intends to relax the rules on house extensions. Itwas not clear then how this helps house building or expands the economy and no explanation isgiven now. This was the area where planning officers first cut their teeth. Do we expect them to comestraight from college, usually with a geography degree, and expect them to deal with majorhousing schemes? By giving councils the role of arbitrator between neighbours it takes potential cases away fromthe courts. One can only assume that with a General Election looming the Government is dusting of oldpolicies to try and appear to be addressing the problem of housing while in reality building moreproblems for the future. By Keith Oliver [...]
8th July 2023ViewsThe country is in the grip of a housing crisis with a need for new housing but an inability to provide the amount it requires. This is in part due to not enough houses being built arising from an insufficient workforce, restrictions on where houses can be built, and local opposition due to inadequate infrastructure. One often quoted solution is for better design. The Government’s National Planning Policy Framework (NPPF) devotes a whole section to design with the implied suggestion that well designed development will be more likely to gain planning permission and more quickly. Notwithstanding that, every planning authority will indicate within its adopted Local Plan that it expects good quality design to many poor developments are approved. Of course there is no definition of what is good design. Even where Council’s provide Design Guides they are usually very basic and often ignored. It is a failing of the planning system that since its inception in 1948 we have witnessed a fall in the quality of the houses and commercial buildings which have been approved. From identical house types from Land’s End to John o’ Groats, and stuck on features to commercial properties which are little more than tin sheds, our legacy is pitiful, based on short term profit rather than providing buildings we can be proud of. While Council’s and the Planning Inspectorate must shoulder much of the blame, the building industry must also take some responsibility. Profit comes first meaning the minimum one can get away with in the quality of design and materials. Even where time is spent negotiating good design the actual build is not overseen and important details may be toned down or omitted. Some of this is due to the lack of design training among professionals. I have met too many architects and draughtsmen who do not look beyond the confines of the site. While their schemes may be well-designed in themselves they pay no regard to the context in which it sits. This may be because the client wants whatever the latest fashion may be, but surely part of the role of an architect is to guide the client not blindly draw what they ask for. Even if we could get agreement on what is good design it is not the panacea to the housing crisis. Many buyers would put design well down their list of requirements, being guided more by cost, location and internal features. For neighbours they are more influenced by the day to day issues of increased traffic, lack of health services and strains on existing infrastructure and are not going to accept development in their community just because someone deems it good design. There are many obstacles to building more houses, but while design should not be overlooked it is not an easy solution to the deep-rooted problems the country faces. [...]
10th May 2023ViewsTPX attending the LPOC Reception! It was a pleasure for two team members to attend the LPOC Reception at the House of Commons, Westminster on 24th April. This event included people such as Craig Mackinlay MP at the House of Commons, Rachel Maclean (Minister for Housing), and Lord Parkinson (Heritage Minister) who discussed the challenges of obtaining approval for renovation or restoration work and improving energy efficiency. They agreed on the need for simplified planning rules and initiatives to balance preservation with energy efficiency. Lord Parkinson reassured attendees that owners’ interests were being addressed across all government departments. Between 2007 and 2022 the number of full-time Conservation Officers fell from 1,224 to 526 Craig also recognised the lack of specialist contractors and the high material costs associated with maintaining and improving a listed property, particularly the challenges this will present as the government encourages owners of all homes to improve energy efficiency.Rachel discussed new initiatives aimed at helping owners and tenants of listed properties, including a consultation on how to make it easier for businesses to operate out of listed buildings. Both Tanya and Simon from TPX attended this event and asked the following: “What is being done about the lack of planners and conservation officers. Also, She said about conservation officers being so unflexible and not seeing the bigger picture of listed buildings’ custodians.” tANYA ASKED “What are the plans to address how EPC’s are assessed given the results are disproportionally skewed to the cost of energy unit to the user rather than device energy efficiency and more carbon-friendly sources. The problem is even more acute for those who own listed buildings.” simon asked [...]
14th April 2023News / ViewsWe are pleased to announce that we have moved the location of our TPX office! After some fantastic years at St Georges Business Centre, we are looking forward to the new surroundings at the University of Portsmouth’s – Technopole Building. The Technopole Building offers us a state of the art working facilities, making the perfect environment for us to grow our business. Technopole is located conveniently close to the M275 (the main road leading into the city) and we’re thrilled to have it as the new home of our business. All of our contact information remains the same. Our new location: Room 204 Technopole, Kingston Cres, North End, Portsmouth PO2 8FA [...]
13th March 2023Latest News / OpinionChange of use from C4 to Sui Generis is a very common planning application that is submitted to the LPA’s in a big number.  Most of them getting rejected mainly on the basis of impact on the living conditions and amenities of the occupiers and neighbors.  What is a C4 HMO ? Use Class C4 covers small HMO’s being occupied by between 3 and 6 unrelated persons. The use class is predicated upon persons resident and not on the number of bedrooms within the building What is a Sui Generis HMO?  Sui Generis HMO is shared houses occupied by 7 or more unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom. After reading the above two statements, what I have understood is conversion of a C4 property to Sui Generis wholly depends on the ”Number of Occupiers” of the property and not on the number of bedrooms or other amenities provided by the property.  This raises a question: why does this require a planning permission? Is it considered material change of use?  When the original guidance was brought out in 2010 the Government made clear that the change of use from a C4 to a Sui-Generis HMO was to be decided on a case by case basis and given the fact and degree of the change of use. The government went so far as suggesting that one or two additional persons within a C4 HMO may not actually result in a change of use requiring planning permission.  The issue is somewhat more basic than this. At planning school we as planners are told one simple truth.  “A change of use is where you move from one use class to another” As a profession we are set up from the start (Day 3 to be precise) to see changes of use as binary. It either is or it isn’t because of use class. This is because the Use Classes Order itself is a wholly permissive document purportedly telling us what falls into each class so that we can judge whether a ‘Material Change of Use’ would happen. The problem is that there is no legal definition of a Material Change of Use other than the view of the decision maker based on a fact and degree judgment.   In recent appeal cases the knotty problem of whether the addition of a person resulted in a material change of use has reached the annulled halls of the Planning Inspectorate and they are consistently ruling in one direction.  No, it is not.  Recent appeals have focused on the truth of the matter rather than a blind assessment of the Use Classes Order, much to the chagrin of the Planning Committee which was recently accused of having a shockingly low understanding of planning law and practice.  Lets think about that truth for a minute.  Development is judged on the ‘description of development’ in S55(1)(2) and (3) of the Act.  We don’t need planning permission for the addition of bedrooms under S55(2) if these works are wholly internal. The use is predicated upon people and not bedrooms and so just adding rooms to an existing HMO does nothing.  Then we move on to the harm in the public interest, i.e. the observable effect.  Adding more people to an HMO well yes that adds more people. But when does that become noticeable?  Would you honestly be able to tell if one more person moved into a family home? Most likely not! Whats the difference in one more person in terms of noise or car parking or amenity space needs or refuse? So why is an HMO so different from this reality. In the main HMO occupiers have less reliance on cars, they generate the same amount of refuse and potential noise and the alterations to create an HMO often improve the existing energy and noise abatement characteristics of the building. Yes there may be one more person living there but in terms of the effect itself this is negligible.  In one of the recent planning appeals for three properties for change of use from C4 HMO to Sui Generis HMO the inspector concluded just that. The addition of 1 more occupant to the property would not require any external alterations nor indeed a material change of use that would require planning permission. After the site visit the inspector was also damming of the Council’s approach stating that the amount of communal living space was acceptable and meets the requirements of the National Space Standards.  And this is a growing trend.  We have been tracking similar appeals in England where Inspectors are correctly asking the question whether a 6 to 7 or 6 to 8 person HMO needs planning permission from the LPA as the works and the effect do not cross the threshold for development needing planning permission.  I think it’s time to rethink the requirement of planning permission for a conversion for 6 bed C4 HMO to a 7 bed Sui Generis. When it is well understood the addition of 1 more occupant does not have any demonstrable impact on the living conditions, noise, parking or amenities. This in its own would free up a substantive amount of workload within an already crippled system and allow planning officers to assess real development in the public interest.  By Shivam Sagwall [...]
9th December 2022ViewsIt is the proper time to study the ‘planning guarantee’ as the Local Planning Authorities (LPAs) are taking ever more time to decide on the application. I understand the bulk of the work of the local planning officer, including their capacity and skills to do all the work, but still, they have the responsibilities and liabilities to adhere to this policy: Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (hereinafter “the 2012 Regulations”). “Refund of fees in relation to planning applications not determined within 26 weeks9A.—(1) Subject to paragraph (2), any fee paid by an applicant in respect of an application for planning permission or for the approval of reserved matters shall be refunded to the applicant in the event that the local planning authority fail, or the Secretary of State, in relation to an application made under section 62A of the 1990 Act fails, to determine the application within 26 weeks of the date when a valid application was received by the local planning authority or the Secretary of State, as the case may be. (2) Paragraph (1) does not apply where— the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period; the Secretary of State gives a direction under section 77 of the 1990 Act(1) in relation to the application before the period mentioned in paragraph (1) has expired; the applicant has appealed to the Secretary of State under section 78(2) of the 1990 Act(2) before the period mentioned in paragraph (1) has expired; or any person who is aggrieved by any decision of the local planning authority or the Secretary of State in relation to the application has made an application to the High Court before the period mentioned in paragraph (1) has expired. (3) In this regulation “valid application” is— where the application is made to a local planning authority, to have the same meaning as in article 29(3) of the Development Management Procedure Order; where the application is made under section 62A of the 1990 Act, to have the same meaning as in article 29(3) of the Development Management Procedure Order (but with the references in that definition to articles 5, 6, 8 and 12 of that Order being construed as references to those articles as applied by a development order made pursuant to section 76C of the 1990 Act).” It is not normal for me to scrutinise the application of government policy however I now have a case which has lead me to look further into it. The planning application was validated on 23/05/22, and the 26th week period for non-determination is on 21/11/22. The law implies that the 26 weeks will start when the local planning authority receives a valid application. I do not know if the case officer is aware of Regulation 9 of the 2012 Regulations of the Town and Country Planning Act (TCPA) 1990 “Refund of fees in relation to planning applications not determined within 26 weeks”. I am also not keen to know if there are LPAs that returned the applicant’s payment for non-determination of the application. Paragraph 9A does not apply if the applicant and the LPA have agreed in writing that the application is to be determined within an extended period. The LPA’s case officer has not asked for a time extension even though the decision’s due date of 18/7/22 has been passed. On the face of it then the fee is due for a refund. However what happens if the council and the applicant agree an extension? In the case of Provectus Remediation Limited vs Derbyshire County Council the High Court ruled that “A refund of a fee paid at the time of a planning application should be made only if a period of 26 weeks has elapsed from the receipt of a valid application and that application has not been determined by the local planning authority. In my judgment, if the applicant and the local planning authority agree in writing that the 26 week period should be extended the planning fee paid by the applicant does not fall to be refunded even if the local planning authority fails to determine the application within the extended period.” The above statement makes clear that my client is liable for a refund. However, my client is not interested in the refund. He wants his application to be determined. This then demonstrates the one sided nature of the regulation. If he demands the refund then application will then be set aside as it will be out of time and not a priority. If he agree’s an extension then the LPA may determine the application in the time period given but he also loses the protection of the planning guarantee. The court decision on Provectus Remediation Limited vs Derbyshire County Council on 8 June 2018 is a good example of the proper interpretation of Regulations 9A. But, in my opinion, is not fair to the applicant because if the council asked for a time extension and the applicant agreed, there is no time limit on the determination of the application. It is just a one-time extension agreement between the local authority and the applicant, and the local authority can have unlimited time to determine the application, and the applicant’s fee cannot be refunded. The applicant should think twice before agreeing to the time extension, but in my opinion and in my experience, the applicant does not have the choice to disagree because no policy or law protects the applicant once they disagree. I can say that this Regulation is one-sided once the applicant agrees with the time extension. How unfortunate! By Anchie Balbido [...]
23rd November 2022ViewsThere is no doubt we are in a housing crisis but we are getting mixed messages. Nationally theGovernment aims to see 300,000 houses built per annum by 2025. Meanwhile at the local levelresidents oppose new development which they argue will swamp existing towns and villagesand lead to the loss of valued countryside and overstretch medical and other public services. For much of the country there is a moratorium on housebuilding as pollution of our rivers andcoastal areas and pressure on heathlands restrict where we can build. Many towns and cities,despite being identified for further growth by Central Government now find themselves withnowhere to build either due to no land being available for housebuilding in their administrativeareas or having in the past drawn Green Belts too tightly. The result has been a surge in high rise developments, increasing housing densities, oftenwithout amenity space other than balconies and with limited on-site parking. The implications for personal well-being are too dreadful to consider. If lock-down during thepandemic showed us anything it was the need for gardens or easy access to open areas. It is alesson which seems to have been quickly forgotten by our political masters, but which resonateswith local communities. Even where developers manage to find sites local planning authorities seem to go out of theirway to be obstructive with a growing list of requirements and charges which at best delaydevelopment and at worst make schemes uneconomic. When I came into planning it was understood that the role of the planning authority was to workwith developers to ensure that the right type of development took place at the right time and inthe right place. Schemes were only to be refused where they caused demonstrable harm. Today local planning authorities seem to see their role as being to stop development. This is inpart due to too many experienced planners leaving local authorities either through earlyretirement, voluntary redundancy or attracted by better pay and conditions in the private sector. While we all accept there is a national housing shortage, unless Central Government canunblock the barriers to growth, whether physical or political, the problem will still be with us formany years to come. By Keith Oliver [...]
14th November 2022ViewsEveryone knows there is a housing crisis unless you have been living under a rock.But just how bad is it in Cornwall? Truth be told, it is bad, very bad in fact it is utterly dire, soul destroying, that kind of ‘dire’. Why? We know Cornwall has always had a plethora of holiday lets & second homes. Cornwall has alwaysbeen popular for stay-cations. But, Covid ramped it up and many took advantage of SA andshort-term holiday lets. Word quickly spread and soon landlords took advantage of the‘need’ to cater for the influx of stay-cationers and soon began giving notice to their tenantsand turning their long- term rentals over to short term holiday lets advertised on AirBnb. ‘Homelessness’ became an issue of biblical proportions. Literally 100’s of viewings for oneproperty available for long term lets. Businesses began to suffer as they couldn’t recruitfrom outside their immediate environs because there was no accommodation to housestaff. Tenants couldn’t up-size or downsize because of the shortage of property. Those fewlandlords that hadn’t opted for the short term lets put their rental prices up as the demandnotched up. Even one bed flats became unaffordable with sky high prices and as rare as theproverbial rocking horse s**t. So now Cornwall has a housing crisis and Cornwall Council are in a state of flux and lookingfor ways to clamp down on any additional properties becoming short term lets. Some ‘resorts’ like St. Ives residents voted to take action against second home ownership.By inserting a “principal residence” condition into the sale of new-build properties, amechanism known as Policy H2, the St Ives Area Neighbourhood Development Plan hopedto curb the influx of investment buyers, while providing better and more sustainablehousing prospects for locals. However, the residents soon realised that the town has been sucked out by holiday lets inthe last couple of years because H2 doesn’t stop existing properties from being turned intoholiday lets. They also faced issues such as no-fault evictions . Now they realise they should have tackled the existing market head on.The average sale price of a home in the heart of St Ives has risen from £336,153 in 2016 to£556,493 this year. Local estate agents attribute some of that increase to heighteneddemand throughout the south-west since the Covid pandemic. Some residents are callingfor intervention at national level and are seeking a new planning use class for non-permanent occupancy, so any person wishing to convert an existing property frompermanent to non-permanent use would need to apply for planning permission. Would that work? To some degree yes it would. A new class use would certainly mean anyone who wanted tochange to a short term holiday let would have to justify it in terms of sustainability andtourism needs. The LPA could introduce an Article 4 similar to those that operate HMO’s Article 4’s where only so many are allowed within a specified radius. This would stoplocalised saturation. However, currently, there is no such legislation governing the whole of Cornwall but there isa need and a mood for it. We definitely need clarity. We absolutely need a separate Class use for short term lets. Thedisparity between differing LPA’s between placing short term lets into either C3 or C1 needsremoving and a new Class Use creating. This would go some way to stopping anymore jumping on the ‘lets make a quick buck’bandwagon. That, alongside speedier determinations and an upturn in house building wouldhelp greatly. Until that happens, Cornwall is grinding to a halt, jobs are available but only to those livinglocally. Businesses are having a hard time recruiting but the homeless problem won’t beresolved short term. Undoubtedly, it’s time some urgent action, for Cornwall to step outside of its comfort zoneand bring in policy to only allow holiday lets on new builds not existing housing stock andmaybe, those adopting this business model should consider a less ‘harmful’ strategy andone that does less damage to the escalating housing problem? By: Helen Morris-Ruffle [...]
28th September 2022Latest News / ViewsOn Saturday 24th of September 2022 I stepped in front of the Camera and an audience of 25 property investors and summarised our journey to VICTORY like this: 20 years experience, 2 years writing, three separate CPD accreditation’s and one crowdfunder campaign and VICTORY kicks off for the first time at 9am! Jonathan McDermott – Just before VICTORY kicked off! 20 years is a long time to spend in any profession, let alone Town Planning! It is fair to say that planning is one of the most thankless tasks within the building industry. Planners are habitually wrong to someone they interact with! If they approve a planning permission then they are hated by the neighbours. If they refuse an application then they are blocking progress within an area. Over the last 20 years I have seen more and more cases of developers falling into the traps laid for them within the planning system and all for no good reason. The planning system itself is an approval engine. You just need to know how to operate the machine in the most efficient way possible. That’s what VICTORY is all about. Its and instruction manual to get the planning machine to effectively deliver what its meant to deliver in the most efficient way. It’s also designed to take into account the differences between the different planning jurisdictions of Great Britain and the tendency for the planning system to be bent or broken by respective governments over time. Most of all VICTORY is made to allow you to win the game. Planning is indeed a game and so to win the game you must know the rules! There is no sense in walking onto a rugby pitch carrying an golf bag so why would you play the planning game in any other way than how it is meant to be played? Ultimately we made VICTORY to be a self contained as possible. Giving you all of the tools at the outset in order to critically look at, appraise and review sites with a view to what would be possible if you played the game as the planners do. That is the ultimate goal of the VICTORY model. To give you a tool kit to use when playing the game well so you can break the rules like an artist. VICTORY is a CPD Accredited Programme In order to gain accreditation from our partners at The CPD Group we have taken the exhaustive steps of submitting the organisation as a CPD Accredited Training Provider. The Author and Trainer on this Course, Jon McDermott, as a CPD Accredited Trainer. And, finally, the programme was submitted for its own CPD Accreditation which it gained in September 2022.On completion of this programme attendee’s are issued with 8 hrs of CPD Credits Photos from the Day Here is what people were saying about the day “This was a fantastic day. thank you to all involved. I learnt a lot, met old friends and reconnected with my why. I cannot recommend this course highly enough. Many thanks to you and all”Dan H “Thanks Town Planning Expert for amazing this course”Summit A “A double thumbs up endorsement from me for the VICTORY course! Well worth doing to not only refresh ground I had already covered in the past, but there were plenty of new nuggets and info that has expanded my knowledge and that I can apply immediately. Thanks again Jon (and Tanya)!”Don W “Just finished a great day on planning with TPX. Never too old to learn”Trevor W “Smashed it mate, well done.”James B “Thanks Jon and team! Great day of learning”Ross G “Fab day as always with TPX. Thanks very much to all involved but especially Jonathan McDermott and Tanya McDermott for pulling it all together so seamlessly.”Katherine G “A fantastic day, full of immediately implementable knowledge from an expert in his field. No NLP bullshit or further up sells that are normally associated with property courses, just pure knowledge from a top class professional. I believe I gained more from this in respects to increasing my planning knowledge than I did working in the land and planning department of a national house builder at the start of my career. Look forward to working with Jon and the TPX team on future acquisitions. Many Thanks, Dan”Dan S “Fabulous content, lovely positive vibe in the room. Knowing the trades in the room would have been useful for future projects. Maybe networking/ dinner option after the learning. Excellent day as expected. Thankyou!!”Course Feedback Whats next for VICTORY At TPX we want to change the Property Education Sector from the current model to that of Education means Education. That’s the reason why we have gone and achieved the CPD Accreditation for it and why when asked…”where is the upsell?” the simple answer was…”there isn’t one! This is about your education and not our profit margin!” The feedback from VICTORY S1 has been immense and the interest in the programme has meant that we are now planning S2 and S3! We therefore plan to run VICTORY on a quarterly basis throughout the year with the course updated every time to take into account changes within planning practice and procedure. That’s why we number the VICTORY days as seasons, it’s to help us track where we are at and to make sure we are always providing information at the cutting edge. Season 2 – 3rd December 2022, Reading Berkshire For S2 the VICTORY day migrates from Central London and down the Elizabeth Line to leafy Berkshire. S2 can be booked through Eventbrite at the link below and we cannot wait to bring S2 to Reading in December! https://www.eventbrite.co.uk/e/the-victory-plan-masterclass-series-2-how-to-get-planning-permission-tickets-390524016847 Season 3 – The North East! – March 2023 Following the success of S1 we were contacted by The Property Thing who are a North East based networking group from Darlington. We are in the process of discussions with them for VICTORY S3 to travel to the North East for a day in March 2023. Stay tuned to the website for more on this as it progresses. VICTORY needs you! Education for the sake of Education means for VICTORY to change the world we need people to tell us that this is what they want! So, following the example of The Property Thing, the call to action is this. If you want a VICTORY day to head to your part of the UK then contact us at victory@tpexpert.co.uk and we will be happy to discuss the possibility with you. The journey to bring VICTORY to the world has been an eye opener and has revealed more about our property education sector that I ever wanted to know. At then end of the day this is just the beginning for VICTORY and hopefully we can make a difference to those that attend and prove that education means education! [...]
30th June 2022Latest News / NewsIt is fair to say that planning is getting harder. The days of a cordial discussion with officers at the LPA’s we work with are long gone and today the role of the planning consultant is more focused in tempering the almost natural desire of applicants to maximise every development opportunity. Maximisation is all well and good in the right circumstances however this can often lead to multiple applications and a trip to see the Planning Inspector when dealt with incorrectly. The issue with the maximisation theory always falls on the simple fact that in order to do so you must inevitably break a rule or two. You must try and push what is possible beyond the thin ice and into something that is often described as over-development. So what is the cure to this? The first letter in our VICTORY model is V for Verify. The verify checkpoint is there for developers to establish whether they are following the rules inside a rules based system. For most it is hard to believe that planning is part of a rules based system however in order for any system to operate it is based on a presumptive set of rules. In planning in England these stem from the National Planning Policy Framework (NPPF). The Council’s own rule book, their core strategy or similar, must be demonstrably compatible with the NPPF in order to pass scrutiny. Following the rules gains greater weight and clarity within the proposed Levelling Up and Regeneration Bill 2022 which at section 83 proposes to establish in law the primacy of the national development management policies over any local policy with emphasis on the national first approach. Section 84 of the bill then goes on to establish the basis for the National Development Management Policies (NDMP) themselves as a wholly separate sub-set of the National Planning Policy Framework. Ultimately this focus on a national (England only at least) rule book is there to achieve two fundemental objectives. Firstly, the new NDMP is designed to reduce repetition that occurs in every Local Planning Authority in England. At present every local plan has ostensibly the same policies in them governing design, heritage, development in the countryside, transport and town centre development. The idea behind the NDMP is to redirect the production of these policies to the Secretary of State of the day rather than the planning policy teams at the individual LPA’s. Secondly, and most likely, is the desire by Government to create consistency in decision making across England and the most effective way to do that is to reduce local discretionary decision making to matters that are wholly local. Variations in decision making from authority to authority on matters that are outlined in full within the NPPF has created a culture of decision making where the ways applications are treated in adjoining boroughs differs wildly. This brings me to the salient question at the heart of this article. In planning is boring the new sexy? is simply following the rules the new way of doing things because the time for innovation in planning is coming to an end. Let us take Croydon as an example. The London Borough of Croydon attempted to boost its housing supply by innovating a new rule. Its landmark Suburban Design Guide Supplementary Planning Document encouraged focused intensification within the borough by, inter-alia, taking large family homes and redeveloping the land to form blocks of 7, 8 and 9 flats. The result was that whole sites were accumulated creating a massive oversupply of 1 and 2 bedroom dwellings whilst the supply of three bedroom houses dwindled. In 2021 the LPA brought its new Local Plan into force which had to put the brakes on this landmark policy seeking to protect three and four bedroom family homes from redevelopment or conversion to HMOs, reinforcing the need for all new schemes to deliver at least 50% 3 bedroom homes or better and driving up the need to provide on-site car parking. Today the short term innovation of the SPD is nearly at an end. The present powers-that-be at Croydon have voted to remove the SPD in its entirety as the borough seeks to recover its housing market. The new sexy form of development in Croydon is not a block of flats ,of which there are presently 834 flats on the market right now on Rightmove, but is instead the boring and vanilla family home of which only 204 three bedroom houses exist on the market with prices ranging from 250k to 800k. Market demand today is for a three bedroom family home and not the mass of flats presently on the market. So what is the answer? The NDMP and Bill tell a very clear story. The new way of planning is going to be following the rules first and innovating second and not the other way around. As consultants we are seeing the result of that today with policy compliant decisions being those that LPA’s struggle to refuse or defend at appeal and those, more innovative, schemes being those that take greater scrutiny. Knowledge of local and national policy at the earliest stage becomes a deciding factor in site selection. In the future who you know at the LPA will be less important than how well you know from the National Policies. by Jon McDermott [...]
19th May 2022ViewsWell we have had about a week to poor over it and had the benefit of analysis from some very learned individuals. Here is our summary of what the Queens Speach means for planning in England. That is assuming the government can get it through! On 11 May 2022 the Government introduced to the House of Commons the Levelling-up andRegeneration Bill and the Levelling Up and Regeneration: further information policy paper. Both are designed to make provision for making changes to the way the established planning system works. These propose very Conservative (with a Capital C) changes to the system that will feel friendly to the Blue areas of England. Planning Data The Bill introduces the concept of planning data and some broad definitions of what is it includes. It also prescribes a route where a faliure to comply with a planning data request from the LPA will render the whole submission null and void. The Bill proposes regulations for the provision of public notices and the information that LPA’s must make avaliable to the public and in what form. LPA’s must use approved software (by the SoS) for the collection and storage of Planning Data hence the days of weird websites and ‘local solutions’ are numbered. Development Plans The Bill reinforces the primacy of national development management policy over local policies and where there is a dispute weighs heavilly in favour of national policies first. A new definition of national development management policy is to be introduced and so this foreshadows the SoS designating a new National Development Management Policy Document which will set out national policies on issues that apply in most local authorities. The Bill stipulates that determinations must be made in accordance with the development plan and NDMPs unless material considerations strongly indicate otherwise. The primacy of policy over local discretionary decision making therefore returns to planning. The NPPF will be reformed once again (version 4 on its way) and this will include the removal of the rolling five-year housing land supply penalty for Local Plans that are less than 5 years old. Heritage Heritage assets gain further protections with the requirement to preserve or enhance being incorperated within the 1990 Act for the first time. Street Votes The bill introduces the concept of street-votes which reads very much like an extension of the Local Development Order powers of the early 2000’s. The street vote powers would allow residents on a street to bring forward proposals to extend or redevelop their properties in line with their design preferences. Crown Development This, on the surface, appears to be a modest re-introduction of Circular 18/84 allowances for crown development that is considered to be of national importance. Minor Variations in Planning Permission This introduces new powers to amend planning permissions in limited circumstances to providegreater flexibility following recent caselaw. The new provisions will allow an applicant to make “non substantial changes” to a permission, “including descriptor of development and conditions”. Development Commencement notices A commencement notice will be required before any work is commenced on site in accordance with a planning permission. This essentially fixes the gap in the current legislation and removes the need for LDC’s on applications that have been implemented. Completion notices This fixes the gap within legislation allowing LPA’s on uncompleted sites to issue a notice specifying when the work must be finished. After which date the planning permission for the unfinishedparts will cease if the work is not completed. Enforcement Much of the enforcement section of the bill is a big fix of discrepancies and weaknesses within the Act. The main points are: A universal time limit of 10 years for all development;Enforcement warning notices for approvable development; Temporary stop notice effect increased to 56 days; Removal of ground a appeals where a planning application has been made for the same development; Penalties for delays caused by the appellant is responsible for undue delay in the progress of the appeal; Penalties for non-compliance are also increased; Relief from enforcement of planning conditions in specified circumstances. Doubling fee’s for retrospective applications in line with the current ground a fee. Community Consultation The Bill suggests changes to bring England in line with wales in terms of community consultation as a required pre-submission step for larger forms of development. These provisions are already in place in wales and expected to take the same form. Infrastructure Levy CIL and much of S106 is to be abolished in favour of a national Infrastructure Levy that will replace both with one combined levy. Unlike CIL, IL is to be charged as a proportion of property value. The Policy Paper explains further that it is the Government’s intention indeed to reduce the scale of s106 planning obligations so that s106 agreements will be used: (1) on the largest sites in place of IL (provided that the value of the infrastructure being provided in that way is not less than that which would be achieved under IL); and (2) on other sites where “narrowly focused” s106s will be used to provide onsite infrastructure. The Policy paper also suggests that the Government’s intention is that Affordable Housing will be delivered through the IL. Environmental Outcomes Reports The bill makes provision for regulations to allow plans that have an impact relating to environmental protection to be assessed through environmental outcomes reports. The Explanatory Note suggests that these build on the mandatory information required in the reporting stages of an environmental impact assessment or a strategic environmental assessment. Compulsory Purchase There are minor changes to compulsory purchase proposed. these are summerised as: Publishing notices of the making of a CPO must also be done in successive editions of a weekly local newspaper and on an appropriate website; Changes the minimum 21 day objection period so it must be at least 21 days;Notice of confirmation of the CPO must also be published on a website for at least six weeks;There will no longer be an automatic right for objectors to require a public local inquiry into the confirmation of the CPO; CPO will be allowed subject to conditions. Overall the bill reads and feels like a return to the expert system of the 1950’s. Discretionary decision making gets harder and a more nationalised focus on planning takes its place. Lets see if planning V2022 works for the best. By Jon McDermott [...]
4th April 2022Latest News / NewsIn 2020 I did an Anti-Guru vlog which you can see here: Within the vlog I raised the simple premise, that was nutrient neutrality was going to spread and there was very little to stop Natural England rolling this out. In March 2022 another 42 authority areas were added to the list making the total 72. In the words of the Planners at Darlington Council this caused the following reaction: On 17th and 18th Feb (last Thursday and Friday) we received emails from Natural England and the Chief Planner from the Department for Levelling Up, Housing and Communities that the Borough of Darlington is now part of the Teesmouth & Cleveland Coast Special Protection Area/Ramsar which, from the information that we have received from them so far, means that the local planning authority, under the Habitats Regulations, has to carefully consider the nutrients impacts of any projects (including new development proposals) on habitats sites and whether those impacts may have an adverse effect on the integrity of a habitats site that requires mitigation, including through nutrient neutrality. This impacts on all planning applications which cover all types of overnight accommodation including new homes, student accommodation, care homes, tourism attractions and tourist accommodation and permitted development (which gives rise to new overnight accommodation) under the Town and Country Planning (General Permitted Development) (England) Order 20159. This advice also applies to planning applications at the reserved matters approval stage of the planning application process, and to applications for grants of prior approval and/or certificates of lawfulness for a proposed use or operation. This impacts on developments for one dwelling upwards. You will appreciate that this appears to be a very complex issue that has just been brought to our attention, along with the other affected local planning authorities and it is outside of our control, impacting on a large number of existing planning applications that we currently have with us. We have been advised to attend a number of workshops over the coming weeks presented by PAS and Natural England, with the first ones being open to Chief Planning Officers this week, which we will need to accept in order to understand what this new guidance and advice entails for both ourselves, developers and planning applications. Until we have a greater understanding of this new guidance, the mechanisms for implementing them across the Tees Valley authorities, we are currently not able to progress any planning applications for residential development/accommodation in any form. This has impacted upon over twenty of my current planning applications.Andrew HarkerPlanning Officer, Development Management So what is happening? Nutrient pollution is a big environmental issue for many of our most important places for nature in England. In freshwater habitats and estuaries, increased levels of nutrients (especially nitrogen and phosphorus) can speed up the growth of certain plants, impacting wildlife. This is called ‘eutrophication’ and it is damaging protected sites. As such, some sites are classified as being in ‘unfavourable condition’. The sources of nutrients generally include sewage treatment works, septic tanks, livestock, arable farming and industrial processes. Where sites are already in unfavourable (poor) condition, extra wastewater from new housing developments can make matters worse. By designing development alongside suitable mitigation measures, that additional damage can often be avoided. This approach is called ‘nutrient neutrality’. It essentially allows developments to be permitted without impacting on the condition of the important wildlife / protected sites. What type of development needs to be nutrient neutral? Nutrient neutrality is needed for overnight accommodation including new homes, student accommodation, care homes, tourism attractions and accommodation. The nutrient neutrality approach applies to proposals for a net increase in dwellings. Replacement dwellings are generally excluded. So, campsites, glamping pods / holiday lets / shepherd’s huts etc are all included. This includes developments that propose to connect to the mains, off grid treatment works or composting toilets. Other commercial development (not involving overnight accommodation) is generally not included, so nutrient neutrality does not apply to new schools, shops, offices etc. Other applications will be considered on their individual merits, for example new industry, extensions to regional airports etc. Does nutrient neutrality apply to the whole authority area? It depends on the river catchment and the catchment boundaries for wastewater treatment works. The nutrient neutrality approach applies where the treated wastewater discharges into a sensitive catchment – either into the ground or surface water. Check to see the extent of the sensitive river catchment and how much of the authority area is within this area, eg which towns, villages, ward boundaries. The catchments for the wastewater treatment works also need checking. The catchment calculators include a list of the relevant wastewater treatment works (on the lookups tab). The river catchment and wastewater treatment work catchments can be different. Sometimes the waste from a development in one catchment is discharged into another catchment where nutrient neutrality applies. This is more likely to be the case when your development is located near the edge of the river catchment. What legislation covers nutrient neutrality? Many of our most internationally important water dependent places (lakes, rivers, estuaries, etc) are protected under the Conservation of Habitats and Species Regulations 2017 (as amended). In accordance with this legislation, a Habitats Regulations Assessment (HRA) is needed for plans and projects that are likely to have a significant effect on the protected sites. Natural England has included more information in their updated methodology. In the short term…. Some councils will receive the advice from Natural England out of the blue, and it can be difficult to know what to do next. In the short term Council’s will put all applications on pause until they sort out their package of nutrient neutral measures. Given that Natural England’s advice is being upheld by Inspectors and the High Court there is no mechanism available to prevent further spread of the issue beyond the 72 authorities already effected. [...]
22nd February 2022ViewsI have just recorded a podcast for a good property entrepreneur friend of mine, Dave Hartnet of Mountbatten Estates, and one thing it got me to do was reflect on the state of the system today in 2022. The podcast also comes at a time of change, we have just had the first proper update to the UK Planning Portal for five years. We are seeing alterations to the way the Inspectorate works and we are seeing the new department for Leveling Up, Homes and Local Government announce its leveling up agenda. But what about the front line of planning in England. In my previous article I reported that some 51 of the planning authorities this year have found themselves in presumption this year. Some have appalling rates of planning delivery with Southend propping up the country with a delivery of 31% over need over the past three years! Remember that planning authorities are meant to deliver housing through granting sustainable developments: 9. These objectives should be delivered through the preparation and implementation of plans and the application of the policies in this Framework; they are not criteria against which every decision can or should be judged. Planning policies and decisions should play an active role in guiding development towards sustainable solutions, but in doing so should take local circumstances into account, to reflect the character, needs and opportunities of each area.Para 9 of the 2021 NPPF 38. Local planning authorities should approach decisions on proposed development in a positive and creative way. They should use the full range of planning tools available, including brownfield registers and permission in principle, and work proactively with applicants to secure developments that will improve the economic, social and environmental conditions of the area. Decision-makers at every level should seek to approve applications for sustainable development where possible.Para 38 of the 2021 NPPF So what is happening today? Why is it that applications for development are seen so negatively from the outset rather than looking at things in a more positive light as per the instructions in para 38. Ultimately it is all about time and culture. I have a lot of sympathy with planning officers today. My former colleagues at Portsmouth are typically handling a rolling 100 applications each. If they adopt a 1 job per day strategy then that 100 days of work. Even if that does not sound much remember it is a rolling treadmill of applications so every app that drops off is replaced by another. Add to that the government mandated time limits. An 8 week application needs to be dealt with inside of approximately 60 days. The math just does not balance. One application per day means that adding a case to the load will automatically lead to that case being 40 days overdue. Having been a planning officer myself one job per day is a reasonable expectation for good decision making, its a principle that holds true for my workload today and so in essence any application is destined to go out of time. Lets then turn to culture. Planning today is habitually in everyone’s bad books. For the Government planning must do more and deliver bigger and more beautiful buildings, for developers planning is seen as a blockage to development, for homeowners planners are just unfair adopting almost arbitrary views on development. This means that a Planning Officer today is everyone’s bad guy and can never be right. I reflected upon this during a podcast recording in Lockdown 1 – I said to the interviewer “I am in a profession where I will never win the game, I will get close sometimes but never win” when questioned on this standpoint I reiterated the sentiment above. That is as a planner I am always upsetting someone. There is simply no equity in the process. That lack of equity breeds culture in decision making. It is easier today for planners to ignore their statutory duty under the act and the NPPF and just refuse. This may feel very cynical however from experience it is the way the system is pushing the profession. With time limits and work pressure it is better to get an application off your desk rather than negotiate and work towards a shared solution. In council’s such as Maidstone and Southend in particular this is the norm with no negotiation during the process and in Southend in particular – no pre-application either. Refusing an application transfers the position of prime dark lord of planning from the Case Officer (now hero of the people for refusing your consent) to the Planning Inspectorate who are otherwise protected by layers of staff and procedure. For council’s under the threat of government intervention through special measures a culture of refusal is otherwise counter productive as it simply does not deliver on government objectives for housing delivery and quality of decision making. However it today’s planning world one has to ask what is better? By Jon McDermott [...]
17th January 2022Latest NewsJanuary, in the planning world at least, brings with it the grading of council performance known as the Housing Delivery Test. HDT Layer Nimbus Maps – 2020 Result The HDT is an important tool for Council’s and Government to understand what is going on with housing delivery and it is essentially there to mark the Council’s planning homework. The result of the HDT is essentially 4 grades or results that will define what will happen with, or more importantly to, that LPA in the coming year. The grades are as follows: No Action – The LPA has achieved better than 95% of its housing delivery targets over the past three years 227 Authorities this year. Action Plan – The first stage of sanction where the LPA has achieved between 95-85% of its targets and must therefore produce an action plan where it takes a long hard look at itself to understand what it could do better. Here is Portsmouth’s for 2021 as an example, more on them later! Portsmouth Action Plan. 23 Authorities this year. Buffer – The second sanction where an LPA has achieved between 85-75% of its targets. 20% more housing target is added for the council to achieve and it must again produce an action plan. 19 Authorities this year. Presumption – The third and final consequence where an LPA has achieved less that 75% of its targets. There are 51 authorities in this bracket this year with Southend-on-Sea leading the bottom with just 31% delivery. In practice presumption has a few consequences for the planning authority as it engages the ’tilted balance’ in favour of sustainable development and can render a Local Plan or Neighbourhood Plan obsolete if the ballance is properly engaged. There are but a few circumstances where the ballance cannot be engaged fullu and those are outlined chiefly at paras 11-14 of the 2021 NPPF. These include where the NPPF itself would provide a clear reason for refusal such as: Habitats sites (and those sites listed in paragraph 181) Sites of Special Scientific Interest;Land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) Heritage Coast;Irreplaceable habitats;Designated heritage assets (and other heritage assets of archaeological interest;Areas at risk of flooding or coastal change. Granted in the main you would need to go to the Inspectorate in order to get a proper hearing on the tilted balance as most, if not all LPA’s that are effected by the presumption, tend to attempt to maintain business as normal until they are told otherwise. So why does a Planning Authority start to fail? To answer this lets look at Portsmouth City Council. Year on year since the start of the HDT in 2018 they have been in decline on their statistics from a comparative excellent authority in 2018 with 122% delivery to a presumption authority in 2021 with just 54% delivery. Portsmouth Civic Offices The 2021 Action Plan blamed the following: Slow delivery on consented sitesSlow delivery on allocated sites Insufficient forward land supply Insufficient Delivery of Planning Approvals Nitrate Mitigation factors (Natural England)Development Viability All of the above, with the exception of Natural England, are within the LPA’s remit to control either by reducing implementation periods on consented schemes or latterly creating a change in culture at the LPA where para 1, 2 and 38 of the NPPF (that’s the duty to seek to grant planning permissions first) is embedded right at the outset. The report also points to under funding within the planning sector generally and an unwillingness of other authorities near to Portsmouth to play fair. The fact that two of those authorities, namely Fareham and Havant, also find themselves in presumption this year does not bode well for the ability of PCC to work towards statements of common ground. In the end the result is the same – Portsmouth are in presumption with a 54% delivery rate and just 3.2 years of housing left to them (reported in the 2021 Action Plan) and therefore the culture of the council, like all those in presumption, must change from ‘its not our fault’ to ‘only we can get ourselves out of this mess’. So what does it all mean The Big developers will be pouring over the HDT for the big wins this years. Desirable places like Mole Valley and Fareham will be under heavy pressure to grant planning permissions and get building on sites in the next 12 months. The buffer authorities will also be taking a long hard look at themselves – Can they ‘Pull a Gosport’ and get themselves out of the buffer in 1 year (GBC went from 84% to 100% in one year!). For me it is these buffer authorities that are of the most interest as they tend to be the ones that want it most and those are the LPA’s I will be paying attention to in 2023. by Jonathan McDermott [...]
7th October 2021Latest News / OpinionThe Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (snappy title!) was laid before parliament on the 9th July and makes the much needed consequential changes following the wholesale alteration to the Use Classes Order in September of last year. A copy of the legislation can be found at https://www.legislation.gov.uk/uksi/2021/814/made A number of the changes were previously consulted upon in the spring and can be summed up in this helpful document which we produced earlier in the year. GPDO Consequential Changes Quick GuideDownload However, there is one in there that has taken us all by surprise! Class G. Now for those that know me I have lauded the benefits of Class G as it was the one remaining ways to gain the benefit of new dwellings in technically difficult circumstances and without the need for any form of permission at all from the Planning Authority. Sadly however those days are numbered as on the 1st August 2021 Class G loses its freedom and falls into the rank and file of prior approval matters determined by the planning authority through the prior notification process. The matters for consideration by the LPA after the 1st of August are as follows: (i)contamination risks in relation to the building;(ii)flooding risks in relation to the building;(iii)impacts of noise from commercial premises on the intended occupiers of the development;(iv)the provision of adequate natural light in all habitable rooms of the dwellinghouses;(v)arrangements required for the storage and management of domestic waste. This now being a prior approval matter means that compliance with the national space standards is now a matter of fact rather than it being based on a reliance that Class G was not included within the original list or prior approvals caught by the NDSS. I am gratified to Joshua Clayman of Windsor and Maindenhead Council for providing the legal clarity to the point of whether the development results in dwellings in their own right. Joshua points to the following in a recent debate with myself over email. Whilst I have not specifically found an appeal regarding space standards and (the former version of) Class G, there is case law – Valentino Plus Ltd v SSCLG EWHC 19 (Admin) – that indicates ‘mixed use’ in the case of Schedule 2, Part 3, Class F of the GPDO 1995 (the precursor to Part 3, Class G of the 2015 Order) should be interpreted as a change to (up to) 3 planning units, namely a A1 shop and 2 self-contained flats. Hence, the self-contained flats are ‘true dwellings’ in the sense they are each their own planning unit.Whilst Class G has become a prior approval process, it still creates a mixed use, so the question still needs answering. The new prior approval wording refers to adequate natural light in all habitable rooms of the dwellinghouses. This also indicates the flats being created are true dwellings.Joshua Clayman This should hopefully bring an end to the debate as to whether the national standards apply. As per my comment above it is my view that they now do. However there is some good news, Class G in its new form becomes a Super G permitted development allowance which is available to all of the uses within Use Class E rather than just shop or financial and professional services. This includes the ability to do two flats above any of the following: Shops (not already covered by Class F2),Financial and professional services,Restaurants and cafés,Offices,Research and development of products or processes,Industrial processes compatible with a residential area,Clinics,Health centres,Crèches,Day nurseries,Day centres,Gymnasiums or area for indoor sports and recreations (excluding swimming pools and skating rinks) Uses such as Betting Office and Pay Day Loan Shop are also included within the Super G provisions as a carry over from its former life. your ability to use Class G on a Listed Building or indeed any other building that is within an area not available to Class MA remain exactly the same. Whilst it was a shock to the system to see Class G turn into a prior approval matter without announcement by the Government this would resolve one pertinent problem in a land deal of my own in Cornwall. The funding house on the project have been demanding a Certificate of Lawfulness or Planning Permission for the proposed works which we have (to this point) been saying is not required. Whilst it may now be a necessity it will remove the uncertainty from the equation and mean that we can get our papers in order using the 56 day process. It will also draw a final line under the last mechanism to get flats that are below the 37sqm threshold within the NDSS so at least finally we can draw an end to clients seeking to break or bend the rules because profit is more important that quality. Transitional Arrangements The explanatory memorandum with the SI is, as always, notoriously vague on the transitional arrangements for Class G but does state: 7.43 Paragraph 4 provides for transitional arrangements where the amended right contains substantially new conditions. For example, Class G of Part 4 is amended to introduce from 1 August 2021 a requirement for local consideration of matters of prior approval. However, development begun before this date may continue to proceedirrespective of whether an application for prior approval has been made. Whilst the paragraph does not expressly state Class G of Part 3! (maybe a typo there!) it does make clear that if your development has begun you may continue it. However I am sure those schooled in planning law will also scream that Class G is a change of use and therefore governed by S56(b) of the Act which expressly states that the development is begun when the new use in instituted. Therefore with the transitional arrangements once again as clear as mud our old friend ‘fact and degree’ will come into play in the short to medium term. This is only one of a vast number of changes happening in the summer of 2021 and so planning will once again be in a state of flux as we learn the new rules. Lets see what the story says in 8 months time! by Jon McDermott [...]
31st August 2021OpinionBack in 2012 the NPPF included an important paragraph. To deliver a wide choice of high quality homes, widen opportunities for homeownership and create sustainable, inclusive and mixed communities, localplanning authorities should:● plan for a mix of housing based on current and future demographictrends, market trends and the needs of different groups in the community(such as, but not limited to, families with children, older people, peoplewith disabilities, service families and people wishing to build their ownhomes);● identify the size, type, tenure and range of housing that is required inparticular locations, reflecting local demand; and● where they have identified that affordable housing is needed, set policiesfor meeting this need on site, unless off-site provision or a financialcontribution of broadly equivalent value can be robustly justified (forexample to improve or make more effective use of the existing housingstock) and the agreed approach contributes to the objective of creatingmixed and balanced communities. Such policies should be sufficientlyflexible to take account of changing market conditions over time.Para 50 of the 2012 NPPF This paragraph was important because it provided the Council’s with the legislative backing to seek to control HMO’s. Sustainable, inclusive, mixed and balanced communities were the soundbites repeated in many planning decisions up and down the country where the Council has otherwise sought to refuse an application for an HMO. At no other point within the NPPF did the Council have a leg to stand on however the paragraph was just about vague enough to suggest that somehow the Government of the day wanted to create mixed and ballanced communities. Roll on to the 2021 NPPF and para 50 is gone and is replaced by Para’s 60-63 of the framework which state: To support the Government’s objective of significantly boosting the supply ofhomes, it is important that a sufficient amount and variety of land can come forwardwhere it is needed, that the needs of groups with specific housing requirements areaddressed and that land with permission is developed without unnecessary delay.To determine the minimum number of homes needed, strategic policies should beinformed by a local housing need assessment, conducted using the standardmethod in national planning guidance – unless exceptional circumstances justify analternative approach which also reflects current and future demographic trends andmarket signals. In addition to the local housing need figure, any needs that cannotbe met within neighbouring areas should also be taken into account in establishingthe amount of housing to be planned for.Within this context, the size, type and tenure of housing needed for different groupsin the community should be assessed and reflected in planning policies (including,but not limited to, those who require affordable housing, families with children, olderpeople, students, people with disabilities, service families, travellers, people whorent their homes and people wishing to commission or build their own homes).Where a need for affordable housing is identified, planning policies should specifythe type of affordable housing required, and expect it to be met on-site unless:a) off-site provision or an appropriate financial contribution in lieu can be robustlyjustified; andb) the agreed approach contributes to the objective of creating mixed andbalanced communities.Paras 60-63 of the 2021 NPPF A broad brush notion of mixed and balanced communities for all has been replaced with the scalpel within para 63 which refers solely to mixed and balanced communities in relation to affordable housing only. Indeed paras 60, 61 and 62 take a different approach instructing LPA’s to render support where inter-alia: Para 60: the needs of groups with specific housing requirements are addressed Para 61: reflects current and future demographic trends and market signals and Para 62: the size, type and tenure of housing needed for different groups in the community should be assessed and reflected in planning policies (including, but not limited to…students, people with disabilities…people who rent their homes…) With this change in focus where does it leave the legislative support for control of HMO’s? Put simply the 2021 NPPF includes no policy relating to HMO’s positive or negative and no mention of control for this use class at all. As such it remains for the council’s to somehow glean continuing support from the new NPPF. The silence or otherwise within the amended NPPF is deafening however the clear message is that the stalwart of mixed and balanced communities has now apparently been removed. Further for those authorities seeking to remove Class L via an Article 4 Direction the new NPPF presents bad news to those council’s seeking a council wide control stating: The use of Article 4 directions to remove national permitted development rightsshould:• where they relate to change from non-residential use to residential use, belimited to situations where an Article 4 direction is necessary to avoid whollyunacceptable adverse impacts (this could include the loss of the essentialcore of a primary shopping area which would seriously undermine its vitalityand viability, but would be very unlikely to extend to the whole of a towncentre)• in other cases, be limited to situations where an Article 4 direction isnecessary to protect local amenity or the well-being of the area (this couldinclude the use of Article 4 directions to require planning permission for thedemolition of local facilities)• in all cases, be based on robust evidence, and apply to the smallestgeographical area possible.Para 53 of the 2021 NPPF The first new Article 4’s post July 2021 have directed their efforts to the smallest geographical area possible isolating individual streets or properties and so it seems that the LPA’s have heeded the Governments warning’s that a blanket removal of the Permitted Development toy box will not be tolerated. By Jon McDermott [...]
24th June 2021OpinionIt is fair to say that planning authorities in England have their favourite forms of development and in equal measure those developments they love to hate. This behaviour comes from those at the very top of the department and filters down through the teams to form part of the personality of the planning authority. Those in Winchester will have heard of the ‘Winchester Way’. This is a good example of decision making behaviour (DMB) that can be tracked and exploited by a developer or planning consultant. Positive and Negative DMB is in fact a proper application of case law and the principle of consistency in decision making. It is well established case law that previous planning decisions are capable of being material considerations, meaning that they need to be taken into account by those determining subsequent applications for permission. The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency….. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.” Two recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise. The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre. The application was approved at a full council meeting despite the planning officer’s report recommending refusal. One of the Co-Op’s grounds of challenge was that the council had failed to have regard to the importance of consistency in decision-making as it had refused to grant Aldi permission for a near-identical development on the same site the previous year due to adverse retail impacts on the town centre. The Co-Op also alleged that if the council had given consideration to its earlier decision, there had been a failure to give reasons as to why it had now reached a different decision and granted planning permission. Planning permission was quashed by the court after it held that the council had made clearly inconsistent decisions and had failed to provide adequate reasons for doing so. By failing to reference, let alone address, the previous refusal decision, the council had not explained how the previous concerns relating to adverse retail impacts had been addressed and allayed in the subsequent application. Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.” In essence, it was open to the council to reach a different decision but only if it had “grappled with the earlier reason for refusal based on retail impact and harm to the viability of the town centre”. The case emphasised that, in circumstances in which an earlier decision is a material consideration in the context of a current application, a decision-maker must provide clear reasons for any departure from their original position. In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier. The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date. Howell QC stated (at paragraph 100) that: “There is a public interest in securing reasonably consistency in the exercise of administrative discretion that may mean that it is unreasonable for a decision-maker not to take into account other decisions that may bear in some respect on the decision to be made. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. That must inevitably depend on the circumstances.” The earlier decision was not so different that it could reasonably be ignored. Any reasonable decision-maker would have considered it and decided whether they agreed with the reasoning given for regarding the policy as being up-to-date and whether the reasons were equally applicable to the present case. Again, they would also have provided reasons for any departure from the previous decision. Permission has been granted for the secretary of state to appeal the decision in the Court of Appeal. These two court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable. So how do we apply this to DMB and how do we use this to our advantage? DMB is part of the I for Intelligence and C for Compare considerations of our VICTORY model. What we are looking for here is evidence within the DMB of a council that they either like or dislike a particular form of development within their area. Repeated approvals for broadly the same development = a positive DMB that would encourage more of the same. Repeated refusals for broadly the same development = negative DMB and that development should rightly be avoided. DMB can change over time with too much of a good thing. In Croydon Council the LPA very heavily promoted the idea of knocking down two storey three bedroom detached houses and building three storey blocks of flats. Many such applications later the LPA noticed that they had a lot of 1 and 2 bedroom flats in supply and very few three bedroom dwellings left. This spurned them to issue an Article 4 to prevent house to HMO without planning permission and change their DMB to enforce their own policies on ballance of properties within a development. In Southampton City Council there was a profound negative DMB towards HMO’s this became so much so that it generated a very positive DMB towards Halls of Residence. Today in Southampton you can get planning permission for a massive hall but you have no hope of getting a single HMO. By tracking the DMB you can track with reasonable confidence the kind of decision you may face within any particular council. Suffice it to say that DMB is particular to an individual planning authorities and so another reason why specialising in a particular area is key. By Jon McDermott [...]
News and Opinion
27th November 2024ViewsProperty Education & Training Specialists of the Year 2024! We’re thrilled to receive an award at the Southern Enterprise Awards 2024! We have been awarded ‘Property Education & Training Specialists of the Year 2024‘, a testament to our drive to provide quality education at all costs. This is the second time in a row we have taken home this award with the SME awards after winning back in 2023. In its seventh year, the Southern Enterprise Awards continues to showcase a mighty selection of businesses and individuals who are ultimately altering the trajectory of their industries. TPX aims to continue providing quality planning and property education, and this recent award highlights our dedication to this cause. We do this through a wide range of educational services including our 1-1 advice with Jon, our secret society, and other educational courses. READ MORE [...] Read more...
28th October 2024ViewsEvery 8 November, planners and communities worldwide come together to celebrate how good planning improves lives. On World Town Planning Day, held annually on 8th November, planners, and communities all over the world come together to celebrate how good planning improves the lives of people and benefits society at large, creating vibrant places to live, work, and play together. Argentinian professor Carlos María della Paolera started World Town Planning Day in Buenos Aires in 1949. This year marks the 75th anniversary of the event – an important milestone for the profession. On 8 November 2024, planners from over 30 countries will celebrate World Town Planning Day with lectures, school competitions, fundraisers, charity events, planning awards, and street festivals Find out more World Town Planning Day 2024: Homes Start with Planning World Town Planning Day 2024 will focus on the role of planning and planners in delivering housing that meets the needs of our communities, and in helping to create equitable, inclusive, and sustainable solutions for all. [...] Read more...
24th September 2024Latest NewsTown Planning Expert are pleased to report that Sutton Council have agreed that increasing the occupation of a 6 person HMO by a 7th Person is not development needing planning permission as it does not amount to a material change of use. This follows a growing burden of appeal evidence and is the first application of its type by this firm where the LPA has agreed without needing to refer the matter to the Planning Inspectorate. You can see the decision in full below: ufm2_Decision_Notice_Grant_CPUnDownload [...] Read more...
15th July 2024Latest NewsThe new Labour Government has taken power on a promise of change and sees Planning as a key cornerstone of its intentions to grow the economy. To achieve this it sees a need to free up development by making changes to the current planning system. Its manifesto states: The current planning regime acts as a major brake on economic growth. Labour will make the changes we need to forge ahead with new roads, railways, reservoirs, and other nationally significant infrastructure. We will set out new national policy statements, make major projects faster and cheaper by slashing red tape, and build support for developments by ensuring communities directly benefit. We will also update national planning policy to ensure the planning system meets the needs of a modern economy, making it easier to build laboratories, digital infrastructure, and gigafactories. Labour will ensure economic regulation supports growth and investment, promotes competition, works for consumers, and enables innovation. It is apparent that its vision for change is aimed at major developments and infrastructure projects which will take time to put in place. In our opinion a lot of change could be achieved, speeding up all levels of development by changes to the National Planning Policy Framework (NPPF), which does not require legislation. When our current planning system was introduced in 1948 it was seen as promoting development, not a brake upon it. A system which would permit the right type of development, in the right place and at the right time. This presumption in favour of development has been carried through to the latest NPPF. In the intervening period however, many factors have been added, such as public participation, ecological matters, pollution etc., all of which are laudable but which means that even minor development such as house extensions get tied up in lengthy considerations and may incur additional costs due to additional reports being required or dealing with spurious objections. The NPPF requires local planning authorities to be proactive, but this has been watered down by advice from the civil service that the addition of a meaningless paragraph appended to all decisions, saying that the authority has an up to date plan and offers a pre-application service will suffice. We would remove this and instead provide what the public wants, namely that the system is truly proactive and that planning officers should sit down and negotiate to improve schemes where appropriate. We have yet to meet a planning officer who does not claim to have entered the profession to improve the environment, but if this is the case why is there such a negative attitude to negotiation? Part of the problem is that the planning system has been hijacked by other departments so that matters which can be dealt with under other legislation, such as licensing and environmental health, are passed on to planning. Planning officers should stop acting like postmen passing on such concerns and instead determine which matters are truly relevant, and send back matters to those departments as appropriate. Councillors are particularly bad at this raising issues which are not relevant to the planning considerations but dealt with in other legislation. Better training and clarification that issues which are covered by policies, such as duplication on standards through housing and planning should not arise. Recording of voting by members on the Planning Committee may help to focus minds that spurious decisions may result in action against those members. Consideration needs to be given to the Local Plan process which is too complicated for the layman to truly understand, and which gets bogged down in challenges and objections. There are two elements in a Local Plan, the qualitative and the quantitative, that is the subjective matters such as landscape and heritage, and those which are objective such as the number of new houses required and where they are to be permitted. Anyone who has worked across several authorities will know that the qualitative matters differ very little across the country. As such national guidance could suffice leaving the local planning authority to consider how it wishes development to take place locally. Currently the draft Local Plan has to be approved by a Government Inspector, but if s/he finds it unsound, even if it is only on one issue, it can be thrown out and the whole lengthy process has to start again. Inspectors should be proactive and where they find a policy unsound they should be tasked to working with the local authority to address the concerns, or if this is not possible to suggest alternatives. We could go on and on, but this paper hints at several of the inherent problems which can be quickly addressed. We could add more as we are sure anyone who has had the misfortune to take on the planning system can also. by Keith Oliver [...] Read more...
2nd May 2024Latest NewsThe snappily titled The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2024 was released unto the world (or England at least) on the 30th April 2024, published on the 1st May 2024 and comes into force for England on the 21st May 2024. For those in Wales, Scotland and Northern Ireland you need to send your complaints to your own First Ministers (if you have one at the moment!). The changes build on the consultations that were released last year and are the second in that packet of changes proposed. Obviously now other knotty legal issues have been addressed the Government is somewhat free to manoeuvre. Classes Q – Agricultural to Residential (Q) The amendments build on the existing allowances and close existing loopholes relating to the total number of units and the total floor area allowed to be converted. This closes an obvious mathematical loophole that broke the 465sqm/5 unit ceiling within the previously amended Class Q. The provisions also open the door for agricultural buildings that were agricultural but are no more and extensions to agricultural buildings that are being converted to residential. The highlights are: The 10 year use provision still applies but with a new starting date of 24th July 2023The maximum floorspace for any dwelling created is now 150sqmThe maximum number of dwellings is now 10. Provisions in this respect also allow developers to return to previous Class Q sites if there is the floorspace within other buildings to do it.The maximum cumulative floor space of dwellinghouses including any extensions is 1,000 square metres,Extensions are allowed but are heavily restricted The normal restrictions in terms of National Parks, SSSI, a safety hazard area, a military explosives storage area, scheduled monuments and listed building’s apply in full. As will all prior approvals the nationally described space standard issued by the Department for Communities and Local Government on 27th March 2015 applies in full. The permitted development allowance to go from house to HMO (no idea why you would want this in the countryside anyway but whatever!) is also removed in line with all of the other prior approval allowances meaning you need a further planning permission if you wish to do so. In addition the requirement that the building must have suitable existing access to a public highway is imposed to reinforce the need for safe access to these agricultural sites. Class R (Agricultural to Commercial uses) is amended to incorporate Class B2, Class B8, Class C1 (hotels), Class E (commercial, business or service) or Class F.2(c) (outdoor sport or recreation); or for the provision of agricultural training. The floor area under Class R is increased to 1,000 square metres to match the amendments within Class Q. Finally the Class B2 (General Industrial Use) is limited to the processing of—(i) raw goods, excluding livestock, which are produced on the site and are to be soldon the site, or(ii) raw goods mentioned in paragraph (i) together with goods ancillary to theprocessing of those raw goods. All very sensible Class A and B Part 6 – Agricultural Buildings Whilst the minister is dishing out some countryside love farmers have also had a bit of a break with an increase in their allowances for new agricultural buildings under Class A – now 1,500 square metres and replacement agricultural buildings under Class B – now 25% more or 1,250 square metres (whichever the lessor). A Mr J Clarkson of West Oxfordshire may actually be happy with them for once! Missed opportunities Sadly the promised releasing of the prior approval burden under Classes A, B and R! has not been lifted and there is no mention of raising the limit of 150sqm under Class R2 within the regulations so this may well fill as a missed opportunity to support the farming community further. Sorry Jeremy you still have to deal with West Oxfordshire. In addition the conversion of agricultural buildings within National Parks and National Landscapes (Nee Areas of Outstanding Natural Beauty) is still locked down so the buildings that would actually not result in new buildings as dwellings in the countryside are prevented from becoming dwellings. Opportunity missed in my view. By Jon McDermott [...] Read more...
25th April 2024Latest News / OpinionAs Government cries out for more housebuilding it is often stymied by local restrictions, whetherit be landscape such as National Parks or Areas of Natural Beauty, wildlife or water restrictions.All these are to a degree based on objective criteria. One of the biggest constraints however, are Green Belts, which are defined locally and haveentered the public consciousness as a no-go area for development. Despite its name Green Belts don’t even have to be green! They were originally conceived as ameans to prevent coalescence of towns and villages and to allow urban populations easyaccess to the countryside. Government advice as set out in the National Planning PolicyFramework (NPPF) sets out 5 objectives of which 4 still hold to this concepta) to check the unrestricted sprawl of large built-up areas;b) to prevent neighbouring towns merging into one another;c) to assist in safeguarding the countryside from encroachment; d) to preserve the setting andspecial character of historic towns; ande) to assist in urban regeneration, by encouraging the recycling of derelict and other urban land. While some still serve this purpose others, applied with a broad brush, have effectively becomelittle more than a barrier to development, with large swathes of land so designated. In total theUK’s Green Belt covers an area of 1.6m hectares, which is about 12% of the area of EnglandWithin these areas there can be a wide variety of uses, from agriculture and forestry, sports andleisure and even residential uses. Council’s can review their Green Belts when updating their local plans but so entrenched is theconcept that to propose any reduction is often political suicide, yet it is estimated that the loss ofjust 1% of the Green Belt would solve the housing crisis. Most developers will have come across sites within the Green Belt which are eyesores butwhich cannot be redeveloped due to being so designated. It is often quoted that to ensuresomething deteriorates it is only necessary to designate it in one form or another. This has beenthe case for over half a century in the Green Belts. Crumbling buildings, unused agricultural land and inappropriate, often unlawful, uses can befound but remain due to being within the Green Belt. A more pragmatic approach is neededwhich recognises the original purpose, but allows for the area to be tidied up. By allowing these sites to be redeveloped or offered up in mitigation for building elsewhere thecountryside could be tidied up with land put to beneficial use or restored to a moreenvironmentally acceptable purpose. The debate is long overdue but offers potential solutions to many of the country’s challenges in the comingyears. By Keith Oliver [...] Read more...
31st January 2024Latest NewsThe Government is continuing with it’s legislative programme and has started to release commencement regulations for changes to the English Planning System under the Levelling Up and Regeneration Act. These regulations are found under: The Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024 2024 No. 92 (C. 6) UK Statutory Instruments The Elections Act 2022 (Commencement No. 11, Transitional Provisions and Specified Day) and Levelling-up and Regeneration Act 2023 (Commencement No. 1) Regulations 2023 The Levelling-up and Regeneration Act 2023 (Commencement No. 3 and Transitional and Savings Provision) Regulations 2024 No. 389 (C. 21) The Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (CommencementNo. 4 and Transitional Provisions) Regulations 2024 The Levelling-up and Regeneration Act 2023 (Consequential Amendments) (No. 2) (England) Regulations 2024 Here is the combined list of commencement provisions. This list will be updated as more regulations are brought forward. The following provisions of the 2023 Act came into force on 26th December 2023— Section 226 – Enforcement of requirements Section 228 – Registration of short-term rental properties Section 229 – Pavement licenses The following provisions of the 2023 Act came into force on 31st January 2024— Section 78 – Capital finance risk management Section 81 – Alteration of Street Names England Section 94 – National development management policies: meaning Section 106 – Street votes, so far as it confers a power to make regulations and so far as it relates to the provisions of Schedule 9 brought into force by paragraph (q) Section 107 – Street votes: community infrastructure levy, so far as it confers a power to make regulations Section 123 – Duty in relation to self-build and custom housebuilding Section 129 – Hazardous substances consent: connected applications to the Secretary of State Section 140 – Enforcement of community infrastructure levy Section 180 – Acquisition by local authorities for purpose of regeneration Section 181 – Online publicity, so far as it confers a power to make regulations Section 184 – Corresponding provision for purchases by Ministers, so far as it relates to the provisions of Schedule 19 brought into force by paragraph (r) Section 185 – Time limits for implementation Section 186 Agreement to vary vesting date Section 187 Common standards for compulsory purchase data Section 188 ‘No-scheme’ principle: minor amendments Section 189 Prospects of planning permission for alternative development The following provisions of the 2023 Act came into force on 12th February 2024— Section 135 – Biodiversity net gain: pre-development biodiversity value and habitat enhancement The following provisions of the 2023 Act came into force on 31st March 2024— Sections 84, 85, 86, 89 – Planning Data Standardisation Section 91 – Definitions of key terms that are used throughout Chapter 1 of Part 3 of the Act Section 111 – Planning Commencement Notice Section 171(7) – New section 135A into the Local Government, Planning and Land Act 1980 (c. 65). The effect of this new section is to give the Secretary of State the power to make regulations setting out how an oversight authority is to oversee the regeneration of a locally led development area Sections 182 and 183 – Amendments to the operation of Compulsory Purchase Orders Sections 203, 205, 206, 214, 215 – Local Rental Auctions Schedule 22 – Amendments to Pavement Licenses The following provisions of the 2023 Act come into force on 25th April 2024— Section 103 – temporary stop notices in relation to listed buildings Section 115 – time limits for enforcement The amendments made to the 1990 Act by section 115 of the 2023 Act (time limits forenforcement) do not apply where—(a) in respect of a breach of planning control referred to in section 171B(1) of the 1990 Act (5) (time limits), the operations were substantially completed, or(b) in respect of a breach of planning control referred to in section 171B(2) of the 1990 Act (time limits), the breach occurred, before the day on which that section comes into force Section 116 – duration of temporary stop notices Section 117 – enforcement warning notices Section 118 – restriction on appeals against enforcement notices Section 119 – undue delays in appeals Section 120 – penalties for non-compliance Section 122 -Consultation before applying for planning permission Section 124 – Powers as to form and content of planning applications The following provisions of the 2023 Act come into force on 30th April 2024— Section 190 – Power to require prospects of planning permission to be ignored, Compulsory Purchase. The remainder of section 181 – Online publicity of documents within the CPO Process The following provisions of the 2023 Act come into force on 7th May 2024— Section 230 – Historic environment records The following provisions of the 2023 Act come into force on 25th July 2024— Section 105 – Removal of compensation for building preservation notice [...] Read more...
13th November 2023Latest NewsFrom the 6th December 2023 the Planning Fee’s in England will be updated and increased. All existing fees payable to local planning authorities under the 2012 Fees Regulations are increased in respect of applications made, or deemed to be made, on or after these Regulations coming into force. Fees to be paid in respect of applications, deemed applications, requests or site visits relating to major development are increased by 35%. All other existing fees are increased by 25%. A new provision is added to the 2012 Fees Regulations so that, from 1st April 2025, all fees under those Regulations can be increased annually (new regulation 18A). The amount of any increase will be in line with inflation, or if lower, 10%. Further amendments are made to the 2012 Fees Regulations to remove the exemptions from fees for repeat applications and to introduce a fee for an application under Part 19 of Schedule 2 to the Town and Country Planning (General Development) (England) Order 2015. In addition, provision is made so that where the statutory determination period for a planning application is 8 weeks, a refund of any fee paid may be obtained, under regulation 9A, if the application is not determined within 16 weeks and an extension of time has not been agreed with the applicant The headline fee’s for applications submitted on or after the 6th December will be as follows: £120 for Discharge of Planning Conditions £293 for Certificates of Proposed Use or Development £578 for each dwellinghouse or for a material change if use (below 10 units) Between 10 but no more than 50 dwellinghouses – £624 for each dwellinghouse. No ‘special fee treatment for applications for prior approval under the General Permitted Development Order 2015. The regulations are set out in full within SI 2023 No. 1197 The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2023 [...] Read more...
29th September 2023Latest News / Opinion / ViewsThere is a phrase in the lexicon of each and every planning professional in the country that is the ultimate curse! Forget ‘Avada Kedavra’ from the Harry Potter novels and films or Kahn spitting ‘from hells heart I stab at thee’ in Star Trek II. Even mentioning the Scottish play to a Shakespearean actor does not come close! This one curse in planning law and practice will get everyone’s back up and once uttered there is often no reputational return! Planning Precedent! (Herein referred to as PP in order not to upset planning colleagues) There is nothing in the world of planning law that is more incorrectly used and relied upon that this simple term and nothing will destroy a developers reputation quicker than the use of the phrase in front of a planner or planning officer. The term is used as a form of panacea to all ills by developers, architects and even estate agents to enshrine the idea that all cases must be considered alike. It comes from the idea of legal precedents when a case’s circumstances and legal requirements match those of a contemporary legal dispute; unless a party can demonstrate that it was incorrectly resolved or that it differed materially, the precedent will typically govern the outcome of a later similar case. It is often used by those who utter the curse to somehow hamstring the LPA. Those who use it believe that if the LPA allows a form of development in their area they have effectively allowed that form of development everywhere in their area and must therefore allow their planning permission. The use is understandable if the attitude of the developer is “well they got it thirty miles away so I can have it too” The whole concept of PP is, in fact, planner made. When I was trained as a town planner in 2002 we were encouraged to consider whether there was a case for stating that the development would set an undesirable precedent for other such decisions to be allowed. This clumsy set of words that appeared in appeal decisions of the time were always ultimately swept away by the Planning Inspectorate as ultimately the concept of PP essentially flies in the face of planning’s ‘Prime Directive’s’ which are; Planning permission should be granted unless policy or material considerations dictate otherwise and Every planning permission must be considered on their own and individual merits. Ultimately a search of the case law does not reveal a judicial direction on the existence of PP because it cannot in fact actually exist. That is why, when cited, a developer or other professional must be corrected stating that PP does not exist or PP is not a material planning consideration. So what is person actually trying to get to when they use the PP curse? What developers hope PP is, is actually two discrete and much more open principles of decision making behaviour and the principle of consistency. Lets deal with the latter first. The Principle of Consistency In planning law, there is a “principle of consistency” in decision-taking. The principle is not that like cases must be determined alike, but a decision-taker ought, when considering a materially similar proposal, to have regard to the principle of consistency, to have good reason if deciding to depart from the previous decision, and to give reasons for any such departure. The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency . Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.” Two further recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise. The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre. Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.” In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier. The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date. These two further court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable. Consistency is still not the panacea than PP pretends to be. The principle importantly requires the decision maker to consider previous planning decisions but importantly, unlike the PP curse, they are not bound to them and can deviate from them if material considerations dictate otherwise. In essence then the decisions have to be so similar in all respects for the true principles of consistency to take effect and for us to get close to the effect of the PP curse. Decision Making Behaviour The concept of decision making behaviour builds on the principles of consistency and applies them over a number of applications within the same LPA area. This requires a much greater understanding of the likes and dislikes within a particular planning authorities area and gives some credence to the old adage that a local town planner may be better informed about the LPA’s decision making behaviour than a planner that operates nationally. However in today’s modern age of planning data online this can easily be established. Decision making behaviour is often identified as an rational or irrational dislike for specific forms of development. In Portsmouth in the 2000’s it was the Hip-to-Gable roof conversion that was very much on the Council’s hit list. They refused almost every single one and won almost every single appeal. It stemmed from an established hatred of that particular form of development based on the fear that it would disrupt the symmetrical appearance of pairs of semi-detached properties within Portsmouth’s regimented suburbs. This policy only died when the government altered the householder permitted development allowances and allowed for hip-to-gable developments. Nominally decision making behaviour is negative however it can come from a policy impetus that is ultimately positive. Croydon, between 2015 and 2018, displayed a decision making behaviour that perversely sought to demolish houses within the suburbs and replace them with small blocks of 7 and 8 flats. This was a politically motivated policy to assist the Council in disposing of some of their own stock. The positive nature of this policy meant that every developer in south east London appeared to be gravitating towards Croydon in order to buy a suburban house and turn it into a small block of flats. Policy and behaviour were confused and the PP curse was used on a number of occasions. Ultimately the behaviour changed and a number of developers were left carrying the corpse of existing or prospective developments that had been bought at an overinflated price or where the GDV no longer represented the reality of the situation. Ultimately the decision making behaviour lead to a housing market in Croydon that was no longer sustainable. But at least the Council were consistent! As a town planner I would dearly love for PP to be deleted from the English language and I spend time correcting clients and others that the term has no effect in law. Hopefully by this article you dear reader will also understand why PP is just not to be used and why the ultimate curse is ultimately…pointless! By Jon McDermott Image of Lord Voldemort attributed to Warner Home Video / Warner Home Video [...] Read more...
12th September 2023Latest News / OpinionI have a dilemma at the moment! We are looking at a scheme for a client and the architect is insisting that we are going to make a Section 73 application to vary the original planning permission. Now, there are three legal ways to amend a planning permission that has been granted and is still extant. Section 96(a) applications fall into the ‘non-material alteration’ space and are for very minor changes that do not alter the material considerations applied to the scheme. Whilst there is no statutory definition of a non-material amendment you can think of it as something that no one would actually notice. Where these modifications are fundamental or substantial, a new planning application under section 70 of the Town and Country Planning Act 1990 will need to be submitted. This is exactly what it says it is. A new application with everything to be considered again but with the reassuring fallback of the original application. Section 70 applications are for where you are increasing (or decreasing) the number of units or changing the description of development. Between S96(a) and S70 of the Act is Section 73. Section 73 of the Town and Country Planning Act 1990 allows you to apply for planning permission for a similar development but not subject to the conditions imposed on the original scheme. A new planning permission is created as a result and the two schemes exist together within the planning history and at the same time as twins. You may, of course, then choose which twin you go with as they are both valid approvals. When Considering a S73 the Council is only allowed to consider the changes you propose rather than the totality of the scheme again. This is the dilemma I find myself in! The Government’s Planning Practice Guidance advises that In contrast to section 96A, an application made under section 73 of the Town and Country Planning Act 1990 can be used to make a material amendment by varying or removing conditions associated with a planning permission. There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission. Provisions relating to statutory consultation and publicity do not apply. However, local planning authorities have discretion to consider whether the scale or nature of the change warrants consultation, in which case the authority can choose how to inform interested parties. Planning permission cannot be granted under section 73 to extend the time limit within which a development must be started or an application for approval of reserved matters must be made. Section 73 cannot be used to change the description of the development. The government guidance on the use of S73 was the subject of the recent High Court decision of Armstrong v Secretary of State for Levelling-up, Housing and Communities & Anor EWHC 176 (Admin). Mr James Strachan KC, sitting as a Deputy Judge of the High Court, found that the planning inspector erred in law in his interpretation of the scope of section 73 and quashed the appeal decision. The Deputy Judge in his decision clarified that: “Section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission. But provided there is no inherent conflict or inconsistency with the “operative part” of the planning permission – in this case the construction of a single dwelling – the planning merits of that proposed change can be assessed on its merits. No such assessment has occurred. As part of that assessment, the decision-maker will be able to consider whether the proposed change (fundamental or otherwise) is acceptable or not in planning terms, taking account of any representations received.” The operative part of the planning permission being the description of the development granted. In the Armstrong case that was the construction of a dwelling on the site for which the Deputy Judge found that the redesign of the dwelling would cause no conflict. S73 applications have a marked benefit in terms of the planning fee associated with them. The Fee’s guidance is clear and states: What fees are payable for applications to vary conditions? In order to vary the terms of a condition or to implement a planning permission without an imposed condition, it will be necessary to make an application under section 73 or 73A(2)(c) of the Town and Country Planning Act 1990. The fee for an application under section 73 or 73A(2)(c) is a flat rate fee of £234 as set out in paragraphs 5 and 6(b) of Part 1 of Schedule 1 to the 2012 Fees Regulations. More than one condition at a time can be removed or altered on the same application without any multiplication of the fee to be paid. So whilst it is clear that S73’s can go far beyond the scope of the minor amendment they were meant to address it is also clear that one cannot sneak in more dwellings or change the description of development using them. Dilemma solved then! Well, not quite. As is my clients wish they want to increase the number of dwellings from 1 to many and alter the components associated tin the application they will need to step away from the flexible options on offer and bite the bullet of a full planning permission. At least the fallback position is in place. [...] Read more...
4th September 2023Latest News / Opinion / ViewsOn the 26th January the snappily titled Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2023 came into force in England. Buried within the order was an amendment to part 4 (temporary buildings and uses). Class BC – temporary recreational campsites. This new allowance builds on the former 28 day temporary change of use of land provisions to provide for a discrete allowance on ANY land for the provision of a temporary residential campsite. The allowance provides for no more than 50 pitches and any moveable structure reasonably necessary for the purposes of the permitted use. This can include a movable toilet block, movable shower block, or movable office. These new campsites are not allowed everywhere. The provision of ANY land excludes the logical places that you would not want to see a campsite such as; on a site of a scheduled monument; in a safety hazard area; in a military explosives storage area; on a site of special scientific interest; on a site of a listed building and for the siting of any caravan except a caravan which is used as a motor vehicle designed or adapted for human habitation. Basically statics are not allowed but touring caravans are! The conditions of the use make clear that this is a prior approval allowance but with only matters of compliance and flood-risk considered! The developer must make on-site provision for users of the campsite of toilet and waste disposal facilities and needs to submit a plan showing how these facilities will work together with the dates that the dates on which the site will be in use. The LPA will be required to notify the Fire and Rescue Service and the EA if the land is within Flood Zone 2 or Flood Zone 3. Finally this prior approval only last for a calendar year. Developers must re-apply every year before commencement of development in each calendar year. Like with most of the PA’s within the GPDO the application is subject to the 56 day rule putting pressure on the LPA to understand what is going on and reach before they run out of time. This is especially pertinent as the objections they can raise appear exceptionally limited. WOW! Whilst the lack of joined up thinking at the Department for Levelling Up, Housing & Communities is profound with its present war on SA and proposed PD for Hotels to Resi this actual PD allowance provides for new campsites and caravan sites to be developed each year by landowners and developers to somewhat reinforce the tourism industry! Once you have run one of these 60 day cycles and demonstrated that you know what you are doing without substantial harm it is only a short hop for a little more time and…permanency! Granted through a planning permission off the back of a prior approval allowance. Mansell vs Tonbridge and Malling all over again! I, for one, am going to be considering this new allowance with interest and see how it is applied in practice. [...] Read more...
20th August 2023Latest News / NewsThe recent fire and subsequent demolition of The Crooked House public house at Himley in theWest Midlands has resulted in much anger, but unless criminal intent can be proven mayultimately considered a fait accompli. Details of the building’s demise have been followed by the national media and certaininformation has come to light. Although built in the 18th century the building does not appear to have been listed. It hadacquired its unique appearance due to subsidence from underground mining during the 19thcentury but was saved from demolition by the addition and subsequent strengthening ofbuttresses. In recent weeks it was sold to an adjoining landowner, who we are told wanted it for alternativepurposes. Within days of purchase however the building went up in flames. This is beinginvestigated by the police as possible arson. Almost immediately the building was demolished, without planning permission and according tothe Council contrary to its advice to only demolish the upper floor which was considereddangerous. The Council, faced with local and national uproar, is investigating what action it cantake. At present suspicion falls on the new owner, although proving this may prove difficult althoughthe timing of the fire and the speed at which the building was demolished would appear toindicate a premeditated act. Given the pub’s location in the countryside it is unlikely that the Council would grant planningpermission for any significant redevelopment so the motive for the loss of the public house isquestioned. Proving who was responsible may be difficult to prove in court and there is little likelihood orrequiring the public house to be rebuilt. The case once again flags up weaknesses in theplanning system where unscrupulous developers cover their tracks to gain something whichmay not otherwise have been granted. Removal of protected trees or travellers setting up homeon greenfield sites are all too common and may take years to resolve if ever. Given the local outrage one may question why the local authority had not sought to get thebuilding listed or at least designated a Conservation Area, both of which would have afforded adegree of protection. Undertaking work without planning permission is not a criminal offence which opens it up topotential abuse and this case may prompt calls for greater control. I have been told that in France where suspicions arise due to buildings being demolished or burnt down the site cannotbe redeveloped for five years, thus removing any financial incentive. Whether true or not it is the sort of legislation which is needed if we are to protect our heritagefrom similar events in the future. By Keith Oliver [...] Read more...
31st July 2023Latest NewsMarching our way to September when the last VICTORY day of 2023 will be held in Exeter, Devon! It will be exactly a year since we did the first VICTORY day in Camden in 2022 and this will be our 5th running of the day since that first sailing. Here is what you can expect VICTORY fully updated for nutrient neutrality, biodiversity net gain, new use classes and new permitted development allowances that are being consulted upon right now! NONE of the normal NLP or upsell that the PropEd industry is known for. A process that we use day to day in each one of our cases to get to the high success rate that we are known for. If you want to join us for the last sailing of the season then go to the victory page and sign up! All hands, brace for action! [...] Read more...
25th July 2023Latest News / ViewsPresumably under instructions to show the Government is fulfilling its promises on housing,Michael Gove is proposing to relax the planning system still further to allow more town centrepremises to be converted to housing, and to develop brownfield sites.This despite much of thecountry being under a housing embargo and a general opposition to new housing because ofthe lack of infrastructure. The Government has a target of 400,000 new homes per year. A target it has consistently failedto achieve. Margaret Thatcher created much of the problem by not allowing Councils to buildnew housing while also making it easy for tenants to buy their houses, effectively turning off thetaps while removing the plug. This is especially so in the affordable housing market. The expectation was that the private housebuilders would pick up the slack, but despite theirprotestations they have no interest in flooding the market with new houses which would reducetheir profits. Although some provision has been made for Councils to build houses it is to little to late.In recent years embargos due to impacts on wildlife, water and power supplies have effectivelystopped development in much of the country. Where development has gone ahead it does little to persuade the public to support moredevelopment. The re-use of empty buildings makes a good sound bite but has resulted in manycases of poor quality housing, often with minimal parking provision and no regard to thelocation. Michael Gove sees taking more control away from local councils as the solution, but in reality islikely to alienate the public still further unless some of the problems of the last ten years can beaddressed. Mr Gove is seeking to promote a major development in Cambridge as an example of the wayforward, notwithstanding that the area has severe water supply problems. Even so Mr Govebelieves he can persuade local decision makers to approve the scheme. This despite localsseeing the rivers running dry and the likelihood of water rationing in the future. Who in their rightminds would vote for proposals that will lead to the taps running dry? To achieve this the Government proposes to send in teams of planners. Anyone who has madea planning application will now that Councils have too few staff and are unable to fill vacancies.Thirty years of cutbacks, redundancies and early retirement has cut deep into the bone of theservice. There is no large pool of planning officers to draw on. Finally in a throwback to 2008 the Government intends to relax the rules on house extensions. Itwas not clear then how this helps house building or expands the economy and no explanation isgiven now. This was the area where planning officers first cut their teeth. Do we expect them to comestraight from college, usually with a geography degree, and expect them to deal with majorhousing schemes? By giving councils the role of arbitrator between neighbours it takes potential cases away fromthe courts. One can only assume that with a General Election looming the Government is dusting of oldpolicies to try and appear to be addressing the problem of housing while in reality building moreproblems for the future. By Keith Oliver [...] Read more...
8th July 2023ViewsThe country is in the grip of a housing crisis with a need for new housing but an inability to provide the amount it requires. This is in part due to not enough houses being built arising from an insufficient workforce, restrictions on where houses can be built, and local opposition due to inadequate infrastructure. One often quoted solution is for better design. The Government’s National Planning Policy Framework (NPPF) devotes a whole section to design with the implied suggestion that well designed development will be more likely to gain planning permission and more quickly. Notwithstanding that, every planning authority will indicate within its adopted Local Plan that it expects good quality design to many poor developments are approved. Of course there is no definition of what is good design. Even where Council’s provide Design Guides they are usually very basic and often ignored. It is a failing of the planning system that since its inception in 1948 we have witnessed a fall in the quality of the houses and commercial buildings which have been approved. From identical house types from Land’s End to John o’ Groats, and stuck on features to commercial properties which are little more than tin sheds, our legacy is pitiful, based on short term profit rather than providing buildings we can be proud of. While Council’s and the Planning Inspectorate must shoulder much of the blame, the building industry must also take some responsibility. Profit comes first meaning the minimum one can get away with in the quality of design and materials. Even where time is spent negotiating good design the actual build is not overseen and important details may be toned down or omitted. Some of this is due to the lack of design training among professionals. I have met too many architects and draughtsmen who do not look beyond the confines of the site. While their schemes may be well-designed in themselves they pay no regard to the context in which it sits. This may be because the client wants whatever the latest fashion may be, but surely part of the role of an architect is to guide the client not blindly draw what they ask for. Even if we could get agreement on what is good design it is not the panacea to the housing crisis. Many buyers would put design well down their list of requirements, being guided more by cost, location and internal features. For neighbours they are more influenced by the day to day issues of increased traffic, lack of health services and strains on existing infrastructure and are not going to accept development in their community just because someone deems it good design. There are many obstacles to building more houses, but while design should not be overlooked it is not an easy solution to the deep-rooted problems the country faces. [...] Read more...
10th May 2023ViewsTPX attending the LPOC Reception! It was a pleasure for two team members to attend the LPOC Reception at the House of Commons, Westminster on 24th April. This event included people such as Craig Mackinlay MP at the House of Commons, Rachel Maclean (Minister for Housing), and Lord Parkinson (Heritage Minister) who discussed the challenges of obtaining approval for renovation or restoration work and improving energy efficiency. They agreed on the need for simplified planning rules and initiatives to balance preservation with energy efficiency. Lord Parkinson reassured attendees that owners’ interests were being addressed across all government departments. Between 2007 and 2022 the number of full-time Conservation Officers fell from 1,224 to 526 Craig also recognised the lack of specialist contractors and the high material costs associated with maintaining and improving a listed property, particularly the challenges this will present as the government encourages owners of all homes to improve energy efficiency.Rachel discussed new initiatives aimed at helping owners and tenants of listed properties, including a consultation on how to make it easier for businesses to operate out of listed buildings. Both Tanya and Simon from TPX attended this event and asked the following: “What is being done about the lack of planners and conservation officers. Also, She said about conservation officers being so unflexible and not seeing the bigger picture of listed buildings’ custodians.” tANYA ASKED “What are the plans to address how EPC’s are assessed given the results are disproportionally skewed to the cost of energy unit to the user rather than device energy efficiency and more carbon-friendly sources. The problem is even more acute for those who own listed buildings.” simon asked [...] Read more...
14th April 2023News / ViewsWe are pleased to announce that we have moved the location of our TPX office! After some fantastic years at St Georges Business Centre, we are looking forward to the new surroundings at the University of Portsmouth’s – Technopole Building. The Technopole Building offers us a state of the art working facilities, making the perfect environment for us to grow our business. Technopole is located conveniently close to the M275 (the main road leading into the city) and we’re thrilled to have it as the new home of our business. All of our contact information remains the same. Our new location: Room 204 Technopole, Kingston Cres, North End, Portsmouth PO2 8FA [...] Read more...
13th March 2023Latest News / OpinionChange of use from C4 to Sui Generis is a very common planning application that is submitted to the LPA’s in a big number.  Most of them getting rejected mainly on the basis of impact on the living conditions and amenities of the occupiers and neighbors.  What is a C4 HMO ? Use Class C4 covers small HMO’s being occupied by between 3 and 6 unrelated persons. The use class is predicated upon persons resident and not on the number of bedrooms within the building What is a Sui Generis HMO?  Sui Generis HMO is shared houses occupied by 7 or more unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom. After reading the above two statements, what I have understood is conversion of a C4 property to Sui Generis wholly depends on the ”Number of Occupiers” of the property and not on the number of bedrooms or other amenities provided by the property.  This raises a question: why does this require a planning permission? Is it considered material change of use?  When the original guidance was brought out in 2010 the Government made clear that the change of use from a C4 to a Sui-Generis HMO was to be decided on a case by case basis and given the fact and degree of the change of use. The government went so far as suggesting that one or two additional persons within a C4 HMO may not actually result in a change of use requiring planning permission.  The issue is somewhat more basic than this. At planning school we as planners are told one simple truth.  “A change of use is where you move from one use class to another” As a profession we are set up from the start (Day 3 to be precise) to see changes of use as binary. It either is or it isn’t because of use class. This is because the Use Classes Order itself is a wholly permissive document purportedly telling us what falls into each class so that we can judge whether a ‘Material Change of Use’ would happen. The problem is that there is no legal definition of a Material Change of Use other than the view of the decision maker based on a fact and degree judgment.   In recent appeal cases the knotty problem of whether the addition of a person resulted in a material change of use has reached the annulled halls of the Planning Inspectorate and they are consistently ruling in one direction.  No, it is not.  Recent appeals have focused on the truth of the matter rather than a blind assessment of the Use Classes Order, much to the chagrin of the Planning Committee which was recently accused of having a shockingly low understanding of planning law and practice.  Lets think about that truth for a minute.  Development is judged on the ‘description of development’ in S55(1)(2) and (3) of the Act.  We don’t need planning permission for the addition of bedrooms under S55(2) if these works are wholly internal. The use is predicated upon people and not bedrooms and so just adding rooms to an existing HMO does nothing.  Then we move on to the harm in the public interest, i.e. the observable effect.  Adding more people to an HMO well yes that adds more people. But when does that become noticeable?  Would you honestly be able to tell if one more person moved into a family home? Most likely not! Whats the difference in one more person in terms of noise or car parking or amenity space needs or refuse? So why is an HMO so different from this reality. In the main HMO occupiers have less reliance on cars, they generate the same amount of refuse and potential noise and the alterations to create an HMO often improve the existing energy and noise abatement characteristics of the building. Yes there may be one more person living there but in terms of the effect itself this is negligible.  In one of the recent planning appeals for three properties for change of use from C4 HMO to Sui Generis HMO the inspector concluded just that. The addition of 1 more occupant to the property would not require any external alterations nor indeed a material change of use that would require planning permission. After the site visit the inspector was also damming of the Council’s approach stating that the amount of communal living space was acceptable and meets the requirements of the National Space Standards.  And this is a growing trend.  We have been tracking similar appeals in England where Inspectors are correctly asking the question whether a 6 to 7 or 6 to 8 person HMO needs planning permission from the LPA as the works and the effect do not cross the threshold for development needing planning permission.  I think it’s time to rethink the requirement of planning permission for a conversion for 6 bed C4 HMO to a 7 bed Sui Generis. When it is well understood the addition of 1 more occupant does not have any demonstrable impact on the living conditions, noise, parking or amenities. This in its own would free up a substantive amount of workload within an already crippled system and allow planning officers to assess real development in the public interest.  By Shivam Sagwall [...] Read more...
9th December 2022ViewsIt is the proper time to study the ‘planning guarantee’ as the Local Planning Authorities (LPAs) are taking ever more time to decide on the application. I understand the bulk of the work of the local planning officer, including their capacity and skills to do all the work, but still, they have the responsibilities and liabilities to adhere to this policy: Regulation 9A of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (hereinafter “the 2012 Regulations”). “Refund of fees in relation to planning applications not determined within 26 weeks9A.—(1) Subject to paragraph (2), any fee paid by an applicant in respect of an application for planning permission or for the approval of reserved matters shall be refunded to the applicant in the event that the local planning authority fail, or the Secretary of State, in relation to an application made under section 62A of the 1990 Act fails, to determine the application within 26 weeks of the date when a valid application was received by the local planning authority or the Secretary of State, as the case may be. (2) Paragraph (1) does not apply where— the applicant and the local planning authority, or, in the case of an application under section 62A of the 1990 Act, the Secretary of State, have agreed in writing that the application is to be determined within an extended period; the Secretary of State gives a direction under section 77 of the 1990 Act(1) in relation to the application before the period mentioned in paragraph (1) has expired; the applicant has appealed to the Secretary of State under section 78(2) of the 1990 Act(2) before the period mentioned in paragraph (1) has expired; or any person who is aggrieved by any decision of the local planning authority or the Secretary of State in relation to the application has made an application to the High Court before the period mentioned in paragraph (1) has expired. (3) In this regulation “valid application” is— where the application is made to a local planning authority, to have the same meaning as in article 29(3) of the Development Management Procedure Order; where the application is made under section 62A of the 1990 Act, to have the same meaning as in article 29(3) of the Development Management Procedure Order (but with the references in that definition to articles 5, 6, 8 and 12 of that Order being construed as references to those articles as applied by a development order made pursuant to section 76C of the 1990 Act).” It is not normal for me to scrutinise the application of government policy however I now have a case which has lead me to look further into it. The planning application was validated on 23/05/22, and the 26th week period for non-determination is on 21/11/22. The law implies that the 26 weeks will start when the local planning authority receives a valid application. I do not know if the case officer is aware of Regulation 9 of the 2012 Regulations of the Town and Country Planning Act (TCPA) 1990 “Refund of fees in relation to planning applications not determined within 26 weeks”. I am also not keen to know if there are LPAs that returned the applicant’s payment for non-determination of the application. Paragraph 9A does not apply if the applicant and the LPA have agreed in writing that the application is to be determined within an extended period. The LPA’s case officer has not asked for a time extension even though the decision’s due date of 18/7/22 has been passed. On the face of it then the fee is due for a refund. However what happens if the council and the applicant agree an extension? In the case of Provectus Remediation Limited vs Derbyshire County Council the High Court ruled that “A refund of a fee paid at the time of a planning application should be made only if a period of 26 weeks has elapsed from the receipt of a valid application and that application has not been determined by the local planning authority. In my judgment, if the applicant and the local planning authority agree in writing that the 26 week period should be extended the planning fee paid by the applicant does not fall to be refunded even if the local planning authority fails to determine the application within the extended period.” The above statement makes clear that my client is liable for a refund. However, my client is not interested in the refund. He wants his application to be determined. This then demonstrates the one sided nature of the regulation. If he demands the refund then application will then be set aside as it will be out of time and not a priority. If he agree’s an extension then the LPA may determine the application in the time period given but he also loses the protection of the planning guarantee. The court decision on Provectus Remediation Limited vs Derbyshire County Council on 8 June 2018 is a good example of the proper interpretation of Regulations 9A. But, in my opinion, is not fair to the applicant because if the council asked for a time extension and the applicant agreed, there is no time limit on the determination of the application. It is just a one-time extension agreement between the local authority and the applicant, and the local authority can have unlimited time to determine the application, and the applicant’s fee cannot be refunded. The applicant should think twice before agreeing to the time extension, but in my opinion and in my experience, the applicant does not have the choice to disagree because no policy or law protects the applicant once they disagree. I can say that this Regulation is one-sided once the applicant agrees with the time extension. How unfortunate! By Anchie Balbido [...] Read more...
23rd November 2022ViewsThere is no doubt we are in a housing crisis but we are getting mixed messages. Nationally theGovernment aims to see 300,000 houses built per annum by 2025. Meanwhile at the local levelresidents oppose new development which they argue will swamp existing towns and villagesand lead to the loss of valued countryside and overstretch medical and other public services. For much of the country there is a moratorium on housebuilding as pollution of our rivers andcoastal areas and pressure on heathlands restrict where we can build. Many towns and cities,despite being identified for further growth by Central Government now find themselves withnowhere to build either due to no land being available for housebuilding in their administrativeareas or having in the past drawn Green Belts too tightly. The result has been a surge in high rise developments, increasing housing densities, oftenwithout amenity space other than balconies and with limited on-site parking. The implications for personal well-being are too dreadful to consider. If lock-down during thepandemic showed us anything it was the need for gardens or easy access to open areas. It is alesson which seems to have been quickly forgotten by our political masters, but which resonateswith local communities. Even where developers manage to find sites local planning authorities seem to go out of theirway to be obstructive with a growing list of requirements and charges which at best delaydevelopment and at worst make schemes uneconomic. When I came into planning it was understood that the role of the planning authority was to workwith developers to ensure that the right type of development took place at the right time and inthe right place. Schemes were only to be refused where they caused demonstrable harm. Today local planning authorities seem to see their role as being to stop development. This is inpart due to too many experienced planners leaving local authorities either through earlyretirement, voluntary redundancy or attracted by better pay and conditions in the private sector. While we all accept there is a national housing shortage, unless Central Government canunblock the barriers to growth, whether physical or political, the problem will still be with us formany years to come. By Keith Oliver [...] Read more...
14th November 2022ViewsEveryone knows there is a housing crisis unless you have been living under a rock.But just how bad is it in Cornwall? Truth be told, it is bad, very bad in fact it is utterly dire, soul destroying, that kind of ‘dire’. Why? We know Cornwall has always had a plethora of holiday lets & second homes. Cornwall has alwaysbeen popular for stay-cations. But, Covid ramped it up and many took advantage of SA andshort-term holiday lets. Word quickly spread and soon landlords took advantage of the‘need’ to cater for the influx of stay-cationers and soon began giving notice to their tenantsand turning their long- term rentals over to short term holiday lets advertised on AirBnb. ‘Homelessness’ became an issue of biblical proportions. Literally 100’s of viewings for oneproperty available for long term lets. Businesses began to suffer as they couldn’t recruitfrom outside their immediate environs because there was no accommodation to housestaff. Tenants couldn’t up-size or downsize because of the shortage of property. Those fewlandlords that hadn’t opted for the short term lets put their rental prices up as the demandnotched up. Even one bed flats became unaffordable with sky high prices and as rare as theproverbial rocking horse s**t. So now Cornwall has a housing crisis and Cornwall Council are in a state of flux and lookingfor ways to clamp down on any additional properties becoming short term lets. Some ‘resorts’ like St. Ives residents voted to take action against second home ownership.By inserting a “principal residence” condition into the sale of new-build properties, amechanism known as Policy H2, the St Ives Area Neighbourhood Development Plan hopedto curb the influx of investment buyers, while providing better and more sustainablehousing prospects for locals. However, the residents soon realised that the town has been sucked out by holiday lets inthe last couple of years because H2 doesn’t stop existing properties from being turned intoholiday lets. They also faced issues such as no-fault evictions . Now they realise they should have tackled the existing market head on.The average sale price of a home in the heart of St Ives has risen from £336,153 in 2016 to£556,493 this year. Local estate agents attribute some of that increase to heighteneddemand throughout the south-west since the Covid pandemic. Some residents are callingfor intervention at national level and are seeking a new planning use class for non-permanent occupancy, so any person wishing to convert an existing property frompermanent to non-permanent use would need to apply for planning permission. Would that work? To some degree yes it would. A new class use would certainly mean anyone who wanted tochange to a short term holiday let would have to justify it in terms of sustainability andtourism needs. The LPA could introduce an Article 4 similar to those that operate HMO’s Article 4’s where only so many are allowed within a specified radius. This would stoplocalised saturation. However, currently, there is no such legislation governing the whole of Cornwall but there isa need and a mood for it. We definitely need clarity. We absolutely need a separate Class use for short term lets. Thedisparity between differing LPA’s between placing short term lets into either C3 or C1 needsremoving and a new Class Use creating. This would go some way to stopping anymore jumping on the ‘lets make a quick buck’bandwagon. That, alongside speedier determinations and an upturn in house building wouldhelp greatly. Until that happens, Cornwall is grinding to a halt, jobs are available but only to those livinglocally. Businesses are having a hard time recruiting but the homeless problem won’t beresolved short term. Undoubtedly, it’s time some urgent action, for Cornwall to step outside of its comfort zoneand bring in policy to only allow holiday lets on new builds not existing housing stock andmaybe, those adopting this business model should consider a less ‘harmful’ strategy andone that does less damage to the escalating housing problem? By: Helen Morris-Ruffle [...] Read more...
28th September 2022Latest News / ViewsOn Saturday 24th of September 2022 I stepped in front of the Camera and an audience of 25 property investors and summarised our journey to VICTORY like this: 20 years experience, 2 years writing, three separate CPD accreditation’s and one crowdfunder campaign and VICTORY kicks off for the first time at 9am! Jonathan McDermott – Just before VICTORY kicked off! 20 years is a long time to spend in any profession, let alone Town Planning! It is fair to say that planning is one of the most thankless tasks within the building industry. Planners are habitually wrong to someone they interact with! If they approve a planning permission then they are hated by the neighbours. If they refuse an application then they are blocking progress within an area. Over the last 20 years I have seen more and more cases of developers falling into the traps laid for them within the planning system and all for no good reason. The planning system itself is an approval engine. You just need to know how to operate the machine in the most efficient way possible. That’s what VICTORY is all about. Its and instruction manual to get the planning machine to effectively deliver what its meant to deliver in the most efficient way. It’s also designed to take into account the differences between the different planning jurisdictions of Great Britain and the tendency for the planning system to be bent or broken by respective governments over time. Most of all VICTORY is made to allow you to win the game. Planning is indeed a game and so to win the game you must know the rules! There is no sense in walking onto a rugby pitch carrying an golf bag so why would you play the planning game in any other way than how it is meant to be played? Ultimately we made VICTORY to be a self contained as possible. Giving you all of the tools at the outset in order to critically look at, appraise and review sites with a view to what would be possible if you played the game as the planners do. That is the ultimate goal of the VICTORY model. To give you a tool kit to use when playing the game well so you can break the rules like an artist. VICTORY is a CPD Accredited Programme In order to gain accreditation from our partners at The CPD Group we have taken the exhaustive steps of submitting the organisation as a CPD Accredited Training Provider. The Author and Trainer on this Course, Jon McDermott, as a CPD Accredited Trainer. And, finally, the programme was submitted for its own CPD Accreditation which it gained in September 2022.On completion of this programme attendee’s are issued with 8 hrs of CPD Credits Photos from the Day Here is what people were saying about the day “This was a fantastic day. thank you to all involved. I learnt a lot, met old friends and reconnected with my why. I cannot recommend this course highly enough. Many thanks to you and all”Dan H “Thanks Town Planning Expert for amazing this course”Summit A “A double thumbs up endorsement from me for the VICTORY course! Well worth doing to not only refresh ground I had already covered in the past, but there were plenty of new nuggets and info that has expanded my knowledge and that I can apply immediately. Thanks again Jon (and Tanya)!”Don W “Just finished a great day on planning with TPX. Never too old to learn”Trevor W “Smashed it mate, well done.”James B “Thanks Jon and team! Great day of learning”Ross G “Fab day as always with TPX. Thanks very much to all involved but especially Jonathan McDermott and Tanya McDermott for pulling it all together so seamlessly.”Katherine G “A fantastic day, full of immediately implementable knowledge from an expert in his field. No NLP bullshit or further up sells that are normally associated with property courses, just pure knowledge from a top class professional. I believe I gained more from this in respects to increasing my planning knowledge than I did working in the land and planning department of a national house builder at the start of my career. Look forward to working with Jon and the TPX team on future acquisitions. Many Thanks, Dan”Dan S “Fabulous content, lovely positive vibe in the room. Knowing the trades in the room would have been useful for future projects. Maybe networking/ dinner option after the learning. Excellent day as expected. Thankyou!!”Course Feedback Whats next for VICTORY At TPX we want to change the Property Education Sector from the current model to that of Education means Education. That’s the reason why we have gone and achieved the CPD Accreditation for it and why when asked…”where is the upsell?” the simple answer was…”there isn’t one! This is about your education and not our profit margin!” The feedback from VICTORY S1 has been immense and the interest in the programme has meant that we are now planning S2 and S3! We therefore plan to run VICTORY on a quarterly basis throughout the year with the course updated every time to take into account changes within planning practice and procedure. That’s why we number the VICTORY days as seasons, it’s to help us track where we are at and to make sure we are always providing information at the cutting edge. Season 2 – 3rd December 2022, Reading Berkshire For S2 the VICTORY day migrates from Central London and down the Elizabeth Line to leafy Berkshire. S2 can be booked through Eventbrite at the link below and we cannot wait to bring S2 to Reading in December! https://www.eventbrite.co.uk/e/the-victory-plan-masterclass-series-2-how-to-get-planning-permission-tickets-390524016847 Season 3 – The North East! – March 2023 Following the success of S1 we were contacted by The Property Thing who are a North East based networking group from Darlington. We are in the process of discussions with them for VICTORY S3 to travel to the North East for a day in March 2023. Stay tuned to the website for more on this as it progresses. VICTORY needs you! Education for the sake of Education means for VICTORY to change the world we need people to tell us that this is what they want! So, following the example of The Property Thing, the call to action is this. If you want a VICTORY day to head to your part of the UK then contact us at victory@tpexpert.co.uk and we will be happy to discuss the possibility with you. The journey to bring VICTORY to the world has been an eye opener and has revealed more about our property education sector that I ever wanted to know. At then end of the day this is just the beginning for VICTORY and hopefully we can make a difference to those that attend and prove that education means education! [...] Read more...
30th June 2022Latest News / NewsIt is fair to say that planning is getting harder. The days of a cordial discussion with officers at the LPA’s we work with are long gone and today the role of the planning consultant is more focused in tempering the almost natural desire of applicants to maximise every development opportunity. Maximisation is all well and good in the right circumstances however this can often lead to multiple applications and a trip to see the Planning Inspector when dealt with incorrectly. The issue with the maximisation theory always falls on the simple fact that in order to do so you must inevitably break a rule or two. You must try and push what is possible beyond the thin ice and into something that is often described as over-development. So what is the cure to this? The first letter in our VICTORY model is V for Verify. The verify checkpoint is there for developers to establish whether they are following the rules inside a rules based system. For most it is hard to believe that planning is part of a rules based system however in order for any system to operate it is based on a presumptive set of rules. In planning in England these stem from the National Planning Policy Framework (NPPF). The Council’s own rule book, their core strategy or similar, must be demonstrably compatible with the NPPF in order to pass scrutiny. Following the rules gains greater weight and clarity within the proposed Levelling Up and Regeneration Bill 2022 which at section 83 proposes to establish in law the primacy of the national development management policies over any local policy with emphasis on the national first approach. Section 84 of the bill then goes on to establish the basis for the National Development Management Policies (NDMP) themselves as a wholly separate sub-set of the National Planning Policy Framework. Ultimately this focus on a national (England only at least) rule book is there to achieve two fundemental objectives. Firstly, the new NDMP is designed to reduce repetition that occurs in every Local Planning Authority in England. At present every local plan has ostensibly the same policies in them governing design, heritage, development in the countryside, transport and town centre development. The idea behind the NDMP is to redirect the production of these policies to the Secretary of State of the day rather than the planning policy teams at the individual LPA’s. Secondly, and most likely, is the desire by Government to create consistency in decision making across England and the most effective way to do that is to reduce local discretionary decision making to matters that are wholly local. Variations in decision making from authority to authority on matters that are outlined in full within the NPPF has created a culture of decision making where the ways applications are treated in adjoining boroughs differs wildly. This brings me to the salient question at the heart of this article. In planning is boring the new sexy? is simply following the rules the new way of doing things because the time for innovation in planning is coming to an end. Let us take Croydon as an example. The London Borough of Croydon attempted to boost its housing supply by innovating a new rule. Its landmark Suburban Design Guide Supplementary Planning Document encouraged focused intensification within the borough by, inter-alia, taking large family homes and redeveloping the land to form blocks of 7, 8 and 9 flats. The result was that whole sites were accumulated creating a massive oversupply of 1 and 2 bedroom dwellings whilst the supply of three bedroom houses dwindled. In 2021 the LPA brought its new Local Plan into force which had to put the brakes on this landmark policy seeking to protect three and four bedroom family homes from redevelopment or conversion to HMOs, reinforcing the need for all new schemes to deliver at least 50% 3 bedroom homes or better and driving up the need to provide on-site car parking. Today the short term innovation of the SPD is nearly at an end. The present powers-that-be at Croydon have voted to remove the SPD in its entirety as the borough seeks to recover its housing market. The new sexy form of development in Croydon is not a block of flats ,of which there are presently 834 flats on the market right now on Rightmove, but is instead the boring and vanilla family home of which only 204 three bedroom houses exist on the market with prices ranging from 250k to 800k. Market demand today is for a three bedroom family home and not the mass of flats presently on the market. So what is the answer? The NDMP and Bill tell a very clear story. The new way of planning is going to be following the rules first and innovating second and not the other way around. As consultants we are seeing the result of that today with policy compliant decisions being those that LPA’s struggle to refuse or defend at appeal and those, more innovative, schemes being those that take greater scrutiny. Knowledge of local and national policy at the earliest stage becomes a deciding factor in site selection. In the future who you know at the LPA will be less important than how well you know from the National Policies. by Jon McDermott [...] Read more...
19th May 2022ViewsWell we have had about a week to poor over it and had the benefit of analysis from some very learned individuals. Here is our summary of what the Queens Speach means for planning in England. That is assuming the government can get it through! On 11 May 2022 the Government introduced to the House of Commons the Levelling-up andRegeneration Bill and the Levelling Up and Regeneration: further information policy paper. Both are designed to make provision for making changes to the way the established planning system works. These propose very Conservative (with a Capital C) changes to the system that will feel friendly to the Blue areas of England. Planning Data The Bill introduces the concept of planning data and some broad definitions of what is it includes. It also prescribes a route where a faliure to comply with a planning data request from the LPA will render the whole submission null and void. The Bill proposes regulations for the provision of public notices and the information that LPA’s must make avaliable to the public and in what form. LPA’s must use approved software (by the SoS) for the collection and storage of Planning Data hence the days of weird websites and ‘local solutions’ are numbered. Development Plans The Bill reinforces the primacy of national development management policy over local policies and where there is a dispute weighs heavilly in favour of national policies first. A new definition of national development management policy is to be introduced and so this foreshadows the SoS designating a new National Development Management Policy Document which will set out national policies on issues that apply in most local authorities. The Bill stipulates that determinations must be made in accordance with the development plan and NDMPs unless material considerations strongly indicate otherwise. The primacy of policy over local discretionary decision making therefore returns to planning. The NPPF will be reformed once again (version 4 on its way) and this will include the removal of the rolling five-year housing land supply penalty for Local Plans that are less than 5 years old. Heritage Heritage assets gain further protections with the requirement to preserve or enhance being incorperated within the 1990 Act for the first time. Street Votes The bill introduces the concept of street-votes which reads very much like an extension of the Local Development Order powers of the early 2000’s. The street vote powers would allow residents on a street to bring forward proposals to extend or redevelop their properties in line with their design preferences. Crown Development This, on the surface, appears to be a modest re-introduction of Circular 18/84 allowances for crown development that is considered to be of national importance. Minor Variations in Planning Permission This introduces new powers to amend planning permissions in limited circumstances to providegreater flexibility following recent caselaw. The new provisions will allow an applicant to make “non substantial changes” to a permission, “including descriptor of development and conditions”. Development Commencement notices A commencement notice will be required before any work is commenced on site in accordance with a planning permission. This essentially fixes the gap in the current legislation and removes the need for LDC’s on applications that have been implemented. Completion notices This fixes the gap within legislation allowing LPA’s on uncompleted sites to issue a notice specifying when the work must be finished. After which date the planning permission for the unfinishedparts will cease if the work is not completed. Enforcement Much of the enforcement section of the bill is a big fix of discrepancies and weaknesses within the Act. The main points are: A universal time limit of 10 years for all development;Enforcement warning notices for approvable development; Temporary stop notice effect increased to 56 days; Removal of ground a appeals where a planning application has been made for the same development; Penalties for delays caused by the appellant is responsible for undue delay in the progress of the appeal; Penalties for non-compliance are also increased; Relief from enforcement of planning conditions in specified circumstances. Doubling fee’s for retrospective applications in line with the current ground a fee. Community Consultation The Bill suggests changes to bring England in line with wales in terms of community consultation as a required pre-submission step for larger forms of development. These provisions are already in place in wales and expected to take the same form. Infrastructure Levy CIL and much of S106 is to be abolished in favour of a national Infrastructure Levy that will replace both with one combined levy. Unlike CIL, IL is to be charged as a proportion of property value. The Policy Paper explains further that it is the Government’s intention indeed to reduce the scale of s106 planning obligations so that s106 agreements will be used: (1) on the largest sites in place of IL (provided that the value of the infrastructure being provided in that way is not less than that which would be achieved under IL); and (2) on other sites where “narrowly focused” s106s will be used to provide onsite infrastructure. The Policy paper also suggests that the Government’s intention is that Affordable Housing will be delivered through the IL. Environmental Outcomes Reports The bill makes provision for regulations to allow plans that have an impact relating to environmental protection to be assessed through environmental outcomes reports. The Explanatory Note suggests that these build on the mandatory information required in the reporting stages of an environmental impact assessment or a strategic environmental assessment. Compulsory Purchase There are minor changes to compulsory purchase proposed. these are summerised as: Publishing notices of the making of a CPO must also be done in successive editions of a weekly local newspaper and on an appropriate website; Changes the minimum 21 day objection period so it must be at least 21 days;Notice of confirmation of the CPO must also be published on a website for at least six weeks;There will no longer be an automatic right for objectors to require a public local inquiry into the confirmation of the CPO; CPO will be allowed subject to conditions. Overall the bill reads and feels like a return to the expert system of the 1950’s. Discretionary decision making gets harder and a more nationalised focus on planning takes its place. Lets see if planning V2022 works for the best. By Jon McDermott [...] Read more...
4th April 2022Latest News / NewsIn 2020 I did an Anti-Guru vlog which you can see here: Within the vlog I raised the simple premise, that was nutrient neutrality was going to spread and there was very little to stop Natural England rolling this out. In March 2022 another 42 authority areas were added to the list making the total 72. In the words of the Planners at Darlington Council this caused the following reaction: On 17th and 18th Feb (last Thursday and Friday) we received emails from Natural England and the Chief Planner from the Department for Levelling Up, Housing and Communities that the Borough of Darlington is now part of the Teesmouth & Cleveland Coast Special Protection Area/Ramsar which, from the information that we have received from them so far, means that the local planning authority, under the Habitats Regulations, has to carefully consider the nutrients impacts of any projects (including new development proposals) on habitats sites and whether those impacts may have an adverse effect on the integrity of a habitats site that requires mitigation, including through nutrient neutrality. This impacts on all planning applications which cover all types of overnight accommodation including new homes, student accommodation, care homes, tourism attractions and tourist accommodation and permitted development (which gives rise to new overnight accommodation) under the Town and Country Planning (General Permitted Development) (England) Order 20159. This advice also applies to planning applications at the reserved matters approval stage of the planning application process, and to applications for grants of prior approval and/or certificates of lawfulness for a proposed use or operation. This impacts on developments for one dwelling upwards. You will appreciate that this appears to be a very complex issue that has just been brought to our attention, along with the other affected local planning authorities and it is outside of our control, impacting on a large number of existing planning applications that we currently have with us. We have been advised to attend a number of workshops over the coming weeks presented by PAS and Natural England, with the first ones being open to Chief Planning Officers this week, which we will need to accept in order to understand what this new guidance and advice entails for both ourselves, developers and planning applications. Until we have a greater understanding of this new guidance, the mechanisms for implementing them across the Tees Valley authorities, we are currently not able to progress any planning applications for residential development/accommodation in any form. This has impacted upon over twenty of my current planning applications.Andrew HarkerPlanning Officer, Development Management So what is happening? Nutrient pollution is a big environmental issue for many of our most important places for nature in England. In freshwater habitats and estuaries, increased levels of nutrients (especially nitrogen and phosphorus) can speed up the growth of certain plants, impacting wildlife. This is called ‘eutrophication’ and it is damaging protected sites. As such, some sites are classified as being in ‘unfavourable condition’. The sources of nutrients generally include sewage treatment works, septic tanks, livestock, arable farming and industrial processes. Where sites are already in unfavourable (poor) condition, extra wastewater from new housing developments can make matters worse. By designing development alongside suitable mitigation measures, that additional damage can often be avoided. This approach is called ‘nutrient neutrality’. It essentially allows developments to be permitted without impacting on the condition of the important wildlife / protected sites. What type of development needs to be nutrient neutral? Nutrient neutrality is needed for overnight accommodation including new homes, student accommodation, care homes, tourism attractions and accommodation. The nutrient neutrality approach applies to proposals for a net increase in dwellings. Replacement dwellings are generally excluded. So, campsites, glamping pods / holiday lets / shepherd’s huts etc are all included. This includes developments that propose to connect to the mains, off grid treatment works or composting toilets. Other commercial development (not involving overnight accommodation) is generally not included, so nutrient neutrality does not apply to new schools, shops, offices etc. Other applications will be considered on their individual merits, for example new industry, extensions to regional airports etc. Does nutrient neutrality apply to the whole authority area? It depends on the river catchment and the catchment boundaries for wastewater treatment works. The nutrient neutrality approach applies where the treated wastewater discharges into a sensitive catchment – either into the ground or surface water. Check to see the extent of the sensitive river catchment and how much of the authority area is within this area, eg which towns, villages, ward boundaries. The catchments for the wastewater treatment works also need checking. The catchment calculators include a list of the relevant wastewater treatment works (on the lookups tab). The river catchment and wastewater treatment work catchments can be different. Sometimes the waste from a development in one catchment is discharged into another catchment where nutrient neutrality applies. This is more likely to be the case when your development is located near the edge of the river catchment. What legislation covers nutrient neutrality? Many of our most internationally important water dependent places (lakes, rivers, estuaries, etc) are protected under the Conservation of Habitats and Species Regulations 2017 (as amended). In accordance with this legislation, a Habitats Regulations Assessment (HRA) is needed for plans and projects that are likely to have a significant effect on the protected sites. Natural England has included more information in their updated methodology. In the short term…. Some councils will receive the advice from Natural England out of the blue, and it can be difficult to know what to do next. In the short term Council’s will put all applications on pause until they sort out their package of nutrient neutral measures. Given that Natural England’s advice is being upheld by Inspectors and the High Court there is no mechanism available to prevent further spread of the issue beyond the 72 authorities already effected. [...] Read more...
22nd February 2022ViewsI have just recorded a podcast for a good property entrepreneur friend of mine, Dave Hartnet of Mountbatten Estates, and one thing it got me to do was reflect on the state of the system today in 2022. The podcast also comes at a time of change, we have just had the first proper update to the UK Planning Portal for five years. We are seeing alterations to the way the Inspectorate works and we are seeing the new department for Leveling Up, Homes and Local Government announce its leveling up agenda. But what about the front line of planning in England. In my previous article I reported that some 51 of the planning authorities this year have found themselves in presumption this year. Some have appalling rates of planning delivery with Southend propping up the country with a delivery of 31% over need over the past three years! Remember that planning authorities are meant to deliver housing through granting sustainable developments: 9. These objectives should be delivered through the preparation and implementation of plans and the application of the policies in this Framework; they are not criteria against which every decision can or should be judged. Planning policies and decisions should play an active role in guiding development towards sustainable solutions, but in doing so should take local circumstances into account, to reflect the character, needs and opportunities of each area.Para 9 of the 2021 NPPF 38. Local planning authorities should approach decisions on proposed development in a positive and creative way. They should use the full range of planning tools available, including brownfield registers and permission in principle, and work proactively with applicants to secure developments that will improve the economic, social and environmental conditions of the area. Decision-makers at every level should seek to approve applications for sustainable development where possible.Para 38 of the 2021 NPPF So what is happening today? Why is it that applications for development are seen so negatively from the outset rather than looking at things in a more positive light as per the instructions in para 38. Ultimately it is all about time and culture. I have a lot of sympathy with planning officers today. My former colleagues at Portsmouth are typically handling a rolling 100 applications each. If they adopt a 1 job per day strategy then that 100 days of work. Even if that does not sound much remember it is a rolling treadmill of applications so every app that drops off is replaced by another. Add to that the government mandated time limits. An 8 week application needs to be dealt with inside of approximately 60 days. The math just does not balance. One application per day means that adding a case to the load will automatically lead to that case being 40 days overdue. Having been a planning officer myself one job per day is a reasonable expectation for good decision making, its a principle that holds true for my workload today and so in essence any application is destined to go out of time. Lets then turn to culture. Planning today is habitually in everyone’s bad books. For the Government planning must do more and deliver bigger and more beautiful buildings, for developers planning is seen as a blockage to development, for homeowners planners are just unfair adopting almost arbitrary views on development. This means that a Planning Officer today is everyone’s bad guy and can never be right. I reflected upon this during a podcast recording in Lockdown 1 – I said to the interviewer “I am in a profession where I will never win the game, I will get close sometimes but never win” when questioned on this standpoint I reiterated the sentiment above. That is as a planner I am always upsetting someone. There is simply no equity in the process. That lack of equity breeds culture in decision making. It is easier today for planners to ignore their statutory duty under the act and the NPPF and just refuse. This may feel very cynical however from experience it is the way the system is pushing the profession. With time limits and work pressure it is better to get an application off your desk rather than negotiate and work towards a shared solution. In council’s such as Maidstone and Southend in particular this is the norm with no negotiation during the process and in Southend in particular – no pre-application either. Refusing an application transfers the position of prime dark lord of planning from the Case Officer (now hero of the people for refusing your consent) to the Planning Inspectorate who are otherwise protected by layers of staff and procedure. For council’s under the threat of government intervention through special measures a culture of refusal is otherwise counter productive as it simply does not deliver on government objectives for housing delivery and quality of decision making. However it today’s planning world one has to ask what is better? By Jon McDermott [...] Read more...
17th January 2022Latest NewsJanuary, in the planning world at least, brings with it the grading of council performance known as the Housing Delivery Test. HDT Layer Nimbus Maps – 2020 Result The HDT is an important tool for Council’s and Government to understand what is going on with housing delivery and it is essentially there to mark the Council’s planning homework. The result of the HDT is essentially 4 grades or results that will define what will happen with, or more importantly to, that LPA in the coming year. The grades are as follows: No Action – The LPA has achieved better than 95% of its housing delivery targets over the past three years 227 Authorities this year. Action Plan – The first stage of sanction where the LPA has achieved between 95-85% of its targets and must therefore produce an action plan where it takes a long hard look at itself to understand what it could do better. Here is Portsmouth’s for 2021 as an example, more on them later! Portsmouth Action Plan. 23 Authorities this year. Buffer – The second sanction where an LPA has achieved between 85-75% of its targets. 20% more housing target is added for the council to achieve and it must again produce an action plan. 19 Authorities this year. Presumption – The third and final consequence where an LPA has achieved less that 75% of its targets. There are 51 authorities in this bracket this year with Southend-on-Sea leading the bottom with just 31% delivery. In practice presumption has a few consequences for the planning authority as it engages the ’tilted balance’ in favour of sustainable development and can render a Local Plan or Neighbourhood Plan obsolete if the ballance is properly engaged. There are but a few circumstances where the ballance cannot be engaged fullu and those are outlined chiefly at paras 11-14 of the 2021 NPPF. These include where the NPPF itself would provide a clear reason for refusal such as: Habitats sites (and those sites listed in paragraph 181) Sites of Special Scientific Interest;Land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) Heritage Coast;Irreplaceable habitats;Designated heritage assets (and other heritage assets of archaeological interest;Areas at risk of flooding or coastal change. Granted in the main you would need to go to the Inspectorate in order to get a proper hearing on the tilted balance as most, if not all LPA’s that are effected by the presumption, tend to attempt to maintain business as normal until they are told otherwise. So why does a Planning Authority start to fail? To answer this lets look at Portsmouth City Council. Year on year since the start of the HDT in 2018 they have been in decline on their statistics from a comparative excellent authority in 2018 with 122% delivery to a presumption authority in 2021 with just 54% delivery. Portsmouth Civic Offices The 2021 Action Plan blamed the following: Slow delivery on consented sitesSlow delivery on allocated sites Insufficient forward land supply Insufficient Delivery of Planning Approvals Nitrate Mitigation factors (Natural England)Development Viability All of the above, with the exception of Natural England, are within the LPA’s remit to control either by reducing implementation periods on consented schemes or latterly creating a change in culture at the LPA where para 1, 2 and 38 of the NPPF (that’s the duty to seek to grant planning permissions first) is embedded right at the outset. The report also points to under funding within the planning sector generally and an unwillingness of other authorities near to Portsmouth to play fair. The fact that two of those authorities, namely Fareham and Havant, also find themselves in presumption this year does not bode well for the ability of PCC to work towards statements of common ground. In the end the result is the same – Portsmouth are in presumption with a 54% delivery rate and just 3.2 years of housing left to them (reported in the 2021 Action Plan) and therefore the culture of the council, like all those in presumption, must change from ‘its not our fault’ to ‘only we can get ourselves out of this mess’. So what does it all mean The Big developers will be pouring over the HDT for the big wins this years. Desirable places like Mole Valley and Fareham will be under heavy pressure to grant planning permissions and get building on sites in the next 12 months. The buffer authorities will also be taking a long hard look at themselves – Can they ‘Pull a Gosport’ and get themselves out of the buffer in 1 year (GBC went from 84% to 100% in one year!). For me it is these buffer authorities that are of the most interest as they tend to be the ones that want it most and those are the LPA’s I will be paying attention to in 2023. by Jonathan McDermott [...] Read more...
7th October 2021Latest News / OpinionThe Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (snappy title!) was laid before parliament on the 9th July and makes the much needed consequential changes following the wholesale alteration to the Use Classes Order in September of last year. A copy of the legislation can be found at https://www.legislation.gov.uk/uksi/2021/814/made A number of the changes were previously consulted upon in the spring and can be summed up in this helpful document which we produced earlier in the year. GPDO Consequential Changes Quick GuideDownload However, there is one in there that has taken us all by surprise! Class G. Now for those that know me I have lauded the benefits of Class G as it was the one remaining ways to gain the benefit of new dwellings in technically difficult circumstances and without the need for any form of permission at all from the Planning Authority. Sadly however those days are numbered as on the 1st August 2021 Class G loses its freedom and falls into the rank and file of prior approval matters determined by the planning authority through the prior notification process. The matters for consideration by the LPA after the 1st of August are as follows: (i)contamination risks in relation to the building;(ii)flooding risks in relation to the building;(iii)impacts of noise from commercial premises on the intended occupiers of the development;(iv)the provision of adequate natural light in all habitable rooms of the dwellinghouses;(v)arrangements required for the storage and management of domestic waste. This now being a prior approval matter means that compliance with the national space standards is now a matter of fact rather than it being based on a reliance that Class G was not included within the original list or prior approvals caught by the NDSS. I am gratified to Joshua Clayman of Windsor and Maindenhead Council for providing the legal clarity to the point of whether the development results in dwellings in their own right. Joshua points to the following in a recent debate with myself over email. Whilst I have not specifically found an appeal regarding space standards and (the former version of) Class G, there is case law – Valentino Plus Ltd v SSCLG EWHC 19 (Admin) – that indicates ‘mixed use’ in the case of Schedule 2, Part 3, Class F of the GPDO 1995 (the precursor to Part 3, Class G of the 2015 Order) should be interpreted as a change to (up to) 3 planning units, namely a A1 shop and 2 self-contained flats. Hence, the self-contained flats are ‘true dwellings’ in the sense they are each their own planning unit.Whilst Class G has become a prior approval process, it still creates a mixed use, so the question still needs answering. The new prior approval wording refers to adequate natural light in all habitable rooms of the dwellinghouses. This also indicates the flats being created are true dwellings.Joshua Clayman This should hopefully bring an end to the debate as to whether the national standards apply. As per my comment above it is my view that they now do. However there is some good news, Class G in its new form becomes a Super G permitted development allowance which is available to all of the uses within Use Class E rather than just shop or financial and professional services. This includes the ability to do two flats above any of the following: Shops (not already covered by Class F2),Financial and professional services,Restaurants and cafés,Offices,Research and development of products or processes,Industrial processes compatible with a residential area,Clinics,Health centres,Crèches,Day nurseries,Day centres,Gymnasiums or area for indoor sports and recreations (excluding swimming pools and skating rinks) Uses such as Betting Office and Pay Day Loan Shop are also included within the Super G provisions as a carry over from its former life. your ability to use Class G on a Listed Building or indeed any other building that is within an area not available to Class MA remain exactly the same. Whilst it was a shock to the system to see Class G turn into a prior approval matter without announcement by the Government this would resolve one pertinent problem in a land deal of my own in Cornwall. The funding house on the project have been demanding a Certificate of Lawfulness or Planning Permission for the proposed works which we have (to this point) been saying is not required. Whilst it may now be a necessity it will remove the uncertainty from the equation and mean that we can get our papers in order using the 56 day process. It will also draw a final line under the last mechanism to get flats that are below the 37sqm threshold within the NDSS so at least finally we can draw an end to clients seeking to break or bend the rules because profit is more important that quality. Transitional Arrangements The explanatory memorandum with the SI is, as always, notoriously vague on the transitional arrangements for Class G but does state: 7.43 Paragraph 4 provides for transitional arrangements where the amended right contains substantially new conditions. For example, Class G of Part 4 is amended to introduce from 1 August 2021 a requirement for local consideration of matters of prior approval. However, development begun before this date may continue to proceedirrespective of whether an application for prior approval has been made. Whilst the paragraph does not expressly state Class G of Part 3! (maybe a typo there!) it does make clear that if your development has begun you may continue it. However I am sure those schooled in planning law will also scream that Class G is a change of use and therefore governed by S56(b) of the Act which expressly states that the development is begun when the new use in instituted. Therefore with the transitional arrangements once again as clear as mud our old friend ‘fact and degree’ will come into play in the short to medium term. This is only one of a vast number of changes happening in the summer of 2021 and so planning will once again be in a state of flux as we learn the new rules. Lets see what the story says in 8 months time! by Jon McDermott [...] Read more...
31st August 2021OpinionBack in 2012 the NPPF included an important paragraph. To deliver a wide choice of high quality homes, widen opportunities for homeownership and create sustainable, inclusive and mixed communities, localplanning authorities should:● plan for a mix of housing based on current and future demographictrends, market trends and the needs of different groups in the community(such as, but not limited to, families with children, older people, peoplewith disabilities, service families and people wishing to build their ownhomes);● identify the size, type, tenure and range of housing that is required inparticular locations, reflecting local demand; and● where they have identified that affordable housing is needed, set policiesfor meeting this need on site, unless off-site provision or a financialcontribution of broadly equivalent value can be robustly justified (forexample to improve or make more effective use of the existing housingstock) and the agreed approach contributes to the objective of creatingmixed and balanced communities. Such policies should be sufficientlyflexible to take account of changing market conditions over time.Para 50 of the 2012 NPPF This paragraph was important because it provided the Council’s with the legislative backing to seek to control HMO’s. Sustainable, inclusive, mixed and balanced communities were the soundbites repeated in many planning decisions up and down the country where the Council has otherwise sought to refuse an application for an HMO. At no other point within the NPPF did the Council have a leg to stand on however the paragraph was just about vague enough to suggest that somehow the Government of the day wanted to create mixed and ballanced communities. Roll on to the 2021 NPPF and para 50 is gone and is replaced by Para’s 60-63 of the framework which state: To support the Government’s objective of significantly boosting the supply ofhomes, it is important that a sufficient amount and variety of land can come forwardwhere it is needed, that the needs of groups with specific housing requirements areaddressed and that land with permission is developed without unnecessary delay.To determine the minimum number of homes needed, strategic policies should beinformed by a local housing need assessment, conducted using the standardmethod in national planning guidance – unless exceptional circumstances justify analternative approach which also reflects current and future demographic trends andmarket signals. In addition to the local housing need figure, any needs that cannotbe met within neighbouring areas should also be taken into account in establishingthe amount of housing to be planned for.Within this context, the size, type and tenure of housing needed for different groupsin the community should be assessed and reflected in planning policies (including,but not limited to, those who require affordable housing, families with children, olderpeople, students, people with disabilities, service families, travellers, people whorent their homes and people wishing to commission or build their own homes).Where a need for affordable housing is identified, planning policies should specifythe type of affordable housing required, and expect it to be met on-site unless:a) off-site provision or an appropriate financial contribution in lieu can be robustlyjustified; andb) the agreed approach contributes to the objective of creating mixed andbalanced communities.Paras 60-63 of the 2021 NPPF A broad brush notion of mixed and balanced communities for all has been replaced with the scalpel within para 63 which refers solely to mixed and balanced communities in relation to affordable housing only. Indeed paras 60, 61 and 62 take a different approach instructing LPA’s to render support where inter-alia: Para 60: the needs of groups with specific housing requirements are addressed Para 61: reflects current and future demographic trends and market signals and Para 62: the size, type and tenure of housing needed for different groups in the community should be assessed and reflected in planning policies (including, but not limited to…students, people with disabilities…people who rent their homes…) With this change in focus where does it leave the legislative support for control of HMO’s? Put simply the 2021 NPPF includes no policy relating to HMO’s positive or negative and no mention of control for this use class at all. As such it remains for the council’s to somehow glean continuing support from the new NPPF. The silence or otherwise within the amended NPPF is deafening however the clear message is that the stalwart of mixed and balanced communities has now apparently been removed. Further for those authorities seeking to remove Class L via an Article 4 Direction the new NPPF presents bad news to those council’s seeking a council wide control stating: The use of Article 4 directions to remove national permitted development rightsshould:• where they relate to change from non-residential use to residential use, belimited to situations where an Article 4 direction is necessary to avoid whollyunacceptable adverse impacts (this could include the loss of the essentialcore of a primary shopping area which would seriously undermine its vitalityand viability, but would be very unlikely to extend to the whole of a towncentre)• in other cases, be limited to situations where an Article 4 direction isnecessary to protect local amenity or the well-being of the area (this couldinclude the use of Article 4 directions to require planning permission for thedemolition of local facilities)• in all cases, be based on robust evidence, and apply to the smallestgeographical area possible.Para 53 of the 2021 NPPF The first new Article 4’s post July 2021 have directed their efforts to the smallest geographical area possible isolating individual streets or properties and so it seems that the LPA’s have heeded the Governments warning’s that a blanket removal of the Permitted Development toy box will not be tolerated. By Jon McDermott [...] Read more...
24th June 2021OpinionIt is fair to say that planning authorities in England have their favourite forms of development and in equal measure those developments they love to hate. This behaviour comes from those at the very top of the department and filters down through the teams to form part of the personality of the planning authority. Those in Winchester will have heard of the ‘Winchester Way’. This is a good example of decision making behaviour (DMB) that can be tracked and exploited by a developer or planning consultant. Positive and Negative DMB is in fact a proper application of case law and the principle of consistency in decision making. It is well established case law that previous planning decisions are capable of being material considerations, meaning that they need to be taken into account by those determining subsequent applications for permission. The reasoning behind this was explained by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137: “One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency….. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system.” Two recent decisions in the High Court have now emphasised the importance of consistency in planning decisions and the need for clear reasons to be given where inconsistencies arise. The first case, R (Midcounties Co-Operative Limited) v Forest of Dean District Council EWHC 2050, involved a challenge by the Co-Op of the granting of planning permission for an Aldi store on a site outside the town centre. The application was approved at a full council meeting despite the planning officer’s report recommending refusal. One of the Co-Op’s grounds of challenge was that the council had failed to have regard to the importance of consistency in decision-making as it had refused to grant Aldi permission for a near-identical development on the same site the previous year due to adverse retail impacts on the town centre. The Co-Op also alleged that if the council had given consideration to its earlier decision, there had been a failure to give reasons as to why it had now reached a different decision and granted planning permission. Planning permission was quashed by the court after it held that the council had made clearly inconsistent decisions and had failed to provide adequate reasons for doing so. By failing to reference, let alone address, the previous refusal decision, the council had not explained how the previous concerns relating to adverse retail impacts had been addressed and allayed in the subsequent application. Singh J confirmed (at paragraph 107) that: “Although the authorities demonstrate that a local planning authority is not bound by its earlier decision, nevertheless it is required to have regard to the importance of consistency in decision-making.” In essence, it was open to the council to reach a different decision but only if it had “grappled with the earlier reason for refusal based on retail impact and harm to the viability of the town centre”. The case emphasised that, in circumstances in which an earlier decision is a material consideration in the context of a current application, a decision-maker must provide clear reasons for any departure from their original position. In the second case, Baroness Cumberlege v Secretary of State for Communities & Local Government EWHC 2057, planning permission granted by the secretary of state for a housing development was quashed after he had failed to take into account a decision taken by his own department a mere 10 weeks earlier. The High Court held that the secretary of state’s decision that a planning policy was out-of-date, and thus could be given less weight, was completely inconsistent with the decision of his own department, which was that the policy was up-to-date. Howell QC stated (at paragraph 100) that: “There is a public interest in securing reasonably consistency in the exercise of administrative discretion that may mean that it is unreasonable for a decision-maker not to take into account other decisions that may bear in some respect on the decision to be made. There is no exhaustive list of the matters in respect of which a previous decision may be relevant. That must inevitably depend on the circumstances.” The earlier decision was not so different that it could reasonably be ignored. Any reasonable decision-maker would have considered it and decided whether they agreed with the reasoning given for regarding the policy as being up-to-date and whether the reasons were equally applicable to the present case. Again, they would also have provided reasons for any departure from the previous decision. Permission has been granted for the secretary of state to appeal the decision in the Court of Appeal. These two court decisions emphasise the need for consistency in planning decision-making, especially when assessing similar developments. This is not so onerous so as to mean all previous decisions must be considered. However, it is clear that there are instances where decisions are so similar that to fail to take them into account would be nothing but unreasonable. So how do we apply this to DMB and how do we use this to our advantage? DMB is part of the I for Intelligence and C for Compare considerations of our VICTORY model. What we are looking for here is evidence within the DMB of a council that they either like or dislike a particular form of development within their area. Repeated approvals for broadly the same development = a positive DMB that would encourage more of the same. Repeated refusals for broadly the same development = negative DMB and that development should rightly be avoided. DMB can change over time with too much of a good thing. In Croydon Council the LPA very heavily promoted the idea of knocking down two storey three bedroom detached houses and building three storey blocks of flats. Many such applications later the LPA noticed that they had a lot of 1 and 2 bedroom flats in supply and very few three bedroom dwellings left. This spurned them to issue an Article 4 to prevent house to HMO without planning permission and change their DMB to enforce their own policies on ballance of properties within a development. In Southampton City Council there was a profound negative DMB towards HMO’s this became so much so that it generated a very positive DMB towards Halls of Residence. Today in Southampton you can get planning permission for a massive hall but you have no hope of getting a single HMO. By tracking the DMB you can track with reasonable confidence the kind of decision you may face within any particular council. Suffice it to say that DMB is particular to an individual planning authorities and so another reason why specialising in a particular area is key. By Jon McDermott [...] Read more...

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