Planning Law Update 2022

After an enforced break due to Covid, the Planning Law Team at Holmes & Hills delivered 6 seminars over a 4-day period in the first week of October. We thank you to the over 400 clients, referrers and Local Authority contacts who attended and participated in the events – the Team hope that it was insightful.

For those of you who unfortunately couldn’t attend, or as a summary for those that did, the Seminars covered the following topics:

Owing to the wide-ranging reforms proposed by it, Sarah Hare, Ellie Shemming and Issy Bainbridge all talked about the Levelling-Up and Regeneration Bill.

Sarah discussed proposed changes to planning obligations, notably:

• Proposals to significantly reduce the use of s106 agreements and unilateral undertakings.
• The abolishment of CIL in England (except for Mayoral CIL in London).
• The relevance of a mooted “Infrastructure Levy” and its impact on landowners and developers; to include calculation of the levy, timing of payment and penalties for non-payment.

Ellie discussed the proposed wide-ranging changes to the planning enforcement regime. The key points were as follows:

• The anticipated abolishment of the "four-year rule" with all breaches of planning control to be subject to a 10-year enforcement/immunity period.
• Giving “bigger teeth” to the planning enforcement regime; to include extending the period that Temporary Stop Notices have effect, removing statutory caps upon the amount that an individual (or company) may be fined in respect of non-compliance with a Breach of Condition Notice or s215 (maintenance/untidy site) Notice and greater powers in respect of Listed Buildings.
• The introduction of “Enforcement Warning Notices” to resolve breach(es) of planning control prior to the service of an Enforcement Notice; of note, the Enforcement Warning Notice would “stop the clock” in respect of the immunity period from its date of service and potentially have significant impacts upon the ability (or lack of) to claim immunity from enforcement action, or to pursue a ground (d) Enforcement Notice appeal before the Planning Inspectorate.

Issy summarised other proposals within the Bill, to include:

• The introduction of commencement and completion notices; their aim being to improve transparency and public understanding of local development projects/sites by clearly stating when a development has been commenced and when it has been finished.
• A potential new power for Local Planning Authorities to instigate high street rental auctions of vacant commercial properties.
• A potential ‘Street Votes System’ which empowers local residents to propose or determine acceptable development on their street.

Michael Harman gave an overview about Compulsory Purchase Orders [CPOs] and Development Consent Orders [DCOs], pertinently:

• The current and anticipated prevalence of these schemes and their relevance to landowners, Local Planning Authorities, and local residents, landowners and developers.
• The importance of understanding the impacts of a CPO/DCO – positive and negative – and consequential impacts on value, amenity and development potential of land and property.
• An outline of the compensation regime; noting the importance of identifying and quantifying applicable heads of claim but also the importance of regularising the planning status of land which is to be compulsorily acquired.

All seminars concluded with the ever-popular case law update, presented this year by the double-act of Jo Lilliott and Steven Hopkins. The cases discussed were:

• R (on the application of Village Concerns) v Wealden District Council [2022] EWHC 2039 (Admin) – which concerned the relevance of Officer Comments at Planning Committee and how may they be construed against an Officer’s Written Report/Recommendation.
• R (on the application of Cathie) v Cheshire West and Chester Borough Council [2022] EWHC 2148 – discussing the approach to be applied in an application to discharge planning condition(s); namely do the proposed details/solution have to be the best that can be achieved or do they only need to be satisfactory.
• A reminder to follow the two Supreme Court Judgements in Hillside and DP Symmetry – the former concerning the lawfulness, or legal impact of, “drop-in” permissions and the latter concerning whether planning conditions can lawfully require the giving up of land (e.g. for public highway) without payment of compensation.
• Corbett v Cornwall Council [2022] EWCA Civ 1069 – which concerned the approach to the lawful interpretation of policy wording – in this case whether “immediately adjoining a settlement” meant it had to be physically contiguous with the relevant settlement.
• Warwick DC v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2145 (Admin)  - concerning the Para 149(c) NPPF exemption for extensions to/of buildings in the Green Belt; namely does an extension need to be physically attached to an existing building.

The speakers were joined by colleagues Tom McPhie, Catherine Hibbert, Lucy Howe and Bronwyn Jenkins but also other colleagues from the Firm’s Corporate, Commercial Property, Development, Litigation, Construction, Plot Sales and Residential Conveyancing teams.