For this year’s 17th Annual Planning Law Update, the Holmes & Hills Planning Law Department covered a “Planning Top Ten” – namely 10 key and topical Planning Law issues. This new top 10 format being highly commented as successful by attendees.
These topics are summarised below.
It may be an obvious point but planning applications require accurate red line plans to identify the application site, demonstrate highway access, and clarify land ownership. Whilst seemingly straightforward, inconsistencies between land ownership and red line plans can create significant problems. Managing Partner, Steven Hopkins discussed the consequences of getting this initial element wrong and how you may be able to rectify the issue.
Common Problems
Errors in red line plans can result in:
Determining Legal Boundaries
Many rely on Land Registry online maps, but these only identify title numbers, not precise legal boundaries.
To determine accurate legal boundaries, review the root Transfer or Conveyance documents and apply legal presumptions where necessary. For highways, the "ad medium filum viae" presumption means landowners adjacent to highways typically own to the centre line, even if the highway authority maintains the surface.
Highway Considerations
Check that:
Highway boundaries depend on factors including public use extent, surface dressing, and physical boundaries.
Remedying Certificate Errors
Recent cases show that errors with Certificates may not be fatal in circumstances where no prejudice has been caused by the error. The approach of the courts is that, amongst other things, it has to consider the consequences of non-compliance, the nature of the failure, the identity of the applicant for relief, the lapse of time and the effect on the other parties.
Conclusion
To summarise, prevention is better than cure - ensure red line plans and ownership certificates are accurate from the outset.
Understanding how to modify existing planning permissions has become clearer following an important Court of Appeal decision involving Test Valley Borough Council and Fiske. Sarah Hare looked into this.
The Court of Appeal confirmed that whilst Section 73 applications can vary or remove planning conditions, they cannot alter the "operative part" of an existing permission. This includes both the development description and any drawings listed in the decision heading.
What This Means in Practice
Currently, applicants seeking to change the description of development must either:
Looking Ahead
Section 73B of the Town and Country Planning Act 1990 which was brought about by The Levelling Up and Regeneration Act. Section 73B will allow LPAs to approve applications where the description of development is proposed to be changes, so long as the LPA is satisfied that the change will not result in anything that is “substantially different” to the existing permission. Whether something is “substantially different” will be a question for the LPA.
This new provision, expected to be implemented shortly, will streamline the process by allowing single applications for changes that aren't substantially different, reducing administrative burdens and speeding up decisions.
In summary:
Sarah also considered the recent Court of Appeal decision of Greenfields (IOW) Limited v Isle of Wight Council [2025] EWCA Civ 488 has highlighted the critical importance of local planning authorities publishing Section 106 agreements on their planning registers before issuing planning permissions.
The Case
In Greenfields, planning permission for 473 homes was quashed because the council failed to publish the Section 106 agreement on its planning register, before granting permission.
The Legal Position
Article 40(3)(b) of the Development Management Procedure Order 2015 (DMPO) has required planning registers to contain copies of planning obligations and s278 agreements since 2015. Lord Justice Lewis ruled that simply including heads of terms in committee reports wasn't sufficient - the actual draft agreement must be published beforehand to allow public scrutiny and comment.
Further case
The more recent case of Chidswell Action Group, R (On the Application Of) v Kirklees Council [2025] EWHC 2256 (Admin), has further emphasised the importance of s106 planning obligation publication. In this case, the judge accepted that non-publication caused real prejudice, as the lack of transparency of the negotiations between the developer and the LPA were shielded from the public.
Conclusion
Though this requirement has existed since 2015, these two cases reinforce the importance of publishing both draft and completed s106 and s278 agreements. Local authorities must now ensure robust procedures are in place to avoid legal challenges.
Michael Harman set out the legal background to this case which has confirmed that the National Planning Practice Guidance (NPPG) is not legally subservient to the National Planning Policy Framework (NPPF). The Court confirmed that:
A full copy of the case can be found here: Court of Appeal Judgment - Mead Realisations.
These were formally introduced in the December 2024 NPPF update, with further guidance contained within a February 2025 update to the NPPG. The “Golden Rules” require contributions to affordable housing, infrastructure, and green space (as the case may be) for “major development” on Green Belt land.
Michael made the point that the NPPF defines “major development” differently to the Development Management Procedure Order (‘DMPO’), meaning some applications which would not be defined as “major development” under the DMPO may still trigger Golden Rule compliance for this reason.
The “take home message” being that when considering the application of the “Golden Rules” it is the NPPF glossary definition of “major development” that needs to be considered
Michael finished by speculating as to whether this discrepancy in the definition of “major development” was deliberate/purposeful or perhaps a drafting error. The proof of the pudding will be whether (or not) the NPPF glossary is amended to align with the DMPO definition of “major development”. But in the meantime, the difference should be noted.
The recent case of Rickards v East Hertfordshire District Council [2025] has clarified that while prior approval applications require a "light touch" approach, this does not equate to a "no touch" process. Millie Cook explained that Local Planning Authorities must still apply appropriate rigour and consider material considerations such as heritage assets and ancient woodland.
Background
In March 2024, a developer applied for prior approval under Part 6, Class A of the General Permitted Development Order (GDPO) to erect three large polytunnels and associated hardstanding for growing tomatillos on agricultural land. The site was directly adjacent to ancient woodland designated by Natural England and next to a Grade II listed building.
East Hertfordshire District Council granted prior approval in April 2024. However, the Officer's Report made no mention of either the ancient woodland or the listed building when determining the application.
The Legal Challenge
The landowner filed for judicial review in July 2024, arguing that the Council failed to consider the development's potential impact on the ancient woodland and on the setting of the listed building. At the hearing, the Council contended that these matters had been addressed within the officer's general conclusion that the development was "acceptable" and would not "unduly harm" the surrounding area.
The judge rejected this submission, stating: "The conclusion that I am forced to draw on the evidence is that the Officer was simply unaware that there was a listed building and an ancient woodland to be considered here. That being so, self-evidently it is impossible to infer that she had proper regard to them in reaching the decision to grant prior approval."
The Decision
The claim succeeded, and the prior approval was quashed. The judge emphasized that consideration of impacts on both heritage assets and ancient woodland were material considerations that should have been addressed, citing Paragraphs 186 and 205 of the NPPF, and the PPG (Paragraph 033 Reference ID 8-033-20190721).
Comment
This judgment confirms that even "light touch" prior approval determinations under permitted development rights must properly consider impacts on protected environmental and heritage assets. Failure to do so may constitute an error of law that could be subject to judicial review. Local authorities must ensure officers are aware of and properly assess all material considerations, regardless of the streamlined nature of the application process.
This year, Ellie Hambling spoke about the evolving interpretation of Section 70C of the Town and Country Planning Act 1990, focusing on the case of Moran v Medway Council [2025] EWHC 350 (Admin), an ongoing Judicial Review case in which Holmes & Hills LLP continues to act for the claimant.
Ellie outlined the complex planning history of the site, explaining how the claimant became the owner of the site (or a sufficient part of it) in 2022. The land was subject to a pre-existing enforcement notice issued in 2017 against the previous owner, which had not been complied with. As a result, the Local Planning Authority (LPA) took direct action to clear the site in 2022.
In 2023, the claimant submitted a planning application for a change of use of the land to residential for the siting of caravans and mobile homes. The LPA declined to determine the application under section 70C, citing that the proposal overlapped with the breaches in the earlier enforcement notice.
The claimant challenged this decision in the High Court, arguing that the LPA had erred in failing to apply section 70C consistent with its statutory purpose. The claimant submitted that the provision was to give LPA’s a tool to prevent retrospective planning applications being used to delay enforcement action being taken against a development, and that it did not extend as far as preventing a subsequent owner, not in breach of planning control, from having any opportunity to have the planning merits determined. The claimant contended that as the enforcement notice had been “complied with”, the slate had to be treated as wiped clean.
The High Court upheld the LPA’s decision. However, in May 2025, the claimant was granted permission to appeal to the Court of the Appeal. In granting permission, the judge noted that a ruling from the Court of Appeal on the width and scope of section 70C would be beneficial and how the three main first instance decisions about the statutory purpose of section 70C are conflicting.
The appeal is expected to be heard in February 2026 and will be the first time the Court of Appeal considers the proper scope of Section 70C. The outcome is anticipated to bring much needed clarity to this area of Planning Law.
Michael considered that this was perhaps the Planning Law case of 2025 – with issues regarding planning enforcement making front page news. In this case that an LPA can seek an injunction (under section 187B TCPA) even it is time-barred from the service of a Temporary Stop Notice (or Stop Notice).
Whilst the facts are widely-known, the case concerned key issues regarding what is a material change of use, when did that use commence, what enforcement action can be taken and as a reminder to the full suite of enforcement powers available to a local planning authority. Or the sorts of issues that practitioners deal with on a day-to-day basis. Whilst it is not expected that the decision will make new law, the judgment in this case may provide a useful summary or provide Judicial Guidance on such issues.
At the time of the seminars (October 2025), a re-determination by the High Court was awaited – and no doubt will attract the attention of the public and press when that decision is confirmed.
Separately, Holmes & Hills have also provided commentary on this case, which is available here: https://www.holmes-hills.co.uk/news/2025/august/epping-forest-district-council-v-somani-hotels-limited-2025-ewhc-2183-kb/
Having been far more prevalence in 2025, Michael discussed Planning Enforcement Orders and outlined what they are and the applicable legal tests to be met in obtaining one.
Michael reminded attendees that the PEO regime offers LPAs a route to extend enforcement periods where deliberate concealment “to any extent” is suspected. And, if obtained, a PEOs can override preclude ground (d) appeals against an enforcement notice but also justify the refusal of an application for a Certificate of Lawfulness (per s191(3A) TCPA), making them a potent tool in an LPA’s enforcement strategy.
Michael finished by reminding practitioners to consider whether a PEO can be sought and, if so, what might the effect of that be in respect of any given scenario and/or application.
Finally, Millie considered The Planning and Infrastructure Bill is currently at the report stage in the House of Lords and is hoped to assist this government in pursuing its ambitious target of delivering 1.5 million new homes. The Bill proposes reforms across five key areas: infrastructure, planning, development and natural recovery, development corporations, and compulsory purchase.
Planning: Application Fees
Currently, planning application fees are set nationally and often fail to cover the full costs of running the development management service. The Bill introduces a new power allowing the Secretary of State to sub-delegate fee-setting to local planning authorities (LPAs).
Under this proposal, planning fees must not exceed the cost to the LPA of determining applications, and fee income must be retained for spending on the LPA’s planning functions. Current fee categories will be maintained to ensure consistency and prevent large fee differences between authorities. This reform aims to give LPAs greater flexibility to fund and deliver and effective planning service.
Planning: Committee Reforms
The Bill will introduce a national scheme of delegation through regulations, specifying which planning functions should be delegated to planning officers for decision and which to planning committee for decision. The legislation will also regulate committee sizes to support effective debate and avoid sprawling committees.
Significantly, committee members will be required to complete mandatory training before making planning decisions. These changes aim to create consistency and certainty about decision-making responsibilities while ensuring that those making planning decisions have adequate training.
Planning: Spatial Development Strategies
The government believes England's housing needs cannot be met without planning for growth beyond the local scale. The Bill enables strategic planning across England by introducing "spatial development strategies," closely modelled on London's Spatial Development Strategy.
The government emphasises this is not a return to regional planning - which proved too slow - but rather a sub-regional model designed to meet housing need, deliver strategic infrastructure, grow the economy, and improve climate resilience.
Development and Natural Recovery
Part 3 of the Bill addresses delays caused by environmental obligations relating to protected habitats and species.
The Bill establishes the Nature Restoration Fund (NRF) as an alternative approach for developers to meet environmental obligations. Natural England will prepare "Environmental Delivery Plans" setting out conservation measures at a strategic level, and this will then be funded by a Nature Restoration Levy paid by developers.
Once a plan is in place, developers will have a choice: pay the Nature Restoration Levy or continue under the current system of providing site-specific mitigation.
What's Next?
The Bill remains a proposal requiring agreement from both the House of Commons and House of Lords before receiving Royal Assent and becoming law. If enacted, these reforms could significantly reshape how planning decisions are made and funded across England while (hopefully) addressing long-standing barriers to housing delivery.
The Holmes & Hills Planning Law Seminars have become a cornerstone of the planning professionals annual event calendar. We will again be holding these Planning Law Seminars in the w/c 5th October 2026, so please save the date. If you would like to be included on the invitation list for these events - please call Ruben Patrick on 01206 593933 or email r.patrick@holmes-hills.co.uk.
But we will sign off with thanking all of you who signed up and/or attended the seminars – we hope to see you again next year.
Disclaimer
The content of this article is provided for general information only. It does not constitute legal or other professional advice. The information given in this article is correct at the date of publication.
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