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Planning Advisory Service

Planning Advisory Service. Spring Conference, Birmingham. Presented By. Jack Smyth & James Corbet Burcher, Barristers, No5 Chambers. Planning Advisory Service Spring Conference Cultural Heritage. Presented By. Jack Smyth.

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Planning Advisory Service

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  1. Planning Advisory Service Spring Conference, Birmingham Presented By Jack Smyth & James Corbet Burcher, Barristers, No5 Chambers

  2. Planning Advisory Service Spring ConferenceCultural Heritage Presented By Jack Smyth

  3. The Statutory Duty to have regard to the desirability of preserving the listed building and its setting and the character or appearance of the conservation area. The Framework provides: Para 133 Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, (LPAs)…should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply: • nature of the heritage asset prevents all reasonable uses of the site; • no viable use of the asset … can be found in the medium term through appropriate marketing that will enable its conservation; • conservation by grant-funding or…charitable or public ownership is demonstrably not possible; • harm/loss is outweighed by the benefit of bringing site back into use.

  4. Para 134 Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.

  5. “In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.” Section 72(1) provides: “In the exercise, with respect to any buildings or other land in a conservation area, special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.”

  6. BARNWELL MANOR WIND ENERGY LTD v (1) EAST NORTHAMPTONSHIRE DISTRICT COUNCIL ET AL [2014] EWCA Civ 137

  7. In enacting the statutory duty Parliament had intended that the desirability of preserving the settings of listed buildings should not simply be given careful consideration by the decision-maker for the purpose of deciding whether there would be some harm, but should be given "considerable importance and weight" when the decision-maker carried out the balancing exercise It was erroneous of the Inspector to have treated the less than substantial harm to the setting of the listed buildings as a less than substantial objection to the grant of planning permission. While he had set out the s66 duty in his decision, at no stage did he expressly acknowledge the need to give considerable weight to the desirability of preserving the setting of those buildings.

  8. R (on the application of (1) FORGE FIELD SOCIETY ET AL [2014] EWHC 1895 (Admin)

  9. Having "special regard" or paying "special attention" involved more than merely giving weight to those matters in the planning balance. There was a strong statutory presumption against granting planning permission for any development which would fail to preserve a listed building's setting or a conservation area's character or appearance. A local authority was not allowed to treat the desirability of preserving those elements as mere material considerations to which it could simply attach such weight as it saw fit; when a local authority found that a proposed development would harm a listed building's setting or a conservation area's character and appearance, it had to give that harm considerable importance and weight

  10. Alternative Sites A local planning authority does not normally need to take into account alternative sites for the development it is considering. Where, however, there are clear planning benefits associated with the development but also clear objections to it, the authority may have to consider whether there is a more appropriate site for it (at para 84) The local authority should have considered alternative sites because there were clear objections to the proposed development. This was common ground. The assessment of alternative sites had been deficient.

  11. R (on the application of SILUS INVESTMENTS S.A.) v HOUNSLOW LONDON BOROUGH COUNCIL [2015] EWHC 358 (Admin) Procedure for the designation of Conservation Areas

  12. Pursuant to s.69 of the Act, the local authority had a duty to designate any area which it considered met the statutory test, and a duty to consider from time to time whether any areas met that test. No procedure was specified and there was no statutory obligation to consult. • The question on any designation decision was whether the area met the statutory criteria, and the court would strike down a designation decision whose sole impetus was a desire to prevent the demolition of a particular building • While such a desire could not of itself justify designation, the existence of a particular building might contribute to the character of an area, and a threat of demolition might legitimately prompt a decision to designate • There was credible evidence that the local authority had been considering designating Chiswick High Road for some years. Designation had not happened because other areas had been prioritised, not because the area was unsuitable.

  13. In 2014 the LA had been spurred into action by the proposed demolition. It was apparent from the report recommending designation that the risk to the pub was not the reason for the designation, although it was acknowledged as a benefit. The report set out the statutory test and applied the criteria to the area as a whole, and it was clear that the local authority had not designated the area simply to prevent the pub's demolition • The local authority conceded that by representing on its website that there would be a consultation it had created a legitimate expectation. • Where a public body embarked on a consultation without being obliged to do so, it still had to comply with the minimum standards of a lawful consultation procedure. That had not happened: • The information given to consultees was too superficial to provide for a meaningful consultation; • the seven-day consultation period was too short; • the decision to curtail it by five days was unjustified; and • not all the responses had been taken into account • The designation was quashed.

  14. Planning Advisory Service Spring Conference Humpty Dumpty & Up-to-Date “Out of Date” Policies for the Supply of Housing Presented by James Corbet Burcher

  15. OVERVIEW • Interpretation of Planning Policy: Tesco Stores Ltd v Dundee City Council, ‘Humpty Dumpty’ and Hunston • (1) Out of Date Policies: Crane • (2) Localism: Tewkesbury, Stratford • (3) OAN/Delivery: Hunston Properties,South Northamptonshire, Gallagher v Solihull • (4) Soundness: Grand Union Investments • (5) Presumption: William Davis,Dartford • Policy Reform? Putting Humpty Back Together Again

  16. THE LOOKING-GLASS WORLD "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less.“ "The question is," said Alice, "whether you can make words mean so many different things.“ "The question is," said Humpty Dumpty, "which is to be master—that's all."

  17. Tesco Stores v Dundee City Council [2013] UKSC 13 “[19]… Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean” St Albans v Hunston Properties Limited and SSCLG [2013] EWCA Civ 1610, [4]

  18. Who Should Decide the Meaning of Planning Policy? Decision-Makers? Officers Committee Members Statutory Consultees Inspectors Secretary of State Or the Courts? If the latter, what opportunities does this create for all parties?

  19. Tesco v Dundee: Interpretation as a Matter of Law Commercial retail JR turning on the interpretation of one component of the sequential test: “suitable” • [17]: The fundamental importance of a proper understanding of the development plan, given its statutory status (S70(2) TCPA 1990 and S38(6) PCPA) • [18]:Development plan “carefully drafted and considered statement of policy” and “published in order to inform the public…“Policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context”

  20. Tesco v Dundee: Planning Judgment • [19]: However where “mutually irreconcilable” one provision may give way to another AND “many of the provisions of development plans are framed in language whose application to a given set of facts requires judgment” • [22]: “Where it is concluded that the proposal is not in accordance with the development plan, it is necessary to understand the nature and extent of departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other material considerations” • [35]: “The meaning to be given to the crucial phrase is not a matter that can be left to the judgment of the planning authority”

  21. St Albans v Hunston Properties Limited and SSCLG [2013] EWCA Civ 1610 • “[4] [Tesco v Dundee] was concerned with policy in a statutory development plan, but it would seem difficult to distinguish between such a policy statement and one contained in non-statutory national policy guidance. I accept, therefore, as do the parties to this appeal, that it is for this court to seek to arrive at the appropriate meaning of paragraph 47 of the Framework.”

  22. The Planning Court (2014-present) • Planning Court • Commenced 7 April 2014 • R(Jones) v English Heritage (Battle of Fulford case) • First stage of a major transformation • Fast-tracked cases • Frontloaded preparation • Specialist judges • Focussed hearings • The development of a consistent body of Planning Court case law

  23. 1) Crane v SSCLG and Up to Date “Out of Date” Policy

  24. Paragraph 14: “Out of Date” • Crane v SSCLG [2015] EWHC 425 (Admin) • Hearing: December 2014 – 23 February 2015 • Section 288 Challenge • Local Plan/Core Strategy: 2011 • No five year housing supply • Broughton Astley Neighbourhood Plan made • Housing supply policies • Allocation policies for Core Strategy target + 100 houses • On appeal: Inspector recommended grant • Secretary of State: “very substantial negative weight”

  25. Paragraph 14: “Out of Date” • Crane v SSCLG [2015] EWHC 425 (Admin) • "23. The Secretary of State considers that the lack of a 5 year housing land supply and the contribution that the appeal proposal would make to increasing supply weighs substantively in favour of the appeal. 24. He considers that the harm and conflict with the HarboroughCore Strategy in relation to landscape character and the appearance of the area are nowhere near sufficient to outweigh the benefits of the proposal in terms of housing supply.

  26. Paragraph 14: “Out of Date” • 25. However, in view of [the NPPF] policy that neighbourhood plans will be able to shape and direct sustainable development, he places very substantial negative weight on the conflict with the Neighbourhood Plan even though this is currently out of date in terms of housing land supply ahead of its review in 2018. • 26. The Secretary of State considers that the adverse impacts of the appeal proposal, especially in terms of the conflict with the Broughton Astley Neighbourhood Plan, would significantly and demonstrably outweigh the benefits in terms of increasing housing supply. He therefore concludes that there are no material circumstances that indicate the proposal should be determined other than in accordance with the development plan."

  27. Paragraph 14: “Out of Date” • [58] “As the court has held, out of date policies of this kind are likely to command little weight (see, for example, the judgment of Males J. in Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin), at paragraphs 13 and 20, and observations made by the court in several other cases – William Davis Ltd. v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin) (at paragraph 33), Cotswold District Council v Secretary of State for Communities and Local Government [2013] EWHC 3719 (Admin) (at paragraph 72), South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin) (at paragraphs 38 to 47), and Grand Union Investments Ltd. v Dacorum Borough Council [2014] EWHC 1894 (Admin) (at paragraph 78)).

  28. Paragraph 14: “Out of Date” • Crane v SSCLG [2015] EWHC 425 (Admin) • [71]: As I have said, Mr Hill points, for example, to an expression used by Males J. in paragraph 20 of his judgment in Tewkesbury Borough Council – “little weight” – when referring to “relevant policies” that are “out of date”. In Grand Union Investments Ltd. (at paragraph 78) I endorsed a concession made by counsel for the defendant local planning authority that the weight to be given to the “policies for housing development” in its core strategy would, in the circumstances of that case,be “greatly reduced” by the absence of a five-year supply of housing land.

  29. Paragraph 14: “Out of Date” • Crane v SSCLG [2015] EWHC 425 (Admin) • [71]: “[N]either paragraph 49 of the NPPF nor paragraph 14 prescribes the weight to be given to policies in a plan which are out of date. Neither of those paragraphs of the NPPF says that a development plan whose policies for the supply of housing are out of date should be given no weight, or minimal weight, or, indeed, any specific amount of weight. One can of course infer from paragraph 49 of the NPPF that in the Government’s view the weight to be given to out of date policies “for the supply of housing” will normally be less, often considerably less, than the weight due to policies which provide fully for the requisite supply.

  30. Paragraph 14: “Out of Date” • Crane v SSCLG [2015] EWHC 425 (Admin) • [71]: However, the weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, or could it be, fixed in the case law of the Planning Court. • It will vary according to the circumstances, including, for example, the extent to which the policies actually fall short of providing for the required five-year supply, and the prospect of development soon coming forward to make up the shortfall.

  31. Summary • Weight is always a matter for the decision maker • Provided that they interpret the policy correctly • The wording “out of date“ has been considered in a number of High Court cases • Less weight, often considerably less • However the weight to be given to conflict is “not dictated [by NPPF]” or “fixed in the case law” • It will vary according to the circumstances, including, for example, the extent to which the policies actually fall short of providing for the required five-year supply, and the prospect of development soon coming forward to make up the shortfall.

  32. 2) LOCALISM

  33. (2) The Localism Challenges • Tewkesbury BC v SSCLG [2013] EWHC 286 (Admin) • Stratford on Avon DC v SSCLG [2013] EWHC 2074 (Admin) • Re-affirmation of conventional planning principles • Localism Act’s key reform to remove RSS not to remove scope for SSCLG to accord significant weight to lack of 5YHLS • Tewkesbury: [13] “A plan which is based on outdated information or which has expired without being replaced, is likely to command relatively little weight” • [20] Disjuncture with PPS3: from “favourable consideration” to “rebuttable presumption in favour of grant” [21] Reserved judgment on importance of “to boost significantly”

  34. Localism [cotd] • Tewkesbury, [29] “Existing plan so far out of date” that “PFSD in favour of existing development plan is very easily rebutted” • [49] Provisional conclusion: “entirely unexceptional application of legal and policy principles” • [62] The context for NPPF [17] “genuinely plan-led” = [14]+[47]+[49]+[214]+[216]+[150]+[196] “a coherent whole” • [64]“They demonstrate that, for the future, development plans prepared by local planning authorities in accordance with the national policy principles set out in the NPPF, including the provision of a five year housing land supply, will represent the starting point for consideration of planning applications, and that it may well be difficult to obtain permission for developments which are not in accordance with such plans.”

  35. Localism [cotd] • Tewkesbury, [64]: “However, they do not suggest that greater weight should be accorded to the views of local authorities who do not have such a development plan (or during the one year transitional period, a development plan produced in accordance with the PCPA 2004) over and above whatever weight would be appropriate pursuant to the long established prematurity principle.” • [65] “…this greater say over such matters will depend upon the expeditious preparation of local plans which make provision (including in particular a five year supply of housing land) for the future needs of those areas”

  36. Localism [cotd] • Stratford on Avon District Council v SSCLG [2013] EWHC 2074 (Admin) • Echoes Tewkesbury but challenge differently based, by reference to plan situation and Aarhus Convention • [37] Extent to which Inspector was permitted to determine housing requirement at time when plan under preparation: straightforward application of [47]-[49] • [62] “There is a tension between two policy requirements: the need for the planning system not to be unduly inhibited by uncertainty as to future policy, and the need for planning decisions on individual planning applications not unduly to prejudice or pre-emept future development plans.”

  37. 3) OBJECTIVELY ASSESSED NEED/ “SIGNIFICANTLY BOOST THE SUPPLY”

  38. (3a) NPPF 47: Objectively Assessed Need • Hunston [2013] EWCA Civ 1610 • [22]… “the inspector found that there was no shortfall in the supply because she regarded it as necessary to identify a housing requirement figure which reflected the constraints on built development in the district generally which resulted from the extensive areas of Green Belt there. The best she felt she could do was to adopt the earlier East of England Plan figure which, though in a revoked plan, sought to take account of such constraints. Was she entitled to do so?” • [25] I am not persuaded that the inspector was entitled to use a housing requirement figure derived from a revoked plan, even as a proxy for what the local plan process may produce eventually. The words in paragraph 47(1), "as far as is consistent with the policies set out in this Framework" remind one that the Framework is to be read as a whole,…

  39. NPPF 47 [cotd] • [22] “but their specific role in that sub-paragraph seems to me to be related to the approach to be adopted in producing the Local Plan. If one looks at what is said in that sub-paragraph, it is advising local planning authorities: "to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework.“ That qualification contained in the last clause quoted is not qualifying housing needs. It is qualifying the extent to which the Local Plan should go to meet those needs. The needs assessment, objectively arrived at, is not affected in advance of the production of the Local Plan, which will then set the requirement figure.”

  40. NPPF 47 [cotd] • [27] “…the inspector erred by adopting such a constrained figure for housing need. It led her to find that there was no shortfall in housing land supply in the district. She should have concluded, using the correct policy approach, that there was such a shortfall. The supply fell below the objectively assessed five year requirement. • [28] However, that is not the end of the matter. The crucial question for an inspector in such a case is not: is there a shortfall in housing land supply? It is: have very special circumstances been demonstrated to outweigh the Green Belt objection?..., such circumstances are not automatically demonstrated simply because there is a less than a five year supply of housing land….. Self-evidently, one of the considerations to be reflected in the decision on "very special circumstances" is likely to be the scale of the shortfall.

  41. (3b) The RSS Evidence Base • South Northamptonshire Council v SSCLG [2014] EWHC 573 (Admin) • How far did Hunston extend? • Was an Inspector entitled to have regard to the RSS evidence base and target where this was higher than LPA’s own figures and represented last objective assessment? • [30] “In my judgment the crucial point to take from the Hunston case is how to interpret paragraph 47 (i) of the NPPF, relating the requirement for a full objective assessment of housing needs in the housing market area to the subsequent qualification that that be done so far as is consistent with the policies in the Framework, before the Local Plan is produced, reconciling or balancing the two aims.”

  42. The RSS Evidence Base [cotd] • South Northamptonshire [cotd] • [31] “Before that happens through the Local Plan, the full objectively assessed housing needs of the area are not subject to the constraints of policy. Those constraints fall for consideration later on in the development control decision-making process, as the Court of Appeal pointed out; for example in a Green Belt case, the question will be whether a shortfall of housing land supply against those fully assessed needs constitutes very special circumstances so as to permit inappropriate development in the Green Belt. The question is not whether the Green Belt constrains the assessment, but whether the Green Belt constrains meeting the needs assessed. Once the Local Plan is adopted, it is the constrained needs in the Plan which are to be met.”

  43. The RSS Evidence Base [cotd] • South Northamptonshire [cotd] • [32] A revoked RSS is not a basis for the application of a constraint policy to the assessment of housing needs, because it has been revoked and cannot be part of the Development Plan. The same would be true of an out of date Local Plan which did not set out the current full objectively assessed needs. Until the full, objectively assessed needs are qualified by the policies of an up to date Local Plan, they are the needs which go into the balance against any NPPF policies. It is at that stage that constraints or otherwise may apply. It may be problematic in its application, but that is how paragraph 47 works.

  44. The RSS Evidence Base [cotd] • South Northamptonshire [cotd] • [34]…It is not wrong in principle to use the evidence base of the revoked RSS, provided that its figures are not used to enlarge the housing requirement beyond the full assessment of housing needs. Hunston did not decide that a revoked RSS was expunged from history. It decided that the policies of a revoked RSS, and the same would be true of an out of date Plan, in the application of paragraph 47 NPPF, could not be used to affect the full objective assessment of housing needs. • [36] The Inspector was entitled to regard it as undesirable for a shortfall in earlier years to be left till later in the plan period to be made good, and to hold that it should be made good earlier. This was a planning judgment to be made in the light of paragraph 47 NPPF, which looked for a significant and immediate boost to housing supply. There is nothing unlawful simply because the RSS had been revoked, in putting that shortfall into this current 5-year period.

  45. (3c) The Change from PPS3 • Gallagher Homes v SSCLG [2014] EWHC 1283 (Admin) • Local Plan challenge, but vital interpretation of paragraph 47 • Solihull had relied on old RSS constraints under PPS3 • [91] [Hunston] makes clear that in the context of the first bullet point in paragraph 47, policy matters and other constraining factors qualify, not the full objectively assessed housing needs, but rather the extent to which the authority should meet those needs on the basis of other NPPF policies that may, significantly and demonstrably, outweigh the benefits of such housing provision. It confirms that, in plan-making, full objectively assessed housing needs are not only a material consideration, but a consideration of particular standing with a particular role to play.

  46. Change from PPS3 [cotd] • Gallagher Homes [cotd] • [97] [RSS-based argument by Council] fails to acknowledge the major policy changes in relation to housing supply brought into play by the NPPF. As I have emphasised, in terms of housing strategy, unlike its predecessor (which required a balancing exercise involving all material considerations, including need, demand and relevant policy factors), the NPPF requires plan-makers to focus on full objectively assessed need for housing, and to meet that need unless (and only to the extent that) other policy factors within the NPPF dictate otherwise.

  47. Change from PPS3 [cotd] • That, too, requires a balancing exercise – to see whether other policy factors significantly and demonstrably outweigh the benefits of such housing provision – but that is a very different exercise from that required pre-NPPF. The change of emphasis in the NPPF clearly intended that paragraph 47 should, on occasions, yield different results from earlier policy scheme; and it is clear that it may do so. • [98]: “the radical policy change in respect of housing provision effected by the NPPF.” • Court of Appeal: Laws LJ: [2014] EWCA Civ 1610

  48. Change from PPS3 [cotd] • [16] “That reasoning seems to me to be entirely correct. I think it is supported not only by the language of paragraph 47 but also by the terms of NPPF paragraph 14 which I have read. It is not undermined, notwithstanding Mr Katkowski’s submission to the contrary, by the terms of the second indent to the second bullet point in that paragraph. It reflects the construction of paragraph 47 given by this court in Hunston,which bound Hickinbottom J and binds us. The NPPF indeed effected a radical change. It consisted in the two-step approach which paragraph 47 enjoined. The previous policy’s methodology was essentially the striking of a balance. By contrast paragraph 47 required the OAN to be made first, and to be given effect in the Local Plan save only to the extent that that would be inconsistent with other NPPF policies.”

  49. (4) THE PRESUMPTION IN FAVOUR OF SUSTAINABLE DEVELOPMENT

  50. (5) Paragraph 14: PFSD • William Davis [supra] • [37]“I accept Mr Maurici's submission that paragraph 14 NPPF only applies to a scheme which has been found to be sustainable development. It would be contrary to the fundamental principles of NPPF if the presumption in favour of development in paragraph 14 applied equally to sustainable and non-sustainable development.” • Dartford BC v SSCLG [2014] EWHC 2636 (Admin) • [48] “The First Defendant contends that the two stage test contended for by the Claimant is misconceived. There is no such legalistic straight-jacket. Sustainable development is about seeking an overall net positive contribution to economic, social and environmental gains together.”

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