planning review 2009
DESCRIPTION
Slides from a presentation to planning professionals on a case law review from 2008, a look at community infratructure levy and considering the Killian Pretty Review on improving the planning application processTRANSCRIPT
Curtilage of a dwellinghouse
Sumption v LB Greenwich Nov 2007
• Crooms House Grade II Listed• Certificate of Lawful Use granted for the
erection of a 1m high fence 125m long• Was the wall within the curtilage?
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Curtilage of a dwellinghouse
• It was not ‘around/about’ the House• It did not serve the House in any way• It did not appear to be part of the House• There was no historical association with
the House.• Some minor tidying had been done• No change of use had been granted
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Curtilage of a dwellinghouse
“It would … be impossible to contend that once the wall was erected and the garden use confirmed … that it was not within the curtilage … He has access to it and it is now part of the land being enjoyed with [Hillside House]”.
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Listed buildings 1
R (East Riding Council) v Hobson April 2008• Hobson obtained LBC for extension and
alteration.• The block was dismantled and
reconstructed• Prosecuted for works that would affect its
character (the ‘demolition’ part, not the rebuilding) and convicted
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Listed buildings 1
Conviction was set aside• Cannot divorce the act of dismantling from
the subsequent rebuilding.• The relevant time to assess impact on
character was when the works were complete. The test is a future one
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Listed buildings 2
Chambers v Guildford BC April 2008• Application for LBC to demolish refused• No appeal but application for a declaration• Is there jurisdiction: yes• Is it exclusive: no• Which is the preferred option?
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Listed buildings 2
• The status of ancillary structures is an assessment of mixed law and fact that LPAs and Inspectors determine routinely.
• The preferred option is to use the planning process
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Materially larger dwelling
R (Heath and Hampstead Society) v Vlachos• Existing dwelling was within Metropolitan
Open Land (= green belt policies)• Proposed increase: floorspace x 3, volume
x 4, footprint x 2.5• Lower building, much underground• Proportionate increase or impact on GB?• Para 3.6 of PPG2 says it is the % increase
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Commencement of development 1
Bedford BC v SSCLG and Murzyn August 08• Barn conversion granted subject to two
conditions, landscaping and boundary treatments.
• “Before development is commenced” but no stipulation that development must not be commenced until or in accordance with approval.
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Commencement of development 1
Hart Aggregates applied• Some conditions are true conditions
precedent. If breached, unlawful development
• Others merely stipulate the date by which approval is to be sought. If breached, BCN or EN for that condition.
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Commencement of development 2
R (Brent Council) v SSCLG and Ashia Centur• Removal of spoil not sufficient• Adding ‘Permazyme’ to soil to form a
bonded layer to form a road amounted to operational development
• Some overlap between the Permazymed strip and the access road on the approved plan
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Breach of Condition Notice
R (Alpha Plus Group Ltd) v RBKC Nov 07• Established use of premises for education• PP granted 1984 and 1987 for ‘continued
use as a nursery school’ with conditions, not to use the outside area…
• No breach of condition as the planning consent was unnecessary and did not extinguish the use rights
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Defence to enforcement notice
Sevenoaks DC v Harber April 08• EN alleged change of use from agriculture
to residential caravan park• Requirement to cease the use of the land,
remove the caravans, reinstate the land• S179(3) defence: “did everything he could
be expected to do to secure compliance”.
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Defence to enforcement notice
• Landlocked site served only by narrow track
• Caravan would have to be dismantled• Test: is the recipient able to comply
without the assistance of others?• Issues of hardship or reasonableness of
compliance are immaterial
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When is a building ‘substantially complete’?
“As a matter of fact and degree, I therefore find that the straw bales were part of the totality of the operations and it was necessary for them to be removed before the point of substantial completion was reached … As this did not happen until July 2006, substantial completion did not occur until that time and this is well within the 4 year period from the date of the service of the notice”.
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dynamic development solutions™
The Community Infrastructure
Levy(CIL)
• Tim RobertsTim Roberts• DLP Planning Ltd (Bristol)DLP Planning Ltd (Bristol)
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Community Infrastructure Levy
• What is it?What is it?• How will it work?How will it work?• When will it be When will it be
implemented?implemented?
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For ‘Levy’ read: Tax, Duty, Excise, Fee, Tariff or Toll
• ““It is [also] right that those who benefit It is [also] right that those who benefit financially when planning permission is financially when planning permission is
given should share some of that gain with given should share some of that gain with the community to help fund the the community to help fund the
infrastructure.”infrastructure.”
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We’ve Been Here Before:
• The Community Land Act The Community Land Act 19751975• &&
• Development Land TaxDevelopment Land Tax
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How New is the Community Infrastructure Levy?
• Planning Obligations/Agreements made Planning Obligations/Agreements made under Section 52 and now Section106 of under Section 52 and now Section106 of the Planning Actsthe Planning Acts
• Circular 05/2005Circular 05/2005• Pooled ContributionsPooled Contributions• Formulae and Standard ChargesFormulae and Standard Charges
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What’s New?• A charge LPAs A charge LPAs maymay levy on new levy on new
developmentdevelopment• Replace Replace mostmost of the content of of the content of
Section 106 AgreementSection 106 Agreement• Based on a Based on a simple formulasimple formula (£s per (£s per
sq.m)sq.m)• Apply to nearly Apply to nearly all new developmentall new development
–(Exemptions: Householder applications and Permitted (Exemptions: Householder applications and Permitted Development’)Development’)
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What are the Advantages of the CIL?
• ““Will improve predictability and certainty for Will improve predictability and certainty for developers as to what they will be asked to developers as to what they will be asked to contribute;contribute;
• Will increase fairness by broadening the Will increase fairness by broadening the range of developments asked to contribute; range of developments asked to contribute;
• Will allow the cumulative impact of small Will allow the cumulative impact of small developments to be better addressed; anddevelopments to be better addressed; and
• Will enable important sub-regional Will enable important sub-regional infrastructure to be funded”.infrastructure to be funded”.
dynamic development solutions™
The Rt Hon Caroline Flint MP:• ““Until now developers and Councils have had to Until now developers and Councils have had to
negotiate planning agreements for each new negotiate planning agreements for each new project and as a consequence only a minority of project and as a consequence only a minority of
developments have contributed to the developments have contributed to the infrastructure needed to support development.”infrastructure needed to support development.”
• ““The Levy will make the process The Levy will make the process fairer and fasterfairer and faster for all, with almost all developments contributing for all, with almost all developments contributing
a fair share.”a fair share.”• ““Of course we recognise that developers are Of course we recognise that developers are facing challenging short-term market conditions facing challenging short-term market conditions at present. And during these more difficult times, at present. And during these more difficult times,
certainty and clarity is absolutely essential.”certainty and clarity is absolutely essential.”
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Q: What will it be spent on?A: Infrastructure Only
• Transport, flood defences, schools and Transport, flood defences, schools and other education facilities, sporting and other education facilities, sporting and recreational facilities and open spaces.recreational facilities and open spaces.
• Other possibles: Police stations, Other possibles: Police stations, community safety facilities and social community safety facilities and social care facilities.care facilities.
• Sub Regional infrastructure new Sub Regional infrastructure new hospitals and trunk roads.hospitals and trunk roads.
• Affordable Housing???Affordable Housing???
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Paying the Levy
• The charges will be mandatoryThe charges will be mandatory
• Payment will be due 28 days from Payment will be due 28 days from commencement of developmentcommencement of development
• Failure to pay on time will result in Failure to pay on time will result in surcharges.surcharges.
• Continued non-payment will then result in a Continued non-payment will then result in a new form of Stop Notice, criminal new form of Stop Notice, criminal
prosecution and even committal to prison, prosecution and even committal to prison,
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Steps Towards Implementation
• Introduction of the Planning Bill November Introduction of the Planning Bill November 20072007
• Royal Assent November 2008 (2008 Planning Royal Assent November 2008 (2008 Planning Act)Act)
3.3. Introduction of Detailed RegulationsIntroduction of Detailed Regulations• Implementation by LPAs following:Implementation by LPAs following:
– Infrastructure PlanningInfrastructure Planning– Consultation on Schedule of ChargesConsultation on Schedule of Charges– Independent ExaminationIndependent Examination
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Implementation by LPAs
• Infrastructure PlanningInfrastructure Planning• (part of the evidence base necessary (part of the evidence base necessary
to support a ‘sound’ Core Strategyto support a ‘sound’ Core Strategy))
• Drafting a Charging Schedule Drafting a Charging Schedule (with 6 (with 6 weeks Consultation)weeks Consultation)
• Independent ExaminationIndependent Examination•
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Winners and Losers?
Terms of reference
We were asked to look objectively at the planning application process, to identify how it could be further improved, and in particular to consider ways to reduce unnecessary bureaucracy, making the process swifter and more effective for the benefit of all users.
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Key areas of concern
• Making the process more proportionate• Making the process more effective• Improving engagement• Changing the culture• Tackling complexity
Addressed through 17 recommendations
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Making the process proportionate
• Expand PD rights for non-householder development
• Enlarge prior approval scheme• Encourage local development orders• Reduce information and validation
requirements, e.g. DAS
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Making the system more effective
• Improve pre-application discussions• Encourage Planning Performance
Agreements• Improve approach to planning conditions• Better negotiation of s106 obligations
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Improving engagement
• Streamline consultation process with statutory and non–statutory consultees
• The role of councillors: training, consultation, delegation
• Engagement with the public
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Achieving changes in culture
• Improve quality of applications• Address LPA skill shortages• Replace timescale based performance
targets with a satisfaction indicator• Higher application fees for LPAs with
higher satisfaction rating
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Tackling complexity
Aimed at Government• Stop expansion of national policy
objectives to be delivered through the planning system
• Avoid duplication with other control systems
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“A faster and more responsive system”
Discuss.
Killian Pretty Review
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