Planning Law Update 2023

For the 15^th year, Holmes & Hills Planning Law Department provided their annual Planning Law update to clients and referrers from both the public and private sectors. Thank you to the hundreds who booked and were able to join us for the seminars.

In 2023, the Planning Law Department covered a multitude of matters in the 75-minute seminar.

Jo Lilliott provided a summary of Biodiversity Net Gain outlining some pertinent issues for those involved in the making and determination of planning applications to consider. Jo explained the difference between ‘BNG units’ and ‘BNG credits’ and how these are to be required via a mandatory general planning condition. BNG credits could be expensive, with current guidance indicating a range from £42,000 to £650,000 per BNG credit.

Jo went on to consider some exceptions from the requirement for BNG before then considering how these BNG units and credits would be secured and delivered through s106 agreements and/or Conservation Covenants.

Jo also went on to highlight some opportunities for landowners and/or developers where their site can provide more than the mandatory BNG requirement but also for local authorities to convert land into BNG units to potentially provide an additional income stream.

Jo ended by reminding the audience that the Government has promised additional details by the end of November 2023 – something for us all to watch with interest.

Following Jo, newly qualified planning solicitor Issy Bainbridge explained how the recent case of McCaffrey v Dartmoor NPA [2023] 2 WLUK 341 had changed the law pertaining to Planning Enforcement Orders, namely that the Courts had resolved that there was no distinction between omissions and positive acts of concealment. Issy went on to explain the relevance of this to the planning enforcement regime before reminding us of the potential changes that may come into effect under the Levelling-Up and Regeneration Bill which continues to progress through Parliament.

Issy and Millie Cook then provided an update as to fall-backs in the planning process with Issy highlighting how they may arise before Millie reminded the audience of the relevant legal tests set out in Mansell and Gambone before then providing a practical example as to how a fall-back, in the illustration arising under Permitted Development, has the potential to overcome a previous reason for refusal and/or unlock a development site.

Michael Harman then provided an overview of Permitted Development (‘PD’), namely the legal framework behind these forms of planning permission arising under the GDPO 2015. Mike highlighted the importance of considering not only the provisions of the relevant class of PD but also the provisions of the main order, pertinently at Article 3.

Mike then considered ten recent issues that the Department had seen so far in 2023. Those issues including general exclusions and limitations found in Article 3 of the Order, unauthorised development (building, in whole or part, or use) precluding PD rights, issues pertaining to TPOs and/or protected hedgerows, the meaning of “required” in the definition of various PD rights, some technical points under Agricultural PD rights and finally issues flowing from the case of Eatherley v Camden – with specific reference to preparatory works and whether those are authorised by PD or, instead, amount to a ‘separate activity of substance’.

As a follow-up from last year, specialist DCO solicitor Catherine Hibbert reminded us of the prevalence of DCO schemes and their impact on affected landowners. Namely, a DCO can authorise a power of compulsory purchase, subject to such being demonstrably a power of last resort. Catherine explained why individuals should register their interest to protect their negotiation positions before then highlighting two recent decisions – in the London Boroughs of Barking and Windsor - which provide additional guidance as to how “meaningful negotiations” should work in practice.  

Catherine finished her slot by highlighting pending reforms expected from the Government, with a recent consultation having closed and the results of that consultation expected to be announced in early 2024.    

Finally, Steven Hopkins finished the 2023 seminars with the ever-popular Case Law Update highlighting four recent cases of interest. The first case was that of Telford & Wrekin Council v SSLUHC [2023] in which the Court interpreted strictly the relevant provisions of the Civil Procedure Rules (and its accompanying Practice Direction) and resolved that it [the Court] had no jurisdiction to hear a statutory review (under s288/s289) if that claim has been served out of time, even if filed in time. Steven emphasised the importance of filing an application for statutory review in good time to enable service within the relevant period but also, if the circumstances require, applying for permission to serve late - ideally before the relevant deadline but asap thereafter otherwise.

Steven then went on to consider the somewhat contrary decisions of the Courts in R(Fiske) v Test Valley BC [2023] EWHC 221 (Admin) and Armstrong v SSLUHC [2023] EWHC 142 (KB) both of those cases concerning the lawful remit of s73 applications to amend a planning permission. Steven noted that the Court of Appeal were now considering matters and we hope to receive clarification before the end of 2023.

The last case highlighted by Steven was that of Caldwell v SSLUHC [2023] EWHC 2053 (Admin) in which the Court clarified the scope of a Local Planning Authority’s power to require land to be restored under s173(4)(a). Namely, in Caldwell the Council could not require a building/dwelling to be demolished under the 10-year rule when that building/dwelling had been substantially completed for ~6 years and well past the 4-year immunity period prescribed under s171B(1).

Holmes & Hills Planning Law Department again thanks everyone for coming and look forward to the 2024 series of Planning Law updates.

In the meantime, if you have any queries or questions, please do not hesitate to contact any member of the Planning Law Department via their usual email or using the link below.