Planning Law Update

May 2013

Speakers today

The Growth and Infrastructure Act

Mark DixonThe Growth and

Infrastructure Act

David MyersJudicial Review

Ralph GilbertJudicial Review

Jennifer Sewell

THE GROWTH AND INFRASTRUCTURE ACT

Mark Dixon

Modification and discharge of affordable housing requirements

• Applications may be made to:– Modify affordable housing obligations;– Replace obligations with new ones;– Remove the obligations; or– Discharge the planning agreement entirely

Existing power to apply to amend under Section 106 (3)

• If an affordable housing requirement is unviable the LPA must agree to do something about it

• Proving unviability

• Appeal process

• Temporary measures - until 30 April 2016

Guidance on Affordable Housing Requirements

“The test of viability is that the evidence indicates that the

current cost of building out the entire site at today’s prices

is at a level that would enable the developer to sell all the

market units on the site in today’s market in order to make

a competitive return to a willing developer and a willing

landowner”

Guidance on Affordable Housing Requirements

Applications should contain:

1. A revised Affordable Housing proposal based on prevailing viability

2. Demonstration that existing Affordable Housing obligation makes the scheme unviable 

3. Up to date and appropriate appraisal evidence. Ideally be “open book”

Stopping up and Diversion of highways

• Measures to streamline the application process

• Growth and Infrastructure Act Clause 9 - highways

• Growth and Infrastructure Act Clause 10 - footpaths

TOWN AND VILLAGE GREENSDavid Myers

The registration of Town and Village Greens

Section 15 Commons Act 2006

“a significant number of the inhabitants of any locality, or any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”

– Preventative measures include the construction of fences, gates, and signs

– However, an application can still be accepted up to 2 years after use has ceased

– A registered Town or Village Green generally can’t be developed

Proposed reform

1. A reduction in the time period to make an application where the use has ceased from 2 years to 1 year.

2. The submission of a Statement to the commons registration authority to bring an end to any period during which persons have indulged as of right in lawful sports and pastimes.

3. The right to apply to register a Town or Village Green will cease on any “Trigger Event” and will only become exercisable when a “Terminating” Event occurs.

4. Charging for Town and Village Green registration applications

Trigger Event Terminating Event From the point where a submitted planning application is publicised

• Withdrawal of application• Refusal of application (following all

appeals being exhausted)• Lapse of granted planning permission

From the point where a draft development plan document (including a Neighbourhood Development Plan) which identifies the land for potential development is published for consultation

• Withdrawal of document• Adoption of document which does

not allocate land for development

Trigger Event Terminating Event The adoption of a development plan document (including a Neighbourhood Development Plan) which identifies the land for potential development

• Document revoked/ceases to have effect

• Policy relating to land is superseded

Any development plan/RSS which continues to have effect and identifies the land for potential development

• Plan ceases to have effect

Planning Application direct to the Secretary of StateThe Growth and Infrastructure Act has introduced a mechanism to allow for a planning application to be made directly to the Secretary of State bypassing the Local Planning Authority

• Criteria:-– The Application must be for “Major Development”– The Local Planning Authority must have been officially

“designated”

CIL UPDATEMark Dixon

Community Infrastructure Levy

The CIL is a charge on most forms of new development on a £ per sq.m basis

• Exclusions:– New buildings and enlargements to existing buildings below 100

square metres of gross internal floorspace; – Reserved Matters Approval where outline planning permission

was granted before the CIL coming into effect;– Development undertaken by a charitable institution, which is

wholly, or mainly, for its charitable purposes

Community Infrastructure Levy

• If there is no extension of floorspace as a result of the development; and

• Structures or buildings that people only enter for the purpose of inspecting or maintaining fixed plant or machinery

Reliefs:

• Social Housing

• Exceptional circumstances

Who, What, When and How?

Who: The person liable to pay CIL is the person who "assumes liability" to pay CIL.

Liability can be assumed in default or by an "assumption of liability notice"

What: The amount payable will be shown on a Charging Schedule.

When: CIL is payable within 60 days of the commencement of development

How: Notification through a Commencement Notice

The Local Authority will then serve a demand notice

Progress Locally

York City Council

Leeds City Council

Hambleton District Council

Ryedale District Council

East Riding of Yorkshire Council

Hull City Council

Section 106 Agreements and CIL

• Section 106 Agreements will not be replaced in their entirety.

• Limitations from 6 April 2014 or from the date CIL is charged will include:– no more than 5 contributions for an item of infrastructure not

funded by CIL. – No contributions towards any infrastructure covered by CIL

• Section 106 will however continue to be the primary mechanism for affordable housing contributions

Localism ActKe

y ch

ange

s: • The Local Authority will have greater freedom in setting the CIL rate;

• Some of the CIL will go directly to the neighbourhoods where development takes place; and

• CIL will be applied to the ongoing costs of existing infrastructure and the initial costs of new

The Localism Act “will change the levy to make it more flexible”.

FURTHER REFORMSDavid Myers

Further reforms within the Growth and Infrastructure Act

• Limit on Local Planning Authorities powers to require information within a planning application.

• The ability for the Secretary of State to recover his own costs at all planning appeals.

• Neighbour consultation for certain permitted development rights.

• Commercial and Industrial Projects being decided within the national infrastructure projects regime

General Planning Update

• Abolition of Regional Spatial Strategies

• Transition Provisions of the National Planning Policy Framework

Neighbourhood Development Plans

Creation:

1. An evidence base, detailed survey

2. Publicity, Consultation, and Representations

3. Submission for Independent Examination

4. Local Referendum

Neighbourhood Development Plans

The Plan must:

1. Conform to the National Planning Policy Framework and any up to date Local Plan

2. Respect other designations, such as habitat regulations, conservation areas, EU and European Court requirements.

The result is a binding policy document that will sit alongside the Local Plan

Neighbourhood Development Plans

• On 11 April of this year the Upper Eden Neighbourhood Development Plan became the first such Plan to be approved and became part of the Eden Development Framework.

• Thame Neighbourhood Development Plan going to a referendum on 2 May 2013

General Planning Update

• Permitted development rights will be temporarily extended for a period of three years to include a change of use from office to residential

• Local Authorities had until 22 February 2013 to apply for an exemption for specific areas

• A developer will still need to consult with the Local Authority before implementing this change of use

“Planning Reform” by Dan Hudson

Government planning reform is like a Christmas sweater knitted by an ageing aunt. It is announced with a great

fanfare; its laborious and complex design has no regard for aesthetics, form, function, or practicality; it is

uncomfortable, irritates and inhibits movement.

Nonetheless, one has to appear grateful, try to fit into it, face public mockery as a result and wait as it slowly

unravels to be replaced with another one the following year!!

JUDICIAL REVIEW – WHERE ARE WE NOW?

Ralph Gilbert

Judicial Review

• When is Judicial Review appropriate?

• Grounds for review?

• “Locus Standi”

• “Promptly”

Procedure

ProtocolPermission

HearingCosts

REFORMS TO JUDICIAL REVIEW

Jennifer Sewell

The headlines

Prime Minister David Cameron

"We urgently need to get a grip on this. So here's what we're going to do: reduce the time limit when people can bring cases, charge more for reviews so people think twice about time-wasting, and instead of giving hopeless cases up to four bites of the cherry to appeal, we will halve that to two."“This country is in the economic equivalent of war today - and we need to have the same spirit. We need to forget about crossing every “t” and dotting every “i” and we need to throw everything we’ve got at winning in this global race”

Reasons behind the proposals

• Immigration and asylum cases

• In 2011 immigration and asylum cases represented more than three quarters of all applications for permission to apply for Judicial Review

Aim of the proposals

• Not to deny, or restrict access to Justice, but to provide for a more balanced, proportionate approach

• To ensure that weak or frivolous cases which stand little prospect of success are identified and dealt with promptly at an early stage in proceedings, and that legitimate claims are brought quickly and efficiently to a resolution

The reforms

• 23 April 2013 - Lord Chancellor Chris Grayling announced that the Government is to go ahead with 3 of the reforms that were proposed in December 2012

Reform 1 relates to the time limits for bringing a claim.

Reform 2 relates to the application process for permission to bring a claim.

Reform 3 relates to the fees payable when permission to bring a claim is sought

Reform 1 - Time limits for bringing a claim

Rationale

• In certain types of case, particularly those involving large planning developments or constructions where significant sums may be at stake, any delays can have an impact on the costs of the project, potentially putting its financial viability at risk

Reform 1 - Time limits for bringing a claim

• Claims for Judicial Review of planning decisions made by a local authority should be brought within six weeks of when the grounds to make the claim first arose

• The Courts do have a general power to allow parties to bring proceedings out of time when it is “just and equitable” to do so

Reform 2 - Application for permission

Rationale

• The current process allows a party up to four opportunities to argue their case for permission to apply for Judicial Review (this is before the substantive claim actually gets off the ground)

• The Government’s view is that this process causes avoidable delay and uses excessive resources

Reform 2 - Application for permission

• The right to an oral hearing is to be removed where the case is assessed as “totally without merit” on the papers

Reform 3 - Fees

Rationale

• Currently there is a fee for applying for permission of £60 and, if permission is granted, a fee of £215 for the substantive matter to proceed to trial if permission is granted

• The Government considers that these fees do not reflect the costs of dealing with an application for permission

Reform 3 - Fees

• A new fee (likely to be £215) is to be introduced if an applicant does not accept a refusal of permission on the papers and requests that the decision is reconsidered at a hearing

• It is intended that the new fee will discourage applicants whose case has not been deemed to be “totally without merit”, but whose case still may be “weak” or “vexatious”

Responses to the reforms generally

• The reforms suggest that there is an assumption that more challenges to public authorities is bad, but why shouldn’t public authorities be held accountable for their decisions?

Time limits

• The time limit for statutory appeals under the Town & Country Planning Act 1990 is already six weeks

Application for permission

• What is meant by “totally without merit”?

• The test for whether permission to apply should be granted on the papers is based on whether the case is “arguable”, but this test goes beyond consideration of whether there is an “arguable” case

• Analogous to cases brought by vexatious litigants which have little or no basis in law and will subject the respondent to inconvenience, harassment and expense out of proportion to any likely gain to the applicant

Application for permission

• Consequences of an application for permission being deemed “totally without merit”– Deprived of the right to have the application for permission heard

fully at an oral hearing. Oral argument can often properly explain a case in a way that written argument cannot

– Wider implications such as a civil restraint order

Fees

• The level of costs incurred by a party in average Judicial Review proceedings can run into £10,000s

• A more expensive fee to seek to get the case off the ground is not likely to dissuade an applicant willing to commit that level of expenditure to challenge a decision

Any Questions?

Mark DixonPartnerPlanningmark.dixon@rollits.com01482 337286

David MyersAssociate Planningdavid.myers@rollits.com01482 337287

Ralph GilbertPartner Dispute Resolutionralph.gilbert@rollits.com01482 337352

Jennifer SewellAssociateDispute Resolutionjennifer.sewell@rollits.com01482 337368