planning law news – August 2012
In this issue, Blake Lapthorn's Planning team looks at:
renegotiation of s106 obligations
imminent for developers?
Following a report that estimates just shy of
900 permitted housing schemes of more than ten units predating
April 2010 are on hold due to the economic downturn the Government
is consulting on trying to release those developments from onerous
obligations imposed under s106 agreements when permission was
granted.
Notwithstanding the existing rules which allow
formal requests for reconsideration of planning obligations after
five years, the Government proposes to extend for a temporary
period the mechanism whereby developers can request reconsideration
of the original obligation.
There must be clear justification for such a
request and the proposed changes would only apply to obligations
entered into on or before 6 April 2010. As long as these two tests
are met the ability to make the request by application will be
available for only one month following the introduction of the new
regulations. Developers therefore need to be preparing to submit
their proposals to amend relevant obligations as soon as the new
regulations come into force.
The consultation ends on 8 October 2012 and
details can be found here.
Concurrently, the Government is also offering
"expert brokers" to authorities and developers in pilot areas to
renegotiate obligations. Renegotiation of obligations through
voluntary agreement with local planning authorities will remain as
a preferred option.
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consultation: improvements to the system of listed building
consents
The Government is also looking to amend the
listed building consent system to improve efficiency, simplify and
consequently reduce the burden on applicants and local authorities.
There is a fine balance to be found in the case of listed buildings
because the Government must ensure that heritage assets continue to
be adequately protected.
The proposals include:
- Introducing a prior notification mechanism of the intent to
carry out work to a listed building as a type of screening stage
providing opportunity for local authorities to decide whether to
intervene and require formal consent or not
- Introducing an equivalent 'permitted development' system to
listed buildings, applicable either nationally or locally to
specific classes of types of work to specific types of heritage
asset. The effect would be a deemed consent
- Introducing certificates of lawfulness to listed buildings,
and
- Transferring conservation officer report recommendations to
independent experts at the request of an applicant.
The consultation ends on 23 August 2012 and
details can be found here.
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all consultation principles must be
complied with
A council that requested a response
within three weeks, over summer holidays, on complex proposals
for a storage and distribution centre in compliance with secondary
planning legislation has been found to be in breach of the
environmental impact assessment (EIA) directive and its own
Statement of Community Involvement.
The consultee, Parish Council, requested an
extended period to respond which was refused. The court considered
the refusal by the planning authority to grant an extended period
contravened the EIA directive. The directive requires an authority
likely to be concerned by an EIA project to be given an opportunity
to comment but in this case the Parish Council were not given an
adequate opportunity to participate.
Further, the Parish Council's legitimate
expectation had been breached by the Council's non-compliance with
its own consultation policy.
This case highlights the importance of
following all relevant consultation procedures adequately and
fairly and is a timely reminder to authorities that they cannot
circumvent their own policies.
R (Halebank Parish Council) v Halton
Borough Council
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planning obligations must be capable of binding the land
A recent case has highlighted the importance
of ensuring that the obligations contained in a section 106 are
actually capable of binding the land identified by the plan
appended to the section 106.
In PNH Properties, an obligation to deliver
and implement a management plan for a woodland area, retained post
development, but not owned by the developers did not guarantee the
scheme would be delivered. On that basis the local planning
authority, inspector at appeal and court upon statutory review all
refused to find in favour of PNH Properties.
The case highlights the importance for
developers of either gaining an interest in the land or
alternatively having other land owners party to the planning
obligation.
PNH (Properties) Ltd v Secretary of State
for Communities and Local Government
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concept of segregated highway rejected
The courts have for the first time clarified
that any routes unconnected to public highways or any other way
over which there is a public right of access cannot themselves be a
public highway. Such routes cannot therefore be included on
definitive maps and statements. Access has to be freely accessible
in some way to connect routes.
Kotegaonkar v Secretary of State for
Environment, Food and Rural Affairs and Bury Metropolitan Borough
Council
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