planning law news – July 2012
In this issue, Blake Lapthorn's Planning team looks at:
unauthorised uses within a use class can act cumulatively to
establish immunity
A recent case has established that
unauthorised uses within the same use class can accrue immunity for
planning enforcement action collectively. Consequently the current
unauthorised use within that use class can be rendered immune from
enforcement action despite that particular use had not been
continuously occurring for the whole of the immunity period.
The situation in the case of Harbige concerned
a number of D1 uses. Use class D1 covers a wide array of
non-residential institutions such as public libraries, crèches and
health centres. In this case the final use occurring when the 10
year immunity accrued was a place of worship. As the continued uses
had all been within use class D1 for the preceding 10 years the
place of worship was found to be immune from enforcement
action.
Harbige v Secretary of State for
Communities and Local Government [2012] EWHC 1128 (Admin)
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streamlining continues #1
Having chopped down national planning policy
earlier this year the Government continues in its mission to make
every element of planning more efficient and streamlined. Currently
the Government are consulting on the following:
1. Extending permitted development rights to
grant use changes for agriculture, commercial and temporary
purposes;
2. Reducing information requirements for
applications; and
3. Amending appeal costs advice for statutory
consultees acting unreasonably.
Changes to permitted development rights are
aimed at re-using redundant buildings and making temporary use
changes.
Examples include allowing changes of use from
hotels to housing, wider changes between the B use classes and from
agricultural buildings to shops, cafes, business, storage, hotels
and leisure.
As regards information requirements the
Government is looking at changes to the National List for outline
and reserved matters applications, Local Lists and the ownership
declarations on Form APP1.
All consultations close in early September
2012.
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streamlining continues #2
Further Government consultation is also
looking at making the process of stopping up and the diversion of
highways more efficient where planning permission is in place.
There are a number of possibilities mooted about the interaction
between the two consent mechanisms which include:
- creating a simultaneous application processes
for planning and stopping up
- allowing highway authorities to determine
stopping up applications with the local planning authority as
statutory consultee, or vice versa
- making greater use of other stopping up
mechanisms, such as applications by highway authorities to the
Magistrates' Courts, and
- imposing limits on the time allowed to
negotiate the withdrawal of objections to stopping up
applications.
The consultation closes on 24 August 2012.
It is also noteworthy that there is due to be
an extension to permitted development rights allowing conversions
above shops of two flats instead of one.
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first amendments to the NPPF imminent
October 2012 will see legal and policy change
following the Government's 2011 consultation on relaxing change of
use of buildings from commercial to residential use. Government
response to the consultation has indicated the new policy will
promote the approval of such applications if there is established
housing need and no strong economic factors suggesting such change
would be inappropriate.
There is also likely to be other changes in
the pipeline following a Parliamentary Committee report to the
government suggesting the need for developer guidance on how the
NPPF can protect wildlife areas.
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compensation can be a material consideration when considering
revocation of planning permission
The Supreme Court has confirmed that local
planning authorities can have regard to their liability to pay
compensation for revoking or modifying planning permissions because
authorities have to consider the effect of taking revocation action
on the public purse.
The discretionary power should be used
expediently with regard to the statutory development plan and other
material considerations. Material considerations were said to mean
"relevant considerations to the exercise of a particular power, in
its statutory context and for the purposes for which it was
granted".
In the context of revocation authorities
should as a minimum consider whether such action, and cost, is
proportionate to the desired outcome. Indeed, there may be better
and more cost effective ways of achieving the same aim. As such, in
the statutory context, the consideration of compensation was a
valid one.
The HSE v Wolverhampton City Council
[2012] UKSC 34
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local planning authorities face more burden
The effect of a case heard at the European
Court of Justice (ECJ) is likely to mean that local authorities
wishing to revoke or update core or even supplementary local
planning policies will need to carry out a Strategic Environmental
Assessment (SEA).
The European case was brought by neighbourhood
groups against Region de Bruxelles-Capitale following the
revocation of part of the Brussels planning code which had been
contrary to the SEA Directive because environmental impact had not
been considered.
A recent case involving Hammersmith and Fulham
followed the ECJs decision in determining that a supplementary
planning document being relied upon for local redevelopment was
unlawful.
The case may also impact on all those local
authorities trying to establish compatibility with the new NPPF
within the transitional period of one year from March 2012.
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