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Public Sector Planning Club - 4 July 2019

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At this Public Sector Planning Club we reviewed:

- Recent developments in planning law, including cases and guidance

- Consideration of the use of planning conditions, including the appropriate use of pre-commencement conditions

- The powers available for stopping up and diverting highways, when these may be used, and points to consider

Published in: Law
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Public Sector Planning Club - 4 July 2019

  1. 1. Public Sector Planning Club 04 July 2019
  2. 2. Agenda • Use of planning conditions • Stopping up and diverting highways • Planning law update
  3. 3. The Use of Planning Conditions Ben Collins 04 July 2019
  4. 4. Structure 1. Statutory Framework 2. Case Law 3. Practical tips
  5. 5. The Statutory Framework
  6. 6. The Statutory Framework 1. Statutory Powers (1) “Where an application is made to a local planning authority for planning permission – (a) “…they may grant planning permission, either conditionally or unconditionally as they think fit; or (b) they may refuse planning permission.” (Section 70(1), Town and Country Planning Act (“TCPA 1990”))
  7. 7. The Statutory Framework (2) 1. Statutory Powers (2) (1) “Without prejudice to the generality of section 70(1), conditions may be imposed on the grant of planning permission under that section— (a) for regulating the development or use of any land… or requiring the carrying out of works on any such land… (b) for requiring the removal of any buildings or works and the carrying out of any works required…” (Section 72(1), Town and Country Planning Act (“TCPA 1990”))
  8. 8. The Statutory Framework (3) • The powers to impose planning conditions are very wide • However, above powers must be interpreted in light of planning policy and guidance and case law • NB the Neighbourhood Planning Act 2017 and the introduction of new process for pre-commencement conditions.
  9. 9. The Statutory Framework (4) 2. Planning Policy National Planning Policy Framework: Planning conditions and obligations (February 2019) Paragraph 54: “Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions”
  10. 10. The Statutory Framework (5) Six Conditions (paragraph 55 NPPF) 1. Necessary 2. Relevant to planning 3. Relevant to the development to be permitted 4. Enforceable 5. Precise 6. Reasonable in all other respects The 6 tests must all be satisfied every time a decision to grant planning permission subject to conditions is made.
  11. 11. The Statutory Framework (6) Test Key Considerations Necessary Would it be appropriate to refuse planning permission without the conditions requirements? • Conditions must only be proposed where there is a definite planning reason for it – for example, to make the development acceptable in planning terms • Conditions imposed which are wider than necessary to achieve the desired outcome will fail the necessity test Relevant to planning Is the condition related to planning aims and is it within the scope of the permissions it will be attached to? • Where other specific control exists elsewhere (for example, tree preservation), planning conditions must not be used • Specific controls beyond the scope of planning legislation may provide an alternate method of management for particular matters; for example, public highways work requiring highways’ consent Relevant to the development to be permitted Does the proposed condition fairly and reasonably relate to the development to be permitted? • A condition merely relating to the planning objectives is not sufficient, it must also be justified by the impact or nature of the development to be permitted • Imposing a condition to remedy an external pre-existing issues is not permitted
  12. 12. The Statutory Framework (7) Test Key Considerations Enforceable Is it practicably possible for the condition to be enforced? • If it would be impossible to detect a contravention or remedy any breach the condition is unenforceable • If the condition concerns matters which the applicant has no control over the condition is unenforceable Precise Is the condition clearly written to ensure that the applicant and others are able to understand what must be done to comply? • Conditions that do not clearly state the requirements and when are considered poorly worded and should not be used Reasonable in all other respects Is the condition reasonable? • Disproportionate and unjustifiable burdens placed on the applicant will fail the reasonableness test • Unreasonable conditions cannot be imposed to make the unacceptable development acceptable in planning terms
  13. 13. The Statutory Framework (8) Pre-Commencement Conditions, Planning Practice Guidance: • Section 100ZA(8) TCPA 1990: A condition imposed on a grant of planning permission • Must be complied with before any works begin; or before the change of use has begun • Care should be taken with conditions which prevent development beginning until complied with • Pre-commencement conditions that do not comply with the legal and policy tests are unlawful and unenforceable • Since October 2018, the written agreement of the applicant is required subject to certain provisions, (section 100ZA(5), TCPA 1990)
  14. 14. The Statutory Framework (9) Pre-Commencement Conditions (2) When to serve notice to applicant for written consent? • Course of negotiations • Application progression is hindered Available options to the applicant • Provide written agreement (within the time limit) • Provide comments (within the time limit) • Remain silent • Dispute the terms (within the time limit)
  15. 15. The Statutory Framework (10) Pre-Commencement Conditions (3) Notice requirements, TCP(PC) Regulations 2018 a. the text of the proposed pre-commencement condition b. the full reasons for the proposed pre-commencement condition, set out clearly and precisely c. the full reasons for the proposed condition being a pre- commencement condition, set out clearly and precisely; and d. the date by which any response must be received which must not be before the last day of the period of 10 working days beginning with the day after the date on which the notice is given
  16. 16. The Statutory Framework (11) Pre-Commencement Conditions (4) Options available to the local authority in the case of dispute 1. Grant planning permission without pre-commencement condition 2. Seek written agreement to alternative pre-commencement condition 3. Refuse to grant permission if they consider the pre-commencement condition necessary
  17. 17. The Statutory Framework (12) Time Limits Development must begin no later than: • 3 years from the date which the permission is granted, or; • such other period (whether longer or shorter) as the local planning authority may impose (Section 91, TCPA 1990) Outline planning permissions: • Impose two types of time limit, subject to conditions: a. Application deadline for approval of reserved matters b. Deadline to begin development work Clear reasons are required from the local planning authority to justify longer or shorter periods imposed (Section 92, TCPA 1990)
  18. 18. The Statutory Framework (13) Time Limits Where planning permission is granted without a specified time limit: • Applications for full planning permission: 3 years from the date permission was granted • Applications for outline planning permission: 3 years from the date on which permission was granted to submit all reserved matters, and development to begin within 2 years of the date on which the final reserved matters are approved.
  19. 19. The Statutory Framework (14) Discharge and Modifying Conditions Once planning permission is granted: • Unless otherwise stated, the planning permission runs with the land • Any future owners are bound by the conditions imposed • Requests for approval of further details required by conditions must be made to the local planning authority • The local planning authority will charge an upfront application fee for written requests for: • Written confirmation of the discharge of conditions • Written confirmation that one or more of the conditions imposed on a grant of planning permission have been satisfied • Discharge should be without delay, with a response within 21 days of request
  20. 20. Case Law
  21. 21. Case Law 1. R (oao Skelmersdale Limited Partnership) v West Lancashire Borough Council v St Modwen Developments (Skelmersdale) Ltd [2016] EWHC 109 (Admin) 2. Trump International Golf Club Scotland Ltd v The Scottish Ministers [2015] UKSC 74 3. London Borough of Lambeth (Appellant) v Secretary of State for Housing, Communities and Local Government and others (Respondents) (UKSC 2018/0099) 4. R (on application of Hart Aggregates Limited) v Hartlepool BC [2005] EWHC 840 (Admin)
  22. 22. Case Law: R (oao Skelmersdale Limited Partnership) (1) R (oao Skelmersdale Limited Partnership) v West Lancashire Borough Council v St Modwen Developments (Skelmersdale) Ltd [2016] EWHC 109 (Admin) • Summary: General case regarding the use of restrictive planning conditions • Facts: The owner of a town shopping centre applied for judicial review of a condition which had been attached, by the local authority, to a planning permission for a new retail-led development. The condition imposed stated that, for the first five years of opening, no existing retailer occupying more than 250sqm of floor space in the existing development could occupy the new development unless they entered a scheme in which they committed to at least 5 years continued occupation at the existing development.
  23. 23. Case Law: R (oao Skelmersdale Limited Partnership) (2) • Issue: The owner argued that: • An implementation clause was required to make the “commitment” legally binding • It was too vague and thus, unenforceable • Existing retailers were able to circumvent the condition via subsidiary or connected company trading within the new development • It was discriminatory against large retailers and thus, manifestly unreasonable
  24. 24. Case Law: R (oao Skelmersdale Limited Partnership) (3) • Held: Application refused. 1. The condition to retain a presence in the shopping centre for a reasonable time period required a legally binding commitment and was essential, in accordance with the local authority's planning policy, for the protection of the centre’s viability and vitality. Thus, an implementation clause was not appropriate as this would fall short of the legally binding commitment required. 2. In practice, local authorities would likely require retailers to enter Section 106, TCPA 1990 agreements committing them to the retention for the relevant period. In the event of a dispute regarding the reasonableness of the scheme submitted, a planning inspector would exercise their judgement. Thus, appropriate safeguards were in place.
  25. 25. Case Law: R (oao Skelmersdale Limited Partnership) (4) 3. The language adopted (use of the term “retailer”) was broad enough to encompass the companies set up with the main or sole aim of evading it. 4. Considering legally relevant matters, the impact of the condition was not discriminatory. Its purpose was to minimise risk and protect business interests from the chance of retailers relocating. Overall, this amounted to a clear and legitimate planning purpose; and had considered the consequences to include restrained competition and uneven distributions. Thus, focusing on the larger retailers was not unreasonable due to the larger impact their abandonment would have when compared to smaller retailers. The local authorities had a right to be pragmatic and ignore smaller retailers for those purposes.
  26. 26. Case Law 1. R (oao Skelmersdale Limited Partnership) v West Lancashire Borough Council v St Modwen Developments (Skelmersdale) Ltd [2016] EWHC 109 (Admin) 2. Trump International Golf Club Scotland Ltd v The Scottish Ministers [2015] UKSC 74 3. London Borough of Lambeth (Appellant) v Secretary of State for Housing, Communities and Local Government and others (Respondents) (UKSC 2018/0099) 4. R (on application of Hart Aggregates Limited) v Hartlepool BC [2005] EWHC 840 (Admin)
  27. 27. Case Law: Trump International Golf Club Scotland Ltd Trump International Golf Club Scotland Ltd v The Scottish Ministers [2015] UKSC 74 • Summary: About the interpretation of planning conditions • Facts: The appellant company was a golf club and resort owner appealing against a 2015 ruling which upheld a decision to grant consent, under section 36, Electricity Act 1989, for the construction and operation of a wind farm nearby the resort • Issue: The appellant argued, inter alia, that: • The requisite condition (14) was void for uncertainty
  28. 28. Case Law: Trump International Golf Club Scotland Ltd (2) • Held: Appeal dismissed. 1. In the event that condition 14 was invalid, significant benefits were promoted within the supplementary environmental information statement provided. Thus, it could not be viewed as a fundamental condition determining the nature and scope of the development, which, if invalid, would invalidate consent 2. Condition 14 not held to be invalid in any event a. Interpretation – Reading condition 14 in the context of conditions 13 and 24, it was clear that the conditions envisaged that the Scottish Ministers could use both the construction method statement (condition 13) and the design statement to regulate the detailed design of the wind farm in the interests of environmental protection and require those constructing the generating station to comply with those statements b. High bar to satisfy before a planning condition can be said to be void for uncertainty “a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results.” 3. Other planning condition case law supported the dismissal, (e.g. Sevenoakes DC [2004])
  29. 29. Case Law 1. R (oao Skelmersdale Limited Partnership) v West Lancashire Borough Council v St Modwen Developments (Skelmersdale) Ltd [2016] EWHC 109 (Admin) 2. Trump International Golf Club Scotland Ltd v The Scottish Ministers [2015] UKSC 74 3. London Borough of Lambeth (Appellant) v Secretary of State for Housing, Communities and Local Government and others (Respondents) (UKSC 2018/0099) 4. R (on application of Hart Aggregates Limited) v Hartlepool BC [2005] EWHC 840 (Admin)
  30. 30. Case Law: London Borough of Lambeth London Borough of Lambeth (Appellant) v Secretary of State for Housing, Communities and Local Government and others [2019] UKSC 33 • Summary: Supreme court case on implied planning conditions • Facts: When varying a planning permission regarding the use of a DIY retail unit, the appellant, a local authority, had intended to exclude food sales. The restriction was not incorporated into the permission, and applying a corrective interpretation to add a planning condition to that effect, or such a condition by implication, was not possible • Issue: Lambeth argued that either an entirely new condition should be implied, or that the planning consent should be interpreted as providing a condition restricting the permitted use.
  31. 31. Case Law: London Borough of Lambeth (2) • Held: Appeal allowed. 1. Interpretation of Planning Permissions a. The current approach was considered in Trump International [2015]. The approach for interpretation of a public document was not materially different from the approach to that of other legal documents. However, there was limited scope for the use of extrinsic material because they affected third parties in a manner which many legal contracts did not. b. The ultimate question remained – how would a reasonable reader interpret and understand the words when reading the condition in the context of the other conditions and of the consent as a whole.
  32. 32. Case Law: London Borough of Lambeth (3) 2. Interpretation of 2014 Permission A reasonable reader would not interpret the decision wording to mean that the planning permission granted permission for unrestricted class A1 use. It clearly limited the saleable goods as "non-food goods". In practical terms, that would mean the legal effect of the decision notice was that there were no restrictions on retail sale. The reasonable reader would take the decision notice at face value; that is, as varying the condition
  33. 33. Case Law: London Borough of Lambeth (4) 3. Implied Condition a. The court was able to imply words into a public document, for example a planning permission, so long as they exercised great restraint (considering the possible criminal sanctions) b. A critical factor was the limited range of extrinsic evidence available. The background facts to a private contract did not apply for reasoning the implication of terms in a public document. In private contracts the term had to either be necessary for business efficacy, or it had to be so obvious that it went without saying. c. Considering the public and permanent nature of a planning permission, those tests required some modification. The 2014 permission failed to meet the local authority’s intentions, however, it did not lack practical or commercial coherence. d. Furthermore, considering the reasonable reader, it was not possible to imply the imposition of a condition in the 2014 permission preventing the sale of food.
  34. 34. Case Law 1. R (oao Skelmersdale Limited Partnership) v West Lancashire Borough Council v St Modwen Developments (Skelmersdale) Ltd [2016] EWHC 109 (Admin) 2. Trump International Golf Club Scotland Ltd v The Scottish Ministers [2015] UKSC 74 3. London Borough of Lambeth (Appellant) v Secretary of State for Housing, Communities and Local Government and others (Respondents) (UKSC 2018/0099) 4. R (on application of Hart Aggregates Limited) v Hartlepool BC [2005] EWHC 840 (Admin)
  35. 35. Case Law: R (on application of Hart Aggregates Limited) R (on application of Hart Aggregates Limited) v Hartlepool BC [2005] EWHC 840 (Admin) • Summary: Non-compliance with pre-commencement conditions can invalidate permission • Facts: The claimant sought judicial review of the decision made by the local authority refusing H’s application for new conditions regarding earlier planning permission relating to a quarry. The local authority refused to grant new conditions because the earlier permissions had lapsed following non-compliance with condition 10, relating to the restoration of the quarried land. Thus, they argued that they had no power, due to breach of a condition precedent, to consider the application. • Issue: At the time quarrying had been ongoing for 30+ years. • Claimant submitted that no agreed restoration scheme was required under condition 10 • Defendant submitted that condition 10 was a condition precedent because it required the local authority to approve a restoration scheme before the quarrying commenced
  36. 36. Case Law: R (on application of Hart Aggregates Limited) (2) • Held: Application granted 1. The claimant had correctly interpreted condition 10 – as it appeared in the condition schedule, and in a wider context as a whole 2. (Obiter) If the local authority’s interpretation of condition 10 had been correct, the original planning permission would not have lapsed. This is because the condition was not a condition precedent; applying FG Whitley & Sons Co Ltd v Secretary of State for Wales [1992] 3 WLUK 339 • A condition is only a condition precedent if it expressly prohibits development before the condition was met – distinguishing Whitely • NB: section 171A(1), TCPA 1990 3. (Obiter) As quarrying had taken place for 30+ years, applying enforcement activity would be irrational and an abuse of power - R. (on the application of Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin)
  37. 37. Practical Tips
  38. 38. Best Practice, Hints and Tips • Take care when considering conditions that prevent the development from beginning. Only use where it is so fundamental that, if otherwise, permission would have to be refused • Ensure that pre-commencement conditions satisfy the legal and policy tests; otherwise they may be unlawful and unenforceable • Where there is an intention to set condition precedent, make it clear and obvious • Following Lambeth, the courts are reluctant to add in any missed conditions so be vigilant • Only impose conditions justified by definite planning reason to satisfy the necessity test
  39. 39. Best Practice, Hints and Tips - Ensure that conditions imposed are relevant to the planning objectives - Consider the nature or impact of the development to be permitted - Ensure that the condition imposed is practicably possible to perform, for example, consider whether it is within the applicants control - Clearly state the requirements when drafting the condition. Where poorly written, the condition may be unenforceable - Evaluate the reasonableness of the condition. If it is unjustifiable or places a disproportionate burden on the applicant it will fail the reasonableness test
  40. 40. Any Questions?
  41. 41. Thank you – Ben Collins – Associate – t: 0330 045 2501 – m: 07909881822 – e: ben.collins@brownejacobson.com
  42. 42. Public Sector Planning Club Stopping up or diverting a highway? Dmitrije Sirovica 04 July 2019
  43. 43. What is a Highway?
  44. 44. What is a Highway? • There is no clear statutory definition • Common law definition: • A common route which people have the right to pass and repass along, without hindrance or charge, as frequently as they desire.
  45. 45. Obstruction of a Highway Section 137 of the Highways Act 1980 (“HA 1980”) • Criminal offence • “If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding [level 3 on the standard scale].” • Damages are payable if obstruction is deemed to be wrongful or unlawful • A stopping up order extinguishes the publics right to pass and repass • Compensation is not payable to those affected by stopping up orders
  46. 46. Stopping Up and Diversion
  47. 47. Stopping Up Orders • “Stopping up a highway” means to remove the public’s highway rights to pass and repass along a route • There are certain grounds to satisfy: • The highway is unnecessary, (Section 116 HA 1980) • Highway development is necessary, (Section 247 Town and Country Planning Act 1990)
  48. 48. Diversion of a Highway • “Diverting a highway” means to alter the route which the public have the right to pass and repass along • There are certain grounds to satisfy: • The diversion of the highway is “… nearer or more commodious to the public,” (Section 116(1)(b) HA 1980) • Highway development is necessary, (Section 257(2) Town and Country Planning Act 1990)
  49. 49. The powers available to stop up or divert a highway?
  50. 50. Various Powers • Town and Country Planning Act 1990 • Section 247 • Section 257 • Highways Act 1980 • Section 25 • Section 116 • Section 117 • Section 118 • Section 119 NB: Section 129A (repealed)
  51. 51. Section 247 of the Town and Country Planning Act 1990 (“TCPA 1990”)
  52. 52. TCPA 1990 Section 247 • Section 247 of the TCPA 1990 • (1) “The Secretary of State may by order authorise the stopping up or diversion of any highway [outside Greater London] if he is satisfied that it is necessary to do so in order to enable development to be carried out (a) in accordance with planning permission granted under Part III [or section 293A], or (b) by a government department.”
  53. 53. TCPA 1990: Requirements under Section 247 • Development must be conducted either: • By complying with a valid planning permission; or • By a government department • The planning permission may be granted by: • A development order; • An “Enterprise Zone” scheme; • A “Simplified Planning Zone” scheme; • Or subsequent to the submission of a planning application under Part III or Section 293A of the TCPA 1990 (Control of Development)
  54. 54. TCPA 1990: Requirements under Section 247 (2) • Requires a conflict between the public right of way and the planning permission in order to gran a stopping up order • A change in the use of the land is sufficient – physical obstruction is not necessary • Order procedure varies depending on region: • Outside Greater London, (Section 247(1) TCPA 1990) • Within Greater London, (Section 247(2A) TCPA 1990)
  55. 55. TCPA 1990: Requirements under Section 247 (3) • Applications cannot be made retrospectively Ashby v Secretary of State for the Environment [1980] 1 WLR 673: • Facts: Planning permission was obtained for a housing development which would result in the obstruction of a public footpath • Issue: The majority of works had been completed by the time the Secretary of State confirmed the diversion order • Held: An order to divert a footpath could only be made if it was deemed as necessary for future completion or development to take place. In this case there was ongoing works to be completed, thus an order was allowed even though this might have retrospectively validated unlawful development.
  56. 56. Stopping Up Orders: Key Points • Stopping up orders do not extinguish private rights of way which exist over the land • Walsh v Oates [1953] 1 QB 578 • Plaintiff owned a cottage which adjoined a road • Defendant owned the land on the opposite side • An order for stopping up the highway was made • Held: The order would destroy the public right of way but not a persons private right of way (Applied Allen v Ormond [1806] 11 WLUK 5) • Applications for stopping up orders can be made before planning permission is granted, (Sections 253(1) and 253(1A) TCPA 1990) • However, applicants must provide a copy of the planning permission for an order to be made (Section 253(5) TCPA 1990).
  57. 57. Section 247 of the TCPA 1990: Procedure for Making a Stopping Up Order
  58. 58. Section 247 of the TCPA 1990: Procedure for Making a Stopping Up Order 1. Publicity Requirements (Section 252, TCPA 1990) The Secretary of State must: a. Publish a notice in the London Gazette and at least one local newspaper stating: i. the general effect of the order ii. a place to inspect the draft order iii. that any person may object to the Secretary of State within 28 days of publication
  59. 59. Section 247 of the TCPA 1990: Procedure for Making a Stopping Up Order (2) b. Prominently display a notice at each end of the highway to be stopped up, no later than the date of publication c. Serve a copy of the draft order and notice to: i. Every local authority related to the highway or land affected ii. Any National Park authority that is the local planning authority for the affected area iii. Any sewerage, water, hydraulic power, or electricity undertaker or public gas transporter with any cables, mains, sewers, pipes or wires laid across, along, under or over any highway to be stopped up, (“ The Consultees”) NB: A notice does not have to be served upon any affected landowners
  60. 60. Section 247 of the TCPA 1990: Procedure for Making a Stopping Up Order (3) 2. Objections • Objections must be made within 28 days of notice publication • Made to the Secretary of State • Copied to the applicant • Applicant is responsible for resolution • Secretary of State must hold a local inquiry for objections made, and not withdrawn, by any of the Consultees, (Section 252(4) TCPA 1990)
  61. 61. Section 247 of the TCPA 1990: Procedure for Making a Stopping Up Order (4) 3. Discretionary Powers • There is no presumption that the granting of planning permission will automatically result in a stopping up order being made or confirmed • Stopping up order powers are discretionary • Secretary of State must be satisfied the order is necessary for the development in question to proceed • If there is an alternative, i.e. diversion, the SS may refuse the order application
  62. 62. R (Network Rail Infrastructure Ltd) v Secretary of State for Environment, Food and Rural Affairs [2018] EWCA Civ 2069. Network Rail case: • Facts: The number of houses which could be built was capped by a planning condition; unless a footpath stopping up order capped the number of houses which could be built until a footpath stopping up order was either confirmed or not confirmed. • Spelling out the possible outcomes of the statutory process did not mean confirmation was unnecessary. • Issues: Did identifying the different possible outcomes of the statutory process mean that confirmation was necessary? Was the inspector lawfully exercising statutory powers under Section 259, TCPA 1990? • Held: Appeal dismissed - the Secretary of State had to consider the merits of the proposal to satisfy the “necessary” test in Sections 257 and 259, TCPA 1990
  63. 63. Section 247 of the TCPA 1990: Procedure for Making a Stopping Up Order (5) 4. Special Parliamentary Procedure • Applies where the Secretary of State makes a stopping up order which requires financial expenditure or contributions, (Section 252(9), TCPA 1990) • Usually not an issue as most works are overseen by • Planning agreements under Section 106 TCPA 1990 • Highway agreements under Section 278 HA 1980
  64. 64. Section 247 of the TCPA 1990: Procedure for Making a Stopping Up Order (6) 5. Publication of the Stopping Up Order • Immediately publish a notice in the London Gazette and a local newspaper stating: • The order has been made • The place where a copy of the order may be inspected • Notice must be: • Displayed at both ends of the affected highway • Made to any person affected by the order, including the Consultees
  65. 65. Section 247 of the TCPA 1990: Procedure for Making a Stopping Up Order (7) 6. Costs • The developer requiring the order is usually expected to meet the expenses incurred
  66. 66. Challenging a Stopping Up Order
  67. 67. Challenging a Stopping Up Order • Application is made to the High Court to quash the stopping up order • Must be made within 6 weeks of the decision publication • Grounds include: • The decision–maker has acted ultra vires • The decision-maker has followed the incorrect legal procedures (Section 287, TCPA 1990) • Where the Secretary of State refuses a stopping up order, judicial review is the only route to challenge the decision
  68. 68. New Stopping Up Orders • Stopping up orders apply directly to the planning permission provided Altered development plans + new planning permission  New order required • Previous stopping order cannot be relied upon • Applies to post planning permission amendments to increase or alter the area NB: Where planning permission expires or cannot be implemented, the stopping up order ceases to have any effect
  69. 69. Section 257 of the TCPA 1990
  70. 70. TCPA 1990 Section 257 • Section 257 of the TCPA 1990 • (1) “Subject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath [, bridleway or restricted byway] if they are satisfied that it is necessary to do so in order to enable development to be carried out (a) in accordance with planning permission granted under Part III [or section 293A], or (b) by a government department.” • For the stopping up or diversion of a footpath or bridleway only
  71. 71. TCPA 1990 Requirements under Section 257 Mostly similar to Section 247, TCPA 1990 • Different statutory provisions Section 257 of the TCPA 1990 • Section 257(1A) – grounds include planning application submitted and where an application has been granted and stopping up or a diversion is required • The order may provide for: (a) improvement of existing, or creation of an alternative highway, (Section 257(2)(a)) (b) protection of the rights of statutory undertakers regarding their apparatus which pass along, across, over, or under the path or way immediately prior to the order date, (Section 257(2)(c)) (c) payment of costs incurred, (Section 257(2)(d))
  72. 72. TCPA 1990 Key Points Section 257 Mostly similar to Section 247, TCPA 1990 • Orders can be made or confirmed retrospectively where the development has begun or the footpath or way has already been blocked • However, orders cannot be made or confirmed retrospectively once development is “substantially complete” • Developer should instead seek either a: i. Public path extinguishment order under Section 118 of the HA 1980 ii. Public path diversion order under Section 119 of the HA 1980
  73. 73. TCPA 1990 Key Points Section 257 (2) • Again, orders do not extinguish private rights of way • Walsh v Oates [1953] 1 QB 578 • Burden on developers and landowners to check the title deeds or registers for surviving private rights of way which will affect the path or way • Discretionary powers • Planning permission does not automatically grant an order • The local planning authority (“LPA”) or Secretary of State must be satisfied that the order is necessary – but can still refuse the order where an alternative is available • Conditions may be imposed relating to planning permission timescales and the requirement to serve notice on the local highway authority prior to implementing the order
  74. 74. TCPA 1990, Section 257 Procedures Again, mostly similar to Section 247, TCPA 1990 1. Identify the relevant Secretary of State, if applicable (Defra via PINS) 2. Satisfy the publicity requirements, (Part 1, Schedule 14, TCPA 1990) 3. Objections must be sent to the LPA and are subject to the same 28-day period 4. No objections within the prescribed time period, or those received are withdrawn  LPA may confirm the order without modification, (Schedule 14, Para 2, TCPA 1990) 5. Unresolved objections  Need confirmation from Secretary of State 6. Satisfy publication and notice requirements for confirmation, (Part 2, Schedule 14, TCPA 1990; Schedule 14, Para 17, TCPA 1990)
  75. 75. TCPA 1990 Section 257 Procedures (2) 7. Applicant to meet the costs incurred by the LPA 8. No compensation payable to those adversely affected 9. Challenge to decision can be made within 6 weeks, (Section 287, TCPA 1990) Judicial Review Grounds: 1. Ultra vires 2. Incorrect legal procedures
  76. 76. Section 116 of the HA 1980
  77. 77. Section 116 of the HA 1980 Section 116 of the HA 1980: stopping up or diversion of a highway (1) “…if it appears to a magistrates' court, after a view, if the court thinks fit, by any two or more of the justices composing the court, that a highway (other than a trunk road or a special road) as respects which the [highway] authority have made an application under this section— (a) is unnecessary, or (b) can be diverted so as to make it nearer or more commodious to the public, the court may by order authorise it to be stopped up or… diverted.”
  78. 78. Section 116, HA 1980: Procedure for Making a Stopping Up or Diversion Order 1. Identify the highway as a bridleway, carriageway, classified road, cycle track, footpath, footway or restricted byway • NB: Special and trunk roads are governed by Section 48(4) Countryside and Rights of Way Act 2000 2. Identify reasonable grounds for the application a. The highway must be deemed as unnecessary to be stopped up; or b. The proposed diversion must be nearer or more commodious to the public This is a question of fact. 3. Apply to the Magistrates’ Court a. Only a highway authority may apply to the magistrates’ court under Section 116, HA 1980 b. The highway authority may make an application on the behalf of another under Section 117, HA 1980. The highway authority may recover reasonable costs incurred. c. The highway authority has discretion and may reject a request to make an application even if there are reasonable grounds to consider the stopping up or diversion of a highway. However, this decision is capable of judicial review.
  79. 79. Section 116, HA 1980: Procedure for Making a Stopping Up or Diversion Order (2) 4. Notice Period under Section 116(3) a. Highway authority must provide a minimum of 2 months’ notice for the proposed application, (exceptions apply) b. Where one or more of the councils refuse consent, via a written notice within 2 months from the date the notice was served, the application to stop up or divert the highway cannot be made c. In the event of a diversion order being proposed, written consent from every individual with a legal interest in the land over which the highway is to be diverted is required. Where the highway in question overlaps with an adjoining council, their written consent is also required. This written consent must be presented to the magistrates’ court as per Section 116(8)(a) Highways Act 1980.
  80. 80. Section 116, HA 1980: Procedure for Making a Stopping Up or Diversion Order (3) 5. Publicity Requirements a. Upon agreement of the application details, there is a requirement within Schedule 12 of the 1980 Act that at least 28 days prior to the stop up or diversion, the highway authority must: i. Display a prominent notice at both ends of the highway due to be stopped up or diverted, (Paragraph 2, Part 1, Schedule 12, Highways Act 1980); ii. Publish a notice in the London Gazette and at least one circulating local newspaper (Paragraph 3, Part 1, Schedule 12, Highways Act 1980). b. The notice requirements: i. The terms of the proposed order ii. The time and place at which the application for the order is to be made iii. A clear plan illustrating the effect of the order (Part 1, Schedule 12, Highways Act 1980)
  81. 81. Section 116, HA 1980: Procedure for Making a Stopping Up or Diversion Order (4) Publicity Requirements (2) c. Notice must be served upon: i. All land owners or occupiers which adjoin the highway to be stopped up or diverted. As per Section 329(1) of the 1980 Act “adjoining” includes abutting on. ii. All statutory undertakers with any mains, cables, pipes, sewers, or wires lay across, under, along or above the highway to be stopped up or diverted. 6. Preparing Court Documents a. Fulfil consent and publicity requirement b. Obtain fixed hearing date; application regarded as a complaint c. Application required at least 7 days before the hearing – 3 copies required before the court d. Attachments include a copy of notice of intention to apply; copy of draft order; photographs; witness statements; certificates of landownership
  82. 82. Section 116, HA 1980: Procedure for Making a Stopping Up or Diversion Order (4) 7. The Order Hearing a. Section 116(6): serve notice to all persons with legal interest in the land b. Section 116(7): anyone who uses the highway or would be aggrieved has a right to notice c. Upon the magistrates signing the order, the highway rights immediately cease d. Appeals are made to the Crown Court by anyone with a right to be heard under Section 317 Key Points to Note 1. No compensation is payable under Section 116 2. Control of the land reverts to the freehold or leasehold owner of the subsoil 3. Where unknown there is a rebuttable presumption that the owners are those in adjoining properties in equal shares (to the centre line) 4. Alternative: Public Spaces Protection Order under the Anti-social Behaviour, Crime and Policing Act 2014 (replaces Section 129A, HA 1980)
  83. 83. Helpful Case Law for Section 116 of the HA 1980
  84. 84. Case Law 1. Ramblers Association v Kent CC [1990] 1 WLUK 730 2. Westley v Hertfordshire CC [1995] 3 WLUK 387
  85. 85. Section 118 of the HA 1980
  86. 86. Section 118 of the HA 1980 Section 118 of the HA 1980: For the diversion of a footpath or way (1) “Where it appears to a council as respects a footpath [, bridleway or restricted byway] in their area (other than one which is a trunk road or a special road) that it is expedient that the path or way should be stopped up on the ground that it is not needed for public use, the council may by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order, extinguish the public right of way over the path or way. An order under this section is referred to in this Act as a “public path extinguishment order”.”
  87. 87. Section 118, HA 1980: Procedure for Making a Stopping Up Order 1. Demonstrate how the highway of concern satisfies the definition of a footpath, bridleway or restricted byway under Section 329 of the 1980 Act, (Section 118(1)) 2. Show that it is expedient on the ground that stopping up the path or way is not needed for public use, (Section 118(1)) • Once satisfied, the council may order that the path or way be extinguished as a public right of way • Must be submitted to and be confirmed by the Secretary of State; or as an unopposed order • Referred to as a “Public Path Extinguishment Order”, (Section 118(1)). • In the event that the path or way would otherwise be used by the public, the Secretary of State cannot confirm a Public Path Extinguishment Order, and the council cannot confirm such order as unopposed; unless they are satisfied that it is expedient to do so having regard to the extent to which it appears to them that the path or way would be used, and having regard to the effect on land served by the path or way
  88. 88. Section 118, HA 1980: Procedure for Making a Stopping Up Order (2) 3. Considerations for Section 118(1) and (2) a. Temporary circumstances must be disregarded, (Section 118(6) of the 1980 Act) b. The Secretary of State and council must consider: “…any material provision of a rights of way improvement plan prepared by any local highway authority whose area includes land over which the order would extinguish a public right of way.” (Section 6A of the 1980 Act) 4. The “Public Path Extinguishment Order” • Must satisfy the regulations set by the Secretary of State • A map to the prescribed scale must be attached, defining the land in which the public right of way has been extinguished, (Section 118(3) of the 1980 Act)
  89. 89. Section 118, HA 1980: Procedure for Making a Stopping Up Order (3) Also be aware of: • Section 118ZA: Application for public path extinguishment order • Section 118A: Stopping up of footpaths • Section 118B: Stopping up of certain highways for purposes of crime prevention, etc.
  90. 90. Section 119 of the HA 1980 • Diversion of a footpath, bridleway or byway • Used when Section 116 is not appropriate
  91. 91. Section 119 of the HA 1980 Section 119 of the HA 1980: Diversion of a footpath or way (1) “… it is expedient that the line of the path or way, or part of that line, should be diverted… the council may… by order made by them and submitted to and confirmed by the Secretary of State, or confirmed as an unopposed order,— (a) create… any such new footpath [, bridleway or restricted byway] as appears to the council requisite for effecting the diversion, and (b) extinguish, as from such date as may be [specified in the order or determined] in accordance with the provisions of subsection (3) below, the public right of way over so much of the path or way as appears to the council requisite as aforesaid. An order under this section is referred to in this Act as a “public path diversion order”.”
  92. 92. Section 119, HA 1980: Procedure for Making a Diversion Order Mostly similar to Section 118 procedure • Grounds • Diverted route would not be substantially less convenient to the public • Diversion would not alter any point of termination of the path, other than to another point on the same highway or a connected highway • The applicant will be required to pay: • All costs and carry out all works required to implement the diverted route on the ground. • Any compensation due for loss caused under section 28, HA 1980
  93. 93. Section 119, HA 1980: Procedure for Making a Diversion Order (2) Also be aware of: • Section 119ZA: Application for public path diversion order • Section 119A: Diversion of footpaths crossing railways • Section 119B: Diversion of certain highways for purposes of crime prevention, etc. • Section 119D: Diversion of certain highways for protection of sites of special scientific interest • Section 119E: Provisions supplementary to section 119D.
  94. 94. Any Questions?
  95. 95. Thank you – Dmitrije Sirovica – Senior Associate – t: 0115 976 6238 – m: 07500048089 – e: dmitrije.sirovica@brownejacobson.com
  96. 96. Public Sector Planning Club Planning: Legal Update Ben Standing 04 July 2019
  97. 97. Overview • Case Law Update – including: - Standing - Enforcement - Public sector equality duty - Reserved matters - Pre-commencement conditions - Timing - Grampian conditions - Highways - CIL • Planning reform and the future
  98. 98. Standing Norman v Secretary of State for Housing, Communities and Local Government [2018] EWHC 2910 (Admin) • Challenge to grant of planning consent for poultry buildings for 82,500 birds on environmental impact grounds. • Applied to quash a decision of the first defendant secretary of state, by his planning inspector, to grant planning permission to the third defendant developer. • Inspector found developer had carried out a robust assessment of potential odour impacts; and that the odour and noise levels would cause no significant harm to the living conditions of the neighbours. • Concluded that the environmental permit was highly material, addressing as it did issues of noise, odour, emissions and waste. • Claimant a local Councillor and chair of the local Green Party, applied as a ‘person aggrieved’ under s288 TCPA 1990.
  99. 99. Standing (2) • Was the claimant a 'person aggrieved'? • Whilst the claimant might have felt aggrieved about the inspector's decision, that did not make her a 'person [...] aggrieved' within the meaning of s.288 of the Act. • The meaning to be attributed would vary according to the context, necessary to have regard to the particular legislation involved and the nature of the grounds on which an applicant claimed to be aggrieved. • When a person failed to participate in a planning process which led to a decision they wished to challenge, their non-participation required readily apparent justification. • Applicant had simply stepped into the shoes of the local authority and neighbouring owners, who would have been persons aggrieved but had chosen not to challenge the inspector's decision. • She was not a "person aggrieved" for the purposes of s.288.
  100. 100. Enforcement R. v MA Kelly's Estates Ltd [2018] EWCA Crim 2722 • Appellant (A) appealed a fine of £70,000, with a 20% credit to reflect the guilty plea to produce a fine of £56,000 • A, leased a property where permission was granted for a public house, contingent on alterations prior to use • A did not make alterations and an enforcement order was served • Landlord sold property to A • Rent was paid before sale but not clear if A took over lease or received rent • The business continued to trade • Tenant director (T) pleaded guilty • A continued to ignore compliance requests • T was fined £90,000, along with costs of £21,080, plus a confiscation order of £225,000 • Appeal dismissed: judge identified ‘a prolonged and flagrant disregard which had been the pursuit of profit’
  101. 101. Duty to Give Reasons R (oao Save Britain’s heritage) v SOS for Communities and Local Government [2018] EWCA Civ 2137 • When refusing to call in planning permissions for his own determination, the SoS should give reasons • Case related to ‘Paddington Cube’ development and pressure was put on SoS to call in the application. SoS declined the request but did not give reasons for the decision.
  102. 102. Public Sector Equality Duty R(oao Buckley) v Bath and North East Somerset Council & Another [2018] EWHC 1551 • First time the court considered whether the PSED applied to outline planning applications • Development proposal to demolish and rebuild housing estate and to decant tenants to a nearby site. Council had carried out an Equality Impact Assessment of the development plan policies but not the application. • Council had failed to discharge its duty
  103. 103. Quashing of Reserved Matters R (oao Ornua Ingredients Ltd) v Herefordshire Council [2018] EWHC 2239 • Outline permission granted on appeal for housing development close to a cheese factory on an industrial estate. • Subject to noise mitigation scheme to be submitted before development commenced. • Resolution to grant reserved matters approval was made on the basis that the issue of noise mitigation could be dealt with later. • Claimant brought evidence to suggest any noise mitigation would not be sufficient which the Council did not consider. Court found it was not enough for the Council to assert that the planning condition would provide adequate protection
  104. 104. Breach pre-commencement R(Howell) v Waveney District Council [2018] EWHC 3388 • Planning permission for wind turbines on a site next to an airstrip, provided certain aviation and archaeological conditions were complied with • Developer had failed to meet time limit for complying, but conditions were nevertheless discharged by planning officer. • Owners of airstrip sought judicial review of decision • Examination of whether development that proceeds in breach of pre-commencement conditions will be unlawful
  105. 105. Timing a Challenge Croke v SoS for Communities and Local Government [2019] EWCA Civ 54 • Court of Appeal judgment highlighted how seriously filing deadlines are taken • Mr Croke was aware of the six-week period for filing under s288 and intended to file on the last date for filing. • Failed to file in time due to missing a train, mistyping an email address and a security guard at the RCJ
  106. 106. Permitting a Grampian condition Planning Inspectorate Decision Appeal of Castle Hill Quarry Company Limited. 21 June 2019 • Appeal against the non-determination of an application for a quarry extension. The appellant was a company quarrying a rare type of stone, used in the animal feed industry, as well as high quality stone used for construction purposes. • Key issue was the effect of the development in relation to ground water and whether there could be adequate control through the imposition of a condition. • The inspector concluded that the imposition of the proposed Grampian condition was essential to protect a nearby listed building and the water environment; it was relevant to planning and directly related to the development being permitted, and was enforceable, precise and reasonable.
  107. 107. Highways maintainable at public expense Barlow v Wigan Council [2019] EWHC 1546 • Appellant claimed compensation having fallen on a path that formed part of a park • It was agreed that the path had become a highway by presumed dedication but not whether it was maintainable at public expense – this was the key issue. If so, the Council was liable for failure to maintain. • Council won at first instance but judgment overturned on appeal
  108. 108. Consistency in planning decisions R(Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin) • Council granted itself planning permission for a new sports stadium on council-owned land but the High Court quashed it on the basis it would have “limited adverse impact” on green belt openness. • The next day, the Council resolved to grant permission for an almost identical application deciding that there would be “no adverse impact” on green belt openness • Decision challenged successfully as Council had failed to address the change in position on green belt openness
  109. 109. CIL Cases • Valuation Office Agency Community Infrastructure Levy appeal decision: excavation and enlargement to existing dwelling (18 June 2019). • Exemption for minor development does not apply if a whole new dwelling is created • PINS appeal decision APP/W0340/L/18/1200241 (22 May 2019). • Commencement does not have to be intentional or lawful to trigger payment of CIL
  110. 110. National Planning Policy Framework • Revised February 2019 • Key changes: • In relation to housing supply, footnote 37 is clarified to state that where local housing need is used to assess whether there is a 5 year supply of housing, the standard method should be used • Guidance concerning housing and economic needs assessments has also been amended to make clear that, when setting the baseline as the first step of the calculation of need, 2014 based household projections should be used. • The definition of ‘deliverable’ in Annex 2 NPPF is recast so that non-major development sites with outline permission should be treated in the same way as all sites with detailed planning permission, • Para 177 of the NPPF, which touches on appropriate assessment and habitats, is amended to be unambiguous that the presumption in favour of sustainable development will not apply where there are effects on a habitats site unless an appropriate assessment concludes that negative impacts will not occur
  111. 111. National Housing Design Audit • CPRE backs first National Housing Design Audit • Ensuring high standards of design • Feeding into the Government’s “Building Better, Building Beautiful Commission” • Expect a report from the commission within the year
  112. 112. Guidance – housing older and disabled people • new chapter to National Planning Practice Guidance provides much needed guidance for housing older and disabled people. It states that LPAs: • should set clear policies to address the housing needs of older people and ensure that their Plans provide for specialist housing for older people where a need exists; • need to count housing provided for older people against their housing requirement; • should take a positive approach to schemes that propose to address an identified unmet need for specialist housing.
  113. 113. Any Questions?
  114. 114. Thank you – Ben Standing – Senior Associate – t: 0115 976 6200 – m: 07826 926419 – e: ben.standing@brownejacobson.com

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