In our first planning club of 2017 we covered: • formation and use of Section 106 obligations and conditions • a look at recent changes to permitted development rights • challenges to planning decisions, including judicial review and appeals.

1. Public sector planning club
January 2017, Nottingham

2. Recent Changes to Permitted
Development Rights
An update by Steve Coult

3. Content
• Legal Basis
• History
• The 2015 GPDO
• The 2016 GPDOs
• 2017?

4. Legal Basis (1)
• Town and Country Planning Act 1990
– Section 55 defines the meaning of development
 Operational
 Change of Use (noting changes of use within a Class of
Uses held not to be development).
– Section 59 gives powers to the Secretary of State to
make development orders (both general and
specific)
– (Note also S59 allows SoS to make Orders about the
way planning applications are processed).

5. Legal Basis (2)
• Note also S60
– Permitted development either unconditionally
granted or subject to limitations.
– ss2. Design and external appearance of buildings can
be subject to further approval.
– ss3. Order can limit areas to which it applies or in
relation to any particular development.
– ss4. Permitted development for temporary periods
only granted for the periods specified in the Order.

6. History Pre 1947
• Development Orders predate the 1947 Act.
• S45 Housing, Town Planning etc Act 1919 led to the
Town Planning (General Interim Development)
Order 1922 concerned with development
management.
• However this followed in 1933 by the General
Interim Development Order which actually
permitted forms of development.

7. History – the Post War Years
• Thus by 1947 it was accepted that there was a
need for flexibility and control over all
development would be too limiting.
• First post war order was the General Development
Order 1948.
– 21 classes of permitted development
– Very prescriptive
– No householder rights for extensions!

8. History – Deregulation
• Major deregulation in 1950
– Town and Country Planning General Development
Order and Development Charge Regulations 1950
– Not only permitted development but also
development administration/management
– Householder rights extended “to remove from the
need to obtain express planning permission a
number of minor operations which have so far
occupied an amount of time and manpower out of
all proportion to their importance to planning”

9. History – Start of the Modern Era
• 1950 position generally prevailed up until 1995:-
– Splitting of Permitted Development and
Development Management into 2 separate orders
– Provisions for dealing with Environmental
Assessment impacts on permitted development
– Close Circuit TV pd rights
– Restrictions on permitted development in
conservation areas
• By 1995 43 separate parts to the GPDO

10. History – Planning Reform
• July 2014 – Technical Consultation on Planning
– Section 2 seeking views on proposals to amend both
GPDO 1995 and Use Classes Order 1987
 to grant permitted development rights to allow change of use from
light industrial units, warehouses, storage units, offices and some
sui generis uses to residential; more change of use within the high
street, including a wider retail use class; some sui generis uses to
restaurants and leisure uses; retailers to alter their premises;
commercial filming; larger solar panels on commercial buildings;
minor alterations within waste management facilities and for
sewerage undertakers; and, extensions to houses and business
premises.

11. The 2015 Order – (1)
– 8 Articles and 4 Schedules
– Key Articles
 (2) Interpretation
 (3) Permitted Development – general operation
 (4) Directions restricting certain permitted development
 (5) Directions restricting certain minerals development –
express occasions where MPA can take away rights under
Class K and M.
 (6) Directions general – power to cancel or vary
 (7) Prior approval applications – time periods for decision –
8 weeks by default

12. The 2015 Order –(2)
• Schedule 1.
– Part 1 (Article 2(3) Land - generally national or
international designations
– Part 2 (Article 2(4) Land – National Parks and Broads
plus designated parishes. 3 in West Derbyshire –
limits some agricultural permitted development
rights.
– Part 3 (Article 2(5) Land - Various areas in some SE
planning authority areas plus Manchester City –
restriction on pd rights offices to housing.

13. The 2015 Order – (3)
• 19 Parts -Consolidation rather than removal of 1995 Parts
• Key changes are
– PART 1 – Large Extensions to Homes now permitted through to May
2019
– PART 3 — Changes of use - Now 22 classes much more freedom to
change uses of existing buildings. However pre notification
procedures often included.
– PART 4 — Temporary buildings and uses - introduction of trial periods
for to flexible use for 2 years.
– PART 7 — Non-domestic extensions, alterations etc. Extending what
were temporary rights to permanent rights.
– PART 14 – 1 megawatt solar panels now permitted on roofs of non
domestic buildings.

14. The 2015 Order (4)
• Schedule 3 - Article 4 procedures.
– No changes since 2010 amendments
– Procedures better explained in Replacement Annex
D to Circular 9/95.
– Annex sets circumstances and need for strong
justification.
– Self confirming process.
– SoS powers of intervention
• Schedule 4 –Revocation of Statutory Instruments

15. The 2016 Orders
• No 1 (6 April 2016)
– Further buildings allowed to be used for residential
use (both temporary and permanent) some come
into effect in April 2017 to allow Article 4’s to be in
place.
– Rights granted in respect of fracking exploration.
• No 2
– Further amends to enable telecoms operators to
operate with more freedom.

16. 2017 and later?
• Government Response to the 2014 Consultation only
given in May 2016.
• Matters in report not yet implemented-
– Right to demolish offices and replace on like for like basis with
dwellings.
• Impact of work on Brexit likely to make any further
proposals less imminent.
• However note EIA underpinned by EU Directive – will
this be retained and consequences for development
control?

17. Formation & Use of S106
Obligations and Conditions
Ben Standing- Solicitor

18. Topics
• Difference between Planning Obligations & Conditions
• Planning Conditions
– Example conditions and impact of Neighbourhood Planning
Bill
• Planning Obligations
– Community Infrastructure Levy Regulations 2010
• Planning Obligations or Planning Conditions
• Section 106 agreement or unilateral undertaking
• Discussion points

19. Differences between Obligations
and Conditions
Conditions Obligations
Timing Within planning permission Within s106 agreement or
unilateral undertaking
Purpose Regulate development
Approval for aspects of work
Carrying out of works
Not usually detailed or
complex
Specific mitigation of
development
Land itself is bound
Can be very detailed or complex
Variation Application or appeal On agreement of parties. Cannot
be directly appealed.
Breach If conditions not complied
with then effect can be that
development has no
planning permission
Contractual remedies, including
injunction

21. What are Planning Conditions?
Para 203 NPPF
– Imposed on planning permission
– To make unacceptable developments acceptable
TCPA 1990: sections 70-73A, & Sch 5 (others for SoS)
– Grant permission subject to conditions as LPA thinks
fit (s70(1)(a))
– Impose conditions to regulate development (s72(1(a))
• Interpreted in light of NPPF, PPG & case law

22. The 6 Tests
Para 206 NPPF:
1.Necessary;
2.Relevant to planning and;
3.To the development to be permitted;
4.Enforceable;
5.Precise and;
6.Reasonable in all other respects

23. Formation of conditions
• NPPG: tailored to tackle specific problems
• Should not be used if 6 tests not met
• Should not be used if they:
– Unreasonably impact on the deliverability of a
development
– Reserve outline application details
– Require the development to be carried out in its
entirety

24. Formation of conditions (2)
• Conditions should not be used if they:
– Require compliance with other regulatory regimes
– Require that land is formally given up
– Require payment of money
• Limit use of conditions which require further
details after permission is granted
• In RM, conditions can only relate to matters
reserved

25. Grampian Conditions
Grampian Regional Council v City of Aberdeen (1984)
• Prevents planning permission until event occurred
• Negatively worded conditions
– Cannot positively require action or payment of money
• Reasonable prospects of being performed in time
• Appropriate for complex & strategically important
development

26. Neighbourhood Planning Bill
• Statutory force to ministerial guidance on planning
conditions
• DCLG published consultation on 7.09.16; draft
regulations prepared
• LPAs to seek agreement for pre-commencement
conditions
• Certain conditions should be prohibited

27. Best Practice: NPPG & TCPA 1990
• Use where satisfied that conditions so fundamental
would otherwise necessary to refuse permission
• Specify the application drawings and other details
which form part of the permission
– creates certainty for all parties
• Give clear reasons
• Ensure drafting is not ambiguous

28. Best Practice: NPPG & TCPA 1990
• Attempt agreement with applicant early
– Increases certainty & control, delivery & compliance
– Decreases likelihood of appeals & s73 applications
• Use conditions sparingly, collaboratively & positively
• Consider whether time limits for commencement
should be altered

29. Modification and discharge
• Application under section 73
• Appeal to Secretary of State
• Local authority can be asked to confirm discharge

30. Planning Obligations

31. What Are Planning Obligations?
• Ancillary to planning permission
– Restrict, or require, the use of land in someway
– Mitigate development’s impact
• Positive & negative, on party with interest in land
• For example: affordable housing, open space,
public art, highways improvements, CCTV &
facilities

32. What Are Planning Obligations?
(2)
• Enforceable against successors in title
• Local land charge under Local Land Charges Act 1975
• Registered on planning register
• Enforced by way of injunction, or power to enter onto
land to carry out works & recover reasonable expenses

33. Which obligations fall within
s.106?
• (1) Any person interested in land in the area of a local planning authority may, by
agreement or otherwise, enter into an obligation (referred to in this section and
[sections 106A to 106C] 2 as “a planning obligation”), enforceable to the extent
mentioned in subsection (3)—
– (a) restricting the development or use of the land in any specified way;
– (b) requiring specified operations or activities to be carried out in, on, under
or over the land;
– (c) requiring the land to be used in any specified way; or
– (d) requiring a sum or sums to be paid to the authority [ (or, in a case where
section 2E applies, to the Greater London Authority)] 3 on a specified date or
dates or periodically

34. What if it does not fall within
s.106?
• Section 111 of the Local Government Act 1972
• Section 1 of the Localism Act 2011 [*England only*];
OR
• Section 2 of the Local Government Act 2000
[*Wales only*]

35. Formation of Planning Obligations
• State obligation is a planning obligation
• Identify the land concerned
• Identify person entering into planning obligation
• State the interest in land of person entering into
planning obligation
– Ensure successors in title are bound
• Clearly identify LPA with power to enforce
obligation

36. Community Infrastructure Levy
CIL Regulations 2010:
– Necessary to make development acceptable
– Directly related to the development
– Fairly and reasonably related in scale and kind
• CIL- charge on development to fund infrastructure

37. Transfer of Land under s.106
• Wimpey Homes Holdings Ltd v Secretary of State
for the Environment [1993] J.P.L. 919
• R v S Northants ex p Crest Homes plc [1994] 3 PLR
47
• Hertfordshire County Council and another v
Secretary of State for Communities and Local
Government [2011] EWHC 1572 (Admin)

38. Relationship with CIL
• Captures some of the land value released
• If LPA elects to charge CIL- can still ask for s106
• ‘Scaled back’ s106, dealing only with:
– Affordable housing
– On-site matters e.g. replacement of facilities
• S106 not for matters in reg 123 (CIL Regs 2010)
• Affordable housing delivered through obligations

39. Relationship with CIL(2)
• Pool contributions for measures not funded by levy
– Can’t pool more than five contributions by levy
• Cannot be used to double charge developers
– Must not use obligations to fund infrastructure
funded via levy

40. Practical issues
• Complexity of obligations is decision for LPA
• Consider scale of development
• Oxfordshire County Council v SoS for CLG [2015]
– Monitoring costs as obligation in s106 were not
"necessary to make the development acceptable”
Reg 122 (CIL Regs 2010)

41. Planning Obligation or Condition?
• If choice between obligation and condition:
– NPPF confirms condition should be chosen
• Obligations can regulate land that is not subject of
application- conditions cannot
• Condition allows appeal to SoS
– Appeals for obligations are limited
– In reality, obligations cannot always be reduced to
conditions

42. Section 106 Agreement or
Unilateral Undertaking?
• UU can be easier for local authority
• Not suitable where obligations placed on local
authority
• Best used for relatively simple situations, such as
affordable housing schemes

43. Discussion points (1)
• Viability
– Complex or simple clause
– Link to sale value?
• Affordable housing
– Condition or obligations
– Wording of chargee exemption clause

44. Discussion Points (2)
• Maintenance Obligations
– Contribution to LPA vs Owner maintenance
– Long term enforceability
• Future Section 73 Variations
– Impact of CIL Pooled obligations
– Enforceable?

45. Discussion Points (3)
• Travel Plans
– Do they work?
– Enforceable?
• Monitoring Fees
– Where are we post Oxford?

46. Questions?

47. Challenges to Planning Decisions
Will Thomas- Solicitor

48. Planning Appeals
• S78 TCPA 1990; only applicant can appeal against:
– Refused permission
– Non-determination within statutory time frames
– Granted subject to unreasonable conditions
– Refusal of reserved matters
• LPA to ensure that alternative avenues explored to avoid
appeal; new application needed?
– Carefully consider whether decision will withstand appeal
– If against recommendations, document reasons in
committee minutes; reasons should be clear

49. Planning Appeals
Article 37 DMPO 2015
• Time limits from date of decision notice:
– 12 weeks- householder/minor commercial appeals
– 6 months- other applications
– 28 days if enforcement notice served
• Right lost if not within relevant appeal period
• Cannot appeal if within agreed extension period of
determination

50. Planning Appeals
Types of appeals:
– Written representations
– Hearings
– Local inquiries (formal method for complex cases)
• Inspector will visit site in all types of appeal
• PINS s319A determination of method on behalf of SoS
within 7 working days
– “Taking into account criteria, appellant’s & LPA’s views”
• If valid appeal, PINS inform appellant & LPA of:
– Appeal starting date, case reference & method

51. Planning Appeals
• LPA will be notified of procedure and then will have to comply
with relevant directions. General procedural requirements:
– LPA to submit questionnaire, reasons for refusal and
supporting documentation
– Notify interested persons of appeal within relevant time
period
– Identify any factual errors in grounds of appeal
– Alert PINS to material changes since decision made e.g.
changes to policy or relevant decisions made
– Useful for LPA to suggest conditions to mitigate; include s106
if possible as conditions usually discussed at hearing/inquiry

52. Planning Appeals
Outcome
• Cannot change decision; may correct errors in decision
• LPA responsible for monitoring implementation
– Power to take enforcement action
• Cost awards
– Available in all appeals
– Parties meet own costs, unless unreasonably behaved
• s288 TCPA 1990 “statutory challenge”: point of law
challenged in High Court within 6 weeks; otherwise judicial
review

53. Judicial Review: Procedure
Procedure: Part 54 CPR
• Remedy of last resort- alternative method of challenge?
• Application within 6 weeks of decision taken
Standing:
• s.31(3) of Senior Courts Act 1981: ‘sufficient interest’
– Court to use discretion for 3rd parties e.g. public interest
– Interested parties must be named
• Judicial review only third party right against decision

54. Judicial Review: Procedure
• Pre-action letter sent; LPA 14 days to respond
• LPA to request time extension if necessary
– Without prejudicing time limits
• Must obtain permission
• Judge then provides directions for substantive hearing
– Public hearing before single judge
• Successful challenge: decision often overturned &
returned to PINS (in s. 288 appeal) or LPA
– Can result in same decision being taken

55. Judicial Review: Grounds of
appeal
Irrationality
• Challenge possible where demonstrated that LPA:
– Not taken into account relevant factors;
– Taken into account irrelevant factors; or
– Acted perversely
• Duty to take into account material considerations
• However, must exercise discretion

56. Judicial Review: Grounds of
appeal
Procedural impropriety
• Failure to follow express procedures
– E.g. consultation on development plans and publicity
for planning applications
• Natural justice
– No perception of bias
– Allow for fair hearing and proper consultation
– Issues of bias often raised by 3rd parties

57. Judicial Review: Grounds of
appeal
Procedural impropriety
• Legitimate expectations
– Policy may support approach, or statement made to that
effect
• Access to information
• LPA to ensure:
– Individual put their case forward & all evidence heard
– Those with ‘legitimate expectation’ are consulted
– Applicant can access relevant documents
– Sufficient reasons are provided for decision

58. Judicial Review: Grounds of
appeal
Unreasonableness
• So unreasonable as to be ‘irrational’ or ‘perverse’
• Argued with other grounds
“If a decision on a competent matter is so unreasonable that
no reasonable authority could ever had come to it, then the
courts can interfere… but to prove a case of that kind would
require something overwhelming..”
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] I KB 223 HL

59. Judicial Review: Outcomes
• Mandatory, Quashing & Prohibiting orders
– Can compel LPA to act in certain way
– Quashed decision remitted to LPA to consider afresh
– Prohibits LPA from taking intended action
• Ordinary declarations:
– Statement on law; declares LPA’s actions un/lawful
– Not coercive; although LPA expected to follow

60. Ombudsman Complaints
• LGO or PHSO:
– Can only consider maladministration and process
– Neither Ombudsman has the legal power to change a
planning decision once made
– Relevant complaints procedures should be used first
Outcomes:
• Steps to reduce harmful effects of LPA decision
• Agreed changes to scheme (LPA may need to pay for)
• LPA may have to pay compensation
• Recommend changes to LPA procedures

61. Planning Decisions: Tips
• Early engagement with applicant to identify ADR, or
changes to the scheme
• Ensure decisions are well documented & reasons can be
clearly identified
• All material considerations taken into account
– Clear demonstration that decision based on relevant
factors
• Decision reached is reasonable and has followed correct
procedure

62. Case Law: Consultation /
Procedural Expectation

63. R (Majed) v Camden LBC [2009] EWCA Civ
1029
• Council SCI stated that local residents would be
consulted in relation to certain developments.
• Court rejected Council argument that they were not
obliged to consult such groups because it went beyond
statutory duty under GDPO.
• Held: Residents had legitimate expectation of being
consulted. Declaratory relief given, although decision
not quashed.

64. R. (on the application of Vieira) v Camden LBC
[2012] EWHC 287 (Admin)
• Judicial review against LPAs decision to grant retrospective planning
permission for conservatory and trellis in conversation area
• LPA briefing panel decided to refer decision pending revised plans
for trellis. Application subsequently approved following receipt of
revised plans
• Officers report and revised plans not shared with objecting
neighbour despite SCI suggesting that revised plans would be shared.
• Held: Neighbour had procedural expectation of being consulted on
revised plans. Also relief should be granted notwithstanding low
prospect of successfully objecting. Outcome would have to be
inevitable. Decision quashed.

65. R. (on the application of Halebank PC) v Halton
BC [2012] EWHC 1889 (Admin)
• Parish council given 21 days to consider and respond on
application for storage and distribution warehouse. Period
commencing in August. Holiday commitments of members
made it difficult to adequately consider proposal. Request of
extended period of time rejected by LPA.
• Referred to govt. guidance and argued legitimate
expectation of being given extended period of time to
adequately consider proposal.
• Held: LPA decision unlawful. Inadequate consultation carried
out. Decision quashed.

66. Case Law: Fairness

67. Dudgeon Offshore Wind Ltd v Secretary of State
for Communities and Local Government [2012]
EWHC 861 (Admin)
• Claimant appealed against dismissal by SoS of appeal against
LPA’s refusal of permission to build electricity sub-station. At
appeal inspector had refused to hear submissions regarding the
suitability (or lack therefore) of alternative sites. Inspector had
assured the parties this would not be taken into consideration.
• Inspector subsequently stated in decision notice that alternative
sites was a “main issue” and that there was a possibility of
locating the station elsewhere.
• Held: a breach of natural justice. Appellant should be afforded
the opportunity to respond to an issue of importance in respect
of the inspector’s decision.

68. Case Law: Policy Considerations

69. Suffolk Coastal DC v Hopkins Homes Ltd
[2016] EWCA Civ 168 (appeal outstanding)
Meaning of ‘relevant policies’ & effect of para 49 NPPF:
• 49 NPPF: in favour of sustainable development & relevant
policies should not be considered up-to-date if LPA can’t
demonstrate 5yr supply
Held:
• Government aim of providing housing to meet needs of present &
future generations
• Relevant policies are those "affecting" supply of housing
• Extended to policies that restrict supply of housing land
• Decision maker to judge how much weight to be given to out-of-
date policies

70. R (Boot) v Elmbridge BC [2017] EWHC 12
(Admin)
• Permission for sports facility on green belt
• Report considered NPPF para 89: buildings on green
belt regarded as inappropriate- sport & recreation
appropriate if preserve openness of green belt
• Resident argued:
– Harmed openness and purposes of green belt
– Development on adjacent green belt inappropriate

71. R (Boot) v Elmbridge BC [2017] EWHC 12
(Admin)
Held:
• Paragraph 89 did not permit any harm at all to the
openness of the green belt
• If any harm at all, must consider special circumstances
justifying development:
– No justification that adverse impact not significant
• Previous planning appeal could amount to material
planning consideration
– Consider if materially dissimilar & distinguishable

72. Questions?

73. Contact us…
Stephen Coult – stephen.coult@brownejacobson.com
T: 0115 976 6152
Ben Standing – ben.standing@brownejacobson.com
T: 0115 976 6200
Will Thomas – will.thomas@bownejacobson.com
T: 0115 934 2007

74. All information correct at time of production.
The information and opinions expressed within this document are
no substitute for full legal advice. It is for guidance only and
illustrates the law as at the published date. If in doubt, please
telephone us on 0370 270 6000.
© Browne Jacobson LLP 2017 – The information contained within
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Jacobson. This document may not be reproduced without the prior
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