Plannin ing Law U Update by Killian an G Garvey ey
Covid-19 a and P d Plann nning i. a appea eals ls ii. p planning c commit ittees ees iii. co court w work iv. keep epin ing p permissio ions a alive v. Ne . New PD R Rights vi. w written en m minister eria ial s l statem emen ent
Covid-19 a and P d Plann nning i. a appeals s The current policy is for there to be no site visits or hearings/inquiries until further notice. Decisions can be taken with appeals where hearings/site visits have occurred.
Covid-19 a and P d Plann nning i. a appeals s 25th March 2020 PINs issued a statement saying that they are considering technological solutions and greater use of written submissions Resistance to holding Examination in Public Site visits will have to be unaccompanied
Covid-19 a and P d Plann nning i. a appeals s PINs are testing less complex inquiries, we will see in time what they will do.
Covid-19 a and P d Plann nning ii. p planning c committees tees The Local Authorities (Coronavirus)(Flexibility of Local Authority Meetings)(England) Regulations 2020 Draft form published yesterday
Covid-19 a and P d Plann nning ii. p planning c committees tees They allow for attendance at planning committee meetings by ‘remote attendance’
Covid-19 a and P d Plann nning ii. p planning c committees tees Legalistic way of saying that everyone can hear each other and, where possible, see each other.
Covid-19 a and P d Plann nning ii. p planning c committees tees Meeti tings c can b be conducted w with a access by the public through r remote a atte tendance Section 1(9A) is going to be inserted into the Public Bodies (Admission to Meetings) Act 1960, to say that a meeting being ‘open to the public’ include access through remote means including (but not limited to) video conferencing, live webcast, and live interactive streaming
Covid-19 a and P d Plann nning ii. p planning c committees tees However: i. site visits; ii. learning curve of committee members; iii. lack of planning officers due to re-assignment; iv. harder to secure evidence.
Covid-19 a and P d Plann nning iii. iii. Co Court rt w work Deadlines for filing claims remain fixed Hearings are proceeding both by telephone and video conferencing Some Courts are being more pro-active than others Likely to be significant delays with new cases due to planning giving way to more urgent matters
Covid-19 a and P d Plann nning iv. keep eepin ing p g perm rmis issio ions a alive Coronavirus (Scotland) Bill Default period of 3 years extended by 12 months if it would lapse within 6 months
Covid-19 a and P d Plann nning iv. keep eepin ing p g perm rmis issio ions a alive Section 73(5) of the TCPA prevents extension of time limits Section 96A non-material amendments?
Covid-19 a and P d Plann nning iv. keep eepin ing p g perm rmis issio ions a alive Potential need to renegotiate section 106 agreements as viability has likely changed This can be renegotiated only with the willingness of the local planning authority if within 5 years. Albeit, their refusal to consider renegotiation can be legally challenged After 5 years one can apply
Covid-19 a and P d Plann nning v. New ew P PD Righ ghts New Class DA inserted into the Town and Country Planning (General Permitted Development)(England)(Amendment) Order 2020: Allows temporary change of use from Class A3 (restaurants and cafes), A4 (drinking establishments) or Class AA (use as a drinking establishment with expanded food provision) to takeaway
Covid-19 a and P d Plann nning v. New ew P PD Righ ghts The temporary use lasts until 23 March 2021 and is subject to the developer notifying the local planning authority of this.
Covid-19 a and P d Plann nning vi. W Written tten m ministe terial s sta tatem temen ent 13 March 2020, a Written Ministerial Statement to encourage local planning authorities not to take enforcement action which, ‘would result in unnecessarily restricting deliveries of food and other essential deliveries during this period’
No Non-mater eria ial a amendmen ent The Q Queen ( (On t the A Application o of F Fulford P Parish C Council) v v City o of York C Council a and P Persimmon H Homes ( (Yorkshire) Limited [2019] EWCA Civ 1359 Court of Appeal determined that one can make a non- material amendment to a reserved matter application Court of Appeal confirmed that one can attach conditions to a reserved matter application
No Non-mater eria ial a amendmen ent This greatly assists developers who are time expired for submitting further reserved matters Court of Appeal left open the question of whether one can use a non-material amendment to approve development that is retrospective
Sec ectio ion 7 73 Appli lications In Finney v v Welsh M Ministers [2019] EWCA Civ 1868, the Court of Appeal determined that the description of development cannot be varied through a s.73 application.
Sec ectio ion 7 73 Appli lications Lord Justice Lewison said the question was one of statutory interpretation. He said that if the inspector had left the description of the permitted development intact, “there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine)” He explained: “A condition altering the nature of what was permitted would have been unlawful.That, no doubt, was why the inspector changed the description of the permitted development. But in my judgment that change was outside the power conferred by section 73.”
Adjac acen ent t to a Cons nservation A n Area? Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990: In the exercise, with respect to any buildings or other land in a conser ervation a area ea , of any [functions under or by virtue of] any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area
Adjac acen ent t to a Cons nservation A n Area? NPPF paragraph 190: 190. Local planning authorities sh should i identi tify a and a asse ssess ss the he pa particular significance of any heritage asset that may be affected by a proposal ( including b by development affecti ting t the se setti tting o of a heritage a asse sset ) taking account of the available evidence and any necessary expertise. They ey should t take this i into a account w when c considering t the i impact of a proposa sal o on a a herita tage a asset , to avoid or minimise any conflict between the heritage asset’s conservation and any aspect of the proposal.
Adjac acen ent t to a Cons nservation A n Area? NPPF glossary: Heritage asset: A building, monument, site, place, area ea or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. It includes designated heritage assets and assets identified by the local planning authority (including local listing).
Adjac acen ent t to a Cons nservation A n Area? In R.(oa oao o James H Hall) v v City o of B Bradfor ord [2019] EWHC 2899 (Admin), the High Court agreed that there was a duty: 16. There is no dispute in this case that the Site, being adjacent to the HCA, involves development which may affect the setting of a heritage asset. It is accepted, therefore, that Paragraphs 189-190 NPPF, and Core Strategy Policy EN3 apply in this case. It is also accepted that the NPPF is a material consideration for the purposes of any planning decision. It follows that the Defendant accepts that, in determining the application, the Council was under a duty to assess the impact upon the HCA, including its setting.
Adjac acen ent t to a Cons nservation A n Area? In R.(oao J o Jame mes H Hall) ) v City of of B Bradfo ford [2019] EWHC 2899 (Admin), the High Court agreed that there was a duty: 34. In my judgment the three categ egories es of of harm recognised in the NPPF are clear. There is substantial harm, les ess than substa tantial harm and no harm . There are no other grades or categories of harm, and it is inevitable that each of the categories of substantial harm, and less than substantial harm will cover a broad range of harm. It will be a matter of planning judgement as to the point at which a particular degree of harm moves from substantial to less than substantial, but it is equally the case that there will be a number of types of harm that will fall into less than substantial, including harm which might otherwise be described as very much less than substantial. Ther ere is no inte termediate te bracke ket at at the bott ttom en end of of the les ess than substa tantial categ egory of of harm for or something which is limite ted, or or ev even en negligible, but nev ever ertheles ess has a harmful imp mpact. The fact that the harm may be limited or negligible will plainly go to the weight to be given to it as recognised in Paragraph 193 NPPF. However, in my judgment, minimal harm must fall to be considered within the category of less than substantial harm.
Enforcemen ment - fine
Enforcemen ment - fine
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