A day-by-day digest of new legal and practice developments updating the information contained in DCP. Any comments on the matters highlighted here may be posted on the DCP discussion board. The new points are then added to the relevant Editor’s Notes section of DCP. The points will be incorporated into the relevant DCP section the next time that it is updated.
New flood guidance: The SOS has published Planning Policy Statement 25: Development and Flood Risk - Practice Guide, which complements PPS25. It provides guidelines on how to implement development and flood risk policies by the land use planning system. The guide also includes working examples through case studies. This edition replaces the earlier version of the Practice Guide published on 12/6/2008. Appendix B contains a checklist to help developers and applicants to prepare an appropriate, site-specific flood risk assessment in accordance with PPS25 policy, and the advice in the Practice Guide. The document may be downloaded at
Challenge to rural affordable housing permission rejected: The High Court has rejected a challenge to a local authority decision to allow fifteen houses on the edge of a Devon village. It was argued for residents that the development would be almost entirely in open countryside. It was not justified by the eight affordable units to be provided, for which exceptional need had to be shown. It was ruled that the council had had its reasons for departing from the affordable housing provisions of the local plan and the options had been clearly spelt out to councillors. Also there was no suggestion that the public had not been properly involved in the planning process. The council had drawn a reasonable balance between competing interests Skrzypczak v Torridge DC 3/12/2009. This information was posted on 9/12/2009 and updates DCP at (9.1323).
Abandonment decision supported: A High Court challenge to an inspector’s decision to refuse permission for a house has been rejected (DCS No.100-065-406). The green belt site in Surrey had been that of a house destroyed by fire in 1959. The appellant had cleared the site and lived on it in a campervan since 1992. An inspector had found (not surprisingly) that the length of time since there had been a dwelling on site, the lack of any physical remains and the subsequent use of the site as a tip, all indicated abandonment. Green belt policy outweighed the personal circumstances put forward. It was ruled that the inspector was entitled to take the view that residential use had been abandoned Knight v SOS 4/12/2009. This information was posted on 9/12/2009 and updates DCP at (4.3251).
Relocation of Everton ground denied: The SOS has rejected a proposal by Tesco Stores Ltd for a new 50,000 seat stadium for Everton FC plus retail floorspace and other uses (DCS No. 100-065-598). The site was in and to the south of Kirby town centre. It was concluded that the scheme would bring regeneration benefits to Kirby, but also considerable harm to the vitality and viability of several nearby town centres. In addition it was considered that the retail development would lead to an increase in the use of private transport and it was far from certain that the use of sustainable transport choices for football matches would be achieved. The SOS also felt that the stadium element would harm the amenity of existing residents. This information was posted on 3/12/2009 and updates DCP at 18.1341) and (13.1392).
Challenge to car circuit permission denied: The Court of Appeal has rejected a challenge to a planning permission for extra motor racing activities at a site in Oxfordshire. A local conservation trust opposed the development on the basis of excessive noise. It argued that the planning committee had not taken proper account of the fact that the development it was permitting could generate noise levels twice as high as was experienced on the day of the site inspection. It also felt that it was wrong for committee to attach conditions to the grant of permission in relation to a company and not a named individual Enstone Uplands and District Conservation Trust v West Oxfordshire DC 1/12/2009.This information was posted on 3/12/2009 and updates DCP at (18.2325).
Crawley expansion scheme allowed: The SOS has now allowed the controversial development of 119ha of land at North East Sector, Crawley (DCS No. 100-065-662). A previous decision in 2007 rejecting the neighbourhood scheme for 1,900 dwellings, 5000sqm of employment floorspace, 2500sqm of retail, and community facilities, had been quashed by order of the High Court. This was primarily because the SOS had accepted the inspector’s flawed findings on housing need Taylor Wimpey Ltd v SOS 9/7/2008. The SOS had then felt that the scheme was in conflict with planning policy requiring priority being given to the development of previously developed land, although it was in a sustainable location and was a development plan preferred location for a new neighbourhood. It was also considered that an immediate grant of permission could conflict with the configuration of a possible second runway at Gatwick airport, which in turn might affect the ultimate capacity of the airport. Overall it was concluded that there was no immediate need to release the site. Upon reconsideration the SOS now felt that the absence of a five year supply of housing land with poor prospects for remedying that in the medium term was an important consideration. The scheme would provide 40% affordable housing and was in a highly accessible and thus sustainable location. It was now unlikely that a second runway at Gatwick would be required and, if it was, there were a number of configuration and operational options. This information was posted on 3/12/2009 and updates DCP at (4.1611) and (7.1322).
Appeal decision quashed allowing greenfield development: The High Court has quashed an appeal decision to allow 21 dwellings on a 0.8ha greenfield site in a village near Todmorden, Yorkshire. The local authority argued that an inspector failed to properly apply government and local policy prioritising the development of brownfield land. It was ruled that nowhere in the inspector’s decision letter (DCS No. 100-059-725) was there any reference to the importance or primacy of retaining greenfield land where other considerations did not indicate otherwise Calderdale MBC v SOS 24/11/2009. This information was posted on 3/12/2009 and updates DCP at (7.1323) and (7.1326).
Seventh permission for stud building quashed: The latest twist in the saga of the Yorkshire stud farm building in a green belt area near Selby has seen the quashing of last April’s appeal decision to allow it (DCS No.100-061-768). The order was by consent of the SOS. The challenger, brewers Samuel Smith, stated that it was astonishing that after ten-years of litigation in which six planning permissions had been quashed by the courts, the building has been treated throughout as ‘inappropriate’ development. The judge ruled that the inspector was entitled to consider the building ‘appropriate’, but he could only decide the case if there was only one possible answer – a test which had not been met. The 27m x 15m building in dispute had been erected back in 2000 Samuel Smith Old Brewery (Tadcaster) Ltd v SOS 26/11/2009. This information was posted on 1/12/2009 and updates DCP at (4.2515).
Conservation area designation was unlawful: An attempt by Barnet LB to save a building from demolition by declaring the area around it a conservation area has been ruled to be improper and unlawful by the High Court. The Edwardian monastery building in Golders Green was locally listed but had not been considered to be worthy of a national listing by English Heritage. It had been threatened to be redeveloped for housing, but the developers now propose to convert the building and building housing in its grounds Metro Construction Ltd v Barnet LB 25/11/2009. This information was posted on 1/12/2009 and updates DCP at (4.241).
New Scottish Statutory Instruments: The following came into force on 16/11/2009. No. 343 - The Town and Country Planning (Miscellaneous Amendments) (Scotland) (No. 2) Regulations 2009 and No. 344 - The Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Amendment (No. 2) Order 2009 These amend the transitional arrangements for development plans and the EIA regulations and may be viewed at
Guidance on time limits and amendments: The SOS has published guidance entitled Greater flexibility for planning permissions and coversthe measures now in placer relating to extension of time limits for implementing extant planning permissions, non-material amendments and minor material amendments. The document, not issued as a Circular, may be viewed at http://www.communities.gov.uk/publications/planningandbuilding/greaterflexibilityguidance This information was posted on 26/11/2009 and updates DCP at (5.134).
EIA guidance issued. The SOS has published a letter to Chief Planning Officers entitled Environmental Impact Assessment (EIA) - Implications of recent judgments. It provides interim guidance for planning authorities regarding EIA following a recent European Court of Justice preliminary ruling, which requires planning authorities to give reasons for a negative screening opinion when requested by a third party. It also provides guidance on a High Court ruling that the assessment for likely significant environmental effects should not be restricted to a modification made to an existing development, but also to the effects of the development as a whole once it has been modified.
Enforcement against limestone extraction upheld: The High Court has rejected a challenge to an appeal decision which upheld an enforcement notice for relating to limestone extraction from a Derbyshire quarry (DCS No. 100-051-202). Planning permission existed for the winning and working of fluorspar and lead, but a condition required that any spoil or waste material be returned to the ground. It was argued that limestone removal was necessary to access the other minerals and was not spoil. The commercially valuable limestone was important to the viability of the quarry. The court ruled that the SOS was entitled to uphold the notice. This information was posted on 26/11/2009 and updates DCP at (25.15).
New heritage applications SOS consultation notification: The SOS has sent a letter to local planning authorities informing them about a new circular (Circular 08/09) and Direction. The Direction removes the requirement to notify the Secretary of State except in the case of applications to which English Heritage or one of the National Amenity Societies has objected. The documents have be viewed at
Scottish appeals being dealt with faster: Figures released by the Scottish Government show that the rate at which planning appeals are being dealt with has increased. In the last six months, more than 80 per cent of written planning appeals were dealt with within 12 weeks. This compares to 27 per cent in the year 2008-09, and only six per cent in 2007/08. This means the average time taken to decide written planning appeals is now 11 weeks - compared to an average of 16 weeks over the past five years. This information was posted on 23/11/2009 and updates DCP at (3.151).
Natural water bottling did not justify dwelling: An appeal decision (DCS No. 100-061-074) rejecting a dwelling at a rural natural water bottling plant has been upheld by the High Court. The Uckfield, East Sussex, scheme had a fraught planning history. It was ruled that the inspector was entitled to resist the proposal on the basis that financial tests for the viability of the project had not been met. However, the judge urged the appellant to make an application for a proper facility for processing and bottling and asked the planning authority to back the enterprise Peartree Well Ltd v SOS20/11/2009. This information was posted on 23/11/2009 and updates DCP at (9.232).
Consultation on new PD proposals for small scale energy apparatus: The Government has published a consultation document laboriously entitledPermitted development rights for small scale renewable and low carbon energy technologies, and electric vehicle charging infrastructure: It seeks views on Government proposals to introduce permitted development rights for domestic wind turbines and air source heat pumps, and for a full range of small scale of non-domestic developments, including solar panels. It also seeks views on introducing permitted development rights and deemed advertisement consent in relation to electric vehicle charging infrastructure. The document may be viewed at http://www.communities.gov.uk/publications/planningandbuilding/microgenelectriccars
Basildon golf course decision for Court of Appeal: Challengers to a decision to extensively remodel a golf course in Essex have won the right to go to the Court of Appeal. In January the High Court upheld the decision by Basildon District Council despite arguments that the council had erroneously considered that the proposal did not require an EIA. The scheme involved the importation of 120,000 tonnes of waste and the county council as waste planning authority had not been consulted Friends of Basildon Golf Course v Basildon DC 17/11/2009. This information was posted on 28/1/2009 and updates DCP at (5.153), (18.215) and (3.31).
HSE reacts to Wolverhamton decision: Following last weeks ruling in Health and Safety Executive v Wolverhampton City Council 5/11/2009.the HSE has welcomed the decision insofar as it underlines that local authorities must follow the guidelines for notification of planning applications where they are near sites where hazardous substances are stored. The body defends the criticism that the HSE had not taken any positive action until quite a long time after a permission had been given, It states that when HSE heard that permission had been granted it was too late to request call-in and it tried to engage with the council to avoid legal action. However, when it became clear that this approach wasn’t working it then followed due process and requested judicial review.
Wind farm decision not quashed: The High Court has rejected a challenge to a permission for a three turbine wind farm at the Lotus car factory near Norwich. Objectors had argued that the council did not have the power to determine the application because of an unlawful breach of its delegation rules. The planning officer had recommended refusal and a two thirds area planning committee majority was required – the vote was only 8 to 7 in favour, It was ruled that the decision should stand and that it was not flawed in the way the impact of the development and the mitigating conditions applied. Had been dealt with. However, the judge did criticise the council for a failure to properly notify the public about its decision Friends of Hethel Ltd v South Norfolk DC 13/11/2009. This information was posted on 18/11/2009 and updates DCP at (26.532) and (5.211).
Review of Salford flats decision rejected: A challenge to an inspector’s decision to refuse a 22 apartment unit development in central Salford (DCS No. 100-061-088) has been thrown out by the High Court. The inspector had considered that the scheme, which involved part demolition, refurbishment and extension of a former hotel building, failed on a number of design issues. These included an assessment that the resulting building, including a five-storey element, would be excessively dominant and result in a hotch-potch of unrelated design styles. It was ruled that the inspector’s conclusions were a matter of subjective judgment, and there was no legal error. The grounds for challenge were unsustainable in the light of a detailed decision letter which showed that all material matters had been taken into account Host Palace Ltd v SOS 11/11/2009. This information was posted on 13/11/2009 and updates DCP at (6.401) and (4,133).
First two NPSs published: The Government has released the first of its National Policy Statements (NPSs) for consultation. These relate to Energy and Ports. The document relating to Energy contains a list of ten sites considered suitable for new nuclear power stations. It is intended that the NPSs, which are to cover further topics such as water, waste water, transport and hazardous waste, will provide the national policy framework within which the Infrastructure Planning Commission will work when it begins to operate next year, The consultation documents may be viewed at https://www.energynpsconsultation.decc.gov.uk/ and http://www.dft.gov.uk/consultations/open/portsnps/ This information was posted on 13/11/2009 and updates DCP at (26.435) and (26.438).
DC statistics confirm decline in applications/decisions: Development control statistics issued for England for 2008/09 show that district level planning authorities in England received 507,000 applications, a decrease of 22 % when compared to the previous year.
New Portal guides to PD: The Planning Portal has issued guides to whether domestic loft conversions and porches require planning permission. They may be viewed at http://www.planningportal.gov.uk/uploads/miniguides/loft/loft_conversion.html and http://www.planningportal.gov.uk/uploads/miniguides/porch/porches.html
Clarification of affordable housing guidance in Scotland: The Chief Planner for the Scottish Government has sent a letter to planning officers clarifying the guidance in PAN 74.on the valuation of land for affordable housing. It also seeks views on the best basis for calculating commuted sums where these are being contemplated as an alternative to on-site provision. The letter may be viewed at http://www.scotland.gov.uk/Resource/Doc/212607/0089355.pdf This information was posted on 9/11/2009 and updates DCP at (7.336).
Wind turbines Bill introduced: Leave has been given to introduce a Ten-Minute Rule Bill in the Commons specifying the minimum distances permissible between on-shore wind turbines and the nearest habitation. The measure is likely to be criticised for introducing inflexible rules into planning law which would better be provided through the medium of planning guidance This information was posted on 9/11/2009 and updates DCP at (26.5325).
Injunction granted re residential occupation at erstwhile stud farm: The High Court has granted an injunction to a local authority requiring a couple to leave land in Cambridgeshire where they have continued to live in a horsebox and caravan. The case follows an enforcement appeal decision (DCS No. 100-059-771) where the use of land as a stud farm was allowed, but residential occupation was rejected on the basis that there was no functional or financial case for it South Cambridgeshire DC v Cuff & Others 4/11/2009. This information was posted on 9/11/2009 and updates DCP at (9.334) and (9.351).
Loss of light challenge fails: Judicial review of a planning permission for a three-storey retail development replacing a two-storey building in Bradford has been rejected by the High Court. A neighbouring resident claimed loss of light, alleging that the council had applied the wring planning policies and failed to follow the LDF. It was ruled that the application was out of time, but that had it been in time the case would have been dismissed. The judge stated that “It is clear that the planning officer did consider the impact on the houses in terms of their being overlooked by the development.” Moghul v Bradford MDC 5/11/2009. This information was posted on 10/11/2009 and updates DCP at (4.135).
Permission for development near hazard not quashed: A HSE claim that it had not been properly consulted by a local authority about a planning permission, and that it should be quashed, has been rejected in the High Court. The development, which was nearly complete, was a 700 ‘student village’ for Wolverhampton University. It was the other side of a railway line from an LPG facility. The HSE had put the risk of an explosion at 10 chances per million per year. The court ruled that there had been ‘unlawful failures’ by the council in not notifying the HSE of its intention to grant permission. The council had also made errors in calculating the risk of a fireball engulfing the student accommodation. However, it was felt that the permission should not be quashed, the judge noting that the HSE had not taken any positive action until July 2009, This indicated that it could not have believed that the risk was unacceptable. It would now be up to the council to remove the risks which the LPG facility imposed. It was also concluded that the council had not entered into any conspiracy to prevent its intention to grant planning permission in 2008 being known to the HSE Health and Safety Executive v Wolverhampton City Council 5/11/2009. This information was posted on 10/11/2009 and updates DCP at (4.1531) and (4.167).
Glass factory saga continues: The SOS has decided not to call-in the planned retrospective permission to be given by Cheshire West and Chester Council for a very large unauthorised glass factory built on the site of the former Ince B Power Station. Earlier this year a court order was made requiring the authority to enforce against the development before it became immune. Further litigation is still possible as a rival glass company maintains that there were serious flaws in the local authority decision making process which might have been resolved by a further inquiry.. This information was posted on 5/11/2009 and updates DCP at (19.114) and (3.14).
Further permitted development reforms criticised by RTPI: Matt Thomson, the RTPI’s acting director policy and partnerships has stated that “The Government is right to try to reduce the administrative burden on councils and developers for small-scale developments that have low impacts. But the new regulations are complicated, and do not provide the clarity that applicants and planners need.” He added: “The new regulations will shift rather than reduce the workload of planning officers and will place further burdens on planning enforcement within local authorities.” NB. The Part 1 reforms to the GPDO householder PD classes, introduced last October, resulted in widespread condemnation for their complexity and ambiguity. This information was posted on 5/11/2009 and updates DCP at (4.341).Large housing scheme allowed near Reading: The SOS has been minded to allow a large 492 dwelling housing development at a 20.35ha site on the edge of Reading (DCS No.100-065-111). The scheme also included a continuing care retirement community and on-site infrastructure uses. The site was formerly used for sand and gravel extraction and landfill. It was concluded that the scheme was in accordance with the development plan in that it was allocated for housing. There was also conformity with national policy. The SOS felt that the proposed housing and affordable housing would be substantial benefits and there would be no significant harm to the character and appearance of the area. A final decision was reserved pending the satisfactory completion of a sec.106 agreement. This information was posted on 5/11/2009 and updates DCP at (7.133).
Challenge to Tesco store continues in Court of Appeal: The Co-op has won the go-ahead to take its challenge to a local authority permission for a Tesco store to the Court of Appeal. It was claimed that a council had granted permission for a store 20% larger than applied for. In March the High Court refused to quash the decision for the Tesco store in Stourport-on-Severn.as unlawful, but an Appeal Court judge now felt that the Co-op had an arguable case Midcounties Co-operative Ltd v Wyre Forest District Council,28/10/2009. This information was posted on 4/11/2009 and updates DCP at (5.2311).
Green belt housing allowed as enabling development: The SOS has issued a ‘minded to allow’ letter (DCS No.100-065-056) for ten green belt dwellings by Stanmore Country Park in NW London. This was despite the contrary recommendation of his inspector. The called-in development included the demolition of redundant agricultural buildings and was argued to be enabling development for the expansion of the adjacent country park by nearly 24ha. The SOS concluded that although the housing development was green belt inappropriate and there would be loss of openness, the benefits of the proposal were outweighing and were ‘very special circumstances. It was admitted that the decision was finely balanced, and a final decision was reserved pending the completion of a satisfactory sec.106 agreement This information was posted on 3/11/2009 and updates DCP at (9.2332) and (4.613).
Reversal of green belt conservatory decision confirmed: The Court of Appeal has backed a lower court decision to quash an appeal decision (DCS No.100-060-308) giving permission for a conservatory at a Hertfordshire house. The High Court had supported local authority arguments that the extension was to a green belt replacement house where policy indicated that extensions should not be permitted if they increased the area of the ‘original’ dwelling by more than 130%. It was ruled that the inspector had erroneously taken the view that the 130% rule applied to the existing property. The explanatory text of the policy made it quite clear that this was not the case Dacorum BC v SOS 23/10/2009. This information was posted on 29/10/2009 and updates DCP at (12.633).
Challenge to farm container enforcement to go ahead: A farmer has been given permission to challenge an appeal decision where an inspector had upheld an enforcement notice requiring the removal of a large number of containers which were rented out for commercial storage (DCS No.100-061-279). The 119ha holding was in a green belt area in Kent. It was maintained that the uses were immune from enforcement under the ten year rule. The High Court ruled that the appellant had a sufficiently arguable case to be allowed to pursue it Martin v SOS 23/10/2009. This information was posted on 29/10/2009 and updates DCP at (21.35).
Container storage use enforcement upheld: The High Court has ruled that an inspector’s decision (DCS No. 100-062-896) to support enforcement action against self-storage units on land in Cambridgeshire should stand. The use had been carried on in shipping containers on 1.31ha of land in a rural area. At appeal it had been found that the initial use ten years before the service of the enforcement notice was minimal and did not trigger the immunity period. It was ruled that the case for the appellant was not strong enough to justify a full hearing Parisi v SOS 22/10/2009 This information was posted on 29/10/2009 and updates DCP at (21.35).
Nursery buildings to be removed: The High Court has upheld an appeal decision (DCS No. 100-062-182) relating to the removal of unauthorised structures at a tree and shrub nursery in a Cheshire rural area. The development enforced against consisted of a steel framed building, a timber building and an area of hardstanding. It had been argued to the inspector that the buildings were permitted development in connection with forestry, but it was ruled that they went beyond that which was reasonably necessary for this pursuit. A four year rule plea was also rejected. The court felt that the inspector’s decision had been based on matters of fact and planning judgment, and arguable points of law had not been demonstrated to counter it. Neither was the inspector’s decision perverse Poyser v Macclescfield BC 26/10/2009. This information was posted on 28/10/2009 and updates DCP at (22.45).
Large housing development allowed in Northants: The SOS has allowed a 3000 dwelling housing development on a 252.5ha site comprising mainly agricultural land 2km from the centre of Wellingborough (DCS No.100-065-039). The SOS felt that there would be a significant shortfall in the number of dwellings to be delivered in Wellingborough in the period to 2014 if other planned housing supply resources did not materialise. There would a substantial gain from the provision of affordable housing although this was at the low end of the range in order to secure the project’s viability. There was a reasonable prospect of a necessary major road improvement scheme being brought forward within the lifetime of any permission. This information was posted on 26/10/2009 and updates DCP at (7.1333).
Court remits LDC decision on animal rendering: A local authority has been successful in getting a remit of an inspector’s decision to grant an LDC (DCS No. 100-060-051). The case involved an animal blood rendering use at a Suffolk farm which had attracted considerable neighbour complaint because of smell. The certificate was for a mixed use for agriculture and industry within the planning unit, which the inspector felt had become lawful as the result of the ten year rule. However, the council had previously won a court injunction in 2006, and the judge at that hearing had stated that the lawful use was for the cooking plant buildings used for rendering, as permitted by a 1999 planning permission. The judge in the present case observed that the inspector could not now find that a different use was lawful Mid-Suffolk DC v SOS 21/10/2009. This information was posted on 23/10.2009 and updates DCP at (26.532).
Wind turbines allowed: The SOS has granted permission (DCS No. 100-064-931) for a series of application for small wind turbine developments at several locations in the Lancashire/Yorkshire Pennines. All the developments were promoted by Coronation Power Ltd. It was concluded that the substantial need for, and benefits from, the proposed developments outweighed green belt harm and other objections. NB The British Wind Energy Association has recently reported that only 25% of wind turbine applications are getting approved by local authorities, but on appeal this figure rises to 62% This information was posted on 23/10.2009 and updates DCP at (4.5351), (4.138) and (22.136).
Bund needed permission: The Environment Agency has secured a High Court ruling that the construction of an acoustic bund consisting of 12,000 lorry loads of building waste required a planning application. The bund had been placed at a water-ski centre near Tamworth. The EA asserted that it was causing flooding problems, and had served a notice under the 1990 Environmental Protection Act requiring removal. The appellant company argued that the bund had been required by the county council to protect wildlife from noise generated by the water-ski centre. It was ruled that planning permission should clearly have been applied for. This would enable the EA to make representations Parkstone Construction Ltd v Environmental Agency 19/10/2009. This information was posted on 21/10/2009 and updates DCP at (18.33) and (25.336).
Waste composting site decision for judicial review: The High Court has allowed a full hearing into a permission given for a waste composting site in Barnsley, but with a ceiling of £2,500 to the challenger’s legal costs should he fail. The principle objection is to smell as the proposed 53ha waste site will only be 100m from the challenger’s house Birch v Barnsley MBC 19/10/2009. This information was posted on 21/10/2009 and updates DCP at (25.436).
Decision quashed as inspector did not have full planning history: The Court of Appeal has remitted an inspector’s decision (DCS No.100-064-810) rejecting house extensions as she had not been in possession of information as to a later refusal by the local authority. An initial application had been made for a development to both sides of a house in Harold Wood, Essex. Neighbours did not receive notice of the application - so did not object. The application was refused but the council intimated that a reduced proposal could be acceptable. A second application was submitted - but the amendments were only slight, and the neighbour did object. This application was refused. In the meantime the first application went to an appeal conducted by written representations. The inspector made a split decision, but with no knowledge of the second decision by the local authority. The neighbour applied to the High Court \and obtained a ruling that the inspector’s decision should be quashed as it had been reached under a fundamental misapprehension of the planning history. The SOS took the case to the Court of Appeal arguing that it was not the inspector’s fault that the local authority did not inform her of the second decision - inspector’s should not be required to undertake an investigatory function. The Court of Appeal ruled that the lower court’s decision should stand as there was unfairness arising from the local authority’s failure to provide the inspector of the full and material history of the site Connolly v Havering LB & SOS 16/10/2009. This information was posted on 19/10/2009 and updates DCP at (6.42).
Judicial review of air freight decision rejected: A challenge to Carlisle City Council’s grant of planning permission for a new airport freight facility for Stobart Air Ltd has been unsuccessful. Amongst other things it was claimed that there had been no adequate EIA and the application should have been referred to the SOS, It was ruled that the complaints were not arguable Brown v Carlisle City Council 16/10/2009. This information was posted on 19/10/2009 and updates DCP at (21.316).
Injunction granted for unauthorised uses at farm: The High Court has granted an injunction requiring Norfolk pig farmers to remove unauthorised caravans and a barn, and cease scrap storage. It was argued for the local authority that planning controls had been consistently disregarded and without the injunction the defendants would continue to ignore planning law. The court felt that it had no alternative but to grant the injunction, despite concerns for the couple and their children. Three months was given for compliance Broadland DC v Brightwell 14/10/2009. This information was posted on 19/10/2009 and updates DCP at (9.351).
EN upheld for waste use: The High Court has rejected a challenge to an inspector’s decision to uphold an enforcement notice relating to a waste business at a farm (DCS No.100-055-402).The site was in a Gloucestershire AONB and involved the storage, crushing and export of waste concrete and building materials. It was argued that the inspector had been wrong to conclude that further material changes to the use had occurred within the previous ten years. In addition it was alleged that the inspector had wrongly extended the area of the plans with the enforcement notice. However, the court ruled that the inspector was entitled to reach the decision that he did. He was also entitled to remedy a defect in the enforcement notice plans to ensure they coincided with the planning unit as it appeared to him on the evidence Howells v SOS 12/10/2009. This information was posted on 19/10/2009 and updates DCP at (4.5351) and (25.45).
Fewer appeals decided: The Planning Inspectorate has issued tables relating to appeals decided and outcome for the period 1/7/2009 to 20/9/2009. The authority by authority figures are subject to verification but show a total of conventional planning appeals decided of 3,828 compared with 5,092 the previous quarter. The tables may be accessed from http://www.planning-inspectorate.gov.uk/pins/appeals/planning_appeals/verification_table/10_09/index.htm This information was posted on 13/10/2009 and updates DCP at (5 3).
South Bank buildings rejected on design grounds: The SOS has refused proposals for the redevelopment of three 1960s buildings in London’s South Bank area, mainly for B1 uses. The proposal involved new buildings of 27, 22 and 20 storeys respectively. It was considered that the scheme’s potential to regenerate the area around Waterloo Station, connecting the station to the wider area, improving conditions for pedestrians and creating a welcoming and user-friendly area of public space, all weighed in its favour. Also the scheme would create employment opportunities and an element of affordable housing. However, it was considered that the success of the scheme was compromised by the appearance of the replacement buildings and their relationship to each other. These design flaws meant that the buildings fell short of the excellence expected in this sensitive location near the Westminster World Heritage Site and other nearby listed buildings such as the Royal Festival Hall and County Hall. This information was posted on 13/10/2009 and updates DCP at (14 1361).
Revised listed building notice: An amending statutory instrument has been issued cancelling the Planning (Listed Buildings and Conservation Areas) (Amendment No.2)(England) Regulations 2009. This relates to the form of notice to be served on an owner when a building is listed, and reflects the fact that listings are now compiled by English Heritage and then approved by the SOS. The Regulations come into effect on 2/11/2009. This information was posted on 13/10/2009 and updates DCP at (4 3721).
Gypsy injunction denied: The High Court has refused to issue an injunction requiring Gypsies to leave a site in Brentwood, Essex. It was ruled that the hardship suffered would be too great and outweighed the harm to the environment. The judge recognised that the Gypsies had moved onto the site in disregard for planning law and in breach of an enforcement notice. However, they had reasonable grounds for believing that planning permission would be granted, at least on appeal. The move was borne out of desperation and frustration, rather than cynicism. The court concluded that the result of an appeal should be awaited Brentwood BC v Ball & Others 8/10/2009 This information was posted on 13/10/2009 and updates DCP at (24 535).
New Welsh flooding maps: The Welsh Assembly Government has issued new Development Advice Maps (appropriately termed DAMS) to replace those in Technical Advice Note (TAN) 15 Development and Flood Risk dated 2004. The documents may be downloaded from http://wales.gov.uk/topics/planning/policy/circularletters/2009/cl0309/?lang=en
RICS mediation service extended: The RICS has launched a planning mediation service. It is hoped that it will help to alleviate disagreements concerning section 106 agreements and CPOs. More details are available from http://www.rics.org/site/scripts/press_article.aspx?pressreleaseID=129 This information was posted on 9/10/2009 and updates DCP at (13.13).
Competition test re-emerges: The Competition Commission is recommending to governments throughout the UK that the controversial ‘competition test’ be adopted. The move follows a reassessment of the original proposal by the Commission following a ruling by the Competition Appeal Tribunal after a Tesco challenge. The test would be applied to all retail developments of over 1000m2 net floorspace. More details are available from http://www.competition-commission.org.uk/press_rel/2009/oct/pdf/46-09.pdf
Surface coal mining allowed: In a recovered case, the SOS has allowed the surface working of coal and fireclay over a period of 32 months. Overall, it was considered that no significant harm would be caused by the scheme in Shropshire put forward by UK Coal Mining Ltd. Ther SOS felt that there was a need for the coal for power generation in order to save importation and mitigation conditions would reduce any detrimental effect on the environment or the landscape. In addition there would be benefits from the restoration proposals. This information was posted on 9/10/2009 and updates DCP at (25.1322).
Stay of execution for boar farm dwelling: The High Court has asked for the withdrawal of a challenge to an inspector’s decision (DCS No. 100-051-411) to uphold enforcement notices at a Devon wild boar holding. The judge stated that a fresh application for planning permission and possibly a further appeal would make more sense than carrying on with the present expensive and much delayed court proceedings. It was noted that the council had agreed not to take action on the present enforcement notices pending the outcome of a fresh planning process.
IPC opens its doors: The Infrastructure Planning Commission opened for business on 1/10/2009, in the sense that it is now available to advise potential applicants for major energy and transport developments in preparation for next March. Only from then will the IPC be able to start processing applications formally. In announcing this move SOS stated that eight former planning systems will be replaced by a single process enabling the time taken to make nationally important decisions to be cut dramatically. This information was posted on 2/10/2009 and updates DCP at (5.331).
Applications down again: English planning application statistics for the June quarter reveal that the total number received by district authorities has decreased by 21% over the same quarter in 2008. The figures also show that the number of decisions made by district authorities has fallen by 27%. The full tables are available for download at
Consultation hub lauched: The Planning Portal has announced the first live use of its e-consultation hub - by South Oxfordshire District Council. The aim is to enable local authorities to save time and money by enabling them to send applications and plans to consultees electronically. This information was posted on 2/10/2009 and updates DCP at (5.16).
New forms and fees available on- line: Planning permission extension forms and also those for non-material amendments are now available from the Planning Portal. They may be downloaded from
EN upheld against caravans at horse holding: The High Court has supported an inspector’s decision to uphold an enforcement notice relating to the occupation of caravans at an equestrian holding in Oxfordshire (DCS No. 100-062-806). It had been reasoned that the caravans had an adverse impact on an attractive area of open countryside and that no adequate case had been made for the need to live on the site or for the future viability of the business. It was argued to the court that the caravans were needed for security purposes and their removal was contrary to human rights. It was also alleged that the inspector had been wrong to read a statement from representatives of three local landowners, which had only been delivered on the day of the hearing. The inspector was also in error to refer to the appellant’s occupation of the land as “a matter of choice”. In addition the notice had been served, not on the landowner, but her teenage son. The court ruled that there was nothing in any of these grounds to suggest that the inspector’s decision would be overturned if leave to appeal was granted Alejandro Equestrian Ltd v SOS 25/9/2009. This information was posted on 29/9/2009 and updates DCP at (9.334) and (9.351).
EN on rural pallet storage survives procedural challenge: The High Court has upheld an appeal decision with regard to enforcement action taken against the unauthorised storage of pallets on agricultural land (DCS No. 100-060-064). In his decision letter an inspector had noted that the council had failed to submit the correct properly certified notice with the appeal questionnaire and had referred to the wrong notice in its appeal statement. However, it was found that these matters were not pursued at the hearing and in any case were not prejudicial to the appellant’s case. On planning merits the inspector concluded that the pallets had been stacked to a considerable height and were an intrusive feature in the landscape. It was argued to the court that the inspector did not have the power to dismiss the appeal because he did not have the correct enforcement notice before him. However, it was ruled that the difference between the two enforcement notices involved was only in their dating and did not warrant a full judicial review hearing Barlow v SOS 24/9/2009. This information was posted on 25/9/2009 and updates DCP at (4.532) and (21.25).
Ministerial information on time limit extensions and non-material amendments: The SOS has sent a letter to all chief planning officers in England relating to applications for extensions to time limits for implementing existing planning permissions, and also applications for non-material amendments. The powers enabling these changes come in to effect on 1/10/2009. Attached to the letter are some Qs+As which embody information on the fees to be charged, details of which will be laid before Parliament in early October. The document may be viewed at http://www.communities.gov.uk/documents/planningandbuilding/pdf/letterextensiontime.pdf This information was posted on 24/9/2009 and updates DCP at (5.134) and (5.212).
New Scottish enforcement circular: The Scottish Government has published Circular 10/2009: Planning Enforcement which supersedes Circular 4/1999. The document may be viewed at http://www.scotland.gov.uk/Publications/2009/09/16092848/0 This information was posted on 24/9/2009 and updates DCP at (4.52).Consultation on Scottish mineral waste regulations: The Scottish Government has published a consultation document on the proposed Management of Waste from Extractive Industries (Scotland) Regulations 2009. This seeks to transpose EU Directive 2006/21/EC on the management of waste from the extractive industries and draft Regulations are included in the consultation paper. Responses are requested by October 16, 2009. The document may be viewed at http://www.scotland.gov.uk/Publications/2009/08/12155307/0 This information was posted on 24/9/2009 and updates DCP at (25.312).
Minor amendments to EIA regulations for minerals permissions: A correction slip has been issued in respect of The Town and Country Planning (Environmental Impact Assessment)(Mineral Permissions and Amendment(England) Regulations 2008. This document may be viewed at http://www.opsi.gov.uk/si/si2008/corrections/uksics_20081556_en.pdf
Report on permeable/impermeable surfaces: The SOS has published a document entitled Understanding permeable and impermeable surfaces: Technical report on surfacing options and cost benefit analysis. It may be downloaded from
New TAN on nature conservation: The Welsh Assembly has published a revised version of TAN 5 Nature Conservation and Planning. It replaces existing TAN 5 (1996) and also Circular 23/2001. Chapter 4 deals with nature conservation in development control procedures. The document may be downloaded from
Extra turbines allowed at Scottish wind farm: The Scottish Government has approved an eight turbine extension to the existing Kilbraur wind farm in Sutherland. The extension took the operating capacity over 50 MW, thus requiring the consent of Ministers. Highland Council supported the development. 21 public representations were received during the consultation period - 18 supported the development and three objected. This information was posted on 18/9/2009 and updates DCP at (26.532).
Extension decision quashed: The High Court has quashed a decision by a local authority to grant permission for a large single-storey side extension to a house in East Kent. A challenge had been mounted by a neighbour living in a grade II listed house on the basis that the decision was flawed. English Heritage should have been consulted, the authority had made a perverse interpretation of local planning policy and had not given sufficient reasons for its decision. Further, it was argued that the application contained a material error over the size of the proposed extension and there had been an incorrect certification of land ownership. The council conceded that their decision had been unreasonable Rees Davies v Thanet DC 15/9/2009. This information was posted on 18/9/2009 and updates DCP at (4.1681).
South Bank tower decision upheld: The decision of the SOS to allow a scheme including a 43-storey residential tower at London’s South Bank area (DCS No. 100-057-449) has been upheld by the High Court. The challenge was brought by English Heritage. The application had been recommended for refusal by an inspector, but the SOS felt that while objections as to the adverse effect of the proposal on ‘heritage assets’ and views of and across London had been carefully considered, any such harm was outweighed by the considerable community benefit of the scheme. This included affordable housing, a sports centre and swimming pool complex. It was ruled that the SOS (then Hazel Blears) was entitled to reach of different decision than that of her inspector, and had made clear the reasons why. However, the judge gave permission to appeal his decision on the basis that the case raised genuine questions about the meaning of certain passages in the decision letter which the Court of Appeal might see differently English Heritage v SOS 17/9/2009. This information was posted on 18/9/2009 and updates DCP at (4.133).
New publications re applications for nationally significant infrastructure projects: The Government has issued a series of documents related to the future work of the Infrastructure Planning Commission (IPC). The first of these is a summary of comments and Government responses related to the consultation exercise on pre-application consultation and application procedures for nationally significant infrastructure projects. This document may be viewed at
Secondary legislation has been laid in connection with the above matters, all coming into effect on I/10/2009. The instruments are- Infrastructure Planning -The Planning Act 2008 (Commencement No. 2) Order 2009 No. 2261
GDPO Regulations amended: Amendment Regulations have been laid relating to the General Development Procedure Order in England. These come into effect on 1/10/2009 and prescribe the application procedure for non-material changes to planning permissions. Applicants must apply on a standard form, must notify other owners and notice of a decision must be given within 28 days. The amendments also modify the consultation requirements in respect of applications under sec. 7 to vary conditions. In addition they amend the procedures for future applications for permission to replace an extant permission with a permission subject to a new time limit. For these no design and access statement is required, consultation requirements are modified and plans and drawings will not have to be provided. The Order The Town and Country Planning (General Development Procedure) (Amendment No. 3)(England) Order 2009 may be viewed at http://www.opsi.gov.uk/si/si2009/pdf/uksi_20092261_en.pdf The Explanatory Memorandum, which also covers the listed building/conservation area consent changes noted below, is to be found at http://www.opsi.gov.uk/si/si2009/em/uksiem_20092261_en.pdf
Related amending regulations have also been laid removing the requirement to include three copies of the form and a design and access statement from applications for listed building and conservation area consent where applications to replace an extant consent meet specified criteria. The instrument - The Planning (Listed Buildings and Conservation Areas)
Draft basement SPD published: The Royal Borough of Kensington & Chelsea has issued the draft of new SPD relating to subterranean developments. The document is in response to an increase in the number of planning applications for basements and basement extensions. The consultation SPD may be viewed at
Challenge to quarry extension rejected: The High Court has rejected a challenge to a permission for Tarmac to enable the further extraction of sand and gravel from a quarry in North Yorkshire. It was claimed that the council took the decision based on false information and had failed to adequately take into account impact on a nearby ancient monument - the Thornborough Henges. In rejecting the application for judicial review the judge noted the importance of mineral extraction to the nation’s prosperity and quality of life Miller v North Yorkshire CC 1/9/2009. This information was posted on 8/9/2009 and updates DCP at (25.139) and (25.132).
Conflict over policy status of care development: The High Court has remitted an inspector’s decision (DCS No.100-058-672) to refuse a continuing care and retirement community in Essex. The development comprised a nursing home, 34 care bungalows and 14 affordable housing units. It had been held that the development was contrary to local housing policies. In addition a three storey element would be out of scale with the area and would fail to contribute to a sustainable pattern of development. It was argued for the development company that the proposal was in fact a C2 use and therefore an exception should have been made to local housing policies. The inspector had focussed on bungalows which would be sold as ‘extra-care dwellings’ in ruling that the development was mixed C2/C3. It was ruled that the inspector had failed to take into account the appellant’s planning obligations which undertook that the dwellings would only be let to those in need of domicillary care with at least one resident over the age of 55. The inspector had also failed to take into account the company’s pledge that the occupancy of the extra care dwellings would be managed and administered only by an operator registered with the Commission for Social Care Inspection. Failure to take these obligations into account may have made a real difference to the outcome of the appeal and full reconsideration was required Leelamb Homes Ltd v SOS 9/7/2009. This information was posted on 8/9/2009 and updates DCP at (7.21).
Supplementary speed-up fee denounced: A proposal by Barnet Council to introduce a supplementary planning fee to facilitate a faster handling time has been strongly criticised by the RTPI’s Head of Policy. He states that “These proposals are a minefield and risk creating a two-tier planning system, rife with suspicion, where wealthy developers may appear to receive preferential treatment ahead of those who cannot or do not wish to pay an extra fee.”
Welsh review of planning application procedures: The Welsh Assembly has launched a review of the planning application process to be carried out by an independent team The group will focus around a six month research project carried out by GVA Grimley’s Cardiff office and is to be chaired by Michael Sant, formerly Director of the Land Authority for Wales. The members are:
Maladministration found over all-weather pitch permission: The Ombudsman has found that there were flaws in the way a local authority granted permission for an all-weather school sports pitch in North Kent The pitch was at a school on the other side of a public footpath that ran along the bottom of complainant’s back gardens. The investigation found that the council was at fault over its handling of the planning application for the sports pitch. It failed to take into account the relationship between the complainants’ homes and the sports pitch, and the potential for overlooking and loss of privacy in their gardens from a viewing area running the full length of the pitch. In finding maladministration, the Ombudsman recommended that compensation be paid and that in future the council keep a more detailed record of development control meetings than a record of the decisions taken. The full report may be downloaded from http://www.lgo.org.uk/GetAsset.aspx?id=fAAxADAANQA5AHwAfABGAGEAbABzAGUAfAB8ADAAfAA1 Report ref 08014449 Medway Council 10/8/2008 This information was posted on 25/8/2009 and updates DCP at (18.2321).
Welsh GPDO amended for domestic micro-generation equipment: Amendments have been made to the GPDO in Wales relating to domestic micro-generation equipment. The Town and Country Planning (General Permitted Development)(Amendment)(Wales) Order 2009, which comes into force in 1/9/2009, inserts a new Part 40 into Schedule 2. Class A enables the installation of photovoltaics and solar thermal equipment at dwellinghouses provided there is no projection more than 200m above roof planes or any projection above the highest part of a roof (excluding chimneys). There are also restrictions on wall mounted equipment in conservation areas and WHSs. Class B relates to stand alone solar installations within the curtilage of a dwellinghouse. These are permitted development subject to height and distance from boundary restrictions. Parts C and D allow ground source and water source heat pumps within the curtilage of a dwellinghouse. Parts E and F allow biomass and combined heat and power systems subject to no projection of more than one metre above the highest part of a roof and restrictions in conservation areas and WHSs. Overall the definition of a dwellinghouse includes buildings used wholly as flats The Order may be downloaded from http://www.assemblywales.org/bus-home/bus-guide-docs-pub/bus-business-documents/bus-business-documents-doc-laid.htm?act=dis&id=139137&ds=8/2009 An explanatory memorandum and regulatory impact assessment may be found at http://www.assemblywales.org/bus-home/bus-guide-docs-pub/bus-business-documents/bus-business-documents-doc-laid.htm?act=dis&id=139138&ds=8/2009 This information was posted on 25/8/2009 and updates DCP at (4.3421) and (12.41).
Maladministration found in riverside balcony case: The Ombudsman has found maladministration in a case arising from a complaint from a neighbour about overlooking from a new balcony on the River Thames in east London. It was found that the handling of the application was at fault as noproper assessment of the loss of amenity by overlooking was carried out. A possible solution was available as the council could have negotiated with the applicant to shorten the proposed balcony so that its end was further from the complainants’ window. The investigation also revealed that the council initially registered the application at the wrong address, and that all subsequent documentation referred to this incorrect address. The council averred that it sent out notification letters to neighbours, but none were received by those who should have. But even if they had been sent, they referred to the wrong development address and so neighbours would not have been able to make a proper judgment on whether they would be affected by the proposal. In addition the Ombudsman found that the case officer’s report on the application was inadequate, as it failed to include much essential information. Compensation and improved local authority procedures were recommended. The full report may be downloaded from http://www.lgo.org.uk/GetAsset.aspx?id=fAAxADAANQA2AHwAfABGAGEAbABzAGUAfAB8ADAAfAA1 Report 08002912 Tower Hamlets LB 6/8/2009 This information was posted on 25/8/2009 and updates DCP at (12.43) and (5.1552).
Maladministration found in new house permission by listed building: The Ombudsman has found significant flaws in the way a local authority granted permission for a new house next to a listed building occupied by the complainants. It was noted that, because of the council’s failure to notify the complainants of an additional first-floor window that overlooked their property,, they had “lost the opportunity to influence the Council’s decision making on a change to the design of the new house that went to the heart of their objection and concern about the impact of the development on their amenity.” The Ombudsman found that the Council:
Maladministration was found and the local authority was recommended a) to pay the complainants £1,250 for their outrage, lost opportunity and uncertainty, b) to make them a formal apology, and c) review its procedures and staff training on amendments to planning applications and planning permissions Report ref no 08004420 Herefordshire Council 29/7/2009. The full report may be viewed at http://www.lgo.org.uk/GetAsset.aspx?id=fAAxADAAMwA5AHwAfABGAGEAbABzAGUAfAB8ADAAfAA1 This information was posted on 25/8/2009 and updates DCP at (6.32) and (6.3141).
Curtilage extension enforcement notice upheld: The High Court has upheld an appeal decision requiring the return of a residential curtilage extension to agriculture and the removal of decking, a pergola and a hot-tub thereon (DCS No. 100-062-126). The land had been a meadow adjacent to a permitted barn conversion. It was argued that the site.had been used as a garden for at least 10 years prior to the service of the notice, and evidence was produced showing that it had been a mini family golf course. However, the inspector noted that from 2004-2006 the land had been allowed to go to seed, resembling rough, untended pasture land. He considered that this constituted a significant break in continuity. The court ruled that there had been sufficient evidence for the inspector so to conclude Crosswait v SOS 13/8/2009 This information was posted on 25/8/2009 and updates DCP at (12.95).
Challenge to faith development fails: Hackney residents fighting a planning permission for 29 flats, a nursery school and an integrated special education needs facility have failed in their application for a full court hearing. A former primary school site was proposed to be developed by the Agudas Israel Housing Association which provides for the needs of orthodox Jewish families. It was claimed that the five-storey development would have a massive impact on the local area, would devalue house prices and see families crammed into flats with not enough open space. It was ruled that the decision to grant planning permission had not thrown up an arguable error of law Byfield v Hackney BC 14/8/2009. This information was posted on 25/8/2009 and updates DCP at (26.13) and (8.2351).
PINS Newsletter: PINs has published another issue of its quarterly newsletter. It contains advice on the new Householder Appeals Service reminding agents that there are specific forms for the submission of HAS appeals, and that only a copy of the original planning application and the decision notice are required to accompany this form. LPAs are urged to ensure that appellants are aware of the reduced 12 week period for appealing. The fact that HAS appeals do not apply to flats is pointed out. The Newsletter also reports on the ‘new and more dynamic’ appeal date fixing process and on further progress with the determination of appeal procedures brought in last April. The newsletter may be downloaded from
HSE advice: The Health and Safety Executive has published a guide to that body’s methodology when providing advice on developments near major hazard chemical installations. The document may be downloaded from
IPC to be put within PINS under the Tories: The Conservative part has announced that, if it wins the next general election, the Infrastructure Planning Commission will cease to be an independent decision making body, and instead be absorbed within the Planning Inspectorate as a ‘large projects team’ making recommendations to ministers. This information was posted on 17/8/2009 and updates DCP at (5.331).
New Scottish wind farms: Two new wind farm developments in Scotland have been approved. One is a 29 turbine scheme at Forres with a capacity of 78MW, and the other is a 5 turbine extension to an existing farm near Fort Augustus. This will increase capacity from 15MW to 65MW, This information was posted on 17/8/2009 and updates DCP at (26.5322).
Revisions to flooding guidance: The SOS has published a consultation document ‘clarifying’ certain aspects of PPS25 Development and Flood Risk. There are no fundamental changes to the policy approach in PPS25 and the amendments refer to the application of policy to infrastructure such as electricity sub-stations, water treatment works, emergency services facilities, installations requiring hazardous substances consent and wind turbines. The definition of ‘functional floodplain’ is also re-examined. The document may be viewed at http://www.communities.gov.uk/documents/planningandbuilding/pdf/consultationfloodrisk.pdf This information was posted on 13/8/2009 and updates DCP at (4.165 ).
Locus standi denied: The High Court has rejected a challenge to a local authority enforcement requirement that works to repair a dilapidated abandoned cottage in Devon should be removed. It was ruled that the simply because the challenger lived nearby and used a footpath running past the cottage did not give him sufficient standing to bring a case. There was no issue of general or wider public importance to make an exceptional grant of standing Friend v East Devon DC 6/8/2009. This information was posted on 11/8/2009 and updates DCP at (5.422).
Local listing input sought: English Heritage is asking for local authority contributions to its future Best Practice Guidance relating to Local Heritage Assets (local listings). It is particularly concerned to set out consistent guidelines relating to selection criteria and means of resisting development pressures by management once listing has occurred. This information was posted on 11/8/2009 and updates DCP at (4.3721).
Further costs award advice: The SOS has published a guide for appellants relating to costs awards in planning appeals. It supplements Circular 03/2009 Costs Awards in Planning Appeals and is intended mainly for appellants who are not legally represented, The document may be viewed at http://www.communities.gov.uk/publications/planningandbuilding/costawards This information was posted on 11/8/2009 and updates DCP at (6.1).
New Circular on World Heritage Sites; The SOS has issued a new circular (07/2009) on the protection of world heritage sites (WHS). It outlines the principles and policies for the protection of WHS and urges action in the form of management plans and policies designed to protect their setting. The discretionary power of the SOS to call-in applications affecting a WHS is noted, as well as the inclusion of WHSs as Article 1(5) land in amendments to the GPDO made last October. The Circular may be downloaded from http://www.communities.gov.uk/documents/planningandbuilding/pdf/circularworldheritage.pd This information was posted on 6/8/2009 and updates DCP at (4.3732) and (4.2412).
Support for inspector’s decision on angling centre: The High Court has upheld an inspector’s decision to allow major improvements to an angling centre in a Sussex AONB (DCS No. 100-059-338). Challenge was brought by a local resident who argued that the proposal, which included 15 cabins and a barn- like facilities building, would be a visual intrusion in the landscape, The inspector had averred that there would be landscape enhancement, particularly as the scheme involved the removal of nine existing caravans. The court held that the inspector’s decision was legally impeccable. His view that the improvements proposed were essential if the angling centre were to thrive had been balanced against the need to protect the AONB from visually intrusive development. He was quite entitled to come to the view that objections were outweighed by improvement to the local environment and the promotion of rural enterprise Parker v SOS 4/8/2009. This information was posted on 6/8/2009 and updates DCP at (18.33) and (4.2523).
School permission quashed: A dispute between two adjacent schools in SE London has been resolved by the Court of Appeal. Planning permission had been given for the rebuilding of a seriously overcrowded boys school which had secured all of the local public finding available under the Government’s School Pathfinder Programme. However, the adjoining girl’s school fought the project on the basis that a large area of open green space would be lost, and that the permitted proposal would result in the least efficient use of the site. It put forward alternative options to preserve openness. The Court of Appeal held that the permission was seriously flawed, and did not go along with arguments that the alternative proposals were impracticable. It also did not accept that it was too late to stop the boy’s school project. The decision was quashed Langley Park School for Girls v Bromley LB 31/7/2009. This information was posted on 4/8/2009 and updates DCP at (26.3321).
Injunction granted to cease school use: The High Court has granted a local authority an injunction against the use of a house as a Jewish school. The use had been set up in 2002 and catered for 45 pupils for six days a week. It was ruled that the school had to accept the consequences of being in breach of planning law and the injunction should not be suspended pending a planning appeal due to be heard in September Barnet LB v Adler & Another 31/7/2009. This information was posted on 4/8/2009 and updates DCP at (26.35) and (4.561).
Inspector’s takeaway allowal supported: The High Court has upheld an inspector’s decision to allow a kebab takeaway in SE London (DCS No. 100-059-520). The site was part of a small suburban neighbourhood centre and the use resulted in a non-retail threshold policy being exceeded. The inspector had noted the policy failure and alleged harm to residential amenity, but found that the premises were on a busy main road in a largely commercial area. It was concluded that the business was well established and would make a strong contribution to the local economy. The court ruled that inspectors should not be strait-jacketed by planning guidelines and were entitled to state that commercial considerations were relevant. The policy guidelines were not blinkers designed to impede a decision maker taking an informed view of the planning merits Bexley LB v SOS 30/7/2009. This information was posted on 4/8/2009 and updates DCP at (16.232).
Sainsbury loses CPO case: Sainsbury’s Supermarkets Ltd has lost its bid to overturn a local authority’s CPO of a site it largely owned, in order to hand it over to Tesco. It was argued for Sainsbury that the council wrongly took into account Tesco’s proposal to use their development to enable the much needed redevelopment of an unrelated hospital site which it owned. The Court of Appeal ruled that it did not accept that the cross-subsidy of the redevelopment of the hospital site must be excluded as one of the benefits flowing from the redevelopment of the CPO site Sainsbury’s Supermarkets Ltd v Wolverhampton City Council 31/7/2009. This information was posted on 4/8/2009 and updates DCP at (13.139).
World Heritage Sites - consultation responses: The SOS has issued a summary of consultation responses related to the protection of world heritage sites. The proposals floated include the issue of a specific Circular on the subject and amendments to the GPDO to embrace world heritage sites within the definition of Article 1(5) land. The document may be viewed at
Amendments proposed to publicity requirements for applications: The SOS has issued a consultation document relating to Publicity for Planning Applications. Three possible changes are proposed in the document a) making web publication mandatory for a period of 21 days where there is at present a mandatory requirement to advertise in newspapers, b) removing statutory requirements to advertise certain applications in newspapers, and c) extending the statutory period to 21 days for the displaying of site notices for listed building and conservation area consent , and for development affecting the setting of a listed building or the character and appearance of a conservation area. The consultation may be downloaded from http://www.communities.gov.uk/documents/planningandbuilding/pdf/consultationpublicity.pdf This information was posted on 4/8/2009 and updates DCP at (5.155) and (5.1553).
Information requirements reforms: The SOS has issued a consultation document relating to ‘Streamlining information requirements for planning applications’. The proposals therein include a) withdrawal of the current ‘recommended national local list’ which was intended to guide LPAs in setting local lists of information requirements, b) the introduction of a new, criteria based, national policy requirement for local planning authorities preparing local lists, to ensure they only ask for information that is relevant, necessary, proportionate and justified by national or local policy, c) a requirement for LPAs to update their ‘local list of information requirements’ where necessary, having regard to this new policy requirement, by the end of December 2010, d) refinement and improvement of the guidance on national list items, to encourage a more proportionate approach, and to clarify validation requirements, and e) a consideration of options for the external scrutiny of local lists and encouragement of better submissions from applicants by proposing that applications for major development should be accompanied by a concise summary document..The proposals also include simplification of the requirements for all design and access statements (DAS) embodying a more straightforward explanation of how the context of the development influences its design, and to reduce the range of applications that require a DAS, by eliminating the mandatory requirement to prepare a DAS for certain small scale applications and applications to amend or remove conditions on existing permissions.
GPDO to be made ever more complex: In a strangely titled document Improving Permitted Development: Consultation the SOS has set out proposals for extending permitted development rights to types of development not previously covered by the present Classes of the GPDO. In brief, shops and offices will be allowed extensions up to 502m to a maximum of 25% of floorspace. Shopfronts and ATMs are proposed to be subject to prior approval procedures. Institutions such as schools and hospitals will be allowed to create 1 new structure per existing building up to 50-100m2 to a maximum of 25% additional floorspace. Industry and warehousing will have added to their existing Part 8 rights the construction of one new building per existing building up to 100m2. Both the existing and new allowances would cover explicitly research and development buildings. The new tolerances would be subject to a maximum 1000m2 per building and various other detailed restrictions. Generally, the installation of air conditioning units is to be allowed as PD, and restrictions are proposed to placed on hard-surfacing. The document, introduced as making it easier for businesses in the current difficult economic climate by cutting red tape and bureaucracy, may be viewed at
Dropping of needs test criticised: The Commons CLG Committee has warned that proposals in the new PPS4 to drop the ‘needs test’ and replace it with a tougher ‘impact test’ could pose a risk to town centres. It states the evidence it heard did not make a persuasive case for the abolition of the needs test. “Particularly in the current climate, its removal from the planning process would present an unacceptable risk to town centres”. This information was posted on 3/8/2009 and updates DCP at (13.131).
Article 8 applied even if Gypsies not living on site: The Court of Appeal has backed an earlier ruling that an inspector’s decision rejecting a Gypsy site in the Mendips AONB should stand (DCS No.100-049-200). The High Court had given credit to the Gypsies for applying for planning permission before moving onto the site, but felt that there had to be distinction between interference with family life in a future home and one that was already established. The Court of Appeal rejected this approach saying that if that were correct a person who unlawfully occupied a site would be in a better position than someone like the appellants, who had lived elsewhere while their application was being decided. By denying the Gypsies a stable base for their mobile home there had been an infringement of Article 8 rights . However, even if this infringement had been recognised the inspector would have reached the same decision on the planning appeal based on the concept of proportionality in decision making Rafferty and Another v SOS & Another 29/7/2009. This information was posted on 3/8/2008 and updates DCP at (24.535) and (4.125).
CIL Regulations out for consultation: The SOS has published the draft regulations for the proposed Community Infrastructure Levy which local authorities will have the discretionary power to use as from April 2010. The document may be viewed at http://www.communities.gov.uk/documents/planningandbuilding/pdf/communitylevyconsultation.pdf This information was posted on 3/8/2008 and updates DCP at (4.61).
Power station waste decision was not maladministration: The Ombudsman has found that a County Council’s decision to approve an application to fill a lake with waste and ash slurry was not flawed. Complaint had been made by a nearby resident that the Council’s approval of a planning application by a power station company to fill a lake with ash slurry and waste from burnt coal would cause noise, dust, contamination, loss of well water, and loss of wildlife. The Ombudsman’s investigation showed that pre-application discussions led to the production of an Environmental Statement as part of its subsequent application. This required details of, among other things, alternatives to using the lake as a waste site. The Council supplemented this information with its own enquiries for the benefit of the Members of the Planning Committee. The Council’s policy required the company show an overriding need to fill the lake, which had become inhabited by wildlife. Substantial evidence was provided to the Planning Committee by the applicant and objectors. Members approved the application, accepting there was overriding need. The investigation showed that the conditions members applied to protect the amenity of residents appropriately considered the complainant’s interest. Shortly after the decision to approve the filling of the lake, but while legal agreements were being finalised, a potential alternative site emerged. The Council considered whether the decision notice for the lake should be withheld, but concluded that it should not. In the event the applicant company agreed to use the alternative landfill facilities for its ash slurry, but leaving it with a valid permission to fill the lake. The Ombudsman concluded that in making its decision members were appropriately informed and applied conditions to protect the amenity of residents. There was no maladministration by the Council Report ref 07B05001 Oxfordshire CC 24/7/2009 This information was posted on 29/7/2009 and updates DCP at (25.336) and (25.337).
New heritage PPS out for consultation: The SOS has published the consultation draft of a new PPS to replace present PPG 15 Planning and the Historic Environment and PPG16 Archaeology and Planning, both of which are very dated. The new guidance has been produced despite the fact that the Heritage Protection Bill, which proposed radical reforms to listed building and conservation area law, is not included the Government’s existing legislative programme. The draft states that the new PPS does not include those elements of PPGs 15 and 16 which are considered to constitute guidance as opposed to policy, and is therefore much shorter, and very different in appearance from, those PPGs it is replacing. The consultation draft may be viewed at
SOS allows changes at Victoria underground station: The SOS has given listed building consent to London Underground for alterations at Victoria Station. These are necessary to facilitate extensions and improvements to the ticket hall and concourse. It was concluded that although there would be impacts on listed buildings, conservation areas and townscape during construction, overall character and appearance would be preserved. This information was posted on 27/7/2009 and updates DCP at (26.437).
Coastal change consultation exercise: The SOS has issued a consultation document setting out a policy on development and coastal change. One of the options floated is the possibility of the removal of permitted development rights in areas subject to coastal change. The document may be downloaded from
Audit Commission report on Sedgemoor DC: The Audit Commission has issued a report into the planning service provided by Sedgemoor District Council in Somerset. It concludes that the authority provides a fair planning service that has uncertain prospects of improvement. On development control matters the Commission states that planning decisions are made in a fair and transparent way and local people are encouraged to become involved in the process. Decisions are well supported on appeal, providing some assurance over the quality of decision making. Staff and councillors work constructively together, guided by protocols and codes of conduct that spell out roles and responsibilities. However, the Commission noted that planning applications were decided more slowly than others and performance in major applications is among the worst nationally and has not improved in recent years. The full report may be downloaded from http://www.audit-commission.gov.uk/localgov/audit/inspection/reports/Pages/sedgemoordcplanningservice23jul2009.aspx
Less restrictive outer London parking policies urged: A Commission advising the Mayor of London suggests a less restrictive car parking policy in outer areas of London in order to encourage commercial development. It suggests that centres in these areas are losing out to adjacent towns in the Home Counties such as Reading, Chelmsford and Crawley. The document may be downloaded from http://www.london.gov.uk/olc/questions/interim-conclusions.jsp This information was posted on 24/7/2009 and updates DCP at (4.1518).
Court challenge to wind turbines fails: Objectors have failed in a bid to quash an inspector’s decision to allow four wind turbines in Derbyshire (DCS No. 100-057-851). The Peak District National Park Authority and Derbyshire Dales DC challenged the decision on the basis of visual harm to a protected landscape. However, it was ruled that there was no error of law in the inspector’s report. There was a significant shortfall in renewable energy sources and this factor had to be given significant weight. Whether the wind farm was acceptable or not was a matter of planning judgment Derbyshire Dales DC & Another v SOS 17/7/2009. This information was posted on 21/7/2009 and updates DCP at (26.5322).
PINS Annual report published: The Planning Inspectorate (PINS) has published its annual report for 2008/2009. It shows that due to the economic downturn the number of appeal receipts decreased by 11% compared with the previous year. Enforcement appeal receipts fell by 2%. The total caseload dealt with by PINS totalled 30.218. The report may be downloaded from
TPO challenge by officer rejected: The High Court has refused to overturn a Tree Preservation Order made by Bristol City Council. Challenge was brought by one of the City Council’s own forestry officers who felt strongly that the Order should not be made in respect of a stretch of woodland. Several reasons why the Order should not have been made were advanced, but the court ruled that many of these were not strictly legal points. In any case the officer did not have the legal right to challenge the council’s decision in court. He did not live nearby and was not a person aggrieved Jonathan Brown v Bristol City Council 20/7/2009. This information was posted on 21/7/2009 and updates DCP at (5.422) and (4.384).
No prejudice to comprehensive redevelopment: The High Court has supported a claim that the expansion of a business in Nottingham would not prejudice a regeneration project. At appeal (DCS No. 100-059-365) an inspector had decided that the expansion of a cheesecake business on its present site would not be in accord with the approved master plan for the area. It would increase the market value of the property which would have to be acquired at a greater cost. The court held that the increased burden on the costs of redevelopment was not one that was justified on the evidence. The appeal decision was quashed The Cheesecake Shop Ltd v SOS & City of Nottingham Council 20/7/2009. This information was posted on 21/7/2009 and updates DCP at (4.131) and (4.1154).
HCA advice on affordable housing contributions: The Homes and Communities Agency has issued a good practice note entitled Investment and planning obligations – Responding to the downturn. It notes reduced scope in the current economic climate to obtain viable contributions for affordable housing and suggests a flexible approach to help unlock presently undeliverable planning permissions. The document may be downloaded from
Consultation draft of new TAN 6: The Welsh Assembly has published the consultation draft of a new Technical Advice Note 6: Planning for Sustainable Rural Communities. It will replace the present TAN 6 Agriculture and Rural Development issued in 2000. The document may be downloaded from
Extra housing at goat farm supported: The High Court rejected a local authority challenge to an appeal decision granting permission for two dwellings at a goat farm in Oxfordshire (DCS No. 100-059-385). It was argued that an inspector had granted permission on the basis of a speculative need rather than an existing one. The appeal decision was subject to a planning agreement that a permitted agricultural building to house extra goats would be completed before the houses were built. The council maintained that there should also have been a requirement that there be an actual increase in the goat herd. It was ruled that a definition of existing need could include circumstances where an existing enterprise needed to expand. The inspector was entitled to conclude that the functional and financial need tests were met. There was ample evidence that the goat enterprise was well established and financially viable and would remain so in the future Vale of White Horse DC v SOS 17/7/2009. This information was posted on 20/7/2009 and updates DCP at (9.334).
Supermarket decision quashed: The High Court has quashed a planning permission for a Wm Morrison supermarket in Stamford, Lincs. The land had been allocated for a link road but the council had resolved to drop this requirement from its local plan. The challenge had been brought by the local Chamber of Trade and a nearby building material company. It was ruled that errors had been made in dealing with important matters relating to public transport and setting a limit on the sale of non-bulky comparison goods. The court also sanctioned the matter of the link road to be referred to the Court of Appeal Stamford Chamber of Trade and Commerce & Another v South Kesteven District Council 17/7/2009 This information was posted on 20/7/2009 and updates DCP at (13.141) and (13.138).
IPC developments announced: The SOS has stated that the new Infrastructure Planning Commission will be up and running from October this year, and will begin receiving applications by 1/3/2010. Consultation on the examination procedures to be applied by the IPC has also been published, and may be downloaded at http://www.communities.gov.uk/publications/planningandbuilding/consultationexaminationnsips This information was posted on 16/7/2009 and updates DCP at (5.33).
Rooftop advert decision quashed: The High Court has quashed an inspector’s decision (DCS No.100-063-274) relating to the retention of an large advertising hoarding on top of a building at a business park in Neath The local authority had refused the original application on the basis that it was an eyesore, detrimental to the street scene and the character of the surrounding area. This view was supported by the inspector. The appellant challenged the decision on the basis that the advertisement was merely a replacement for one that had existed for possibly as long as 40 years. The court noted that the inspector had made no reference to the history of the pre-existing advertisement, even though this was a central feature of the appellant’s case. The decision was remitted Thomas v The National Assembly of Wales and Heath Port Talbot CBC 15/7/2009. This information was posted on 16/7/2009 and updates DCP at (4.3632).
Volume of railings took development out of PD class: The High Court has upheld an inspector’s decision requiring the removal of balcony railings at a house in south-east London (DCS No. 100-063-273). In an enforcement case it had been determined that volume of railings erected on a single-storey rear extension roof took the development over the 50cu.m limit allowed by the GPDO. The inspector had calculated that the volume of the extension itself came to 49.5cu.m. It was felt that the railings above did not enclose any identifiable volume but the 11.4m run of parapet upstand and railings were considered to have a volume in themselves. The inspector opined that this was difficult to estimate accurately, but took the total significantly over the permitted 50cu.m. The inspector’s calculations were challenged but the court ruled there had been no error of fact Phelps v SOS 10/7/2009. This information was posted on 15/7/2009 and updates DCP at (12.4154).
New Scottish Circulars: The Scottish Ministers have issued a tranche of new Circulars
Circular 4/2009 provides comprehensive advice on the process of dealing with a planning application and includes pre-application matters, procedures for making and processing an application and post application matters. Also included is a section on processing agreements. The Circular may be downloaded from http://www.scotland.gov.uk/Publications/2009/07/03153034/0
Circular 5/2009 gives advice on the “classes of development” as provided for in the 2006 Act. This hierarchy consists of National, Major and Local Developments and will be applied to most applications for planning permission, The hierarchy allows a proportionate approach to be used for dealing with planning applications depending on which of the three categories a development falls within. The procedures for making and handling planning applications vary between the three categories. The Circular may be downloaded from
Circular 6/2009 contains advice on the planning appeals process and accompanies The Town and Country Planning (Appeals) (Scotland) Regulations 2008 which come into force on 3/8/2009. The Circular embraces changes to the planning appeal system such as the removal of the automatic right to appear before and be heard by a person appointed by Scottish Ministers, restrictions on the introduction of new material in the appeal process and prohibition of variation of a proposal once an appeal has been made. The Circular may be viewed at http://www.scotland.gov.uk/Publications/2009/07/03100023/0
Circular 7/2009 accompanies the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008. In future where a decision on an application for planning permission for a ‘Local Development’ is taken at officer level, the applicant will no longer be entitled to appeal to Scottish Ministers. Instead, they may require the planning authority to review the decision. The Circular may be viewed at http://www.scotland.gov.uk/Publications/2009/07/07115301/0
This information was posted on 15/7/2009 and updates DCP at (5.1), (4.62), (5.33), (5.34)
New London affordable housing space standards: The Mayor of London has launched a consultation guide to the floorspace standards to which all publicly funded affordable housing built after 2011 will have to comply. Included are requirements that a one-bedroom flat should be a minimum of 538sq.ft and a two-bedroom flat 753sq.ft. Bedrooms must be no less than 90.4sq.ft and ceiling heights no less than 2.6m. Open space access standards are also included in the consultation document. The London Housing Design Guide may be viewed from http://lda-consult.limehouse.co.uk/portal/housing_design_guide/draft_housing_design_guide This information was posted on 15/7/2009 and updates DCP at (4.1341) and (7.4338).
Commons report on speed of housing decision making: A report by the Commons Public Accounts Committee Planning for Homes-Speeding up Applications for Major Housing Developments in England has acknowledged that between 2002-2003 and 2007-2008 the percentage of major residential planning applications decided within 13 weeks has almost doubled to 67%. But committee chairman, Edward Leigh, suggested that authorities can lose interest in applications once the target has been missed.
Housing at too high a density: The SOS has dismissed an application for 235 housing units on 1.79ha of commercial land in Grays, Essex (DCS No. 100-063-323). It was concluded that the proposal would contribute to meeting the need for housing in the Thames Gateway. The scheme also had design strengths. However, there were also significant failings in the design as it stood, principally in the relations of two of the blocks, the treatment of the shared street spaces as the result of the level of parking required, and the lack of integration of the development with its surroundings. The Design and Access Statement did not convince the SOS that it would be possible to fit as many as 235 homes on the site in a sustainable way and the need for such a high density had not been demonstrated. This information was posted on 13/7/2009 and updates DCP at (7.1381) and (7.139).
Minor changes study published: The SOS has published an options study into minor material changes to planning permissions. The report prepared by WYG Planning and Design formed the basis of the consultation exercise announced last month. The study may be downloaded from
Green belt housing allowed: The SOS has allowed a 1,200 unit neighbourhood development on 106.5ha of green belt land near Nottingham (DCS No. 100-063-322). It was concluded that the scheme was inappropriate in policy terms but there were very special circumstances that outweighed this harm. There was an urgent need for the release of land for housing and the A52 formed a sustainable boundary to the south of the appeal site. This information was posted on 13/7/2009 and updates DCP at (7.1331) and (4.2513).
Portal Best Practice Guide: The SOS has announced that planning departments have this month taken delivery of the Planning Portal’s Best Practice guide, a toolkit which provides helpful advice on how LPAs can reduce the amount of time staff spend on general planning enquiries, simply by implementing effective click-through links to the planning Portal website. It is envisaged that significant time and cost savings will be made by the LPAs, simply by empowering website users to educate themselves on relevant aspects of the planning process. This information was posted on 8/7/2009 and updates DCP at (5.12).
Impact Assessment for part of the Planning Act 2008: The SOS has published an Impact Assessment related to various legislative changes made in the town and country planning section of the Planning Act 2008. The document may be downloaded from http://www.communities.gov.uk/publications/planningandbuilding/impacttowncountry This information was posted on 8/7/2009 and updates DCP at (5.1).
Order making changes to Scottish planning law: The Scottish Ministers have laid an Order making a variety of minor supplementary, incidental or consequential changes to primary legislation related to town planning. The new Order includes powers to enable a local authority to direct that a permission is to lapse for a longer or shorter period than three years. The statutory instrument The Planning etc (Scotland) Act 2006 (Consequential Amendments) Order 2009 may be down loaded from http://www.opsi.gov.uk/legislation/scotland/ssi2009/pdf/ssi_20090256_en.pdf This information was posted on 8/7/2009 and updates DCP at (5.131).
Responses to Scottish householder permitted development consultation: The Scottish Ministers have published consultation responses related to the proposed review of householder permitted development rights in Scotland. The main changes posed in the consultation exercise conducted earlier this year include a) increasing the limit on PD within the curtilage of a house from 30% to 40 % of the curtilage, b) increasing the proportional limit of the increase in the size of the original dwellinghouse from 10% of the total internal floor area to 50% of the development footprint of the original dwellinghouse (subject to a height limit), c) relaxing the restrictions on roof alterations on certain rear and side elevations to allow the construction of dormer extensions or other extensions which enter the roof, d) relaxing certain restrictions on development near roads, e) introducing new rights covering decking, small porches and alterations to chimneys and f) introducing a single height restriction of 4 metres for separate development within the curtilage of a dwellinghouse. It is also proposed to introduce changes to standard conditions and restrictions to prevent overdevelopment as a result of these changes a) an absolute limit of 60 square metres on the area of the curtilage of the dwellinghouse which can be developed, b) a limit of 40% on the area of the rear curtilage which can be developed, c) no permitted development within 1 metre of the property boundary, and d) no permitted development over 1 metre in height within 5 metres of a road if it is nearer to the road than the original dwellinghouse. The consultation responses, which do not include an analysis, may be viewed at http://www.scotland.gov.uk/Publications/2009/06/29140936/0 This information was posted on 8/7/2009 and updates DCP at (4.3421).
Westbury by-pass rejected: The SOS has rejected County Council proposals for a by-pass to Westbury. The proposal would replace the present A350 through the Wiltshire town. The SOS concluded that the strategic significance of the A350 had reduced and the transport need for the new road had not been adequately justified. He accepted that the council had produced evidence that overcame what might otherwise be valid objections. However, the reduction in the traffic and environmental impact of the present road were benefits, but not of a degree that would warrant more than moderate harm elsewhere, such as impact on countryside and landscape. It was also concluded that the scheme would little to encourage modal shift from cars. This information was posted on 3/7/2009 and updates DCP at (26.434).
Bias in inspector’s decision confirmed by Court of Appeal: The Court of Appeal has upheld a challenge to an appeal decision (DCS No.100-049-952) where a bus station redevelopment in Norfolk had been rejected. Last year the High Court overturned the decision on the basis that a) the inspector made no valid findings on the prospects of a resumption of the bus station use, b) the inspector’s decision was vitiated by apparent bias in the light of his former employment with the county council, one of the objectors to the scheme as highway authority. The Court of Appeal found that the inspector had not erred on the resumption issue. It was up to the appellant to show that there was no realistic possibility of the bus station use resuming such as outweighed the policy objections. On the bias issue it was found that having regard to the specific circumstances of the inspector’s former work, he had not only been responsible for formulating transport policies, but was actively involved in their implementation and practical application at local level. In all the circumstances a fair-minded observer would have concluded that this inspector, by reason of his particular professional experience with the county council, had a real possibility of favouring, albeit unconsciously, the policies on which he had worked. The High Court had been correct in quashing his decision on that ground Ortona Ltd v SOS 24/6//2009. This information was posted on 1/7/2009 and updates DCP at (6.43).
Swindon housing may be occupied: A challenge to a local authority’s decision to discharge a condition requiring off site highway works has been dismissed by the High Court. The condition had been applied to a permission for a large town expansion scheme now under construction to the south of Swindon, and stipulated that no houses should be occupied until provision had been made for a safe and legible link-up of junction 16 of the M4 to the road system serving the area. The challenge had been brought by the CPRE which argued that the highway scheme now proposed did not provide specific features to facilitate use by public transport, pedestrians, vulnerable users and cyclists. However, the court ruled that the council report that led to the discharge of the condition was ‘impeccable’ Wiltshire Branch of the Campaign to Protect Rural England v Swindon BC 26/6/2009. This information was posted on 30/6/2009 and updates DCP at (7.14).
Applications down by 30%: Planning application statistics for England for the first quarter of 2009 show that the number of planning applications received by district level planning authorities decreased by 30% when compared with the March 2008 quarter. District level planning authorities also saw a decrease of 29% in the number of applications decided (granted or refused) when compared with the same quarter a year ago. Decisions on planning applications for residential developments (dwellings) decreased by 36% in the March quarter 2009 compared with the March quarter 2008. Decisions on major residential developments (10 or more dwellings) fell by 46 per cent over the same period. The document may be viewed at
Court support for decision rejecting rural affordable housing: The High Court has backed an appeal inspector’s decision (DCS No. 100-059-255) to refuse nine affordable homes at a rural location near Lambourn, Berkshire. It had been determined that the scheme proposed did not justify development in the countryside. No recent full local survey of need had been carried out and the proposal did not comply with tenure mix policy. Challenge was made on the basis that the inspector had not understood the evidence showing the need for intermediate affordable housing, but it was ruled that the decision was ‘beyond reproach’. It was a planning judgment based on the inspector’s own assessment of the evidence, and there was no basis for the court to interfere with it Poole v West Berkshire Council 26/6/2009. This information was posted on 29/6/2009 and updates DCP at (9.1323).
Kemble Airport decision: A cross border dispute between two local authorities over the granting of an LDC against officer advice by Cotswold DC for general aviation at Kemble Airport has been ended in the High Court. It had been argued by North Wiltshire DC (now part of Wiltshire Council) that the terms of the LDC were not restrictive enough and failed to impose limits on the number, nature and type of flights. However, the High Court upheld the granting of the LDC and refused leave for Wiltshire Council to appeal North Wiltshire DC v Cotswold DC 23/6/2009 This information was posted on 29/6/2009 and updates DCP at (26.431) and (5.1121).
Inspector’s PFS redevelopment decision upheld: A challenge to an inspector’s decision (DCS No. 100-058-566) to allow the redevelopment of a former PFS in North London has failed in the High Court. The development consisted of 43 housing association flats over 511m2 of commercial/retail; space divided into 3 units. The case was brought on behalf of a local resident’s association. It argued that the three/four storey height of the development would dominate the streetscape and there would be loss of the green space and trees currently at the front of the site. It was also claimed that additional shops on the edge of an existing local shopping centre were not needed and would remain empty. It was ruled that the inspector’s reasons were clear and his conclusions could not be said to be irrational Morris v SOS 26/6/2009. This information was posted on 26/6/2009 and updates DCP at (8.2331).
Conservation areas at risk: English Heritage has published the results of a study which reveals that 1 out of 7 conservation areas were at risk. The top threat identified is the insertion of replacement plastic doors and windows. Amongst other recommendations English Heritage urges that local authorities make greater use of Article 4 Directions pointing out that only 13% of conservation areas presently have one. The document may be viewed at http://www.english-heritage.org.uk/server/show/ConWebDoc.16634
Incorrect advice given that window required permission: The Ombudsman has found maladministration causing injustice in a case where incorrect advice given by a council officer had led the householder complainant having to install a replacement square bay window. The intention had been to install a Georgian style bow window but the local authority had asserted that a square bay was necessary to match the adjoining house. Seven years later the neighbour installed a bow window using permitted development rights. The Ombudsman stated that incorrect advice had been given to the complainant resulting in her not being able to implement her preferred scheme. Added to this she had the chagrin of observing her neighbour install the very type of window that she had been told was not PD and needed permission and which would be refused. Compensation was recommended to meet the costs of replacing the present window Complaint no 07/B/17676 City of York 16/6/2009. This information was posted on 24/6/2009 and updates DCP at (12.412).
Stansted expansion challenge rejected again: Campaigners wanting to stop the expansion of air traffic at Stansted Airport have failed to convince the Court of Appeal. It was argued that the proposed increase in annual flight numbers from 241,000 to 264,000 would generate more than a million tonnes of carbon dioxide and other greenhouse gases. In addition, the SOS in granting permission for the relaxation of a condition limiting air traffic and passenger numbers (DCS No. 100-058-038) had not taken enough account of the extra noise nuisance to already long-suffering residents. The Court of Appeal upheld the decision of the High Court Barbone & Anor v SOS for Transport & Anor 18/6/2009. NB. A public inquiry into a proposed second runway at Stansted has been postponed pending BAA’s appeal to the Competition Appeals Tribunal that it must sell Stansted and Gatwick Airports.. This information was posted on 23/6/2009 and updates DCP at (26.431).
English consultation on time limits and minor amendment applications: The SOS has issued a consultation document inviting views on a mechanism for extending the time limits for implementation of existing planning permissions, and how to implement the procedure for making non-material amendments under section 190 of the Planning Act 2008 which inserted sec 96A into the 1990 Act. It also considers an allied procedure for very minor alterations using sec. 73 of the 1990 Act. .
Housing redevelopment of factory site allowed: The SOS has allowed the redevelopment of a former factory site in Whitstable, Kent with 236 dwellings (DCS No. 100-062-831). It was concluded that the proposal would help to meet housing need and provide affordable housing. The proposal would be of a high quality and sustainable design that would make a contribution to a mixed and inclusive community. The loss of the 3.17ha employment site would not affect the economic wellbeing of the district and as such its change of use would be in accord with the development plan. This information was posted on 18/6/2009 and updates DCP at (4.1446) and (7.1343).
Loss of pub events room not reasonable basis for refusal: Costs have been awarded against a London local authority for unreasonable behaviour in refusing a pub refurbishment scheme on policy grounds because it did not include a popular live community and leisure events area such as currently operated in the basement of the premises. The decision was a member’s refusal against officer advice. In the future the basement area of the Kentish Town pub was to be used for toilets and kitchen accommodation and the landlord’s accommodation over was to be converted into two flats. An inspector observed that seeking to retain different types of public house went beyond the reasonable control of the planning system. Local planning policy designed to protect community/leisure facilities did not explicitly seek to preserve A4 uses, and in any case the cessation of the current use of the basement and its re-use for a variety of other purposes would not require planning permission in itself. This information was posted on 17/6/2009 and updates DCP at (4.1448) and (16.7121).
Review of flood risk guidance: The SOS has published an initial review of the implementation of PPS 25: Development and Flood Risk. The document follows Sir Michael Pitt’s review Learning Lessons from the 2007 Floods and may be viewed at http://www.communities.gov.uk/publications/planningandbuilding/initialreviewpps25 This information was posted on 16/6/2009 and updates DCP at (4.1651).
Staircase removal upheld by High Court: The High Court has thrown out a challenge to an appeal decision where a request to lift a condition requiring the removal of staircase to the second floor of a house had been rejected (DCS No.100-059-557). Permission had been granted in 2004 for a replacement house in the countryside, but it had been constructed with a habitable second floor contrary to policy limiting the proportion of floorspace increase for replacement houses. In 2007 a previous inspector had allowed the house to remain, but subject to a condition requiring removal of the staircase and its replacement with a loft hatch. A second inspector refused to remove the condition. He noted that the staircase had made the second floor available for a variety of domestic activities and rejected a sec.106 agreement or a condition limiting such use. He considered that removal of the staircase was the only effective way of securing compliance and felt that the condition imposed was both necessary and enforceable. The Court supported the inspector’s decision and observed that because the staircase had been built without permission the whole house was unauthorised. The house owners had chosen to construct something different at their own risk Wood v SOS 12/6/2009. This information was posted on 16/6/2009 and updates DCP at (12.634) and (12.642).
Green belt packing unit rejected: The SOS has rejected a proposal for an agricultural produce processing and packaging unit in a green belt area near Nottingham (DCS No. 100-062-832). An inspector had recommended approval but the SOS felt that the fact that the development was inappropriate was overiding. The need for the development in the light of Defra’s policy and guidance framework in relation to the changing nature of food production was an important material consideration, but the SOS was unconvinced that there was no suitable site further from Nottingham that would suit the appellant’s business needs. This information was posted on 16/6/2009 and updates DCP at (19.2321).
New TAN 12 published: The Welsh Assembly has now published a replacement Technical Advice Note (TAN) 12: Design (2009). It includes guidance on the preparation of Design and Access Statements for planning applications and applications for listed building consent, the legislative provision for which came into force on 1/6/2009. The document may be downloaded from http://wales.gov.uk/topics/planning/policy/tans/tan12/?lang=en This information was posted on 15/6/2009 and updates DCP at (5.145)and (4.132).
Further conversion rejected at green belt listed country house: The High Court has rejected a challenge to a second inspector’s decision (DCS No.100-056-213) to reject a proposal to convert part of a garage block at a listed country house into two apartments. The house was already converted into 14 flats. The first appeal decision had been quashed as that inspector’s reasoning had been unclear. The second inspector found that the scheme was inappropriate green belt development which would fail to preserve or enhance the special character of the Grade II* listed house and its parkland setting. In particular it would further intensify the activity at the site due to the generation of two or three extra cars, and would increase the pressure for further conversions. In addition the new apartments would have French window access to open ground which could be made use of for domestic purposes. It was ruled that this was an obvious planning judgment and there was no warrant for the court to interfere with it City & Country Residential Ltd v SOS 12/6/2009. This information was posted on 15/6/2009 and updates DCP at (4.2513).
Competing stores in South Devon for High Court: The High Court has granted leave for a joint challenge to be made against a council decision to allow a Sainsbury store in Dawlish, South Devon. The owners of a holiday park will argue that Teignbridge Council’s planning committee failed to take into account an earlier decision to refuse permission for a supermarket on the proposed Sainsbury location, and aver that their park site where Tesco wishes to build was preferable because it is nearer the town centre and more closely linked to existing built-up areas. Tesco had earlier secured permission to challenge the Sainsbury decision on the basis that the council had failed to give proper and adequate reasons for its decision Tesco Stores v Teignbridge DC 10/6/2009. This information was posted on 11/6/2009 and updates DCP at (13.1352).
Redevelopment of part of TRL site rejected: The SOS (now John Denham) has dismissed a proposal for a large mixed use development comprising up to 975 residential units, a business park and community buildings. The 104ha site was located on the edge of Crowthorne, Berkshire and was formerly part of the Transport Research Laboratory. It was considered that the site would make an important contribution towards meeting housing need on what could reasonably be considered as previously developed land. However, it was concluded that permission could not be given as the basis that the integrity of the Thames Basin SPA would not be affected, despite a proposed Avoidance and Mitigation Strategy. In addition there would be a reduction in the physical gap between Bracknell and Crowthorne, and the perception of that gap would be seriously compromised. This information was posted on 10/6/2009 and updates DCP at (4.169) and (4.254).
Oval redevelopment approved: After call-in the SOS has granted permission for the redevelopment of stands at the Brit Oval Cricket Ground to include new spectator accommodation and a hotel. It was concluded that the proposal was in accord with the development plan in terms of design, light, noise, privacy and flood risk. Although there was some conflict with other policies on open space, hotel location, amenity and energy strategy there would be no ‘significant’ adverse effect on these policies. Proximity to the well known Kennington gasholders was considered to present a low level of societal risk to the 1,830 additional spectators to be accommodated and the proposed hotel. There was a material need for the proposed development to meet the aspirations of cricket in its widest context and economic benefits would be brought both to Lambeth and London as a whole. These outweighed any non-compliance with the UDP. This information was posted on 10/6/2009 and updates DCP at (4.167), (16.533) and (18.1342).
Mill redevelopment refusal upheld: The High Court has supported an inspector’s decision to refuse a mixed use development at a former feed mill in Robertsbridge, East Sussex. (DCS No. 100-057-545). It had been considered that the lack of potential for a full range of employment uses on the site had not been shown and a need for affordable housing could be met elsewhere. The court ruled that the inspector did not have to explain himself more fully than he did for his reasoning to be intelligible and clear. It was plain to see what the inspector was doing, and the decision was in no way perverse or irrational Prem (Rooster) Ltd v SOS 9/10/2009. This information was posted on 10/6/2009 and updates DCP at (4.1446) and (6.44).
Extension to Sainsbury store rejected: Sainsburys has failed in a High Court challenge to an appeal decision rejecting an extension to its Northwich store in Cheshire (DCS No. 100-056-799). It was argued that the decision made on the basis that there would be prejudice to a larger redevelopment scheme was flawed. However, it was ruled that the inspector was entitled to take the approach that he had Sainsburys Supermarkets plc v SOS 5/6/2009. This information was posted on 9/6/2009 and updates DCP at (4.131).
SNCOs to apply to water areas: DEFRA is consulting on a proposal to make minor amendments to the Conservation (Natural Habitats, &c) Regulations 1994. The aim of the amendments is to make it clear that provisions to make a Special Nature Conservation Order can be used to restrict operations taking place on water as well as those on land. The document may be viewed at
Planning probity advice revised: The LGA has published an update of Probity in planning: the role of councillors. The guidance provides advice on good planning practice for councillors and officers dealing with planning matters, including refreshed advice on achieving the balance between the needs and interests of individual constituents and the community and the need to maintain an ethic of impartial decision-making with regards to planning decisions. The document may be downloaded from http://www.lga.gov.uk/lga/publications/publication-display.do?id=1940403 This information was posted on 5/6/2009 and updates DCP at (6.33).
Westminster extends life of permissions; Planning Resource reports that the City of Westminster will consider extending planning permissions for up to five years to help developers struggling with the recession. The authority will require a need for such an extension to be justified. It hopes that this concession will help some developers to plan further ahead with some certainty. This information was posted on 3/6/2009 and updates DCP at (5.1314).
Harbour dredging consultation: The Scottish Government has issued a consultation paper on Mineral Extraction in Harbour Areas. It proposes to extend the Environmental Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging)(Scotland) Regulations 2007 to all waters that fall within the jurisdiction of a harbour authority. The document may be downloaded from http://www.scotland.gov.uk/Publications/2009/05/14131715/0 This information was posted on 3/6/2009 and updates DCP at (25.115).
Welsh National Parks planning criticised: The Auditor General for Wales has found that all three National Park authorities have made limited progress in improving the speed of processing planning applications – and their performance in this area does not compare well with other Welsh planning authorities. However, the Auditor General has found that some improvement has been made in some areas. The move follows an independent report last year criticising the Brecon Beacons National Park Authority for the way it processed planning applications, highlighting a lack of robust written procedures and poor quality control. The Auditor General, having been asked by the Welsh Assembly Government to look into all three Welsh National Park Authorities, now concludes that the Brecon Beacons National Park Authority is making a high-level commitment to improving the way it processes planning applications. It has already made significant progress in a relatively short period of time in strengthening its resourcing, procedures and quality control – resulting in a significant reduction of the planning applications backlog and an improvement in the speed of determining planning applications. The report notes that Snowdonia National Park Authority is also making changes to improve the speed of processing planning applications without reducing quality. Staff changes, additional resources and training have also given a new impetus to the way it processes planning applications, although the report says that arrangements need to be improved to deal more effectively with peaks in workload or loss of staff. With regard to the Pembrokeshire Coast National Park Authority the report states that it taken steps to improve the way it deals with planning applications, although these are underdeveloped. However, the Authority is unlikely to make a sustained improvement in Development Management unless identified weaknesses are addressed as a priority. It also needs to be more customer focused and improve the way it manages and assesses its own performance. The announcement may be viewed at http://www.wao.gov.uk/news/pressreleases_2666.asp This information was posted on 3/6/2009 and updates DCP at (5.1).
Welsh review of the DC system announced: The Welsh Environment Minister Jane Davidson has announced a review of the planning application process in Wales to make sure it is ready for the economic upturn. Ms Davidson said that she wanted to see improvements to streamline the planning application process. “We want to make sure the planning system is ready to support the economic upturn when it comes. Our evidence shows that 85 to 90 per cent of applications are in fact approved. However, our review will look to identify any blockages and potential areas of improvement. I want to ensure that those regulatory systems for which I am responsible, are contributing constructively to economic recovery in Wales. The planning system must be efficient, delivering decisions which are open, fair, consistent and transparent. It is essential that the system inspires public and business confidence, delivering quality development and places, particularly in the light of challenging economic circumstances." This information was posted on 3/6/2009 and updates DCP at (5.1).
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