PLANNING LAW UPDATEor “Top Ten from 2006”

JAMES FINDLAY

2-3 GRAY’S INN SQUARE

1. OUTLINE/DETAILED PERMISSIONS

• DCLG Circular 01/2006 – Design and Access statements from Aug 10th 2006 on nearly all new applications (not change of use, engineering or mining or mostly existing dwelling houses).

• Amendments to Articles 1 & 3 GDPO to definition of reserved matters. Details to be supplied on outlines, e.g. upper and lower heights of buildings to be supplied.

• No longer just able to deal with general principle of development.

1. OUTLINE/DETAILED PERMISSIONS

• With regard to EIA development, EA no longer just at outline stage, may be needed at detailed stage too, see R. (Barker) v Bromley LBC & FSS [2006] UKHL 52

• Carry out at detailed stage if (a) significant environmental effects not identified at outline stage or (b) they were, but fresh assessment required (probably arising from a change in circumstances)

2. Village Greens

• Oxfordshire County Council v. Oxford City Council [2006] UKHL 25

• The House of Lords has spoken, yet again on village greens.

• Once registered for dog walking can be used for any reasonable sporting pursuit.

• 20 years runs to date of application, not decision

• Commons Act 2006 – article [2006] Nov. JPL

3. GYPSIES

• New Circular – ODPM 01/06

• Trio of cases: South Bucks DC v Smith [2006] EWHC 281, South Cambs v. Flynn [2006] EWHC 1320 & BANES v. Connors [2006] EWHC 1595. Paragraphs 45/6 of Circular have had an impact but not as great as first thought in injunction cases.

• Article February 2007 JPL

4. Planning obligations

• New guidance issued by DCLG but not in a Circular!

• Planning Obligations: Practice Guidance

• Model Planning Obligations (Section 106) Agreement (drafted by Law Society’s Planning & Environmental Law Committee) – see article and response in December [2006] JPL

5. Enforcement – 2 points

• First, intensification can lead to a material change of use – see R (Childs) v FSS [2005] EWHC 2368.

• Secondly, time limit for breach of condition in respect to use of a building as a dwellinghouse – 4 or 10 years?

• CA overrule 1st instance Judge and determine that it is 4 years in all cases.

• FSS v Arun DC [2006] EWCA Civ 1172,

[2007] JPL 237

6. EXCEPTIONS TO TPO’S• PERRIN & RAMAGE v NORTHAMPTON

BC [2006] EWHC 2331 (TCC)• When can one top, lop, cut down etc to

abate a nuisance (s.198(6)(b))?• 1st – Nuisance means actionable nuisance,

not just an overhanging branch.• 2nd – Irrelevant that an alternative scheme,

ie root protection, could also abate nuisance.

• On appeal. See article [2007] Feb JPL

7. Housing – new PPS 3

• Plan, monitor and manage remains.

• New definition of affordable housing – excludes low cost market housing

• Low cost market housing will be part of mix required on larger sites.

• No presumption that PDL or whole of curtilage should be redeveloped.

8. Development in breach of condition

• Newton v Sullivan

• R.(Hart Aggregates Ltd) v. Hartlepool [2005] EWHC Admin “has blurred the boundaries” of the rule in Whitley.

• Norris v FSS & Ano [2006] EWCA Civ 12 – no mention of Hart.

• “Unlawful operations cannot amount to the commencement of development”. Laws LJ

9(a) DELAY & JR

• Hardy v Pembrokeshire CC & others [2006] EWCA Civ 240, [2007] JPL 284

• Planning challenges still need to be made promptly.

9(b) DELAY AND COMMENCEMENT

• Section 73 of the Act is amended, so that if development is not commenced within the time limits you cannot use s. 73 to extend the time.

10. BARKER REPORT

• Back to square 1

• For the new or soon to be old development plan system, see Article in 2006 February JPL.

• And PPS 25 Flooding