The Planning Law Update seminar focusses on the Growth and Infrastructure Bill with Royal Assent now expected shortly. It also looks at judicial review of planning decisions. Is Government right to be concerned that third party challenge could be holding back development?

1. Planning Law Update
May 2013

2. Speakers today
The Growth and
Infrastructure Act
Mark Dixon
The Growth and
Infrastructure Act
David Myers
Judicial Review
Ralph Gilbert
Judicial Review
Jennifer Sewell

3. THE GROWTH AND
INFRASTRUCTURE ACT
Mark Dixon

4. Modification and discharge of
affordable housing requirements
• Applications may be made to:
– Modify affordable housing obligations;
– Replace obligations with new ones;
– Remove the obligations; or
– Discharge the planning agreement entirely
Existing power to apply to amend under Section 106 (3)

5. • If an affordable housing requirement is unviable the LPA
must agree to do something about it
• Proving unviability
• Appeal process
• Temporary measures - until 30 April 2016

6. Guidance on Affordable Housing
Requirements
“The test of viability is that the evidence indicates that the
current cost of building out the entire site at today’s prices
is at a level that would enable the developer to sell all the
market units on the site in today’s market in order to make
a competitive return to a willing developer and a willing
landowner”

7. Guidance on Affordable Housing
Requirements
Applications should contain:
1. A revised Affordable Housing proposal based on
prevailing viability
2. Demonstration that existing Affordable Housing
obligation makes the scheme unviable
3. Up to date and appropriate appraisal evidence. Ideally
be “open book”

8. Stopping up and Diversion of
highways
• Measures to streamline the application process
• Growth and Infrastructure Act Clause 9 - highways
• Growth and Infrastructure Act Clause 10 - footpaths

9. TOWN AND VILLAGE GREENS
David Myers

10. The registration of Town and
Village Greens
Section 15 Commons Act 2006
“a significant number of the inhabitants of any locality, or
any neighbourhood within a locality, have indulged as of
right in lawful sports and pastimes on the land for a period
of at least 20 years”
– Preventative measures include the construction of
fences, gates, and signs
– However, an application can still be accepted up to 2 years after
use has ceased
– A registered Town or Village Green generally can’t be developed

11. Proposed reform
1. A reduction in the time period to make an application
where the use has ceased from 2 years to 1 year.
2. The submission of a Statement to the commons
registration authority to bring an end to any period
during which persons have indulged as of right in lawful
sports and pastimes.
3. The right to apply to register a Town or Village Green
will cease on any “Trigger Event” and will only become
exercisable when a “Terminating” Event occurs.
4. Charging for Town and Village Green registration
applications

12. Trigger Event Terminating Event
From the point where a submitted
planning application is publicised
• Withdrawal of application
• Refusal of application (following all
appeals being exhausted)
• Lapse of granted planning permission
From the point where a draft
development plan document (including a
Neighbourhood Development Plan) which
identifies the land for potential
development is published for consultation
• Withdrawal of document
• Adoption of document which does
not allocate land for development

13. Trigger Event Terminating Event
The adoption of a development plan
document (including a Neighbourhood
Development Plan) which identifies the
land for potential development
• Document revoked/ceases to have
effect
• Policy relating to land is superseded
Any development plan/RSS which
continues to have effect and identifies the
land for potential development
• Plan ceases to have effect

14. Planning Application direct to the
Secretary of State
The Growth and Infrastructure Act has introduced a
mechanism to allow for a planning application to be made
directly to the Secretary of State bypassing the Local
Planning Authority
• Criteria:-
– The Application must be for “Major Development”
– The Local Planning Authority must have been officially
“designated”

15. CIL UPDATE
Mark Dixon

16. Community Infrastructure Levy
The CIL is a charge on most forms of new development on
a £ per sq.m basis
• Exclusions:
– New buildings and enlargements to existing buildings below 100
square metres of gross internal floorspace;
– Reserved Matters Approval where outline planning permission
was granted before the CIL coming into effect;
– Development undertaken by a charitable institution, which is
wholly, or mainly, for its charitable purposes

17. Community Infrastructure Levy
• If there is no extension of floorspace as a result of the
development; and
• Structures or buildings that people only enter for the
purpose of inspecting or maintaining fixed plant or
machinery
Reliefs:
• Social Housing
• Exceptional circumstances

18. Who, What, When and How?
Who:
The person liable to pay CIL is the person who "assumes liability" to pay
CIL.
Liability can be assumed in default or by an "assumption of liability notice"
What: The amount payable will be shown on a Charging Schedule.
When: CIL is payable within 60 days of the commencement of development
How:
Notification through a Commencement Notice
The Local Authority will then serve a demand notice

19. Progress Locally
York City
Council
Leeds City
Council
Hambleton
District
Council
Ryedale
District
Council
East Riding of
Yorkshire
Council
Hull City
Council

20. Section 106 Agreements and CIL
• Section 106 Agreements will not be replaced in their
entirety.
• Limitations from 6 April 2014 or from the date CIL is
charged will include:
– no more than 5 contributions for an item of infrastructure not
funded by CIL.
– No contributions towards any infrastructure covered by CIL
• Section 106 will however continue to be the primary
mechanism for affordable housing contributions

21. Localism ActKeychanges:
• The Local Authority will have greater freedom in
setting the CIL rate;
• Some of the CIL will go directly to the
neighbourhoods where development takes place;
and
• CIL will be applied to the ongoing costs of existing
infrastructure and the initial costs of new
The Localism Act “will change the levy to make it more flexible”.

22. FURTHER REFORMS
David Myers

23. Further reforms within the Growth
and Infrastructure Act
• Limit on Local Planning Authorities powers to require
information within a planning application.
• The ability for the Secretary of State to recover his own
costs at all planning appeals.
• Neighbour consultation for certain permitted
development rights.
• Commercial and Industrial Projects being decided within
the national infrastructure projects regime

24. General Planning Update
• Abolition of Regional Spatial Strategies
• Transition Provisions of the National Planning Policy
Framework

25. Neighbourhood Development Plans
Creation:
1. An evidence base, detailed survey
2. Publicity, Consultation, and Representations
3. Submission for Independent Examination
4. Local Referendum

26. Neighbourhood Development Plans
The Plan must:
1. Conform to the National Planning Policy Framework
and any up to date Local Plan
2. Respect other designations, such as habitat
regulations, conservation areas, EU and European
Court requirements.
The result is a binding policy document that will sit
alongside the Local Plan

27. Neighbourhood Development Plans
• On 11 April of this year the Upper Eden Neighbourhood
Development Plan became the first such Plan to be
approved and became part of the Eden Development
Framework.
• Thame Neighbourhood Development Plan going to a
referendum on 2 May 2013

28. General Planning Update
• Permitted development rights will be temporarily
extended for a period of three years to include a change
of use from office to residential
• Local Authorities had until 22 February 2013 to apply for
an exemption for specific areas
• A developer will still need to consult with the Local
Authority before implementing this change of use

29. “Planning Reform” by Dan Hudson
Government planning reform is like a Christmas sweater
knitted by an ageing aunt. It is announced with a great
fanfare; its laborious and complex design has no regard for
aesthetics, form, function, or practicality; it is
uncomfortable, irritates and inhibits movement.
Nonetheless, one has to appear grateful, try to fit into
it, face public mockery as a result and wait as it slowly
unravels to be replaced with another one the following
year!!

30. JUDICIAL REVIEW – WHERE
ARE WE NOW?
Ralph Gilbert

31. Judicial Review
• When is Judicial Review appropriate?
• Grounds for review?
• “Locus Standi”
• “Promptly”

32. Procedure
Protocol
Permission
Hearing
Costs

33. REFORMS TO JUDICIAL
REVIEW
Jennifer Sewell

34. The headlines
Prime Minister David Cameron
"We urgently need to get a
grip on this. So here's what
we're going to do: reduce the
time limit when people can
bring cases, charge more for
reviews so people think twice
about time-wasting, and
instead of giving hopeless
cases up to four bites of the
cherry to appeal, we will
halve that to two."
“This country is in the
economic equivalent of war
today - and we need to have
the same spirit. We need to
forget about crossing every
“t” and dotting every “i” and
we need to throw everything
we’ve got at winning in this
global race”

35. Reasons behind the proposals
• Immigration and asylum cases
• In 2011 immigration and asylum cases represented more
than three quarters of all applications for permission to
apply for Judicial Review

36. Aim of the proposals
• Not to deny, or restrict access to Justice, but to provide
for a more balanced, proportionate approach
• To ensure that weak or frivolous cases which stand little
prospect of success are identified and dealt with
promptly at an early stage in proceedings, and that
legitimate claims are brought quickly and efficiently to a
resolution

37. The reforms
• 23 April 2013 - Lord Chancellor Chris Grayling
announced that the Government is to go ahead with 3 of
the reforms that were proposed in December 2012
Reform 1 relates to the time limits for bringing a claim.
Reform 2 relates to the application process for permission to bring
a claim.
Reform 3 relates to the fees payable when permission to bring a
claim is sought

38. Reform 1 - Time limits for bringing
a claim
Rationale
• In certain types of case, particularly those involving large
planning developments or constructions where
significant sums may be at stake, any delays can have
an impact on the costs of the project, potentially putting
its financial viability at risk

39. Reform 1 - Time limits for bringing
a claim
• Claims for Judicial Review of planning decisions made
by a local authority should be brought within six weeks of
when the grounds to make the claim first arose
• The Courts do have a general power to allow parties to
bring proceedings out of time when it is “just and
equitable” to do so

40. Reform 2 - Application for
permission
Rationale
• The current process allows a party up to four
opportunities to argue their case for permission to apply
for Judicial Review (this is before the substantive claim
actually gets off the ground)
• The Government’s view is that this process causes
avoidable delay and uses excessive resources

41. Reform 2 - Application for
permission
• The right to an oral hearing is to be removed where the
case is assessed as “totally without merit” on the
papers

42. Reform 3 - Fees
Rationale
• Currently there is a fee for applying for permission of £60
and, if permission is granted, a fee of £215 for the
substantive matter to proceed to trial if permission is
granted
• The Government considers that these fees do not reflect
the costs of dealing with an application for permission

43. Reform 3 - Fees
• A new fee (likely to be £215) is to be introduced if an
applicant does not accept a refusal of permission on the
papers and requests that the decision is reconsidered at
a hearing
• It is intended that the new fee will discourage applicants
whose case has not been deemed to be “totally
without merit”, but whose case still may be “weak” or
“vexatious”

44. Responses to the reforms generally
• The reforms suggest that there is an assumption that
more challenges to public authorities is bad, but why
shouldn’t public authorities be held accountable for their
decisions?

45. Time limits
• The time limit for statutory appeals under the Town &
Country Planning Act 1990 is already six weeks

46. Application for permission
• What is meant by “totally without merit”?
• The test for whether permission to apply should be
granted on the papers is based on whether the case is
“arguable”, but this test goes beyond consideration of
whether there is an “arguable” case
• Analogous to cases brought by vexatious litigants which
have little or no basis in law and will subject the
respondent to inconvenience, harassment and expense
out of proportion to any likely gain to the applicant

47. Application for permission
• Consequences of an application for permission being
deemed “totally without merit”
– Deprived of the right to have the application for permission heard
fully at an oral hearing. Oral argument can often properly
explain a case in a way that written argument cannot
– Wider implications such as a civil restraint order

48. Fees
• The level of costs incurred by a party in average Judicial
Review proceedings can run into £10,000s
• A more expensive fee to seek to get the case off the
ground is not likely to dissuade an applicant willing to
commit that level of expenditure to challenge a decision

49. Any Questions?

50. Mark Dixon
Partner
Planning
mark.dixon@rollits.com
01482 337286
David Myers
Associate
Planning
david.myers@rollits.com
01482 337287
Ralph Gilbert
Partner
Dispute Resolution
ralph.gilbert@rollits.com
01482 337352
Jennifer Sewell
Associate
Dispute Resolution
jennifer.sewell@rollits.com
01482 337368