£12m paid out by councils after losing planning appeals

While I am currently “coming to an agreement” with a LPA in regard to a partial award of appeal costs, I was quite astounded to read about this £12 million figure.

Property consultancy Daniel Watney LLP sent out Freedom of Information requests to the 418 principal local authorities across the UK, asking them to list costs awarded from appeal proceedings between 2010/11 and 2015/16.

Two-hundred and seventeen councils responded, with 178 stating that they had paid out over the past six years. This, according to the research, totalled £11,965,077.17.
The top 10 authorities paying the highest total sum:

1. Cornwall Council – £981,332.40

2. Derby City Council – £866,975.00

3. Halton Borough Council – £721,470.48

4. Stratford-on-Avon District Council – £557,818.84

5. South Gloucestershire Council – £505,544.28

6. Basingstoke and Dean Borough council – £468,694.60

7. Horsham District Council – £442,969.00

8. Cambridge City Council – £311,175.08

9. Solihull – £306,563.00

10. Cheshire – £260,197.61
Whilst I might have been astounded by the headline figure, I wasn’t astounded that Cornwall were top of the naughty list.  No pressies from Santa this year!


Pay £74,100 within 21 days or legal action will be brought

We do undertake instructions from people who want to object to  development but we will consider such instructions even more carefully in the future.

A developer in Scotland has written to 9 objectors claiming £74,000 for ‘loss of earnings’ because they objected to a planning application!

Oh dear.  Perhaps they need help in concentrating on the Council’s reasons for refusing the application.  But then again…

Candy stripes a no-no

The Crown Court agreed last month that a Section 215 Notice (normally used to require the tidying of sites) was the appropriate method for the Royal London Borough of Chelsea to seek the repainting of this mews building in a Conservation Area back to white.

In dismissing the appeal, the Judge held that “amenity” is a broad concept, not defined by the section.  It is a question of judgement, taking a broad view of the condition of the site, the impact that this has on the surrounding area. The “condition of land” refers to the current state of the land, and a Section 215 notice can be used to require works going beyond mere maintenance, so as to remedy the appearance of the land.

One of the key features of the conservation area in which this property sits was its visual integrity, with only a limited range of neutral colours on paint buildings. Painting the property in garish stripes was disruptive to the townscape and harmed the uniformity of buildings within the conservation area, adversely affecting the amenity. The painting was unsightly, and Section 215 supplied an appropriate means of tackling the unsightly condition of land or buildings.

This case garnered public interest in that, apparently, the appellant ordered her contractors to paint the stripes to annoy her neighbours who had raised significant objections to a planning application at the property!

Damn it!

Setting aside all of my planning training and expertise, I am quite gutted that the mooted Homesense store will not be opening near me, and nor can I get my takeaway drive-thru dinner on the way home…

Proposals for a new district shopping centre at an out-of-centre location near Sowton off Exeter’s Honiton Road on the outskirts of the city have been rejected by Communities Secretary.

The scheme involved some 17,000 square metres of retail floor space and included a garden centre and drive-through restaurants.

The city council had refused the project largely on the grounds of its impact on the city centre. Both the inspector who held the recovered appeal and the SoS noted that Exeter’s bus and coach station site (BCS) which is currently earmarked for development was highly accessible and well connected to the city centre and was “sequentially preferable, suitable and available”.

Clark’s decision letter said that although the 3.2-hectare appeal site was generally well-located for public transport it was in a

“less accessible location than the sequentially preferable BCS site. The appeal scheme would include a large new car park and ‘drive-through’ restaurants which would be likely to encourage rather than deter the use of the private car”.

He concluded that the benefits of the scheme did not outweigh the conflict with the development plan and the environmental harm. The proposals also failed the town centre first sequential test provisions of the National Planning Policy Framework.

Pfft!  What does he know??!!

Deja vu on tariff style contributions small housing sites

You may recall in November 2014 the government published a written ministerial statement on affordable housing and other tariff-based contributions from development.

The new policy proposed that:

(1) developments of no more than 10 homes (with a gross floorspace not exceeding 1,000 sq m) would be exempted from levies for affordable housing and tariff-based contributions,

(2) but in designated rural areas, National Parks and AONBs, the exemptions would apply only to developments not exceeding 5 new homes; developments of 6 to 10 homes could pay a commuted sum, either at or after completion of the development;

(3) redevelopment of a vacant building, or its demolition for redevelopment, would give rise to a credit (calculated in terms of floorspace) that could be off-set against any affordable housing contribution.

Two Local Planning Authorities were so concerned about the implications of this policy that they challenged it in the High Court. The two councils won in the High Court in July 2015, and secured the quashing of the new policy. However, the Court of Appeal last week handed down its decision on the appeal by the Secretary of State against the quashing order.

Therefore, the emboldened policy outlined above will be back in play (if there is not an appeal to the Supreme Court)! Good news for c2c Planning Consultants who are working on securing planning permission for smaller sites!

All ball games allowed

Rio Ferdinand, Bobby Zamora and Mark Nobile have teamed up to build social housing with sports centres.

After growing up on council estates, the three past and present West Ham football stars have pledged to give something back by forming the Legacy Foundation to encourage private investors to build housing centred around sporting facilities and communities on brownfield land owned by local councils in depressed areas.

Legacy and its partner investors and developers will build according to each council’s dictates — with a higher proportion of three-bedroom flats for social-tenant families if that is where the greater need is, or affordable one-beds for key workers, or a greater proportion of commercially rentable flats. The property will then be let and managed by the council (there is no sales component to the scheme, though Legacy may explore shared ownership in future).A minimum of 40 per cent of units will be social, affordable or key worker housing in each development, with an aspiration to 50 per cent.

Revenue from rental will be split between the council; the developer and investors during the course of the lease; and the Legacy Foundation, the latter to fund the sports and community centres — and potentially schools and hospitals — in the schemes.

These will provide activities between 3pm and 6pm when kids have left school and their parents are still at work, plus subsidised crèches, adult education classes, and visits by Legacy’s founders and other inspirational figures. Noble joked that their schemes will be covered in signs saying “All Ball Games Allowed”.

Legacy is negotiating to build 1,500 homes in the Kingsland area of Houghton Regis in Central Bedfordshire. They hope to break ground on their first project in early 2017, with the first flats ready for moving into a year after that.

There is a new player in the housing market!

Cheshire East DC & Suffolk Coastal DC seeking permission to appeal to the Supreme Court

There were mini-celebrations in the private sector when the Court of Appeal gave its judgement in March on the conjoined appeals of Suffolk Coastal DC v Hopkins Homes & SSCLG and Richborough Estates v Cheshire East BC & SSCLG [2016] EWCA Civ 168. The case primarily concerned the meaning of relevant policies for the supply of housing in paragraph 49 of the NPPF, as well as the effect of such policies being deemed out-of-date by paragraph 49 where there was not a five year housing land supply.

33. Our interpretation of the policy does not confine the concept of “policies for the supply of housing” merely to policies in the development plan that provide positively for the delivery of new housing in terms of numbers and distribution or the allocation of sites. It recognizes that the concept extends to plan policies whose effect is to influence the supply of housing land by restricting the locations where new housing may be developed – including, for example, policies for the Green Belt, policies for the general protection of the countryside, policies for conserving the landscape of Areas of Outstanding Natural Beauty and National Parks, policies for the conservation of wildlife or cultural heritage, and various policies whose purpose is to protect the local environment in one way or another by preventing or limiting development. It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is. […]

35. Restrictive policies, whether broadly framed or designed for some more specific purpose, may – we stress “may” – have the effect of constraining the supply of housing land. If they do have that effect, they may – again, we emphasize “may” – act against the Government’s policy of boosting significantly the supply of housing land. If a local planning authority is unable to demonstrate the requisite five-year supply of housing land, both the policies of its local plan that identify sites for housing development and policies restrictive of such development are liable to be regarded as not “up-to-date” under paragraph 49 of the NPPF – and “out-of-date” under paragraph 14. Otherwise, government policy for the delivery of housing might be undermined by decisions in which development plan policies that impede a five-year supply of housing land are treated as “up-to-date”.

46. We must emphasize here that the policies in paragraphs 14 and 49 of the NPPF do not make “out-of-date” policies for the supply of housing irrelevant in the determination of a planning application or appeal. Nor do they prescribe how much weight should be given to such policies in the decision. Weight is, as ever, a matter for the decision-maker … Neither of those paragraphs of the NPPF says that a development plan policy for the supply of housing that is “out-of-date” should be given no weight, or minimal weight, or, indeed, any specific amount of weight. They do not say that such a policy should simply be ignored or disapplied. That idea appears to have found favour in some of the first instance judgments where this question has arisen. It is incorrect.

47. One may, of course, infer from paragraph 49 of the NPPF that in the Government’s view the weight to be given to out-of-date policies for the supply of housing will normally be less than the weight due to policies that provide fully for the requisite supply. The weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, nor could it be, fixed by the court. It will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy – such as the protection of a “green wedge” or of a gap between settlements. There will be many cases, no doubt, in which restrictive policies, whether general or specific in nature, are given sufficient weight to justify the refusal of planning permission despite their not being up-to-date under the policy in paragraph 49 in the absence of a five-year supply of housing land. Such an outcome is clearly contemplated by government policy in the NPPF. It will always be for the decision-maker to judge, in the particular circumstances of the case in hand, how much weight should be given to conflict with policies for the supply of housing that are out-of-date. This is not a matter of law; it is a matter of planning judgment …

48. The policies in paragraphs 14, 47 and 49 of the NPPF are not, as we understand them, intended to punish a local planning authority when it fails to demonstrate the requisite five-year supply of housing land. They are, however, clearly meant to be an incentive…”

Until such time as the appeal is heard in the Supreme Court, the above paragraphs assist in the general understanding  of the meaning of relevant policies for the supply of housing in paragraph 49 of the NPPF, as well as the effect of such policies being deemed out-of-date by paragraph 49 where there was not a five year housing land supply.

High Court Holds That Some Residential Gardens Are Brownfield Land

Whilst researching a small residential development I am working on where there is a very favourable PDL policy, I came across a recent High Court decision of interest.

In Dartford Borough Council v Secretary of State for Communities & Local Government (CO/4129/2015), the principal issue before the Court was whether the definition of “previously developed land” (commonly known as “brownfield land”) within the NPPF excluded all private residential gardens, or just those “in built up areas”.

The Deputy Judge held that the wording of the exemption to previously developed land, within the NPPF was significant. It reads “land in built-up areas such as: private residential gardens”. As such, the Deputy Judge found that only residential gardens within the “built-up area” were exempt from the definition of previously developed land whereas, residential gardens outside “built up areas” were “brownfield”.

The Court held there to be a rational explanation for the distinction, namely that undeveloped land in the urban area was at more of a premium and thus required greater protection.

The decision is significant. It holds that residential garden land, outside “built-up areas” is “brownfield” land not, as had widely been understood, “greenfield” land. That finding has consequences in terms of its priority for development. Paragraph 111 NPPF provides that brownfield land is where development ought to be prioritised.

The decision presents the obvious quandary as to how to identify “built-up areas”. In this case, the land was within the countryside to which the Council’s countryside development plan policies applied. There may be very many less clear-cut cases however, such as the one that I am working on – immediately adjacent to defined settlement limits, so in open countryside but with residential development to its west and east.

I expect a clarification statement to follow quite shortly!

Planning legislation intertwined with the Proceeds of Crime – record-breaking £700k seized from developer

A private developer who defied planning law in 2007 to build a six-storey block of flats has been ordered to confiscate a UK record-breaking sum for the planning offence.  The owner of 34 privately-rented flats illegally benefited from the use of the property that was built without planning permission.

The developer was sentenced in November for the offence of failing to demolish the property, which is worth an estimated £10m, after the Council served an enforcement notice in August 2011.

As part of the case, the Council made an application to the Court to confiscate money illegally made from the building under the Proceeds of Crime Act. In August this year the Court made a confiscation order in the sum of £700,000, a reflection of the rent received since it was built.  The Council will receive one third of this with the other two thirds split between the Court and the Treasury. Money received by the Council will be reinvested back into the services that brought the developer to justice.

London Authorities seem to be rather aware of the Proceeds of Crime Act and there have been a number of successful cases brought.  When the rewards are significant for the Council (in this case some £230k), you can only help but think that it will become a useful tool to fund planning and enforcement services to continue to seek out and investigate planning issues.  Imagine how many enforcement officers that would pay for!!

Now THAT is “hope value”!

Hope value is not an uncommon word in planning circles.  It is an inflation of the price of property to reflect that an increase in the value of that property might be gained with, or without, the planning system.

I’ve just read of a small single storey garage which sold yesterday for £208,000 in Tooting Bec.

The auction particulars note that “It is considered that the garage, with a very approximate frontage of 3.26m (10’7”) to Streathbourne Road and previously used as both a single garage and for materials storage, may be suitable for redevelopment/change of use subject to planning.”

A pied a terre in the Big Smoke anyone?