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??!!

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policies for the supply of housing in paragraph 49 of the NPPF, as well as the effect of such policies being deemed out-of-date by paragraph 49 where there was not a five year housing land supply.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!

Handelsbanken in Plymouth

C2C Planning Consultants has assisted the Handelsbanken to locate to the ground floor of Salt Quay House in Plymouth, completing the ‘professional services building’ with our colleagues the Foot Anstey law firm, an accountant and now the bank.

Handelsbanken comes to Salt Quay House in Plymouth
Handelsbanken comes to Salt Quay House in Plymouth

The ground floor unit has been empty since the building was constructed in 2009. Despite the strong and sustained marketing of the premises by companies such as JLL and Vickery Holman there has been no serious interest in the ground floor unit for its designated A1/A3 Use Class (a shop or café/restaurant) .

We submitted an application to remove the condition so that the ground floor unit can be occupied either as a shop, a café/restaurant, a financial institution (A2), or as an office (B1).

Having met initial resistance, we successfully argued that the original restrictive condition and a short temporary grant of planning permission were contrary to the Framework in that they did not encourage a strong, competitive economy, but rather acted as an impediment to sustainable economic growth in this part of Sutton Harbour. The amendments to the GPDO in 2014 allows the change of use of an A1 unit to A2 without requiring the benefit of planning permission.

We still had to fight hard to show the Council that the use of the ground floor by an A2 use was more active and inviting to the Quayside than the empty unit!  Eventually, we were granted the benefit of planning permission and Handelsbanken moved in last week.

With over 10,000 employees, 800 branches and opening over 140 branches in the UK alone in the last 15 years, this Swedish bank has ambitious growth plans.

Please take the opportunity to pop in and say hello if you are passing. The manager is Phillip Harvey. Their official launch will take place later in the summer. May we wish them every success !