PLANNING LAW UPDATE or “Top Ten from 2006”

1. PLANNING LAW UPDATEor “Top Ten from 2006” JAMES FINDLAY 2-3 GRAY’S INN SQUARE

2. 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.

3. 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)

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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.

10. 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

11. 9(a) DELAY & JR • Hardy v Pembrokeshire CC & others [2006] EWCA Civ 240, [2007] JPL 284 • Planning challenges still need to be made promptly.

12. 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.

13. 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