| Winckworth Sherwood |
Issue 32 Planning Ahead |
 |
|
bb133eleftPlanning Ahead Issue 32 - August 2010 
| |
|
| Review of Coalition Planning Reforms |
|
An inquiry into the abolition of Regional Spatial Strategies has been launched by the Communities and Local Government Committee. Interested parties must submit evidence by 15 September. The inquiry will focus in particular on the implications of the abolition of regional house building targets for levels of housing development and the likely effectiveness of the Government's plan to incentivise local communities to accept housing development. There will also be an inquiry in relation to the Government's localism agenda and interested parties must submit evidence by 1 October.
|
| Clarification on Ancillary Use of Residential Accommodation |
|
In the case of Westminster City Council v Davenport [2010] EWHC 2016 a large London property had planning permission to be used for diplomatic purposes, which stated that when such use ceased, it could only be used for residential accommodation. The local authority identified a number of unlawful uses including use for filming, nightclubs and other parties, exhibitions and fashion shows. In June 2006 the Council issued an enforcement notice on both the owner and the occupier, requiring compliance with the planning permission. Following complaints from residents that such activity was continuing, the Council successfully applied for an interim injunction restraining D from breaching the planning permission.
D brought an application for discharge of the injunction, claiming that his use of the property was indeed residential and that hiring out the home for various events was ancillary to the said residential purpose. He pleaded that the property had always been seen as a grand townhouse used to offer entertainment and impress guests. He argued that the 2006 enforcement notice was a nullity, the Council not having correctly identified or assessed a breach of planning control.
The Court granted a permanent injunction prohibiting unauthorised non-residential use of the premises. The premises had been used for commercial purposes that could not be reasonably characterised as ancillary to residential use. The enforcement notice was valid and had not been appealed, so the Council was right to bring injunction proceedings against D. If D wished to stage events to raise funds to fund the maintenance and upkeep of the property, he needed to apply for the relevant planning permissions to allow him to do so. |
| Wind Turbine Planning Permission Quashed |
|
In the case of R (Friends of Hethel Ltd) v South Norfolk DC [2010] EWCA Civ 894 planning permission was granted for 3 wind turbines. The environmental statement noted that a number of Grade I and II* listed buildings could be adversely affected by the proposals. Despite a recommendation for granting planning permission from the planning officers, the area planning committee voted 5-3 against the proposal. However, under the Council's rules, because this decision went against the officers' recommendation and did not garner a 2/3 majority, the case was referred up to the full planning committee, who voted 8-7 in favour of the scheme.
H applied for judicial review on the basis that the requirement for a 2/3 majority at area planning committee stage was contrary to the majority voting requirements in the Local Government Act 1972. At first instance, the judge found that s101 of the Local Government Act authorised the Council's arrangements. H appealed this ruling, and also submitted that the Council had failed to consult English Heritage on the proposals, as was required by Circular 01/01.
On appeal, it was held that the delegation arrangement was unlawful as the 1972 Act expressly stated that all decisions were to be made by majority vote. Whilst the council could delegate planning decisions to an area planning committee in principle under s101, it could not impose a requirement for a 2/3 majority. Furthermore, unless the committee had satisfied itself that listed buildings would not be affected by the scheme, English Heritage should have been consulted. There was no evidence the committees had satisfied themselves of this fact, particularly as they were in receipt of the environmental statement. For these reasons, the planning permission was quashed. |
| Feedback |
PLANNING AHEAD
Issue 32 - August 2010
Revised Guidance on Strategically Important Views in London
Uncertain Planning Permission saved by s106 Agreement
Review of Coalition Planning Reforms
Clarification on Ancillary use of Residential Accommodation
Wind Turbine Planning Permission Quashed
Revised Guidance on Strategically Important Views in London
Following consultation upon the draft revised London View Management Framework (LVMF) in May 2009, a new Revised LVMF SPG was published on 29 July 2010 which replaces the previous version published on 13 July 2007. The new SPG sets out the Mayor's strategy for protecting London's urban landscape and heritage and seeks to designate, protect and manage 26 views of London and some of its major landmarks. The LVMF explains this policy approach so that boroughs, applicants and other statutory authorities can assess a policy's compliance with the London Plan. The LVMF can be viewed below:
http://www.london.gov.uk/sites/default/files/LVMF-SPG-July%202010-pt1_0.pdf
Uncertain Planning Permission Saved by S106 Agreement
In the case of R (Midcounties Co-Operative Ltd) v Tesco Stores Ltd & others [2010] EWCA Civ 841 Tesco was granted a planning permission, which specified a maximum 'net retail sales' space of 2919 sqm. However, Tesco's application had stated a 'retail trading floor space' of just 2403sqm, although the layout plan had a 'net sales' space of 2919sqm.
The Applicants claimed that the planning permission granted was for a larger area than applied for, or alternatively was void for uncertainty.
At first instance the judge observed that the difference between the figures of 2403sqm and 2919sqm was explained by the latter including parts of the shop beyond the checkouts intended for use as lobbies, circulation areas, ATMs etc, but the space for retail sales was indeed limited to 2403sqm. However, the Applicants on appeal pleaded that, under the planning permission, Tesco could extend the sales area beyond 2403sqm (by reducing the area beyond the checkouts) and thus create a sales area exceeding that which had been applied for.
The respondents claimed that any legal difficulties presented by this were cured by the s106 agreement, which limited sales space to 2401sqm. The applicants disputed this, as a s106 agreement can be varied by agreement, or discharged after 5 years. It therefore does not have the force of a planning condition.
The Court of Appeal held that the planning restrictions, taken as a whole, clearly limited the development to that which was applied for. If the Council wished to vary either the planning permission or the s106 agreement, they would need sound planning reasons for doing so.
Review of Coalition Planning Reforms
An inquiry into the abolition of Regional Spatial Strategies has been launched by the Communities and Local Government Committee. Interested parties must submit evidence by 15 September. The inquiry will focus in particular on the implications of the abolition of regional house building targets for levels of housing development and the likely effectiveness of the Government's plan to incentivise local communities to accept housing development. There will also be an inquiry in relation to the Government's localism agenda and interested parties must submit evidence by 1 October.
Housebuilder CALA Homes is also seeking to judicially review the Government's decision to abolish regional spatial strategies.
Clarification on Ancillary Use of Residential Accommodation
In the case of Westminster City Council v Davenport [2010] EWHC 2016 a large London property had planning permission to be used for diplomatic purposes, which stated that when such use ceased, it could only be used for residential accommodation. The local authority identified a number of unlawful uses including use for filming, nightclubs and other parties, exhibitions and fashion shows. In June 2006 the Council issued an enforcement notice on both the owner and the occupier, requiring compliance with the planning permission. Following complaints from residents that such activity was continuing, the Council successfully applied for an interim injunction restraining D from breaching the planning permission.
D brought an application for discharge of the injunction, claiming that his use of the property was indeed residential and that hiring out the home for various events was ancillary to the said residential purpose. He pleaded that the property had always been seen as a grand townhouse used to offer entertainment and impress guests. He argued that the 2006 enforcement notice was a nullity, the Council not having correctly identified or assessed a breach of planning control.
The Court granted a permanent injunction prohibiting unauthorised non-residential use of the premises. The premises had been used for commercial purposes that could not be reasonably characterised as ancillary to residential use. The enforcement notice was valid and had not been appealed, so the Council was right to bring injunction proceedings against D. If D wished to stage events to raise funds to fund the maintenance and upkeep of the property, he needed to apply for the relevant planning permissions to allow him to do so.
Wind Turbine Planning Permission Quashed
In the case of R (Friends of Hethel Ltd) v South Norfolk DC [2010] EWCA Civ 894 planning permission was granted for 3 wind turbines. The environmental statement noted that a number of Grade I and II* listed buildings could be adversely affected by the proposals. Despite a recommendation for granting planning permission from the planning officers, the area planning committee voted 5-3 against the proposal. However, under the Council's rules, because this decision went against the officers' recommendation and did not garner a 2/3 majority, the case was referred up to the full planning committee, who voted 8-7 in favour of the scheme.
H applied for judicial review on the basis that the requirement for a 2/3 majority at area planning committee stage was contrary to the majority voting requirements in the Local Government Act 1972. At first instance, the judge found that s101 of the Local Government Act authorised the Council's arrangements. H appealed this ruling, and also submitted that the Council had failed to consult English Heritage on the proposals, as was required by Circular 01/01.
On appeal, it was held that the delegation arrangement was unlawful as the 1972 Act expressly stated that all decisions were to be made by majority vote. Whilst the council could delegate planning decisions to an area planning committee in principle under s101, it could not impose a requirement for a 2/3 majority. Furthermore, unless the committee had satisfied itself that listed buildings would not be affected by the scheme, English Heritage should have been consulted. There was no evidence the committees had satisfied themselves of this fact, particularly as they were in receipt of the environmental statement. For these reasons, the planning permission was quashed.
Sara Hanrahan - Partner
Tel: 020 7593 5144
Nicola Raistrick - Partner
Tel: 020 7593 0275
Richard Bull - Solicitor
Tel: 020 7593 5074
Anjana Ghosh - Solicitor
aghosh@wslaw.co.uk
Tel: 020 7593 5088
| Winckworth Sherwood |
Newsletter |
|
| Section 1 Feugiat consequat vero. Section 2 Feugiat consequat vero. Section 3 Feugiat consequat vero. |
|
bb133eleftEditable text goes here
Editable Title Facilisis, dignissim ve Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Ut iusto hendrerit, te vero ut ad te diam adipiscing facilisis facilisis. Eum ut laoreet facilisis laoreet, autem et augue facilisi lobortis ut ut accumsan vero eu aliquip praesent consequat blandit aliquip. Tincidunt iriure veniam dolore sit delenit vero aliquam dignissim et. Facilisis, dignissim ve Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Ut iusto hendrerit, te vero ut ad te diam adipiscing facilisis facilisis. Eum ut laoreet facilisis laoreet, autem et augue facilisi lobortis ut ut accumsan vero eu aliquip praesent consequat blandit aliquip. Tincidunt iriure veniam dolore sit delenit vero aliquam dignissim et. | |
|
| Editable Full Width Title Goes Here. Facilisis, dignissim ve Eniam. |
| Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis. |
| Editable Full Width Title Goes Here. Facilisis, dignissim ve Eniam. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis. |
| Feedback |
Page