Opposition Move to control Betting Shops defeated in the Localism Bill
by Nick Sanders, June 29th, 2011
Amendments to the Localism Bill continue to be examined at committee stage in the House of Lords today. New clauses were introduced which would make changes to the planning category of betting shops. It is argued that the gambling industry and bookmakers in particular are flouting the gambling rules. Establishments are opening up across London and it is feared that this will have a deadening effect on the diversity of businesses available on the high street.
The aim of the amendment is that local communities and local authorities should have the planning powers to limit new gambling premises, putting betting shops in a sui generis class of their own in the same way that casinos and amusement arcades are. Planning permission would always be required for a new betting shop if this amendment is carried. At the moment betting shops are in Use Class A2, so it is possible to change from a Bank or Estate Agency to a Betting shop without planning permission, provided services are available to visiting members of the public.
The Government has opposed the amendments but have undertaken to would look at the issue further. They announced in the Budget a review of how use class. Orders, relating to a change in use, are handled in the planning system.
By Nick Sanders
Planning Services in the New National Park
by Nick Sanders, June 28th, 2011
The New National Park took over from 1 April 2011 as the planning authority which will include planning permissions, planning policies and enforcement, minerals and waste.
It is entering into agreements with the 15 local planning authorities which would include all planning authorities in East Sussex whereby they will probably continue to decide 98% of the applications. The SDNPA will determine significant applications.
Significant applications will be 10 dwellings, 1000 sq meters of commercial floor space or sites of 0.5 hectares or more unless certain factors apply which means that they will be treated as minor applications. The factors are:
Any residential schemes over 10 dwellings that are proposed within existing towns and are considered to have less significance to the National Park will be decided by the local authorities. Similarly commercial schemes of 1000 to 2999 sq metres floor space within existing commercial centres within towns and some small settlements which are considered to have less significance will be again decided by the local authority.
Some minor development will be considered by the SDNPA if it is considered to be significant. These will include the following:-
- 3 of more dwellings on the edge of a small village or settlement;
- Tourism, leisure and visitor accommodation schemes;
- Individual energy schemes outside existing settlements;
- Smaller scale infrastructure projects outside existing settlements;
- Proposals to alter the operation of some minerals and waste facilities;
- Telecoms communications proposals with visual impact on the SDNPA;
- Proposals for lighting outside existing settlements;
- Smaller scale development which may have acumulative adverse impact on the SDNPA.
If planning applications are identified as significant they will go straight to the SDNPA. However the SDNPA also has powers to recover any applications that are being looked at by the local planning authority and decide it themselves. However it has been made very clear they will not be recovered just because there is a lot of local opposition and a big lobby.
In some significant planning applications the SDNPA link officer may be involved in pre-application discussions.
Enforcement
Local authorities will continue to carry out enforcement and SDNPA’s role is mainly advisory. Similarly with Section 106 Agreements the LPAs will continue to undertake these and the Community Infrastructure Levy (CIL).
Appeals
Appeals will continue to be handled by the local planning authority. If the SDNPA makes a decision which is not accepted then the SDNPA will handle the appeal.
Planning Policy
Current local planning policies continue to apply but joint core strategy work is in discussion with the local planning authorities. An early SPD is going to be promoted to review the inherited saved local plan policies and AONB policies.
Link Officers:
Jim Redwood, South Downs National Park
Ben Linscott, Planning Inspectorate
Update on the Localism Bill: 23 June 2011: Powers and Standards of Local Councils
by Nick Sanders, June 28th, 2011
This is of great interest to developers and the general public as it affects the scope of the local council’ powers, and how members conduct themselves when determining planning applications.
The Bill has been through the House of Lords committee stage, and has undergone several amendments.
Local authority Powers
Following debate at committee stage, the Government brought forward New Clause 12 to meet concerns about the Bill‘s provisions to provide local authorities with a general power of competence. This power would allow local authorities to do anything that an individual generally may do, other than that which is specifically prohibited.
New Clause 12 and its related amendments impose conditions on the use of the general power of competence. The Secretary of State will have power to remove or to change statutory provisions that prevent or restrict the use of the general power of competence: ‘the barrier-buster power’.
However this power will be restricted to ensure that the use of the provision is proportionate to the policy objective intended, that there is a fair balance between the public interest and the interests of any person adversely affected.
Local Authority Standards of Conduct
The Bill contains provisions to abolish the the Standards Board for England, including the Model Code of Conduct, which governs members of your local council. Local council’s will take on the responsibility. However, following debate at committee stage, the Government have decided to impose requirements on local councils to tell the electorate what they are doing in relation to Standards and conduct. They can decide whether or not to have a Code of conduct, but they will have to publicise it, and whether it has revised or abolished its code.
By Nick Sanders
DCLG publishes draft presumption in favour of sustainable development
by Nick Sanders, June 28th, 2011
The Department for Communities and Local Government (DCLG) has published its draft presumption in favour of sustainable development, which will underpin future planning policy. The draft presumption states:
“There is a presumption in favour of sustainable development at the heart of the planning system, which should be central to the approach taken to both plan-making and decision-taking. Local planning authorities should plan positively for new development, and approve all individual proposals wherever possible.”
Local planning authorities should:
Prepare local plans on the basis that development needs should be met, with sufficient flexibility to respond to rapid shifts in demand or other economic changes.
Approve development plan proposals that accord with statutory plans without delay.
Grant planning permission where the plan is absent, silent, indeterminate or where relevant policies are out of date.
The DCLG’s expectation is that the default answer to development is “yes” except where this compromises key sustainable development principles set out in national planning policy.
The DCLG has published the draft wording of the presumption to give an early indication of its intentions, but it is not a formal consultation. The presumption will be at the heart of the new National Planning Policy Framework, which the DCLG plans to consult formally on in July 2011.
However, the Government has resisted moves to include a definition of sustainable development on the face of the Localism Bill when it was debated in Parliament.
Baroness Hanman, the minister who leads for the Department for Communities and Local Government in the Lords, warned peers that such a move risked creating what she termed “a lawyer’s paradise”.
Her comments came as the Upper House began its detailed scrutiny of the legislation. She told Peers: “If there was ever going to be a definition, we would need to be very clear and sure that it would be legally unchallengeable, because definitions never define the whole process and all the opportunities; sometimes they are restricting rather than helpful”.
She explained that “the expectation and understanding is that local people will be best placed to understand what is right for sustainable development locally”.
The minister reminded Parliament that a presumption in favour of sustainable development would be at the heart of the reformed planning system.
She added: “We will look to local planning authorities to prepare local plans on the basis of objectively assessed development needs and with sufficient flexibility to respond to rapid shifts of economic change. They should approve without delay development proposals that accord with statutory plans and should not grant permission where the plan is absent, silent or indeterminate or where relevant policies are out of date”.
By Nick Sanders
CALA Homes Decision
by Nick Sanders, June 4th, 2011
The Court of Appeal in R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government and another [2011] EWCA Civ 639 (27 May 2011), has decided that the proposal to abolish regional spatial strategies (RSS) was capable of being a “material consideration” for the purpose of determining planning applications and appeals.
Cala Homes appealed the High Court’s decision in the second application for judicial review on the basis that the government’s intention to abolish RSSs was not, as a matter of law, capable of being a material consideration under the Local Democracy, Economic Development and Construction Act 2009 because it would subvert section 70(1), which requires there to be a RSS for each region.
The Court of Appeal acknowledged that it would be rare for the intention to abolish RSSs to be a material consideration, as the RSS forms part of the development plan that must be considered by decision-makers. However, the court dismissed the appeal, as one should “never say never”. Decision-makers have the flexibility to consider any other material considerations and there will be a minority of cases where the abolition of RSSs will be relevant.
For example, in the case of a large-scale residential proposal to be developed over the next 15 to 20 years, which had encountered strong site-specific objections, but where the sole justification for granting planning permission is the need to meet the residential development objective for that time period set out in the relevant RSS. In this example, it would not be irrational for a decision-maker to give some weight to the proposed abolition when reaching their decision making it a material consideration.
The Court of Appeal also stated that it could not be assumed that the passing of the Localism Bill 2010-11 would inevitably result in the abolition of individual RSSs, since the action will be subject to the process of Strategic Environmental Assessment.
by Nick Sanders
Localism Bill is on its was to the House of Lords
by Nick Sanders, May 23rd, 2011
The Localism Bill to reform the planning system is now on its way to the House of Lords. Many of the proposed amendments have fallen, and the controversial financial incentive (the New Homes Bonus) to local communities who promote new homes in their area has survived the Commons stage.
However Neighbourhood forums, the bodies who will take decisions on local housing schemes in place of local government, will have to have at least 21 members, and local councils will be required to cooperate with their neighbour councils over more strategic planning issues which affect their areas. The Lords will shortly begin their scrutiny of the Bill.
Apart from the ‘Localism Agenda’, which seeks to put decision making more firmly into the hands of local communities, the Bill seeks to secure the revocation of Regional Strategies, and importantly, the housing targets they had sought to impose on local councils.
In addition to the Bill a White Paper, which will introduce the new National Planning Policy Framework, is expected in July. This again is controversial, as it will continue further the dismantling of detailed central policy advice which has underpinned planning decision-making for many decades.
Developers, and even householders, have had to work with a system which requires them to enter into legal documents under section 106 of the Town and Country Planning Act 1990, which are registered against their development sites as a local land charge. They give financial contributions towards local services such as highways and transport and education and, importantly, to build a percentage of affordable housing, to secure planning permissions. In the recession this became particularly controversial, as developers reviewed the effect on the viability of their schemes.
Previous reforms set out a framework for a different approach to contributions towards local infrastructure, the Community Infrastructure Levy, which can now be adopted by local councils. In practice, as this system will curtail the scope of Section 106 agreements for county-wide services, such as highways and transport and education, Councils are drawing up charging Schedules to levy the contribution. Inspectors will be appointed to examine the charges, and how these are levied for different types and locations of development, and it is possible to submit comments to the Inspector. An update on how councils in Sussex are taking this forward will be sent round in due course. For advice on the operation of the Levy, the kinds of schemes it will affect, and how affordable housing contributions will be treated, please contact us.
For the debate on the Localism Bill, please see below:
Read the Commons Hansard record (begins 17 May 2011, column 195).
By Nick Sanders
Councils in rural areas to change their planning policies
by Nick Sanders, May 5th, 2011
The Government has suggested to Councils in rural areas that they change their planning policies so that redundant farm buildings can be converted to residential use without first insisting on employment reuse.
The Government has asked Councils, which in East Sussex will include Wealden, Rother and Lewes District Councils where there may be a high demand for homes in rural areas to consider revising their local planning policies to support the change of use of farm buildings to affordable homes where these are considered inappropriate for employment use, or take the need for affordable homes into account in assessing individual applications.
The Government has plans to publish a countryside policy statement before the summer recess to ensure “fair treatment of rural people and places” in all its policies. The statement will cover telecommunications, housing, health, education, economic development, energy and transport and will be “suffused throughout” with the role of localism and the Big Society.
The Government will consult widely on a proposal to amend national park legislation to reflect the importance of sustainable development in park authorities’ activities.
DEFRA’s new rural communities’ policy unit will spearhead the initiative.
The Government says it has “no plans” to provide a statutory definition of upland areas, and so far has not agreed to a DEFRA minister with responsibilities across the board for the uplands as the costs of running a “one-stop shop” to give farmers and rural communities access to advice and funding would be “prohibitive”.
By Nick Sanders
Village green registration defeated by permission to develop appropriated land
by Nick Sanders, April 21st, 2011
The High Court has held that notwithstanding registration of land as a village green under the Commons Act 2006, a developer could develop its land pursuant to planning permission granted by the council where the council had previously appropriated the land under section 241 of the Town and Country Planning Act 1990.
The case is interesting because, as the court pointed out, there were no other reported cases on this issue and it was of public importance.
Developers normally need to make careful enquiries to check that no third parties can interfere with their plans to develop land. However, this case establishes that where the council has appropriated land and granted permission to develop, the developer’s rights will override any right to use as a village green. (BDW Trading Ltd (t/a Barratt Homes) v Spooner (representing the Merton Green Action Group) and another [2011] EWHC B7 (QB).)
By Nick Sanders
Marine policy statement for United Kingdom published
by Nick Sanders, April 21st, 2011
On 18 March 2011, the government published the marine policy statement (MPS) for the United Kingdom.
The MPS is the framework for preparing marine plans and taking decisions affecting the marine environment. The MPS also sets out the general environmental, social and economic considerations that need to be taken into account in marine planning and provides guidance on the pressures and impacts that decision makers need to consider when planning for, and permitting development in, the UK marine areas.
The MPS will be of particular interest to bodies that:
- Carry out commercial activities at, or in relation to, the sea.
- Are concerned about nature conservation and biodiversity.
New marine licensing regulations
In addition to the Marine Environmental Framework, EU Member States are required to consider the effects of certain public and private projects on the environment when deciding whether to consent to projects (Environmental Impact Assessment Directive (Council Directive 85/337/EEC) (as amended)) (EIA Directive).
The Marine Works (Environmental Impact Assessment) Regulations 2007 (SI 2007/1518) (2007 Regulations) implement the EIA Directive in relation to certain marine works in the UK. From 6 April 2011, certain marine activities will require a marine licence under the Marine and Coastal Access Act 2009 (MACAA 2009)
The Marine Works (Environmental Impact Assessment) (Amendment) Regulations 2011 (SI 2011/735) (2011 Regulations) amend the 2007 Regulations as a result of the enactment of the MACAA 2009. The 2011 Regulations:
- Provide that the obligations imposed by the EIA Directive will apply in relation to certain marine works.
- Revoke two sets of regulations that currently regulate the extraction of marine minerals by dredging in relation to England, Wales and Northern Ireland. These will be redundant because MACAA 2009 will regulate dredging activity.
- Revoke the Marine Works (Environmental Impact Assessment) (Amendment) (England and Wales) Regulations 2009 Provide that the Marine Management Organisation will be the licensing authority where it is also the regulator.
- Clarify the types of harbour works requiring approval.
- Regulate activities that a would-be regulator proposes to carry out itself that (if carried out by anyone else) would otherwise need regulatory approval.
The 2011 Regulations apply to the UK and come into force on 6 April 2011.
By Nick Sanders
Court of Appeal decision on the demolition of buildings and the need for planning permission
by Nick Sanders, April 21st, 2011
The Court of Appeal has:
- Held that the demolition of buildings was capable of being a “project” falling within Council Directive 85/337/EEC, on the assessment of the effects of certain public and private projects on the environment (EIA Directive).
- Declared unlawful the parts of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 (Demolition Direction) that exempt from the need for planning permission the demolition of listed buildings, buildings in conservation areas, scheduled monuments, buildings other than dwelling houses and buildings adjoining dwelling houses.
This means that planning permission will be required for these forms of demolition and that an Environmental Impact Assessment (EIA) will need to be carried out if the demolition is likely to have a significant effect on the environment. (R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2011] EWCA Civ 334.)
By Nick Sanders