PLANNING LAW UPDATE or Top Ten from 2006

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PLANNING LAW UPDATEor Top Ten from 2006

• JAMES FINDLAY
• 2-3 GRAYS INN SQUARE

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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.

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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)

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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

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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

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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 Societys Planning
  Environmental Law Committee) see article and
  response in December 2006 JPL

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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

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6. EXCEPTIONS TO TPOS

• 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

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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.

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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

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9(a) DELAY JR

• Hardy v Pembrokeshire CC others 2006 EWCA Civ
  240, 2007 JPL 284
• Planning challenges still need to be made
  promptly.

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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.

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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