February 14th, 2024 by James Goudie KC in Planning and Environmental

The Town and Country Planning ( General Permitted Development ) ( England ) ( Amendment ) Order 2024 S.I. 2024/141, made on 13 February 2024, and coming into force on 5 March 2024, amends the GDPO, by, amongst other respects, permitting the use of commercial, business and service us to use as dwelling houses. It will no longer be necessary that the building has been vacant for a continuous period of at least 3 months.



February 13th, 2024 by James Goudie KC in Planning and Environmental

The Department for Levelling Up, Housing and Communities has commenced Consultations on (1) changes to several existing permitted development rights and (2) changes to national planning policy to support brownfield development.



February 13th, 2024 by James Goudie KC in Planning and Environmental

The two claims in REDROW HOMES LTD v SoS for LEVELLING UP, HOUSING AND COMMUNIIIES and HERTSMEREBOROUGH COUNCIL and in MEAD REALISATIONS LTD v SoS and NORTH SOMERSET COUNCIL ( 2024 ) EWHC 279 ( Admin ) raised issues about both the interpretation and the application of the sequential test in national policy on flood risk.
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February 12th, 2024 by James Goudie KC in Planning and Environmental

There is a duty not only to conserve but also to enhance biodiversity. Section 135 of the Environment Act 2023,  on biodiversity net gain, pre-development biodiversity value and habitat enhancement, comes into force from 12 February 2024 : S.I. 2024 No. 92 ( C. 6 ).With some exemptions, all major housing developments are now required to deliver at least a 10% benefit for nature. Biodiversity Gain Requirements, linked to Biodiversity Plans, and with a concept of “ irreplaceable habitat “ , will be a condition of planning permissions. This follows six sets of Regulations made in January 2024 on biodiversity : S.I.s 2024 /45-50inv.



January 23rd, 2024 by James Goudie KC in Planning and Environmental

A further batch of Biodiversity Regulations : Sis 2024/45 & 46, on Biodiversity Gain Site Registration, and SI 2024/50, on planning modifications and amendments.



January 22nd, 2024 by James Goudie KC in Planning and Environmental

In relation to biodiversity gain in England, the Environment Act 2021 ( the 2021 Act ) inserted Section 90A of and Schedule 7A to TCPA 1990. Subject to exceptions, every planning permission is deemed to be granted subject to general condition. The biodiversity gain requirement is that the biodiversity value attributable to the development exceeds the pre-development diversity value by at least the  statutorily specified percentage. Biodiversity value means value calculated in accordance with a metric.

Three sets of Regulations have been made under the 2021 Act as part of a package in relation to biodiversity gain. Exemption Regulations, S.I. 2024/47, prescribe categories of planning permission to which the requirement that would otherwise be imposed as a general condition do not apply. There are small development, de minimis and householder exemptions. There is also exemption for development “ forming part of, or ancillary to “ the high speed railway network, development undertaken “ solely or mainly “ for the “ purpose “ of fulfilling the condition which applies to another development, and self-build and custom build.

Irreplaceable Habitat Regulations, S.I. 2024/48, also in force from 12 February 2024, define “ irreplaceable habitat “ for the purpose of securing that a biodiversity gain objective is met, and disapply the requirement to increase the biodiversity value of developments sites. Alternative arrangements must be made to minimise the adverse effect of the development on the biodiversity of the habitat where that habitat is deemed “ irreplaceable “. The Consequential Amendments Regulations, S.I.2024/49, relate to biodiversity gain plans.


Agent of change principle

October 25th, 2023 by James Goudie KC in Planning and Environmental

The Agent of Change Principle is expressed at paragraph 187 of the NPPF: planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities.  This is because existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. In R (TOTTENHAM HOTSPUR LTD) v HARINGEY LBC (2023) EWHC 2569 (Admin) Saini J at paragraphs 48-50 inclusive rejected a challenge that the LPA had failed lawfully to apply the principle, in relation to a major primarily residential redevelopment adjacent to the Tottenham Hotspur Stadium,  The planning framework created a framework which would ensure that access to the Stadium, a key planning consideration, would be satisfactorily achieved without unreasonable impact on the Club.  The Principle does not demand no impact. A judgment by the LPA is required.



July 6th, 2023 by James Goudie KC in Planning and Environmental

The Habitats Directive (notwithstanding Brexit) and domestic Regulations mandate that an appropriate assessment be undertaken before planning consent is given for a development. That is irrespective of what stage in the planning process has been reached according to domestic law. In C G Fry and Son Ltd v SoS for Levelling Up, etc (2023) EWHL 1622 (Admin) Sir Ross Cranston holds that application of Article 6(3) of the Directive and a broad and purposive approach to the interpretation of Regulations 63 and 70 of the Regulations requires the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required for the whole development would be undermined if those provisions were limited to the initial, permission, stage of a multi-stage process.



April 27th, 2023 by James Goudie KC in Planning and Environmental

Section 78 of the Building Act 1984 gives a local authority power to take steps to deal with a building or structure which is in a dangerous state, such that immediate action is needed to remove the danger. Does this power abrogate the ned to obtain planning permission, where this would otherwise be required in order to take the necessary steps? Yes, says Lane J in R ( Samuel Smith Old Brewery ) v Redcar & Cleveland BC ( 2023 ) EWHC 878 ( Admin).The exercise of the power is not contingent upon any need to have obtained planning permission. The fact that planning permission was required, but not obtained, by the Council before commencing demolition of the property, an unlisted building in a conservation area, did not mean that that the Council acted outside the Section 78 power.


Planning Officer Reports

February 15th, 2023 by James Goudie KC in Planning and Environmental

The legal principles relating to the Reports of Planning Officers are well settled. Nonetheless challenges based on such Reports continue to proliferate and Judges find it necessary to restate those principles. In R ( Armstrong ) v Ashford Borough Council ( 2023 ) EWHC 317 ( Admin ) at para 22 Bourne J summarised the principles as follows : (1) the weight to be given  to material considerations is for decision-makers to decide; (2) Reports to Planning Committees should be concise and focussed; (3) the assessment of how much and what information to include is for the expert judgment nf Planning Officers; (4) Judicial Review will not make headway on the basis of a defective Report unless the overall effect of the Report significantly misleads the committee about material matters which thereafter are left uncorrected at the Meeting of the Planning Committee; (5) Courts should make a fair reading of each Report as a whole; (6) Reports should be read bearing in mind that they are addressed to a knowledgeable readership, and in challenges to the decisions of democratically elected and experienced  members of Planning Committees Courts should proceed with prudence and caution.