A Planning Law update for England and Wales delivered by David Delaney and Ian Kinloch of Aaron & Partners LLP

1. Planning Law Update 2013
David Delaney, Head of Planning
Ian Kinloch, Consultant

2. The Growth and Infrastructure
Act 2013
• Poorly Performing Planning Authorities
– Submit applications direct to Planning Inspectorate
– Consultation paper issued June 2013
– Performance of LPA assessed July 2011 to June
2013

3. The Growth and Infrastructure
Act 2013
• Permitted Development Rights – Prior
Approvals
– General Permitted Development Order
– New permitted development rights
– Local authorities can decline repeat applications

4. The Growth and Infrastructure
Act 2013
• Town and Country Planning (General Permitted
Development) (Amendment) (England) Order
2013
– Class A – Household Extensions

6. The Growth and Infrastructure
Act 2013
• Class J
– Change of use of office to residential
• Class K
– Change of use to state funded school
• Class L
– Change of use from state funded school
• Class M
– Change of use of agricultural buildings

7. The Growth and Infrastructure
Act 2013
• Class C
– Use for temporary state funded school
• Class D
– Change of use aimed at helping new business

8. The Growth and Infrastructure
Act 2013
• Unviable Affordable Housing Requirements Section 106
Planning Agreements
– Right to apply to modify affordable housing obligations on the grounds of
viability
• The Town and Country Planning (Modification and Discharge of
Planning Obligations) (Amendment) (England) Regulations
2013
– Change does not affect planning obligations where 5 yr period has
expired or those entered into after 6 April 2010

9. The Growth and Infrastructure
Act 2013
• Public Rights of Way
– Enables stopping up or diversion of highways to
commence before planning permission granted
– Facilitates the process for landowners to make
statements and declarations to counter rights of
way claims
– Section 31 (6) – prevents new public rights of way
arising for a period of 10 years

10. The Growth and Infrastructure
Act 2013
• Village Greens
– Reduces the period within which a village green
application can be made from 2 yrs to 1 yr
– Deposit of statement and map to protect land from
registration
• Commons (Registration of Town or Village
Greens) and Dedicated Highways (Landowner
Statements and Declarations) (England)
Regulations 2013

11. The Growth and Infrastructure
Act 2013
• Village Greens
– Introduction of trigger and terminating events
– Exclusion applies where trigger event occurs until a
terminating event occurs
– Trigger and terminating events are set out in
Schedule 1A of the 2006 Act

12. The Growth and Infrastructure
Act 2013
• Village Greens- Further Reforms
– Proposed amendments to extend trigger and
terminating events
– Additional events to Schedule 1A will be applicable
regardless of the date when the new Order comes
into force

13. The Growth and Infrastructure
Act 2013
• Village Green Case Law
– R (Barkas) v North Yorkshire CC [2013] 1 WLR
1521
– Clarifies/expands when land held by public
authorities for recreation can and cannot be
registered as village greens

14. The Growth and Infrastructure
Act 2013
• Village Green Case Law
– R (Newhaven Port) v East Sussex CC [2010] P&CR
8
– The beach was registered as a village green as the
consequences of registering the beach for the
future discharge of the Port Authorities statutory
function was not a proper ground to hold that the
beach was not capable of registration.

15. The Enterprise and Regulatory
Reform Act 2013
• Conservation Area Consents
– Removal of the requirement for consent to demolish
an unlisted building
– Came into force 1 October 2013
• Listed Building Consents
– Listed buildings list to specify objects or structures
not to be treated as part of the listing

16. The Enterprise and Regulatory
Reform Act 2013
• Certificate of Immunity
– No need for a concurrent planning application
• Heritage Partnership Agreements
– To be put on a statutory basis
• National and Local Class Consents
– Granting consent for certain categories of work, thereby removing need
for separate listed building consent
• Certificate of Lawfulness
– Removal of need for listed building consent where the works do not
impact on a building of special interest

17. Streamlining the Planning
System
• The Town and Country Planning (Appeals) (Written
Representations Procedure and Advertisements)
(England) (Amendment) Regulations 2013
• The Town and Country Planning (Development
Management Procedure) (England) (Amendment No.
2) Order 2013
• The Town and Country Planning (Hearings and
Inquiries Procedure) (England) (Amendment) Rules
2013

18. Government Consultations
• Extension to permitted development rights
– Greater flexibilities for change of use
• Office change of use to residential
• Agricultural change of use to residential

19. Government Consultations
• Extension to permitted development rights
– Retail change of use to bank/building society
– Change of use to state funded school/nursery
• Offices, hotels, residential, non-residential
• Agricultural building

20. Government Planning
Practice Guidance
• Lord Taylor’s Review
Recommendations
– New format for practice guidance
– Roles and responsibilities
– Planning professionals
– Unique source of information
– Timescales for implementation
– Additional ideas to improve planning practice
guidance

21. Government Planning
Practice Guidance
• Lord Taylor’s Review
– Test version launched on 28 August 2013
– Guidance clearer and more accessible
– Guidance linked to National Planning Policy
Framework

22. Judicial Review
• Proposals for further reform
– Specialist Planning Chamber
– Specialist Planning Judges
– Procedural time limit rules
– “Leapfrog” to Supreme Court
– Permission filter in Section 288 challenges
– Legal aid for High Court challenges

23. Across Offa’s Dyke
Planning in Wales 2013
Ian Kinloch, Solicitor

24. Let’s start with a little quiz
• All these people started new jobs in 2013
• How many do you recognise?

31. Less hectic in Wales!
• None of these apply:
–
–
–
–
Special measures’
The new Town or Village Green provisions
Change of use from offices to dwellings
Time-limited additional domestic permitted development
rights
– Removal of affordable housing requirements in s106
obligations

32. I’m not based in Wales!
What has this to do with me?
• Because if not now then possibly in the future:
– You do business in Wales
– Your have property interests in Wales
– You have clients with business or property interests in Wales
• We can no longer “read across” our knowledge of
planning law and procedure from England

33. So what do we have then?
• Let’s start with yr iaith y nefoedd – the language of
heaven:
– Technical Advice Note TAN 20
– Issued 9 October 2013: Planning and the Welsh Language

34. TAN 20
• Purpose is to provide guidance on how the Welsh
language should be considered when Local
Development Plans are being prepared
• Where a local authority identifies ‘the protection and/or
enhancement of the Welsh language” as a priority for
its area, the Local Development Plan “should consider
this priority in so far as it is relevant to the use of land”.

35. Suggested strategies for
supporting the language
• Positive promotion of local culture and heritage
• Planning the amount and spatial distribution of new
development and infrastructure
• Phasing of strategic housing and employment developments
• Directing strategic sites to communities where evidence
suggests positive impact of the use of the Welsh language
– if evidence suggests the likely impact to be negative those impacts can
be mitigated

36. BUT!!!
• Policies should not seek to:
– Introduce any element of discrimination between
individuals on the basis of linguistic ability
– Control housing occupancy on linguistic grounds

37. Planning Guidance
• Supplementary planning guidance may specify
mitigation measures to support LDP policies such as:
– Bilingual signage
– Support and funding for language induction and staff
language lessons
– Local labour contracts
– Support for Welsh medium schools
– Support and funding for language and cultural awareness
activities
• CIL and s106 agreements may be used

38. Permitted development
• Dwellinghouses
• From 30 September 2013, the General Permitted Development
Order is amended for Wales (SI 2013/1776 W.177)
– The changes do not precisely mirror those in England under the 2008
amendments
• New Part 1 domestic permitted development rules
– Enlargement, improvement or other alteration of a dwellinghouse,
additions and alterations to roofs, erection etc of porches, swimming
pools etc

39. Permitted development
• Moves away from volume thresholds to “impact assessment”
• As in England in 2008
• Introduces concept of the “principal elevation” of a
dwellinghouse
• Requirement to use porous or permeable materials or direct
run-off to porous or permeable areas when laying hard surfaces
on front gardens that face a highway

40. Natural Resource Wales
• New body operational from 1 April 2013 taking over
duties of:
– Environment Agency Wales
– Countryside Council for Wales
– Forestry Commission Wales

41. Here’s some they made earlier…
• Notification Direction 2012
– All “departure applications” no longer need to be referred to Welsh
ministers
• But the following have to be referred
– Significant residential development (more than 150 dwellings or a site
greater than 6 hectares) not in accordance with development
– Flood risk area development
– Minerals or waste development not in accordance with the development
plan
– Aggregates development in National Parks and AONBs

42. New Procedure Orders
• In force from 30 April 2012
• Development Management Procedure (Wales) Order 2012 (SI
2012/801 W.110)
• TPO consent applications (SI 2012/792 W.107)
• Listed Buildings and Conservations Areas Regulations 2012 (SI
2012/793 W.108)
• New edition (5th) of Planning Policy Wales, October 2012

43. Coming (soon?)
• Draft Planning Reform Bill promised for consultation late 2013,
to be introduced in Assembly before 2014 Summer recess
– likely to introduce major changes to planning law and
procedure and the workings of local planning authorities
• Following Planning Reform Act, a Planning Consolidation Bill
will be introduced
• Heritage Bill to be consulted upon and then introduced into
Assembly in 2014
• Sustainable Development Bill – consultation closed and Bill
intended to be introduced in “Autumn 2013”

44. Thank you, Any Questions?
David Delaney, Head of Planning
01244 405538
david.delaney@aaronandpartners.com
Ian Kinloch, Consultant Solicitor
www.aaronandpartners.com
Twitter @AaronsLegal