The Pinsent Masons Planning Toolkit Series

Update April 2008 The Pinsent Masons Planning Toolkit Series Part 2 - Getting on Site Minor modifications, reserved matters and lawful commencement of development Minor Modifications The Current Position Having obtained a valid planning permission, can the developer amend it in any way? In the real world, the practice of the local planning authority (LPA) agreeing minor modifications to developments is commonplace. The usual practice is that the minor modification is recorded in correspondence between the developer and the LPA and revised plans are deposited. An approval letter is issued by the LPA (though sometimes there can be confusion over this) and a copy retained on the file. In most cases this process causes no problems, but occasionally the carrying out of the development with the modification comes to the attention of affected neighbours or those who opposed the development. The LPA may have sought views on the amendment, or it may not. A complaint is then made to the LPA that the development is not being carried out in accordance with the planning permission. Resolving such complaints can be complex and difficult for the LPA, and the developer can be left in an uncertain position. Existing cases, which deal with the LPA's power to grant permission for development proposals amended after being originally submitted, are relevant to this issue. Bernard Wheatcroft Ltd v. Secretary of State for the Environment [1980] 43 P&CR 233 sets out the classic test for the validity of an amendment to a planning application. Essentially, The result must not be substantially different from the development applied for. It is for the LPA (or an Inspector on appeal) to exercise reasonable judgment as to whether there is a significant difference or not. Wheatcroft involved a reduction in scale of a residential development between refusal and appeal. The further case of Breckland District Council v. Secretary of State for the Environment [1992] 3 PLR 89 involved an enlargement of the site between lodging an appeal and its determination, as opposed to the reduction in scale as was the case in Wheatcroft. Such an amendment was not automatically invalid, but had to be treated with special care. The amendment had not been subject to public comment. In Breckland, the Inspector's view that the amendment was not substantial was considered by the Court to be wrong but the Wheatcroft test of significant or substantial difference was the correct test to apply. Stretchability of Planning Permissions The above existing cases raise the potential for planning permissions to be stretched, notably where outline planning permission exists for development described in the application documents for a certain size e.g. by reference to floorspace or numbers of dwellings. It may be possible to obtain reserved matters approval for development which exceeds such limits if the change is not considered significant or substantial. A particular consideration for outline permissions is the extent of any deviation from any parameter blocks for development which have been incorporated into the outline permission by the terms of the permission (e.g. by condition). Any significant or substantial deviation runs the risk of falling foul of the Wheatcroft test

and being unlawful. That is why margins of deviation in parameter block plans accompanying outline planning applications are key. A complicating factor is where an application was subject to Environmental Impact Assessment (EIA). Whether the Environmental Statement (ES) had properly examined a scenario where the development could be larger is key - the stretchability is limited by the extent to which the likely significant environmental effects would change due to the stretching of the permission - if any likely significant environmental effects would alter, then the permission cannot be stretched that far. A further issue which often crops up with outline planning applications in particular, is whether the quantum of the proposed development (e.g. floorspace or housing unit numbers) can be expressed as approximate to allow room for manoeuvre on any subsequent desired "stretching" of the permission. Provided that the parameters of the proposed development accord with the General Development Procedure Order requirements to set out the the approximate location of buildings, routes and open spaces and the upper and lower limit for the height, width and length of each building stated in the planning application there should not be any particular difficulty in describing quantum of development in approximate terms, particularly for the larger applications where inevitably reserved matters approvals will fix precise amounts of floorspace and housing numbers for example. Possible Legislative Changes Despite the above, it remains the case that allowing changes to planning permissions is not yet specifically covered by the planning legislation, and the practice of individual LPA's in dealing with amendments differs. However, pleasingly this is likely to change in the form of clause 162 of the Planning Bill. This proposes to insert a new section 96A to the Town and Country Planning Act 1990, which allows an LPA following application by a person interested in the land in question, to make a change to any planning permission relating to land in their area if satisfied that the change is not material. In deciding whether a change is material, the LPA must have regard to the effect of the change, together with any previous changes they have made, on the planning permission. An order under the new section will deal with the procedure for applications and what publicity and consultation the LPA will carry out. The existence of a clear statutory power for minor modifications will be welcome. Set against this will be the possibility for disputes and the spectre of judicial review hanging over the question of whether any given change is material. Existing case law such as Wheatcroft is likely to remain relevant in that context. Reserved Matters What do these now comprise? From August 2006, reserved matters have comprised:- (a) (b) (c) (d) (e) access; appearance; landscaping; layout; and scale (defined as the height, width and length of each building proposed within the development in relation to its surroundings ). Where access, layout and scale are not to be determined at the same time as the outline planning application, the outline application must show:- The areas where access points to the development will be situated; The approximate location of buildings, routes and open spaces; and The upper and lower limit for the height, width and length of each building stated in the planning application (parameters). Guidance on changes to the development control system including the new list of reserved matters and design and access statements (DAS) makes it plain that the DAS will form a link between the outline permission and the submission of reserved matters. Thus, developers will need to show that they have taken account of and incorporated relevant details when making their reserved matters applications. Further details will be included in a future Planning Toolkit release on the latest DAS issues. Environmental Impact Assessment An important pitfall in relation to reserved matters is the need to consider whether an environmental impact

assessment or revised assessment will be needed at reserved matters stage. It used to be settled law that in the case of outline applications followed by reserved matters approvals, an EIA could only be required at the outline stage. The situation has changed since the decision of the House of Lords in R v. London Borough of Bromley ex parte Barker [2006] UKHL 52, which followed a referral to the European Court of Justice. The House of Lords held that the (then 1988) Regulations which transposed the requirements as to environmental assessment into English law wrongly did not provide for an EIA at the reserved matters stage in any circumstances. Furthermore, in Barker, the LPA when considering reserved matters applications (including a multiplex cinema pursuant to an outline permission for leisure and recreation) had been wrongly advised that it could not seek an EIA in relation to that reserved matters application. Particularly in the case of major and complex schemes, developers should remain aware of the need to consider whether further EIA is needed at the reserved matters stage, and to make the necessary screening application to the LPA at the reserved matters stage. Much will depend upon the nature of the development, how much information had been given at the outset, how well the EIA at outline stage took account of all potential environmental effects which would be likely to follow as the scheme develops and whether the likelihood of significant effects will alter as the scheme develops. As a result of the Barker case, the Government have provided interim guidance to LPA's and are to introduce new amending regulations following a public consultation. The Town and Country Planning (Environmental Impact Assessment) (England) (Amendment) Regulations 2008 are due to come into force in May 2008 to implement these changes. Further details will be included in a future Planning Toolkit release on EIA. Lawful Commencement of Development How is development begun? two years from the date of the last approval of reserved matters, in the case of outline permissions. These periods have been the default standard since the Planning and Compulsory Purchase Act 2004, which also removed the previous ability for LPA's to extend time limits for permissions by approving applications to vary such conditions. When is development begun? Section 56 of the Town and Country Planning Act 1990 sets out provisions for determining that question. Essentially, for material changes of use the development is begun when the new use is instituted. This sometimes can be an issue and it may be expedient for developers to record when a change of use takes place by site notes and/or photographs. For building, engineering, mining or other operations it is begun when one of a number of material operations first takes place, These material operations can include erecting or demolishing buildings, digging foundation or service pipes or laying out or constructing a road. Frequently Asked Questions Commencement: 1. Does marking out the route of a road with pegs and tapes count? It did in Malvern Hills DC v Secretary of State for the Environment [1982] J.P.L. 439. 2. Can some works be so insignificant so as not to count? Yes when they involve scooping out a hedge in the rough position of a new access for a dwelling; see R. (Connaught Quarries Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 4 P.L.R. 18. 3. Does it matter that works were carried out to begin development with no intention to genuinely keep the planning permission alive? Not any more since Staffordshire CC v Riley [2001] EWCA 257, which made plain that the test as to whether development has been begun is objective and that the developer's intentions are irrelevant. Having applied for and obtained a valid planning permission, it is then important to protect that permission and to lawfully implement it. Every planning permission will contain (or be deemed to contain) a condition which requires that the development should be begun by a particular date. Generally, that date will be after a period of time, normally three years, from the date of the grant of a full permission or The issue of pre-commencement conditions For most substantive developments, there will be conditions on the planning permission which require things to be done before the development is begun. In most cases, these will

require details and schemes to be submitted and approved by the LPA before the development is begun. The actual wording used differs from LPA to LPA (and sometimes within the same planning permission) and the permission should be carefully checked for conditions of this nature. Very often the condition will contain a requirement then to implement the approved details and schemes either generally or by a further event or date in the development (for example, before dwellings are occupied or in the next available planting season). If conditions of this nature are not complied with, then any purported beginning of the development, despite being within the time limit, is likely to be unlawful. It will not count as implementation and will not suffice to keep the permission alive beyond its time limits. The proper principles which apply in this situation were set out in R. (on the application of Hart Aggregates) v Hartlepool BC [2005] EWHC 840 (Admin). The particular condition in question had, in fact, been complied with, but in any event it was not a condition precedent. The question whether development has lawfully been commenced is answered by applying a sequential test:- Firstly, the condition must be properly construed: is it a pre-condition to lawful development? If so, has it been complied with (this is a question of fact). Note that it is not possible to imply conditions into a planning permission and that conditions must be given their proper meaning as a matter of language; Secondly, if it has not been complied with, can the developer bring himself within one of the recognised exceptions, such as having submitted details for approval by the LPA before the time limit, but not having received a response? Finally, even if there is non-compliance and none of the recognised exceptions apply, would enforcement action by the LPA not be possible, because that would breach its public law obligations? For example, it would be irrational or an abuse of power for an LPA to take enforcement action to prevent development proceeding, where the breaches had taken place 34 years ago and the details had in any event been approved under more recent permissions, as was the situation in the Hart case. Checklist for Developers Minor modifications Be aware of the existing Bernard Wheatcroft principle, the possibility (but limitations) of seeking to "stretch" planning permissions, including the EIA constraints. Even when the law on amendments has changed, be aware that the EIA (if any) for a development will need to be looked at to see if the impact of a stretched development has been properly assessed. Reserved matters Make sure that reserved matters details are properly referenced back to the outline permission and the design and access statement, and ensure that approvals are applied for and obtained within the relevant time limits. Check any EIA submitted at outline application stage to see if it properly anticipates the effects of the details submitted at reserved matters stage and if it may not, or if no EIA was done, make a screening application to the LPA or submit an EIA. Commencement Check the planning permission carefully upon receipt and identify the time limits within which further matters need to be approved and by when the development must be begun. Carefully identify all pre-commencement conditions and what needs to be submitted to the LPA to discharge those conditions. If input from other professionals is needed, be sure that they are briefed in good time as to what they need to be submitting. Try to agree a protocol for discharge of conditions with the LPA for substantial and controversial developments. Ensure that the protocol is adhered to. Be clear to whom details and schemes need to be submitted (Consider also our future release in the Planning Toolkit Series on Planning Performance Agreements). Make sure that written approvals and discharges of pre-commencement conditions are obtained and filed for future reference on disposals. Ensure that the development is begun before any time limit expires.

If you have any queries on Getting on Site or any of the Planning Toolkit Series generally please contact Jonathan Riley ( jonathan.riley@pinsentmasons.com), T: 0113 294 5227 Richard Ford (richard.ford@pinsentmasons.com), T: 0121 260 4009 Daniel Drukarz (daniel.drukarz@pinsentmasons.com), T: 020 7418 8261 Pinsent Masons LLP 2008 This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. LONDON BIRMINGHAM BRISTOL LEEDS MANCHESTER EDINBURGH GLASGOW DUBAI BEIJING SHANGHAI HONG KONG T 0845 300 32 32 Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) and regulated by the solicitors Regulation Authority. The word partner, used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm who has equivalent standing and qualifications. A list of the members of the LLP, and of those nonmembers who are designated as partners, is displayed at the LLP s registered office: CityPoint, One Ropemaker Street, London EC2Y 9AH, United Kingdom. We use Pinsent Masons to refer to Pinsent Masons LLP and affiliated entities that practise under the name Pinsent Masons or a name that incorporates those words. Reference to Pinsent Masons is to Pinsent Masons LLP and/or one or more of those affiliated entities as the context requires. For important regulatory information please visit: www.pinsentmasons.com www.pinsentmasons.com