And now for something completely different: An NPPF-consultation-free Summer round-Up
It is August. School holiday season. Parliament is in recess. Working parents are trying to juggle work and childcare* and everyone else is trying to cover the inevitable leave requests that arise from that juggle**.
This post is intended to help, by bringing you all up to speed on some non-NPPF related news that might have slipped under the radar over the last few weeks.
PINS releases guidance on how to appeal refusals/failures to discharge Biodiversity Gain Plans
On 29 July, the Planning Inspectorate released detailed guidance on how to appeal an LPA's refusal or failure to approve a Biodiversity Gain Plan.
The guidance states that:
- Only the person who submitted the biodiversity gain plan to the Local Planning Authority may appeal.
- An appeal must be made:
- within 6 months of the date on the Local Planning Authority’s refusal notice; or
- For an appeal against non-determination, within 6 months of the date on which the Local Planning Authority should have determined the plan (i.e., unless a time extension was agreed in writing, 8 weeks beginning from the day after the date the plan was submitted).
- Appeals must be made via the Appeals Casework Portal on the approved forms;
- The Appeal decision can be challenged in the event of a legal error by way of a s.288 Appeal.
West Berkshire repays some self-build CIL charges after review of service
Earlier this year, West Berkshire commissioned an independent review of its community infrastructure levy processes.
The review concluded that there were areas in which the Council could improve it's customer experience of CIL processes, recommending that the Council should:
- "Urgently post a prominent note on the website clarifying that exemptions must be applied for by the applicant as per the regulations and outlining the repercussions of non-compliance.
- Report to the Executive on the benefits of not processing CIL liable domestic extension applications, considering the risks of non-compliance with regulations.
- Report to the Executive on adopting a more lenient approach to self-build claims for genuine self-builders.
- Review the current website content to improve signposting and prominence of CIL matters for residents and applicants.
- Introduce a training program for officers, members, parishes, and agents to improve understanding and implications of CIL."
The Council has been working hard to implement these changes and has, additionally, launched a discretionary review and repayment scheme for homeowners and self-builders who believe they have been incorrectly charged.
In describing the scheme, the leader of the Council stated:
"Previously, some residents faced significant CIL liabilities due to simple errors on complex CIL paperwork. This review allows us to implement a fairer approach, immediately applying changes to enforcement policy for pending and future householder CIL cases.
“Any householder previously subject to CIL liability can request a discretionary review by the Council from 1 June 2024 until 31 May 2025.”
According to BBC reports the first payments under that discretionary repayments scheme have begun to be made. It is anticipated that “more than £200,000 to homeowners who were incorrectly charged when they made home improvements.”
A link to the review and repayment scheme can be found here.
Court rules for first time on Water Neutrality provisions
On 16 July, the High Court handed down it's judgment on water neutrality.
Ward & Anor v Secretary of State for Housing, Communities and Local Government & Anor [2024] EWHC 1780 (Admin) considered the question of whether an existing use had to be “lawful” in order to be taken into account as part of the baseline water useage of the site.
The Court held (in paragraphs 54 to 63) that:
"54. It is clear in my judgment that the Inspector grasped the argument which the Claimants were advancing. The Inspector encapsulates it accurately in DL 27 and 28 – namely that because they were already occupying the Site, there was no increase in water usage from the development. It would simply maintain the status quo.
55. It is clear from the chronology of the appeal process that the Inspector grappled with this point with some care. He issued a direction after the hearing (on 8 August 2022) asking for a water neutrality statement to be prepared and indicating that "it is not sufficient to take the stance that, as the matter is retrospective, the status quo is being maintained and the need for such a statement is obviated".
56. That fairly put the Claimants on notice that the Inspector was minded to the view that a mitigation strategy would be needed.
57. The Claimants' response was to maintain their position. In form they submitted a water neutrality statement. In substance, they continued to contend that there would be no impact on the status quo.
58. The Inspector consulted NE on whether the Claimants' approach was correct. It is fair to acknowledge that he did not receive an unequivocal answer from NE to this enquiry. However, I agree with Mr Lewin's submission that, read as a whole, the thrust of NE's guidance was that the competent authority has to decide whether the proposed residential occupancy has already been granted planning permission (which, I interpose it plainly had not) or whether it was "otherwise accounted for". In the second sentence of NE's response there is an indication (albeit not conclusive) that the focus should be on the impacts of water use "not currently permitted".
59. In the light of NE's response, I do not consider that the Inspector's approach of treating "otherwise accounted for" as akin to "immune from planning control" was outside of the range of reasonable approaches open to him. It reflected the Inspector's judgment (as the competent authority) as to how NE's guidance best applied to the circumstances of this case.
60. The Inspector had well in mind that in the three appeal decisions relied on long standing uses (which did not have immunity from planning control) had been taken into account as part of the baseline for assessing impact in those cases. However, those cases were factually distinguishable from the present case because of the long standing nature of occupation in each such case. Moreover, the precise circumstances of the relationship of the development with the protective habitats differed in each case. The Inspector acknowledged that he was taking a different approach from the previous Inspectors but grounded his approach in the specific circumstances of this case.
61. In my judgment, the Inspector gave an adequate explanation of the approach that he was adopting. He understood and addressed in sufficient detail the Claimant's case and his approach cannot be characterised as an irrational application of the guidance given to him by NE.
62. In my judgment, the Inspector's approach to water neutrality was consistent with NE's guidance and represented a lawful approach to his duties under regulation 63(5) of the Habitats Regulations 2017.
63. I therefore reject the Claimants' first ground of challenge."
Multiple Court Rulings on the weight to be given to BNG benefits in the planning balance.
We have also received a flurry of High Court decisions considering how biodiversity net gain should be treated in the planning balance.
The first of these is Weston Homes Plc, R (On the Application Of) v Secretary of State for Levelling Up, Housing and Communities & Anor [2024] EWHC 2089 (Admin).
The second case (which is actually two joined cases) is Vistry Homes Ltd v Secretary of State for Levelling Up, Housing And Communities & Ors (Rev1) [2024] EWHC 2088 (Admin)
Both cases were decided by the Honourable Mr Justice Holgate and are worth reading in full. If you do not have time, however, you could do a lot worse than checking out the following case notes from Cornerstone (on Vistry) and Planning Resource (on Weston Homes).
*this includes me. Blogs will be much less frequent this month.
** this includes a large chunk of our team - to whom I owe a huge debt of gratitude.
For an appeal against the Local Planning Authority’s decision to refuse the Biodiversity Gain Plan, we must receive the appeal within 6 months of the date on the Local Planning Authority’s refusal notice.
For an appeal against the Local Planning Authority’s failure to determine the Biodiversity Gain Plan, we must receive the appeal within 6 months of the date the Local Planning Authority should have determined the plan (i.e., unless a time extension was agreed in writing, 8 weeks beginning from the day after the date you submitted the plan).”
Key Contact
