Playing Catch Up: Key cases, More PIB Amendments, Beavers and Hot Cross Plans
The Bank Holiday is over. The children are back in school and most of the chocolate wrappers have been tidied away.
As we all slowly return to normal, after a ridiculously late Easter, I thought it might be helpful if I used this post to catch-up on some of the key events of the last few weeks.
Forgive me if the post is a little less detailed than usual. It is a little hectic at the moment*, so I am actively trying to be concise. Wish me luck!
Let's start with some important court decisions:
Greenfields (IOW) Ltd, R (On the Application Of) v Isle of Wight Council & Anor [2025] EWCA Civ 488
Thankfully, this case has been quite widely reported - so I will keep this brief.
The Court of Appeal has ruled on the potential consequences of an LPA failing to publish a draft s.106 Agreement on the planning register prior to grant of permission, in breach of the legal duty in Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015.
Thankfully, the Court of Appeal stopped a long way short of saying that a failure to publish the largely final draft agreement will always render a grant of planning permission unlawful. However, it is now clear that in certain cases it can do so.
The issue in this particular case, was that the heads of terms for the s.106 Agreement required the payment of a highways contribution to enable specific works to be carried out - but did not include the amount.
The amount secured in the completed s.106 Agreement was less than the anticipated cost of carrying out the works and no explanation was given for this.
In those circumstances, the Court of Appeal held the Objectors would have wanted to comment on the draft agreement and those comments might have had an impact on the outcome. The decision was quashed.
The decision highlights the wisdom of:
- Ensuring that detailed heads of terms for s.106 Agreements are contained in Planning Committee Reports and/or are on the planning register; and
- Publishing engrossment draft s.106 Agreements, at least for large or controversial applications, on the planning register prior to issuing the permission - this could be done whilst the engrossments are out for signature with minimal delay.
This is first High Court case that rules on the question of when a planning application was “made” for the purposes of the transitional provisions for Statutory BNG.
In this instance, the planning application was received by the Council on 11 January 2024, but was not validated until 18 April 2024.
The key question in the case was when the application was made. If it was made before 12 February 2024, Statutory BNG did not apply. If it was made after 12 February 2024, Statutory BNG did apply - and the Council had failed to secure it.
The Court held the application was made when it was received.
It is, however, a fairly nuanced -albeit very clear- decision, so it is worth reading the key paragraphs in full.
These are set out below:
"23. In my judgment it is clear from the authorities that the answer to the question: when is an application "made"? is wholly dependent on context and in particular wholly dependent on the construction of the relevant regulatory or statutory provision in respect of which the question arises. Whether or not this application for Judicial Review is arguable depends entirely on the correct construction of Reg.3 of the Regulations. It is important that the authorities are considered in that light.
24. Reg.3 only falls to be considered when planning permission has been granted on a given application. Sect.3(3) of the 1985 Act (see Camden) only falls to be considered when planning permission is refused or when conditional permission is granted. In each case the relevant authority must have reached a decision on the application and determined it. It follows in each case there must necessarily have been a valid, complete application.
25. Reg.10(5) of the Fees Regulations (see Geall) on the other hand, only applies where there has been no determination. It follows, in such a case that the application might, at the relevant time, be invalid.
26. Mr Fraser KC's argument, that the guidance in Geall applies and must be followed has, in my judgment, no realistic prospect of success. In fact, I can go further, I am satisfied that an application is made for the purposes of Reg.3 of the Regulations when it is received (see Camden) by the authority. I reach that view for the following main reasons:
a. In my view the decision in Camden is binding on me. There is no material difference between sect.3(3) of the 1985 Act and Reg.3.
b. Even absent Camden I would have come to the same conclusion.
c. Geall relates to a different provision and provides no guidance on the correct interpretation of Reg.3 of the Regulations."
Leaving the Courts behind for a moment, let's check in with the Planning & Infrastructure Bill.
PIB enters Committee Stage
Yesterday, the Planning & Infrastructure Bill formally entered committee stage in the House of Commons.
There have been a large number of new amendments proposed to the bill in the immediate run up to the first sitting of the public bills committee - most important of which are a series of government amendments that would remove the statutory requirement for pre-submission consultation from the NSIP Regime (Amendment Gov NC44).
The rationale for these amendments was set out by Matthew Pennycook in a Written Ministerial Statement on 23 April, which can be accessed here.
They are not, however, the only new amendments that we should be paying attention to.
The 24 April Amendment Paper also contains Gov NC39. This Government amendment proposes introducing a new provision that would allow the Secretary of State to make regulations imposing a surcharge on planning application fees.
The surcharge must, if imposed, be set by reference to the costs incurred by bodies, listed in regulations, which provide advice in the planning application process, including by way of consultation responses.
Presumably this is intended to fund the activities of statutory consultees, but this hasn't been made entirely clear….
We also have the following - backbench - amendment, which is frankly a little odd.
If accepted, this would mean that every time someone obtained planning permission for a residential extension, but then decided not to build it out; whether that be because they had:
- changed their mind about building it;
- run out of money to build it;
- or decided they didn't like the design and applied for a different consent instead
The LPA would automatically be given ownership of their house.
Unlike the various Government backed amendments to this bill; somehow, I don't see this one being taken forward.
Meanwhile in DEFRA:
Natural England publishes new standing advice for planning applications where Beavers are on site
Now, I wasn't aware that the English beaver population was large enough to warrant its own standing advice from Natural England…. but clearly it is, as Natural England published it on 7 April.
The guidance provides advice to LPAs on:
- How beavers are protected
- When to ask for a survey
- Assess the effect of development on beavers
- Avoidance, mitigation and compensation measures
- Planning and licence conditions
- Enhancing biodiversity; and
- Site management and monitoring
And is a material consideration for planning applications where beavers may be present on a site or impacted by a proposed development.
And finally, a post-Easter Local Plan spat…
Horsham's Local Plan in Hot Water
The Examining Inspector dealing with Horsham's local plan wrote to the Council earlier this month, advising that he had real concerns over the soundness of the plan - and whether the Council had complied with its Duty to Co-operate - in part as a result of how the Council had dealt with Water Neutrality issues affecting both the district and the wider area.
Horsham hit back, in a hard-hitting response, earlier this week - which can be read in full here. The response includes the following statement:
"Horsham District is an area of acute water stress and since 2021 delivery of new housing has been severely restricted by the legal requirement for all new developments to be ‘water neutral’ to prevent further damage to the internationally important Pulborough Brooks wildlife sites.
To help deliver water neutral development, Horsham has led on developing the innovative Sussex North Offsetting Water Strategy, known as the SNOWS scheme. This manages the water available for new plan-led developments through improved water efficiency and offsetting. This approach to Water Neutrality, has already been accepted by the Planning Inspectors for Chichester and Crawley’s Local Plans.
Despite this, Mr Fleming has written to the Council saying that he does not accept the Council’s strategy and considers we should have done even more to find water solutions that would significantly increase the number of homes delivered in the District. Mr Fleming feels the Council should have done more to provide housing for Crawley’s unmet housing need under our legal ‘Duty to Cooperate’ obligation.
The Council strongly disagrees with the Inspector’s conclusions, as it has worked consistently and effectively with all organisations, including adjoining authorities, during preparation of its plan and particularly on the issue of water neutrality."
This, increasingly heated, disagreement rather highlights the importance of the Planning & Infrastructure Bill.
Water Neutrality is a very difficult issue for LPAs to resolve, without effective mechanisms for cross-border strategic planning, or significant government support in bringing ALL necessary stakeholders (including water companies) to the table to find a solution - as happened in Cambridge.
Labour's answer to both of these issues are contained in PIB and, imperfect as those answers might be, when it comes to finding a solution to Water Neutrality; an imperfect answer is better than no answer at all.
*A late Easter plus an April financial year-end is not a happy combination.
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