#13590 - Planning And Environmental Issues - Advanced Commercial Property

2 – PLANNING AND ENVIRONMENTAL ISSUES

TCPA = Town Country and Planning Act 1990

UCO = Use classes order 1987

EA = Environmental Act 1995

Planning Permission – Any ‘development’ requires planning permission s.57(1) TCPA. Development includes building operations and material changes in use s.55 TCPA.

Building

• Building operations = demolition, rebuilding, structural alterations, other operations normally undertaken by builders s.55(1A)TCPA – exceptions in s.55(2)(a)TCPA. Mezzanine floor – requires planning permission if the mezzanine floor increases the gross floor space by 200sq metres or more. NOTE – local authority may use an Article 4 direction to dis-apply certain parts of the GDPO to conservation areas.

Use

• Use changes within the same class are not material changes of use and do not require planning permission. A material change of use is where the use of a property changes from one use class to another Art 3(1) UCO. However, some use changes are permitted by the GDPO – thus no planning permission is required.

• ‘Sui generis’ are a class of their own (not covered by a use class) – any change of use from sui generis requires planning permission. Art 3(6) UCO – sets out sui generis uses.

• NOTE – CON29R will reveal refused PP’s – this will indicate to the client the sorts of uses that the local planning authority is not willing to grant permission for.

Types of planning permission

• Outline planning permission – agreement in principle subject approval from the LPA on ‘reserved matters’ (i.e. details). There is no guarantee the LPA will agree to the detail.

• Full/(detailed) planning permission – Includes application for approval of detailed matters.

• Limited planning permission – limited by time or personal.

Obtaining permission.

• Permission can be either 1) refused/ granted unconditionally; or granted with conditions (with reference to the LPA development plan). s.70(2) TCPA requires the LPA to have regard to the ‘development plan’ in determining planning applications.

• Planning permission and conditions attached to it run with the land.

Decision periods

• LPA must make a decision within 8 weeks from submission of the application – potentially 13 weeks for major developments. If an EIA (‘Environmental Impact Assessment) is required, up to 16 weeks – if there has been no decision in that period, it is a deemed refusal.

• For outline permissions, application for the approval of reserved matters must be made within 3 years of the grant of permission (otherwise permission lapses) – must be commenced within 2 years from the final approval.

• Formal written confirmation of planning permission is required – a letter indicating an intention to approve does NOT constitute the granting of permission.

Timescales for implementation.

• Works must commence within 3 years of the application (Post 24/08/05) (Pre 24/08/05 – 5 years). Development completion notices can be served by the LPA s.94 TCPA, if work has commenced but subsequently stopped for a prolonged period.

• Duration – the planning permission usually runs with the land and will be thus indefinite, s.75(1) TCPA – unless it is a limited or personal planning permission.

• Must also consider the other permissions which may be required Other consents required potentially – listed building consent, building regulations approval, conservation area consent, person with benefit of covenant consent, potentially.

Planning permission – conditions

• TCPA the local authority may impose conditions as it sees fit s.70 TCPA and s.72(1)(a) TCPA but case law confirms that this power is fettered Newbury DC v SSE: The condition must serve a useful planning purpose; it must fairly and reasonably relate to the development; and it must not be unreasonable.

Appeals to planning permission

• Applicant may appeal within 6 months from the LPA’s decision s.78 TCPA. The appeal must be in a prescribed form and be sent to the planning inspectorate, (a copy must also be sent to the LPA). It must state the (1) grounds for appeal and (2) preference for decision-making process.

• Challenging the appeal – In the high court, s.288 TCPA – by an ‘aggrieved person’ (applicant or third party with ‘locus standi’) – within 6 weeks of appeal decision if the decision made was not within powers of the TCPA or if any procedural requirements were not complied with.

• Third parties with ‘sufficient standing’ may challenge decisions within 6 weeks of the permission being granted if the Secretary of State’s action is not within the powers of the TCPA 1990; or if any procedural requirements have not been complied with s.288 TCPA.

Planning obligations, s.106

• LPA can require that any person interested in the development enter into a planning obligation to restrict/ regulate the development so that it is acceptable to the LPA, s.106(1) TCPA.

• *** Planning obligations attach to the land and can impose positive and restrictive covenants enforceable against ALL successors in title, s.106(3) TCPA***.

• s.106A(3)-(4) allows an application for discharge or modification of any conditions attached to a s.106 agreement five years or more from the date of the agreement.

• Differences between PP’s and planning permissions (1) they can apply to matters on and off the development site. They can also (2) require a payment of a sum of money to an LPA.

• A s.106 agreement must be made by a deed.

When acting for a client acquiring a site with a s.106 obligation in place, should (1) obtain a copy of the agreement, considering and advising on the nature and extent of any conditions (2) ask the seller’s solicitors which of the s.106 obligations remain outstanding and which have been complied with, along with evidence (3) Consider whether application for modification/ discharge is possible s.106A(3)-(4) TCPA.

CIL ‘Community Infrastructure Levy’

• The local authority may also impose the Community Infrastructure Levy (‘CIL’) – This is a planning charge can be used to generate funds wider regional infrastructure – The CIL can run alongside s.106 agreements.

• Two essential pre-conditions for imposing a CIL – 1) The LPA in question must have up-to-date planning policies 2) they must have a formally prepared charging schedule, setting out the CIL rates within a charging authority’s area.

• Basis of the charge – size and nature of the development – charged on the net internal area of the buildings and calculated by reference to ‘each chargeable unit.

• Paid to the collecting authority (normally the same body as the Charging Authority (i.e. the LPA) – Payment will not be due until the development has started – and is payable within 60 days from commencement date.

• Non-payment – The collecting authority is can interest on outstanding sums, impose surcharges in respect of breaches and can issue stop notices to halt development until CIL is paid.

CIL is a local land charge and will be revealed by an LLC1 – CIL runs with land and is an issue for a purchaser.

Certificates of Lawfulness

• Apply to the LPA – If granted, the certificate is conclusive evidence of lawfulness, no enforcement action can be taken – no need to apply for PP.

• ‘CLEUD’ Certificate of lawfulness for past use – In relation to unauthorised past uses – In order to obtain a CLEUD, the applicant will have to submit evidence to the LPA of 10 years continuous use (for example a statutory declaration from current owner).

• ‘CLOPUD’ Certificate of lawfulness for proposed use or development. Particularly important for developers wanting to sell – the CLOPUD confirms the proposed development does not require planning permission and is therefore lawful.

• Applicant must ensure that there HAS NOT been any...