Pick & mix planning: Fees, s.73, Article 4 and LURB in the Lords
A lot has happened since my last post*, so much that I couldn't choose a single topic to write about. Instead, I have picked a selection of my favourites... enjoy...
1. Surprising statements from DLUHC
There have been a lot of surprising statements from DLUHC of late, but I am going to focus on just two of them.
Firstly, if anyone has not yet watched last week's Have We Got Planning News For You, please do. It is a must watch. Primarily for the discussion with Joanne Averley, the Chief Planner, about the proposed changes to the NPPF.
In that discussion, Averley defended the proposed changes against claims that they would inevitably lead to lower levels of housing being planned, stating that there would: "still be a high bar in evidencing why you should defer from local housing need and the reasons for doing so”.
Perhaps unsurprisingly, the panel did then ask about the implications of deleting the policy requirement that local plans should be 'justified' from the NPPF, but I don't want to give too much of the episode away. Needless to say, it was a fascinating listen.
The other big, non-NPPF related, take-away was that a consultation on how the new Infrastructure Levy is intended to operate is 'imminent'. Clearly, this is one that I am waiting for with baited breath.
Speaking of consultations, we have also had a promise from Lucy Frazer, the Housing Minister, to consult on increasing planning fees in the near future. This consultation was originally promised last may, but has yet to materialise.
If nothing else 2023, looks like it is shaping up to be the year of the consultation.
2. A helpful case on the scope of s.73
The High Court has handed down a very helpful judgment clarifying the scope of s.73 TCPA 1990.
In Armstrong v The Secretary of State for Levelling Up, Housing and Communities, James Strachan KC (sitting as a Deputy Judge of the High Court) finally cleared up a fairly common misconception about the scope of s.73 of the TCPA.
Namely, that s.73 is not limited to 'minor material amendments'. It is, instead, as stated in the statute, a power that enables you to vary the conditions on the face of a planning permission.
The Judge sets out eight separate reasons for this. However, the crux of the argument can be found in the first three, which I have set out below:
"First, I consider the correct starting point must be the words of section 73 of the TCPA 1990 itself. As the Defendant accepts, there is nothing in section 73, or in the TCPA 1990, that limits its application to “minor material amendments”, or to amendments which do not involve a “substantial” or “fundamental” variation. On the face of the words used, s.73 applies to any application for planning permission for development of land “without complying with conditions subject to which a previous planning permission was granted” (see s.73(1)). It limits the local planning authority’s consideration to the “question of conditions subject to which planning permission should be granted (see s.73(2)). There are other limitations as to its scope such as those in ss73(4) and (5), but they are not engaged here. There is nothing in the language used that restricts an application to vary or remove a condition to “minor material amendments”, or to what a decision-maker considers to be a “non-fundamental variation”. I accept that the absence of such a limitation on the face of the statute does not automatically mean that such limitations cannot arise as a matter of statutory interpretation, in accordance with well-established principles requiring one to consider the meaning of a statute and its statutory purpose. However it is an important starting point that, on the face of the statute, provided the application is limited to non-compliance with a condition (rather than any other part of the permission) it falls within the stated scope of s.73 of the TCPA 1990.
Second, as now properly understood in light of Finney, the requirement that a s.73 application be confined to applications for non-compliance with a condition is significantly restrictive in and of itself. There is no obvious need, justification or statutory purpose for reading in additional restrictions which are not expressed on the face of the statute. Finney confirms that section 73 cannot be used to vary the operative part of a planning permission. It is a section concerned with non-compliance with condition, rather than the operative part of a permission. One therefore cannot use s.73 to vary or impose a condition where the resulting condition would be inherently inconsistent with the operative part of the planning permission; that would also involve effective variation of the operative part of the planning permission as well. That point was exposed clearly in Finney where the resulting varied condition caused the Inspector to omit the conflicting words in the description of development in her decision. The power under s.73 is therefore a limited one (as briefly observed in Hillside). But in such circumstances, it is difficult to see why it is necessary to introduce or read in further limits on its scope which are not otherwise expressed in the section itself. If, as accepted to be the case here, an application for non-compliance with a condition does not lead to any conflict or inconsistency with the operative part of the permission, it is difficult to see why it is objectionable in light of the statutory purpose of section 73 and the TCPA 1990 itself.
Third, section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission. Any such variation application will be subject to the necessary procedural requirements for its consideration which, for example, enable representations to be received. If Parliament had intended the power to restrict its application further (for example to limit it to “minor material” amendments to a condition, or non-fundamental variations to a condition) one would have expected that to be expressed in the language used and it could readily have done so."
3. Yet another Article 4 Intervention
On 2 Febuary, DLUHC issued its 18th modification to an Article 4 Direction since June 2022.
This time it was the turn of Brighton & Hove City Council to have the extent of its Article 4 Direction removing class MA permitted development rights scaled back.
The rationale for the change is remarkably similar to the earlier class MA modification orders.
"The Article 4 direction, as made, does not take a sufficiently targeted approach in the assessment of the wholly unacceptable adverse impacts of the permitted development right in each location. Such an approach is necessary to ensure that the Article 4 direction applies only to the smallest geographical area possible. The Secretary of State is therefore of the view that the boundary must now be modified in accordance with the notice attached to this letter.
Modification will ensure that the Article 4 Direction is focused on protecting the most significant office provision in the centre of Brighton and areas of commercial activity where the permitted development right would have a wholly unacceptable adverse impact. It includes offices, town centres, local centres and local parades, which provide essential employment and retail provision for residents and visitors."
4. LURB in the Lords
In other news, LURB is continuing to wind its way through the Lords and is due to enter Committee Stage on 20 Febuary.
At last count, the Lords have tabled 134 amendments covering everything from climate change to reducing health inequalities. As such, the upcoming committee hearings are likely to be worth our attention.
5. Family planning
And finally, DLP and the LPDF launched a fascinating report earlier this week, tracking the connection between house prices and fertility rates.
The report explores the correlation between rising house prices and falling fertility rates in the UK. Concluding that: "polices which do not address house price inflation and concentrate new provision in private rented apartment schemes in the larger urban areas and do not provide family sized accommodation for owner occupation will continue to be contributory factor in the country’s falling fertility."
In short, failing to address our housing crisis has much wider societal ramifications than you might expect. We are not just failing to house our current population, we may well be contributing to its overall decline.
Who would have guessed that town and country planning and family planning were so closely connected.
*not least, my eldest boldly declaring that she is going to live with us forever. Which is both sweet and terrifying in equal measure.
However, Averley said there would “still be a high bar in evidencing why you should defer from local housing need and the reasons for doing so”.
The “onus will be on local government to explain and be clear about why they shouldn't meet their local housing need”, she said, adding that “it is about exceptional circumstances”.”
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