Whether they hold property in central urban areas or on sprawling rural campuses, our clients are often faced with the public accessing their land for recreational use, which gives rise to the risk of the land being registered as town and village green (TVG). In short, recreational use of land for at least 20 years 'as of right' (which is to say without force, secrecy or permission) can lead to such registration. This is a problem as, once land has been accepted as constituting TVG, to all intents and purposes it is rendered incapable of development, short of the use of convoluted CPO powers. And, as the Southbank Centre recently found with its attempt to redevelop a skate park to fund the refurbishment of its Festival Wing, recreational use of even the most urban of spaces can potentially give rise to such protected status.

However, provisions of the new Growth and Infrastructure Act 2013 could make the grass (or even lack of it) a lot greener for landowners.

Section 16 of the Act now excludes the right to apply for land to be registered as a TVG following certain "trigger events", which include first publicity for a planning application, development plan or neighbourhood development plan. Assuming planning consent is granted and the land then developed in accordance with the consent and within the prescribed period, the risk of developments being derailed by a strategic TVG application has been extensively curtailed. The right to apply to register a TVG can take effect again if prescribed "terminating events" occur, such as the withdrawal or refusal of planning applications where all means of challenging refusal have been exhausted. Nonetheless, the benefit for landowners is clear- in the Government's words: "The Growth and Infrastructure Act will help…by introducing a comprehensive series of practical measures to reduce confusing and overlapping red tape that delays and discourages business investment, housing development, new infrastructure and job creation".

Of course, there may be a risk that Section 16 provokes a rash of new applications for registration as a 'pre-emptive strike' against future development, so landowners may not be able to breathe easy just yet. Under separate provisions of the Act, landowners will be able to take statutory steps to prevent use being deemed 'as of right' by periodically lodging a statement and plan with the commons registration authority. However, those provisions have not yet been brought into force, so it will be interesting to what reaction the 'live' parts of the Act receive over coming months.

We will of course keep you updated as to when the remainder of the provisions come into force but if you have any queries in the meantime, please get in touch

Nevertheless, although some weight was given to the concerns, there was insufficient evidence to back them up so this weight was limited. An environmental permit had been issued shortly before the inquiry, and the Secretary of State declared himself bound to proceed on the basis that the pollution control regime would be properly applied and enforced. PPS10 continues in force and has not been superseded by NPPF.

The Inspector addressed the Localism point saying; "localism has generated a high level of expectation that decisions on controversial developments should be taken locally". That expectation was not met in this case. Following the Tewkesbury decision, the writing has been on the wall for the future of Localism in any event.

Interestingly, a screening opinion from the Council (confirmed by the Secretary of State) concluded no EIA was needed. Nevertheless, a voluntary ES was submitted (the direction on the issue from the Secretary of State will have disapplied the application of the EIA Regulation 3 prohibition on grant in spite of the voluntary ES).

The development in question was the erection of 2 large silos for barley storage, a lorry park/wash bay and associated infrastructure. One of the key issues was the risk of pollution of the River Wensum. A package of standard mitigation measures was offered and on that basis, NNDC concluded there was no risk of pollution and no Assessment was needed. The advice from Natural England agreed with that conclusion.

Those measures formed the basis of proposed conditions which officers put before committee. At the meeting, however, although members were minded to approve, one member who had experience of relevant matters (through membership of the local IDB) argued for conditions which would require monitoring of water quality, with the developer taking "all reasonable steps" if water quality was found to diminish due to the development.

The decision (and the advice of Natural England) were challenged on the basis that if the condition had any purpose, it must be to deal with the risk of pollution. If there was risk of pollution then an Assessment should have been undertaken.

The Court found for this point and the permission was quashed - "it does not seem to me that the Council could, rationally, adopt both positions at once" said the judge.

The outcome might be seen as unfortunate  - had it not been for the suggested condition, at committee, the point would have been found in favour of the Council. Natural England's advice was not quashed because they had applied the correct standard.

The form of the conditions was also set out in the judgement - but no comment was made on whether they achieved the desired result in any event. Conditions requiring ongoing monitoring with measures to be identified in the future are not easy to draft and care must be taken to ensure they are properly imposed.

s38(6) Planning and Compulsory Purchase Act 2004 requires planning applications to be determined in accordance with development plan policies unless material considerations indicate otherwise. The case contains clear reminders that the NPPF is just one of the material considerations which must be taken into account pursuant to this legislation.

 
To quote the Court, “it is a fundamental and long established principle of planning law that something identified as a ‘material consideration’ is conceptually distinct from considerations identified in the development plan and does not ceteris paribus carry the same weight as an aim or consideration identified in the development plan itself.”.

The Court found that there was no legal flaw in the Inspector’s approach in this case and he was entitled to give decisive weight to the NPPF. A reminder was also given that the balance of considerations is for the decision-maker to strike.

 
The case (Nita Colman V (1) Secretary Of State For Communities & Local Government (2) North Devon District Council (3) RWE NPower Renewables Ltd (2013)) concerned an application for consent for nine wind turbines in North Devon, and challenged the grant of consent by an Inspector following a refusal by the local authority.

 
The Inspector concluded that the relevant policies (which the Court agreed must mean the express terms of the policies, and not any implicit limitation) were not up to date and therefore carried less weight that the presumption in favour of granting consent in the NPPF.  

The regulations will say that properties in use for retail, financial services, restaurants, pubs, takeaways, offices, leisure and assembly uses will be able to change to other use classes for a temporary period of up to 2 years. The permitted changes will be to retail, financial services, restaurants and cafes and offices.

It is also reported that 17 local authorities have been granted the exemptions from the new rights to change use from office to residential - the exemptions relate to specific buildings, roads or zones within those authorities' administrative areas. A majority, as expected, are London Boroughs. Others include Stevenage, Ashford, Manchester City, Sevenoaks and Hampshire.

In relation to agricultural buildings, those which are under 500m2 will be able to change to other business uses, with prior approval being required for those between 150m2 and 500m2.

The existing permitted development right to change from business/ general industrial to storage and distribution (and from that use to business use) will be extended to units up to 500m2 (from 235m2).

Offices, hotels and units in assembly or leisure use will be able to change (permanently) to a state-funded school, subject again to prior approval (to cover highways, transport and noise impacts). Other buildings will be able to change to use as a state-funded school for a period of 1 academic year.

For home and business owners, the size threshold for extensions will be extended, for an initial 3 year period. This will be subject only to the residential neighbour consultation scheme that has made headlines recently.

More details to follow as necessary.

It is worth remembering that "the developer" (in the sense of the person most likely to make an application under the new provisions) may not necessarily be someone entitled to do so. To be a person against whom the obligation is enforceable, the developer would either have to be the original landowning covenantor, or be a person who derives title from that original party. There are a number of potential arrangements involving landowner and developer, under which the developer may take a site forward (following the grant of planning permission) - not all will of necessity mean that the developer falls into the category of "person deriving title", not least for land not currently under development - which may be where a modification of affordable housing requirements may fall to be discussed.

It may be that the landowner may have to make the application  - although costs may be met by the developer. In fact, there will be many cases where the landowner may wish to make such an application depending on the nature and terms of the agreement between the landowner and the developer. One may have more to gain than the other.

No particular methodology for viability assessment is prescribed. An "open book" approach is strongly preferred (although not essential) and the starting point will be to review the viability assessment which informed the original grant of planning permission (assuming there was such an assessment). The assessment submitted to justify a review should follow the same methodology as was used in the original application - with any changes properly justified and explained. All other obligations (ie non affordable housing obligations) will remain unchanged - so the updated viability assessment must assume them and focus only on affordable housing.

Note that where an application to review goes to appeal, the Inspector can only allow a reduced affordable housing requirement for a 3 year period. After that, the requirement reverts - save for parts of the development already commenced. The  guidance suggests that local planning authorities may want to time limit any modifications it is minded to make.

Probably the most significant point is that, in spite of a significant proportion of consultees being opposed to the change,  the time limit is to be reduced from 3 months to 6 weeks - with no requirement that the case be brought "promptly". The promptness requirement is seen as not necessary with the reduced time limit. The pre-action protocol will be disapplied from these cases.

MOJ also advise that they are looking at other ways of streamlining JR process, particularly for infrastructure and housing projects so we can look forward to more proposals for reform over the coming months.

This time limit reduction will be good news to the property industry - but bear in mind that there is now a cap on the costs exposure for "environmental" JR challenges (5k where the challenge is brought by an individual) and this, together with the disapplication of the pre-action protocol, may make challenges more reaslistic for third parties, even if they have to move more quickly.

The consultation is seeking views on the proposal that regulation 123 should be extended to include section 278 agreements, so they cannot be used to fund infrastructure which is on the local charging authority’s CIL list.  Whilst this might take away the double counting/double payment issue, where the 278 works are necessary for the development, a developer may still prefer to fund these directly and see that they are undertaken in time, rather than commit a CIL payment to the CIL pot and wait and see when the works are delivered.  If the payment in kind provisions are revised as suggested, that will present a solution to the issue, if such provisions are adopted by a charging authority.  Perhaps the proposals will be more relevant to larger scale highways works, which are to be funded off the back of several approved developments – in which case they are likely to be larger financial commitments and developers are likely to welcome an end to the possibility of double charging, albeit with the potential uncertainty around the timing of delivery of the works.