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Planning & Environmental Law

Planning: Starter Homes Initiative
Friday 15th January 2016

2016 has started with a flurry of announcements from the Department of Communities and Local Government (“DCLG”) relating to the house building industry.  Previous to those announcements, we had many relating to the Starter Homes Initiative which was brought in under the coalition government in March last year.  At that time, DCLG published guidance to support the implementation of the National Starter Homes Exception Site Planning Policy.  This was to enable development on under used or unviable industrial and commercial land for starter homes development.  A starter home is one which is designed for first time buyers, based purely on the local housing market which would be sold at a minimum of 20% below the open market value.  It was envisaged that this reduction would be funded by reducing the amount obtained from the development via planning obligations. 

But what is underused or unviable industrial and commercial land?  Is this for local planning authorities to decide and they can take into account a number of different factors such as:

  1. The land used for this site is significantly below that of other sites with a similar permitted use in the area;
  2. There is a high percentage of vacant units and these have been vacant for some time;
  3. The land is allocated for employment use but has not been marked actively for a period of time; and
  4. There is a lack of recent development activity to improve the commercial or industrial site. 

This means that if a developer can avail itself of the above factors, there will be a presumption in favour of development on such brownfield sites. 

This change in planning guidance was given further support in the autumn statement and in December 2015, DCLG produced a consultation on the changes to the National Planning Policy Framework (“NPPF”) which will help the delivery of new housing to “get Britain building again”.  David Cameron has been quoted as saying that he wants to build 200,000 new homes in the next 5 years.  To do this, there will need to be fundamental policy changes to assist with the planning process.

The chances to the NPPF are to broaden the definition of affordable housing to include such starter homes, or homes which are offered at a discounted rate of open market value.  This is a welcome change by housebuilders, but it is not seen as such by the social housing sector. 

In addition, the Housing & Planning Bill will bring in the brownfield land presumption in favour of development provided that the development includes starter homes.

In addition, the government has recently announced that it will directly commission affordable house building on publicly owned land.  The aim is for quality homes to be built by smaller building firms to fast track the creation of up to 30,000 homes on 500 sites by 2020.


Thames Water fined record £1 million following Environment Agency Prosecution
Wednesday 6th January 2016

Thames Water have again found themselves in receipt of a significant fine imposed by the Court as a result of breaches of Environmental Legislation.

This latest fine, which is the largest ever to be given in an Environment Agency prosecution, was imposed at St Albans Crown Court on Monday 4th January 2016. The company was prosecuted for 2 breaches of the Environmental Permitting (England and Wales) Regulations 2010 dating back to between July 2012 and April 2013. The breaches related to repeated incidents of pollution from the Tring Sewage Treatment Works into the Grand Union Canal, Hertfordshire.

The company pleaded guilty to both offences in May 2015 before Watford Magistrates Court, however, the matter was sent to St Albans Crown Court for sentencing. The Sentencing Hearing took place on Monday 4th January 2016 before HHJ Bright QC and the company was fined £1 million and ordered to pay £18,113.08 prosecution costs and £120 victim surcharge.

This latest decision comes following a recent failed attempt by Thames Water to appeal a £250,000 fine imposed in 2014 as a result of a separate environmental prosecution. The Court of Appeal gave a written decision in June 2015 which upheld the £250,000 fine. In their decision Lord Chief Justice Thomas, Mr Justice Mitting and Mr Justice Lewis stated that the fine would have been upheld even if it would have been a larger sum. This decision showed that the Court of Appeal were taking a hard stance in respect of environmental offences.

Similarly, the decision of HHJ Bright QC appears to follow this hard stance with HHJ Bright QC stating that the Courts need to be clear that large organisations need to bring about necessary reforms and improvements because if not then the sentences imposed will be sufficiently severe to have a significant impact on their finances.

The recent significant fines come as a result of the Sentencing Council’s Definitive Guide for Environmental Offences which came into force in 2014. This provides detailed guidance to be considered by the Court when sentencing either a defendant company or individual. The result of which is that significantly higher fines are now being imposed than under the previous regime.

This latest decision by HHJ Bright QC appears to be sending a clear message to large companies that the Courts can and will impose significant financial penalties for environmental offences. 


A Devolved Liverpool
Tuesday 24th November 2015

This week saw a historic announcement and agreement between the government and the local authorities of the Liverpool City Region which sets out what a devolved Liverpool could look like and what devolution could achieve.

The Agreement reached in what is now called the “Liverpool City Region Combined Authority Devolution Agreement” sets out the ambitions for this new authority.  The region has an opportunity with new devolved powers and the introduction of the Northern Powerhouse to re-establish itself as a “development friendly” city.  

The Agreement provides for economic development, transport, housing and planning, employment and schools, the use of energy and the effect of the environment, culture as well as funding agreements and these will shape the lives of the residents and businesses in this area.

What will this mean for planning, environmental and renewable energy projects going forward?  

In terms of planning, the new regional mayor will exercise strategic planning powers to help accelerate economic growth and new housing development throughout the city region.  This will include the development of single statutory city region framework which will support the delivery of strategic employment and housing sites throughout the city as well as creating a Brownfield Register to support this statutory framework.  There will also be the identification of key sites throughout the region to assist in redevelopment of strategic zones.  

In terms of energy and the environment, there has been a recognition that over recent years, the Mersey Estuary has been greatly improved and there is a commitment to ensure that it meets the cleanest river standard by 2030 and a commitment to ensure that it is discharge free by 2040.  

What is significant however, and perhaps a game changer in regional development, is the strategic aim to incorporate renewable energy into the region’s business growth.  To do this, the regional authority will look to provide power through a tidal energy scheme as well as other renewable energy projects within the area.  This has one aim, to drive growth within the Northern Powerhouse which could generate low carbon energy for businesses and consumers throughout the region.  This makes this Devolution Agreement unique and a counter to the current government’s stance on energy production from non-renewable energy sources and is therefore forward thinking in attempting to achieve low cost energy security for everyone within the region.  

Watch this space for more updates and seminars on this topic.  


Permitted Development Rights Extended
Friday 16th October 2015

It was quite a day for Brandon Lewis on Tuesday with not one but two press releases.  With the hype many people were focused on the new Housing and Planning Bill which will see a Conservative Party manifesto pledge reach the statute books.  It set out a raft of proposals from starter homes, right to buy and pay to stay.

There was another press release however which will see the permitted development rights introduced in 2013 to allow offices to be converted into houses to be made permanent next year.  This right was initially due to expire in May 2016.

In addition to it being a permanent fixture on the permitted development list it will also be extended to cover light industrial and launderettes.  It is still subject, however, to prior approval by the Local Planning Authority.

The Government hope it will help to transform underused buildings in city centres, “breathe new life” into neighbourhoods as well as protecting the green belt.  So fair it says that there have been 4,000 conversions since 2013.

This change was expected earlier this year, but it was delayed by the Government until now.

There is some concern that the permanence of this right will encourage further development which is not subject to any affordable housing requirement, but it is clear that if they can be managed effectively the re-use of underused buildings is a positive step for any neighbourhood.


Planning Freedoms and More Houses to Buy
Thursday 16th July 2015

The new Conservative Government has wasted no time in its efforts to make further reforms to the planning system.

The latest reforms form part of the government’s ‘Fixing the Foundations’ package, published on the 10th July 2015. Entitled, Planning Freedoms and More Houses to Buy’, the package of reforms announced amongst other measures a zonal system of development on brownfield land whereby the government will legislate to grant automatic planning permission in principle on brownfield sites. The government has already committed to preparing statutory registers of brownfield land suitable for housing in England. Importantly, this ‘automatic permission’ will only apply to sites on the register.

The principal of introducing a ‘zonal system of brownfield development’ in England will by definition, remove decision making powers away from local communities and certainly appears contrary to the old Coalition Government’s agenda of Localism.

Other reforms announced on the 10th July include a fixed deadline for local authorities to have an adopted Local Plan in place and more planning powers for the Mayor of London. In particular, the government will work with the Mayor of London to introduce radical proposals to remove the need for planning permission for upwards extensions, for a limited number of stories up to the height of an adjoining building. However, this will only apply in cases where neighbours do not object to the proposals. If objections are received, then an application will be considered in the normal way.

Finally, a set of measures have also been proposed to improve the planning process itself, including:

  • Allowing major infrastructure projects with an element of housing to apply through the Nationally Significant Infrastructure Regime (NSIP);
  • Tightening the planning performance regime, so that local authorities making 50% or fewer decisions on time are at risk of designation;
  • Legislate to extend the performance regime for minor planning applications, so that local authorities processing those applications too slowly are at risk of designation;
  • Introduce a fast-track certificate process for establishing the principle of development for minor development proposals, and significantly tighten the ‘planning guarantee’ for minor applications; and
  • Introduce a dispute resolution mechanism for section 106 agreements, to speed up negotiations and allow ‘housing starts’ to proceed more quickly.

In summary, it would appear from the measures introduced by the government that the proposals are a serious attempt to promote growth and importantly, boost residential development. However, as with other attempts to radically change the planning system, it will now be interesting to assess the further detail which will be released by the government over the coming months in relation to these proposals.


How do you interpret a Planning Permission?
Thursday 2nd July 2015

In Stephens (t/a KCS Assets Management) –v- Blaenau Gwent County Borough Council (2015), Mrs Justice Patterson provided a useful analysis of how to interpret a planning permission. 

The case related to a Judicial Review application seeking to challenge a decision made by Blaenau Gwent County Borough Council (“the Council”) to grant planning permission for a photovoltaic solar park. Mrs Justice Patterson considered whether the planning permission which was granted by the Council was both confusing and illogical. Also, whether the Council had failed to consider material considerations and whether there was a gap in the legislation relied upon by the Council following a change in that legislation.

All of the claims for Judicial Review where dismissed by Mrs Justice Patterson, however, paragraphs 27 to 29 of her decision does provide a useful analysis of how to determine a planning permission.

Firstly, Mrs Justice Patterson refers to the general rule in construing a planning permission which when it is clear,  unambiguous and valid on its face,  regard may only be had to the planning permission itself,  including the conditions (if any) on it and the express reasons for those conditions. 

In paragraph 29 of her decision, Mrs Justice Patterson went on to state that “on its face, a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what had been permitted.  In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission. If the Local Planning Authority does not wish to approve the plans submitted with the Application and wishes to approve amended plans, then it can include a statement to that effect in the planning decision notice.”

Although this case raises no new law, it is a useful and interesting reminder of the law in this area and in particular how to interpret a planning permission.


Environmental Crime Doesn’t Pay: The Future of High Fines
Monday 8th June 2015

Last year Thames Water was fined £250,000 for polluting a nature reserve with raw sewage.  This case was dealt with under the new Sentencing Council’s definitive guide for environmental offences.

This is a substantial fine and even more so when considered against the previous regime prior to the implementation of the guidelines.  Under the old regime the fine imposed would have not been anywhere near this magnitude.

Thames Water appealed the level of the fine to the Court of Appeal and it is this judgment that gives us a clear indication as to what the Courts are likely to do when environmental offences are brought before them as this is the first time the Court of Appeal has considered the implication of the new guidelines.

Thames Water was obviously hoping for the level of fine to be reduced, but the Court of Appeal upheld the fine and went further by saying it would have done so even if the fine had been a much larger sum.

In a written decision, Lord Chief Justice Thomas, Mr Justice Mitting and Mr Justice Lewis reaffirmed the Environment Agency’s case, that the incident had caused ‘category 2’ harm and that Thames Water had been negligent in its actions.  The Court made direct reference to the guidelines in that they include a category for ‘very large companies’ which does not have any maximum amount they can be fined.   Thames Water with a turnover of £1.9billion is clearly in this category.

Therefore when cases are brought before the Courts the financial circumstances of any offender needs to be taken into consideration, as it always has, but now fines for organisations “should ensure that the penalty imposed is not only proportionate [to turnover and the harm caused] and just, but will bring home to the management and shareholders the need to protect the environment.”

The judgment even states that “Sentences imposed hitherto in a large number of cases have not been adequate to achieve that object.”  It goes further to state that in offences that cause category 1 harm and is caused by a deliberate act the fine imposed could be 100% of a company’s pre-tax profit.  This sends a clear signal to companies involved in the environmental sector.