Housing estates Q & A DCP Section 7.1

This section is concerned with new larger scale housing developments of over 10 units, varying in size from new towns, new neighbourhoods to modest housing estates in urban and rural situations. Smaller urban housing developments, normally arising from infilling or redevelopment are considered in section (8), and smaller village and rural housing at (9).

Q & A    7.1/10

My firm has paid a full planning fee for a housing development application. After consultation with the local authority to secure an acceptable scheme, the layout of the affordable units was redesigned and an access point removed. The authority now consider this a fresh application requiring a new fee. Is this reasonable?

Circular 31/92 only deals specifically with the scenario where a revised application is submitted after refusal or withdrawal but the general thrust of this advice would seem applicable to the case in point. Therefore if the application as revised is not materially different from that originally submitted in terms of character and description then a fresh application and new fee is not required. However determination of such a matter is for the discretion of the local authority in question, and as shown in R. v South Holland District Council ex parte Hey and Croft Ltd 20/12/1991 the courts are likely to be unwilling to intervene in any interpretation dispute unless there has been a clear abuse of power. It is, of course, open to you to appeal against the non-determination of your revised proposals which will inevitably occur if the local authority does not consider that a fee has been paid. It will be interesting to hear of the experience of others involved in similar argument with a local authority.

Response

I had a similar case some years ago and had an item published in Planning about it (see issue 1082 19 August 1994). If the local planning authority decide a new fee is required there appear to be no disputes procedure. An appeal against non-determination is an option, but my experience was that the Inspectorate will not get involved. It put the ball back firmly into the planning authority's court. I even tried the Department of the Environment in London but got the same result.  The final decision lies with the planning officer, take it or leave it. I had to pay my fee again.

A housing development with which I am involved is acceptable to a local authority provided that improvements are carried out to a nearby trunk road junction. However, the Highways Agency have indicated that it would not be willing to undertake the work in the foreseeable future and the local authority has indicated that a Grampian type condition would not be appropriate in these circumstances quoting conditions circular 11/95. However, I remember reading of a court judgement which indicated otherwise. Can you assist?

According to the House of Lords judgement in British Railways Board v secretary of state & Hounslow London Borough  (1994) a developer has a right to a permission even though there is no reasonable prospect of enabling off site works being carried out within the time limits of a permission.  Here the local authority owned necessary access land and refused under any circumstances to sell it to the developer. However to date the secretary of state has persisted in the advice given in circular 11/95 that a Grampian condition, which would require that the development not be commenced or occupied  until necessary  off site works have been undertaken, should not be applied unless there were reasonable prospects of performance.

My company is purchasing a small residential development site that benefits from an outline planning permission. Within the red edge of the outline site is land designated as "important open space and frontage". We are about to submit a reserved matters application but the LPA state that this "open space" must be kept free from development. Surely all of the site is now available for development?

It would normally be the case that where there is a crucial restraint on the development of a site, a condition is imposed on an outline permission requiring compliance with that restraint at the reserved matters stage. This is the course of action advised in Circular 11/95. I am in no doubt that the provision of a substantial amount of open space would be considered a matter crucial to any future development as it would have a major effect on layout and the number of dwellings that could be built. Appeal cases have shown that  reserved matters conditions which refer to "siting" or "landscaping" do not provide control over non-incidental open space. On the face of it I would think that your company has a good case to pursue on appeal.

We are currently in negotiation with a local authority about commuted sum payments for future maintenance of  public open space on a residential development. The council are insisting that the financial contribution be calculated for a 30 year period. Given that the norm is 10 years is there any guidance, policy or case law which establishes what is a reasonable period?

English national guidance on the subject is found in Circular 1/97 which is generally opposed to payments for maintenance and other recurrent expenditure. However, advice is also given that any such payments should be time limited and not be required in perpetuity. In practice housing developers will often agree to provide a sum for the maintenance of open space within their developments. Ten years, as you say, is often considered to a reasonable period to allow a housing estate  to "settle down", after which time the original developer would not be likely to have any further direct interest in the site. I think that a requirement for 30 years maintenance would be considered excessive should the matter arise at appeal.

I am in receipt of a planning permission for a housing development to which a condition limiting the hours of construction has been applied. It is considered that such a condition is unreasonable, but how has the question been dealt with by the Planning Inspectorate at appeal?

Much depends on whether the new development is to be constructed in situations where sites, or the accesses to them, are particularly confined, and unacceptable harm to residential amenity would result from unrestricted demolition and building activities. There are many appeal examples of hours of construction conditions being applied at appeal in these circumstances, but in other more conventional situations such conditions are less likely to be supported. A very recent appeal case of interest demonstrating a relaxed stance came from the Forest of Dean (DCS No. 51924304). Here, in relation to a development of eight houses, an inspector observed that he saw no reason why disturbance arising should be any greater than that which might arise from construction at any site in a residential area. He added that should a statutory nuisance occur it could be addressed by other legislation.

My council is considering granting permission for a housing development alongside a railway which runs on a 25 m high embankment. Members have raised the question of whether the risk of a rail accident should be a material consideration which they ought to take into account.

This question has arisen at appeal in at least two cases and in both instances inspectors have considered that the likelihood of an accident occuring at one particular spot which would cause rolling stock to fall onto housing below, was so slight as not to be material. Of course, it may be possible to contrive the layout of any new housing development so that areas such as parking or open space are located nearest the railway line, and this may be also be desirable from the point of view of minimising noise impact.

Can you assist two parishes objecting to some 60 to 70 dwellings proposed on a site almost wholly occupied by a former nursery on the edge of a village? The site has been unused for at least 15 years and is covered with scrubby vegetation interspersed with  derelict glasshouses. There is some confusion as to whether the site is "greenfield" or "brownfield", and I wonder if there is any reasonable basis for a local authority to consider this site as previously developed land?

There is no doubt that the definition of agriculture includes horticulture, and therefore nursery buildings are "agricultural buildings" for planning purposes.

Advice at Annex C in PPG3 on housing is that land that is or was occupied by a permanent structure is previously developed land (PDL). However the guidance explicitly excludes agricultural buildings from this statement. Some confusion has been caused by the further advice in the annex that "the definition (of PDL) excludes land or buildings currently in use for agricultural or forestry purposes". This seemingly excludes unused or derelict agricultural or forestry buildings. At appeal the inspectorate have ingeniously maintained that the words "currently in use" also refer to a past agricultural use on the basis that, although ceased, such a use may be lawfully resumed. The conclusion to be drawn from this is that land containing agricultural buildings, whether in use or not, is not likely to be classed as PDL in terms of national planning guidance should a proposal go to appeal. This, of course, is strongly supportive of your council's case.

A proposed site for development is a former quarry which has naturally regenerated over time with mixed success, with some evidence remaining of the former use. There is no  planning history and hence the site is not restored through a planning condition. PPG3 advice on the subject is not clear, as it states that land used for mineral extraction is brownfield if provision for restoration has not been made through development control procedures . However, PPG3 also states that the definition of brownfield excludes previously developed land that has blended into the landscape.

There are a handful of appeal cases relating to proposed development on former mineral extraction areas, where it has been debated whether  or not such sites are previously developed land. The thrust of such cases is that any decision should be based primarily on a visual assessment related to the particular circumstances on the ground. One instance, where the site of gravel workings was to be developed with a hotel, saw an inspector rule against brownfield status as in his view the land looked more like a "a set-aside" field rather than an eyesore in the countryside. Another instance concerned an ex-brickworks site proposed for housing where an inspector felt that there was practically no indication of the former use save one small building, and the overall appearance was one of a formerly developed use which had blended into the landscape. Your question prompts the thought that a prospective developer of a site on the borderline between greenfield and brownfield could undertake clearance works, not requiring planning permission or in contravention of other environmental protection legislation, in order to "unblend" a site from the surrounding landscape.

I would be grateful if you could help me with some planning research that I am currently working on. My question is that if a person is granted planning permission to build 100 houses on some land, will he then be permitted to build only 50 houses? In other words is partial implementation of planning permission permitted? I understand that the answer will depend to a large extent on the conditions attached to the permission. However, on the assumption that there are no conditions , is it a general rule that partial implementation is not unlawful?

In respect of an outline permission for housing, the number of units to be built may be secured by a specific condition or by reference to development descriptions or plans which imply a particular number of units. If in these circumstances a developer changes plan and wishes to build at a lower density, a fresh application will be necessary, which may well not be acceptable to the local planning authority in the light of current advice in PPG3. If there is no condition it may be assumed that the outline relates to the principle of residential development with the number of units being a reserved matter to be determined when detailed plans are submitted. In the case of a detailed planning permission, there is nothing to prevent a developer securing permission for the 100 houses, and only building 50 of them, provided that the 50 to be built conform to the approved layout. It is of note that Circular 11/95 paragraph 61 advises that a condition requiring the whole of a development to be completed should not normally be imposed.

My authority is rapidly approaching the situation where it will have met the strategic housing target based on county structure plan figures, with another 7-8 years of the plan period remaining. This is due in the main to a very large and unexpected windfall site, which has already been redeveloped for housing with substantial community benefits, and to other PPG3 sites coming forward. Are you aware of any cases where residential applications of any size have been successfully resisted on the basis of the overprovision of housing, even though site specific criteria relating to the application were acceptable?

A good example of this type of scenario occurred in an appeal case from North Dorset reported in Casebook (Planning November 16 2001 p17). Here a 2 ha site was proposed for housing in a location which an inspector noted was close to a town centre and in a very sustainable location. However, despite indications that the site was superior to other allocated land the appeal was dismissed on the basis that development would exacerbate oversupply in the town.  The inspector also rejected objections to the development of the land on the basis that it had a function as open space.

A housing proposal is being considered by a local planning authority. Pre-submission negotiations took place and amendments in line with officer advice were made. The application was submitted and informal advice from officers supported the scheme. Shortly before the committee date, the planning authority considered undertaking a review of the relevant local plan policy because it was considered to be contrary to PPG3.  It subsequently determined that the application could not be considered until after the policy had been reviewed. I contend that where a local plan policy is felt to be contrary to later government advice, that policy should be set aside and the application determined on the basis of the government advice. In the case in point the application accorded with local plan policy and PPG3. Could a successful appeal against non-determination be made with the prospect of an award of costs?

A great many authorities are faced with the difficulty that their published local plan policies on housing do not tie up with PPG3 in many respects. As a general principle later government advice will prevail in situations where there is conflict, but in the case you quote where there is apparent conformity it seems unreasonable to withhold permission on the basis of prematurity to a review. In these circumstances there seems little doubt that if the matter went to appeal on this issue an award of costs for the appellant would be forthcoming. Having said that, most of the housing cases that currently go to appeal on the issue of prematurity involve the lack of a current housing capacity study to determine which particular sites should come forward for development in the light of PPG3 criteria. In these circumstances the inspectorate are normally prepared to support a local authority view that permission should be refused in the interim. But much depends on an assessment of whether there would be significant prejudice to future housing policy by the grant of permission before any study is carried out and approved.

My authority’s standard conditions for trees and landscaping are effectively an amalgam of the model conditions in Circular 11/95, including the requirement to replace any trees or plants within a five year period from implementation. To what extent are occupiers of a residential development in a parkland setting having a number of protected specimen trees at liberty to plant what they like in their gardens contrary to the approved scheme? What is the lifetime of the approved landscaping scheme? Can an occupier immediately after completion of a scheme, carry out additional planting, such as unsuitable leylandii?

I assume that the conditions you are using embody just the one time period of five years for replacing lost or failed trees or plants. It seems to me that once that term has run the obligation falls and the occupiers may remove or replace any part of the landscaping scheme, other than the protected trees. So far as the planting of other trees and shrubs is concerned this does not fall within the definition of development within the Town and Country Planning Act 1990 and as such can be carried out without the need for planning permission, and would not strictly be in breach of the terms of the standard condition  If you wish to prevent such activity, bearing in mind that conditions must be reasonable, you need to specifically tailor a condition to suit the special circumstances of the site development.

Pointers might be to add control where it is wished to avoid enclosures where an open aspect is important, and new planting may be made the subject of fresh Tree Preservation Orders if vital to the long term setting or character of an area.  It may also be appropriate to impose a longer period for the condition where major schemes are being implemented such as strategic planting for major residential or commercial estate developments.

Your question shows the risk in using standard conditions which may not meet the actual needs of the case in question.

I am currently dealing with a planning application for the erection of a new football stadium for a club in the Football Conference.  At the same time we also have an application for residential development on the existing stadium site. I am convinced I have read somewhere that there is a policy whereby planning permission which results in the loss of major sports ground/stadium should not be approved until permission for an alternative stadium has been secured?

I cannot find specific reference to such a policy at national level, although PPG17 refers to the need to ensure alternative playing field provision if other development is to replace needed facilities. This guidance states that planning obligations or conditions may secure the exchange land.  A 1996 case from Wokingham is of note where housing was allowed on the site of a football stadium subject to a negatively phrased condition relating to the provision of an alternative stadium before development took place. It is of interest that the Government announced in 2001 that it intended to introduce legislation whereby planning permission would be necessary for the demolition of sports facilities where no planning permission for the redevelopment of the site had been given. Can any reader assist further?

I am currently looking at the housing potential of an unused site last used for horse pasture. It is within a defined settlement boundary. Government guidance in "Tapping the Potential" seems to suggest that this site could be considered as unused land suitable for inclusion in an urban capacity study, and therefore suitable for development. I would appreciate your views.

This site seems to be greenfield land and as such it would be subject to the sequential test set out in PPG3 which gives preference to previously developed sites. If this is land for which planning permission to develop is likely to be forthcoming at some point, given its location within a development boundary, it should be identified in an urban capacity study as having the potential to contribute to future housing supply.  It may be possible to gain planning permission in advance of such a study if the sequential and sustainability tests posed in PPG3 are satisfied and there is a strong identified need for additional housing land in the area. However, it is quite common for permission to be refused as premature to the finalisation of an urban capacity study and its incorporation in an approved local plan.

I am looking for examples of cases where in terms of PPG3 guidance it has been debated whether brownfield land has become greenfield because it has blended into the landscape so as to become part of the natural surroundings.

There are a small number of appeal cases to have touched on this point, some of which are described in Development Control Practice at 7.1326.

There is also a relative court case Dodd & Hands v SOS and Wychavon District Council [2002] which concerned the housing development of a derelict goods yard on the outskirts of a village. Here it was argued that not only did it have to be shown that there was blending into the natural surroundings, but that there also had to be a clear reason why that could outweigh re-use of the site, such as its contribution to nature conservation. The court rejected that approach stating that it was difficult to see why a "well blended" site should be treated any differently from a greenfield site.

I am trying to ascertain whether redundant farm buildings constitute previously developed land (PDL) as defined by PPG3. The definitions in Annex C of that guidance confirm that PDL is land which is or was occupied by a permanent structure, and specifically excludes agricultural or forestry buildings. However the next paragraph specifically refers to land or buildings that are currently in use for agriculture. Does this mean that if agricultural buildings are no longer operational they may be considered PDL, although if this is the case as soon as they were demolished they would fail to be PDL by virtue of the opening definition in the Annex. Can you clarify?

This is a common source of confusion but when the matter has arisen at appeal it has been maintained that the words "currently in use" may refer to a past agricultural use on the basis that, although ceased, it may nevertheless be lawfully resumed. A recent example from earlier this year was a case from Oldham (DCS No: 54619376) where an inspector stated that  "…in my opinion buildings cannot be described as previously developed for the purposes of PPG3 merely because they are not in active use for agriculture at the time of the appeal. I consider that the words ‘currently in use’ in the third paragraph of Annex C are meant in the planning sense of the ‘use’ concept."

We are applying for permission for housing on a site which was formerly a sand quarry and scrapyard. It was proposed to argue that the quarry is previously developed land (PDL) in PPG3 terms as provision for restoration had not been made through development control procedures. However, a neighbour to the site has effectively  restored the quarry to a grassed area without planning permission for the substantial earthworks involved or the owners knowledge or permission. How do we stand now with regard to our PDL claim?

As this site is now de facto greenfield land it is possible that the unlawful actions of a third party may have deprived your company of an important planning policy advantage, and if so there may be a remedy at law. However, when dealing with a planning application it remains for decision makers to take into account whether it is reasonable not to consider the special and unusual circumstances in this case. Does any reader have any experience of a similar situation?

I would have thought it the case that the grassed area would have had to be in place for over ten years for it to be relevant to a determination of any housing scheme. The enquirer should not let the Council decide on this issue - the grassed area with earthworks are either lawful or not. If not, then, as the quarry remains the lawful use, the council can only have regard to that in the determination of a planning application. A loss of open space would not be material to the case as this would be unlawful development. I had a case where an open area was subjectively defined by the Council as 'open space'. Any housing scheme submitted would have undoubtedly met resistance with the Council's policies on the loss of open space. But, after doing research, it became clear that the site, after having been subdivided, cut off from its surrounds, with the original sports ground use not having taken place since before 1947, had a nil use and was not open space. We went on to get a certificate for the nil use, thus preventing any objections on loss of open space grounds if and when a residential scheme is lodged.

It would thus be a next step for the enquirer to get a Certificate for the quarry use, if indeed that is the lawful usage.

My council has recently received a glut of large-scale housing developments on windfall sites. Each probably conforms to relevant policy guidelines, but as they do not relate to any development plan allocation or development brief, there has been no plan-led assessment of the cumulative impact of traffic. The highways engineers advise that if a number of the developments proceed, the highway network will become overloaded. Should the applications be considered on a first-come, first-served basis, or in order of receipt of sufficient information to demonstrate their individual acceptability? Or should the Council approve those that achieve the greatest environmental or regeneration benefits?

While the planning system usually works on a first-come, first-served basis, it seems to me that there would be merit in prioritising these sites according to their size and impact on the highway network, but within the context of an assessment of their suitability and potential against the criteria set out at paragraph 31 of PPG3. Readers’ views and experiences are invited on this interesting dilemma.

Outline planning permission is being sought on a site used partly as a beer garden and also as a private allotment or orchard. The site is 0.9 acres, split by a row of trees about 60/40 in favour of the beer garden, with the public house immediately adjacent. As far as the Council is aware both uses on site are currently well used, and hence are valuable local spaces. A petition is likely from the local community. I would guess that a private allotment is greenfield, but what is the status of a beer garden in planning terms? Is it previously-developed or greenfield?

Annex C of PPG3 defines previously-developed land as that which is or was occupied by a permanent structure (excluding agricultural or forestry buildings) and associated fixed surface infrastructure, and covers the curtilage of the development. However, a footnote explains that this does not mean that the whole area of the curtilage should therefore be redeveloped. Planning authorities are thus advised to bear in mind other considerations, including the protection of open space.

Allotments are specifically excluded from the definition. Although it is arguable whether the beer garden is previously-developed land, assuming that it does in fact fall within the curtilage of the public house, its amenity value is clearly a material consideration. You might also take some comfort from a case in South Cambridgeshire in 1999 where part of a public house curtilage was held not to be brownfield land even though it contained some derelict structures.

We are currently dealing with an old gravel extraction site, now filled with water and used for recreational purposes, and which has some ecological value. PPG3 explains that the definition of previously-developed land includes mineral extraction sites "where provision for restoration has not been made through development control procedures." Unfortunately, because of the age of the former workings, it has not been possible to properly answer this question, although it could be reasonably argued that, in the words of PPG3, the site has "blended into the landscape in the process of time" such that it could "reasonably be considered as part of the natural surroundings". Are you aware of any relevant court rulings on this matter?

I can find no court cases where this has been debated. However, there have been a few appeal decisions relating to proposed development on former mineral extraction sites where the issue of whether these were previously-developed land has been considered. The thrust of these cases is that any decision should turn mainly on a visual assessment based on the particular circumstances on the ground. One example, where a hotel was proposed on an area of abandoned gravel workings, saw an inspector rule against brownfield status as he felt that the land looked more like a "set-aside" field than an eyesore in the countryside (DCS No.38523346). While another case, concerning the housing redevelopment of a former quarry now used as an angling lake (Planning 6 February, p22), will be of particular interest.

Given these decisions and the advice of PPG3, from what you say I think it unlikely that the site here would be held to be previously-developed land.

In discussing densities above 50 dwellings per hectare, paragraph 58 of PPG3 talks of "major nodes along good quality public transport corridors". Can you throw any light on what is meant by "nodes" and by "good quality" in this context?

Although the term "node" is not defined in PPG3, it appears regularly in current guidance on land-use and transport planning, and sustainable development. The practice guide issued in 1995 to accompany a previous version of PPG13 indicates that nodes are places where several transport routes terminate, meet or cross and that the term is synonymous with an "interchange". It can therefore include a train, tram or bus station.

I am not aware of any specific guidance on the meaning of "good quality" in relation to the advice of PPG3 on public transport corridors but this will clearly depend on many factors including the speed, frequency, affordability and reliability of the services themselves, the quality and convenience of access to them, and also related travel information and facilities. These matters should be covered in accessibility profiles set out in local transport plans. Planning for Public Transport in Developments, published by the Institution of Highways and Transportation in 1999, describes best practice in linking development with public transport.

In November 2000, my clients acquired about 100 former MOD houses and a 1 acre site surrounded by roads and existing or proposed housing. Permission to develop the latter for housing was recently refused as it would result in the loss of an existing open space and play area. However I argue that:

•    there is no permission for the open space use and Crown immunity applies,

•    as it was only required for military personnel at the base its original function ceased once the houses were declared surplus to requirements, and

•    the play area has now been sealed off and the play equipment removed.

Do you agree that this site can no longer be treated as either "public open space" or a "play area"?

Once the houses and former play area ceased to be Crown land, planning legislation and principles apply. Although permission was not required for the development in the first place, this does not alter the fact that the site was used as a public play area, and this is now its lawful use. The removal of play equipment and exclusion of residents are insufficient in my view to constitute abandonment, although this will occur after a considerable period of time. As the play area needs of civilian families are unlikely to differ significantly from those of military personnel, there may well be a continuing need for the space to serve the houses acquired by your client, and other existing or proposed housing. But while that might be the case, in the absence of any condition or planning agreement requiring its retention it is difficult to see how the authority can ensure that the site is used as public open space, although resisting its proposed development might encourage this. Relevant advice on open space provision can be found in PPG17.

Following permission for a housing development, a local water authority is proposing to construct a short length of storm water sewer through pensioners’ land.  Guidance from another water authority explains that, to guard against legal challenge, it requires a planning permission to accompany the requisition application from the developer. However, the local water authority says that this isn’t necessary. The pensioners never received notice of the proposed sewer, which I maintain constitutes development and should or could be dealt with as a reserved matter. Please advise.

A sewer is development. It is normal practice for new sewers serving a proposed housing development to be included in an application for full permission or approval of reserved matters. Under sec 98 of the Water Industry Act 1998 specified persons may requisition the provision of a public sewer to enable connection to on-site domestic drains and sewers, at determined places. Under former provisions in the Water Act 1973 the power to requisition was not possible before permission for the communicating sewers had been granted. However, the position changed with the 1991 Act and the requisitioning procedures apply to "premises on which there will be buildings when proposals made by any person for the erection of any buildings are carried out". As this does not refer to the need for permission to have first been obtained, the advice of your local water authority is correct. But given the costs, liabilities and legal implications of providing such infrastructure, it is perhaps hardly surprising that another water authority should insist on seeing a permission before acting!

I have recently moved from an authority which has a unitary development plan policy requiring 20 sq m of private amenity space for every habitable room in new and extended dwellings. My new authority has no such standard and relies instead on government advice. Although I have had difficulty finding this, my understanding is that the government views such matters as being largely for the developer, so long as some provision is made for refuse storage and the drying of clothes, and so forth. Where can I find relevant guidance?

The 1992 version of PPG3 explained that functional requirements within a development, including garden sizes, were for the most part a matter for the marketing judgement of developers, in the light of their assessment of their customers’ requirements. But this advice was not carried forward into revised guidance issued in 2000, which is now largely silent on amenity space provision. Instead, the note emphasises the need for good design and more efficient use of land through more flexible policies and development standards. Moreover, unlike in some other planning jurisdictions, there appears to be no national standard in other advice. Annex D of PPG3 refers to various sources of good practice advice, including the companion guide: Better places to live by design, which encourages an essentially qualitative approach to the planning of space around the home. But while inspectors will generally support the need for some private amenity space provision, often relying on standards set out in development plans or supplementary guidance, they will not endorse their rigid application if in a particular instance there is no evidence of harm to overall policy.

A Highway Authority advises that as the increased traffic from a proposed high-density housing scheme would be below 5%, this would not be ‘material’. It justifies this figure by reference to Transport in the Urban Environment [1997] and Guidelines for Traffic Impact Assessment of Developments [1994], published jointly by the Institute of Highways and Transportation and the Department of Transport. Are these documents relevant and still valid given later government policy on sustainable development in PPG3 and PPG13? Is the cumulative effect of traffic not a material planning ground that should be given weight when considering such proposals?

While these documents are not statements of government policy and are some years old, they endorse the generally accepted threshold above which traffic may have potentially significant effects, possibly needing new highway works or public transport facilities. This will usually be considered in a related Transport Assessment. The cumulative effect on the wider road system is a very important material consideration. But while regard should be had to existing and proposed highway infrastructure capacity and safety, the past tendency to simply "predict and provide" for vehicular traffic has been superseded by guidance aimed at reducing the need to travel, by encouraging new development to locate where there is a choice of transport modes and close to other related uses. Thus, while a proposed development should not result in a material increase in traffic hazards or congestion, it is now a prerequisite that PPG13 tests are carried out to minimise the motorised traffic generation potential of the proposed development and to refuse it if the location is unsustainable or it increases the need to travel.

New paragraph 42A of the recently amended PPG3 appears to establish a strong presumption in favour of the change of use of employment land to housing. As a planner working in a region where demand for housing is much less in relation to housing land supply than in the south-east of England, and where there are large areas employment land, this change will make it very difficult to refuse applications for this type of proposal. What are your thoughts on this and the problems that might arise?

The consultation paper issued in July 2003 made clear that the government’s experience is that despite the encouragement set out in the previous version of PPG3 many authorities continue to reserve an excess supply of employment land when it would make sense to consider this for housing. While the modified guidance gives greater emphasis to the development of employment land for housing and this could trigger a wave of inappropriate speculative proposals, it also requires that account be taken of regional housing strategy and the potential for the oversupply in new housing, thereby causing or exacerbating problems of low demand. Additionally, authorities would be justified in resisting such proposals where it can be shown that there is a realistic prospect that safeguarded employment land would be taken up. But making a convincing case for the retention of such land may prove to be the greatest difficulty.

Response

How very disappointing and disheartening that a planning officer should start from the presumption that such an application should be refused. The point of this paragraph is twofold.  First, to attempt to change the attitude of planning officers in the situation where large industrial land supply exists, because until such negative thinking is prevented they will simply lose appeals. Second, to ensure that planning authorities that can demonstrate that there is a realistic prospect of employment land being reused or taken up for that purpose will discourage developers from submitting applications or being successful on appeal. Planning should be much more than just approving a scheme, simply because an officer cannot think of any justification for refusing it.

Conditions attached to a permission granted in the 1980s for a housing development required the retention of parking provision in perpetuity. This requirement was repeated in the deeds for the dwellings, which also stipulated that parking spaces should not be fenced off or obstructed. However, a householder is now seeking permission to incorporate two adjoining visitors’ spaces within his rear garden, which involves erecting a 2m high fence up to 5m in front of the building line. This would also impede sightlines from the driveway of an adjoining property and, given the open plan nature of the estate, appear visually intrusive. Despite these objections, the authority appears intent on granting permission. What is your opinion?

It is difficult to comment without the full facts. However, since the estate was developed, in an effort to reduce dependence on car travel there has been a fundamental change in the approach to parking provision within housing developments, away from minimum requirements and towards reduced provision. Therefore, when the estate is judged against today’s standards, it could be considered to have an excessive amount of visitors’ parking. In such circumstances, regardless of whether the original condition required all such spaces to be retained in perpetuity, it would be unreasonable in principle for the authority to resist the loss of the spaces in question. Any conflict with the covenants imposed by the developer is not a planning consideration. But the visual impact of the proposed development and its effect on highway safety are relevant factors and in many cases will be decisive where permission is withheld.

A planning condition requires that a housing development shall "seek to achieve" the ‘Secured by Design’ accreditation awarded by a local police force. However, the development cannot comply with the condition as its design concept fundamentally does not meet the relevant requirements. A single item in the Secured by Design recommendations would also cost £100,000 and thus be uneconomic. Does the phrase "seek to achieve" mean that the development need not obtain full accreditation but only include as many of the ‘secured by design’ recommendations as are practicable?

Secured by Design is an award scheme managed by the Association of Chief Police Officers and promoted locally by force Architectural Liaison Officers. Its aim is to support the principles of 'designing out crime' by use of effective crime prevention and security standards. Safer Places: The Planning System and Crime Prevention 2004 advises that planning conditions may be considered where crime prevention or the fear of crime is material to a proposed development, provided they fulfil the tests set out in DoE Circular 11/95. The document also gives examples of model conditions but these do not include any along the lines you mention which, in my view, does not meet the requirements of the circular. The phrase "seek to achieve" is vague and is thus neither precise nor enforceable. And a requirement to do something which, because of a fundamental feature of the proposed development is unachievable, is clearly unreasonable. You should therefore appeal the condition.

Are you able to provide a definition of "white land"?

Depending on the context, the term has two quite different meanings. The only reference in legislation and guidance that I can find is at paragraph 2.13 of PPG2, which explains that safeguarded land in a green belt is sometimes known as "white land". This comprises land between the urban area and the green belt that may be required to meet longer-term development needs. However, the glossary of planning terms on the website of the Government Office for the North East defines white land as a "general expression used to mean land and buildings without any specific proposal for allocation in a development plan where it is intended that for the most part existing uses shall remain undisturbed and unaltered". While I cannot trace its provenance, this definition accords with the widely accepted use of the term, which outside green belts is now mainly restricted to old-style development plans.

Response

My authority has just finished its preferred options consultation on several development plan documents. To add to the confusion, we have invented "pink land". On our proposals maps we show existing built-up areas without any specific proposals as white and safeguarded land as pink, which we chose because we had run out of other colours.

The term comes from the pre-1968 planning system of town and county maps where permitted land uses were shown with a "planning ink". Land not designated for development was left blank and commonly referred to as "white land". With the advent of the presumption in favour of development, local authorities had to actively designate areas in their local plans that they wished to protect from development until the final land use was determined, in particular areas reserved for long-term town expansion. These designations were known by a variety of formal terms, but the informal use of white land stuck. The concept may well have a future. Under the reformed planning system, local authorities are required to "maintain contiguity of proposals maps" even though a core strategy may propose expansion but the allocations document defining its precise extent has not yet been produced. Draft PPS3 makes it more difficult to refuse multiple speculative proposals for the same amount of development yet to be precisely allocated on the grounds of prematurity. In one case that I am dealing with, a barrister has advised the inclusion of a white land policy in a long-term growth boundary, ruling out development until the phasing and definition of development sites is determined. This may be a common problem in growth areas and I would be keen to hear of examples.

Sec. 336 of the 1990 Act includes a definition of the term "open space" but does not give a meaning for "playing field". Is there a statutory definition of this term?

Article 10(2) of the General Development Procedure Order 1995 defines a playing field as the whole of a site encompassing at least one playing pitch. The article explains that this means "a delineated area which, together with any run-off area, is of 0.4ha or more and which is used for association football, American football, rugby, cricket, hockey, lacrosse, rounders, baseball, softball, Australian football, Gaelic football, shinty, hurling, polo or cycle polo". Circular 9/98 suggests that the statutory definition could be interpreted widely to include land owned by a local authority such as parkland, open space used for informal recreation, land leased to sports clubs and playing fields used by schools, colleges and other educational institutions. Guidance on applications involving development on playing fields is set out in PPG17.

An authority has said that my client’s proposal to develop a site next to the Thames Basin Heaths special protection area (SPA) for housing would be refused because of the likelihood of future occupants exercising their dogs in the SPA and disturbing bird species. Is this right?

The recent designation of about 8,400ha of heath in Berkshire, Hampshire and Surrey as an internationally identified habitat is proving to be a significant constraint to residential development on neighbouring land (Planning, 7 April, p8). Circular 06/2005 and PPS9 set out decision-makers’ obligations in relation to such areas. English Nature research has shown that many people living within up to 5km will travel to the heaths for recreation, especially dog-walking, with potential harm to protected birds from disturbance and predation. Cats living nearby are also known to hunt on heaths. English Nature has advised affected authorities to adopt the "precautionary principle", in accordance with the Conservation (Natural Habitats, &c.) Regulations 1994, and in many cases has objected to housing proposals. The regulations require an "appropriate assessment" to consider the implications of a development on a protected area. To ensure a consistent overall approach, English Nature is working with others to prepare a so-called "delivery plan", which local authorities may later adopt as a supplementary planning document. The draft plan proposes that land close to the SPA be divided into zones, with no housing permitted within 400m of the area. But mitigation measures are suggested in two outer zones. These would include the provision or upgrading of alternative green space. As yet, little weight can be given to the draft plan because it is still at an early stage of preparation. Meanwhile, recent appeal decisions support the generally cautious approach taken by planning authorities. These include cases where it has been held that restrictive covenants and undertakings proposed by appellants to prevent the keeping of cats and dogs would be largely ineffective and very difficult to enforce.

My client has been advised that it is unlikely that permission would be granted for the redevelopment of his site for housing despite it making use of previously developed land. This is because the site does not fall within a housing market renewal initiative (HMRI) pathfinder area. Surely this is wrong?

The HMRI was launched in 2003 to address low demand and vacant housing in nine areas in the north of England and the Midlands. The aim is to "mark out a path" to market renewal by transforming neighbourhoods blighted by boarded-up houses, vandalism and antisocial behaviour into sustainable communities. This will be achieved through a combination of demolition, new-build housing and economic development. To encourage investment, new housing is generally restricted elsewhere unless there are special reasons. So it would be necessary for your client to demonstrate overriding regeneration or other benefits. Recent decisions, including those for single dwellings and small-scale developments, generally support the Government's initiative.

If a permission for the use of a greenfield site, say for B8 development, is implemented but construction is not completed, what is the use of the land should a second application be submitted for an alternative use?  Is it still greenfield, even though trenches have been dug? MB.

The issue here is whether the legal right given by section 56 of the Town and Country Planning Act 1990 to complete a development, once minimal starter works have been carried out, has an impact on the government policy distinction between previously developed land (PDL) and greenfield land. I assume that construction at the site concerned has not yet reached the point where, purely from the visual point of view, the character of the land has not changed from being generally open and undeveloped.  A 2006 appeal case from Bedfordshire (DCS Number 100-041-799) is of interest as a parallel. Here, it was proposed to build housing on a rural site where a1990 permission for a hotel had been kept alive by the digging of trenches.  The appellant argued that this made the site ‘virtual PDL’ as construct ion could commence at any time, but an inspector gave that assertion no weight particularly as the development was not in a sustainable location and there could be harm to urban regeneration policies. The appeal was dismissed.

Clearly every case of the type has to be determined on its particular planning circumstances. However, assuming that the original permission which you cite was granted relatively recently, and the policy background has remained unchanged, it may be somewhat difficult for your local authority to argue in principle that the land should not now be built upon. If this point ever came to be debated at appeal I foresee that any realistic fall-back available could be employed with some effect. GH.

Permission was granted for a housing estate subject to a condition requiring an area of open space to be provided. The developer erected one dwelling under this permission but subsequently built other houses under separate permissions, none of which required open space. He now wishes to complete the estate but has been told by the authority to provide open space commensurate with the whole development and not just the remaining area to be developed. Given the advice in paragraphs 24 and 25 of Circular 11/95, do you agree that the authority's requirement appears unreasonable? PS.

The advice you mention deals with the relevance of conditions to the development to be permitted. It says that unless a condition fairly and reasonably relates to the development permitted, it will be ultra vires. A number of examples are given but these do not relate to the provision of open space. If the original permission for the estate is still extant and the developer is seeking to rely on it to authorise completion of the development, then he must comply with its conditions. The incremental development of an estate pursuant to a series of individual permissions is highly unusual unless it is carried out in the context of some agreed overall plan. If the developer is seeking a new permission relating only to the undeveloped area, this could be perceived as a tactic for avoiding open space provision. However, the authority may have difficulty in applying a new condition that requires more open space than is directly related to the needs of the remaining houses, unless it can be justified by reference to a relevant development plan policy or other document such as an approved masterplan. PM.

A detailed planning permission was granted for 104 houses and work commenced so the permission was kept alive. When work was resumed it was found that there was insufficient capacity in the local authority surface water drainage system for the whole development. Who bears the obligation to provide additional capacity? Does the council bear a responsibility for not foreseeing the need to provide for the development when approving the schemes that have taken up the spare capacity? If not is it, in these circumstances, entirely appropriate that the developer be required to enter a section 106 agreement to fund the costs of  providing sufficient drainage before the development continues? HL.

Water companies are the body responsible for surface water drainage, not local authorities. The developer should therefore seek legal advice and approach the relevant water company to discuss how to resolve this situation. The terms of any planning permission or obligation in relation to this scheme cannot be altered unless the developer agrees or the council pays compensation. If connection charges for surface water drainage are higher as a result of the council granting permission for other schemes and the developer can show the council has acted negligently or carelessly in allowing the other developments, they might have a case for formal complaint to the authority and possible subsequent reference to the ombudsman. JH.

Does a golf course fall under the definition of 'previously developed land' under the terms of Planning Policy Statement 3 Annex B? JJ.

The policy statement indicates, "‘Previously-developed land is that which is or was occupied by a permanent structure, including the curtilage of the developed land and any associated fixed surface infrastructure.’  Whilst a golf course would have a clubhouse and maybe other buildings, they are incidental to the golf course use which is of open character, so the golf course cannot be considered to be the curtilage of the clubhouse. Furthermore, the definition goes on to exclude parks and recreation grounds which are of similar character to a golf course. Thus, I would not consider a golf course to be previously developed land.


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