Planning law

Many agricultural businesses are under economic pressure to diversify.  However, materially changing the use of a building or land from an agricultural use to a non-agricultural use requires planning permission. 

There are two routes to securing the requisite permission. In certain circumstances, Classes Q and R of the Town and Country Planning (General Permitted Development) Order 2015 (the GPDO) authorise the conversion of agricultural buildings such as a barn and land within its curtilage to respectively, a residential use (Class Q) or a ‘flexible’ commercial use ((i.e. storage or distribution, hotel or a range of commercial uses including a shop, office, restaurant or light industry) (Class R).  The focus of both these classes is on existing buildings and small areas of related land.

Where a proposal falls outside Classes Q or R of the GPDO, for example renewable energy schemes, an express planning permission will be required.  

Working together with our Agricultural Property team, we support clients from initial development of the agricultural diversification proposal through to the delivery of the scheme, including advising on the scope of relevant permitted development rights within the GPDO, and supporting express planning applications and advising on the discharge of planning conditions and replanning.

The Community Infrastructure Levy (CIL) is a locally levied tax on certain types of development which many local authorities are adopting. CIL is notoriously bureaucratic and complex.

Our planning specialists have an in-depth understanding of CIL, having advised both local authorities implementing the CIL regime for the first time, developers on navigating the regime and landowners who may have inadvertently triggered CIL liability.  We can advise you on a proposed development’s potential CIL liability, on ways of limiting that liability, and on mechanisms to support cash-flow by deferring the timing of payments.  We also advise on CIL appeals and enforcement.  

Local Planning Authorities and a number of other public bodies have a variety of powers to compulsorily acquire land or rights over land.  Such powers are most commonly encountered in Compulsory Purchase Orders (CPOs) but are also included in Development Consent Orders (DCOs) for nationally significant infrastructure projects, and Transport and Work Act Orders (TWAs) for transport schemes.  

Where land or rights over land are compulsorily acquired, the affected landowner/occupier will be entitled to compensation. Where compensation cannot be agreed, any compensation dispute can be referred to the Upper Tribunal of the Lands Chamber (a type of court).

CPOs/DCOs & TWAs will be subject to public consultation before they are made and the acquiring authority will seek to negotiate the acquisitions in parallel with pursuing any compulsory powers.

As a general rule, affected landowners will normally object to the proposed acquisition if only to preserve their negotiating position. Unless an objection is withdrawn, it will be considered as part of a public inquiry. 

There is always a risk that a proposed compulsory acquisition will be derailed at a public inquiry, and public inquiries are expensive. Hence, there is a strong motivation on the acquiring authority to negotiate with objectors to persuade them to withdraw their objections in advance of any public inquiry.  An agreement as to mitigatory arrangements (usually including a figure for compensation) between the acquiring authority and an objector will be captured in a compromise agreement.

Our specialists have successfully advised both acquiring authorities on putting CPOs in place, and landowners who are affected by proposals to compulsorily acquire their land, including lodging and presenting objections at public inquiries and negotiating compromise agreements. Where land is to be acquired compulsorily, we also work closely with specialist compulsory purchase surveyors to advise on securing compensation.

Our services in this area include:

•  Advising affected landowners on objections
•  Preparing and making representations at public inquiries
• Advising on entitlement to compensation
•  Negotiating compromise agreements.

Many developments will inevitably require highway and/or drainage agreements. Such agreements are often required either before a development commences or before it is occupied. 

Where a development will involve works to a public highway, a s. 278 agreement with the local highways authority will need to be put in place before those works are carried out.  Where estate roads are to be publicly adopted, a s. 38 agreement will be required. Similarly, drains will need to be connected to public sewers, requiring a s. 104 agreement with the local sewerage undertaker. 

None of these agreements are ‘sexy’, but they are necessary for the peace of mind of the developer (who will not want unnecessary ongoing liabilities once the roads or sewers are constructed), and for the peace of mind of plot purchasers who will want certainty that estate roads and sewers are adopted to avoid the cost of any future repairs and maintenance.  

We frequently advise on and negotiate:

• Section 38 (road adoption) and s. 278 (highway works) agreements;
• Section 104 (sewer adoption) and 185 (sewer diversion) agreements;
• Highway stopping up and diversion orders. 

Land development in England (whether built development or a material change of use) requires planning permission.   Permission is granted either in response to a planning application or by statute (e.g. the Town and Country Planning (General Permitted Development) Order 2015).  Express planning permissions will often need to be supported by Section 106 agreements. 

Decisions to grant (or not grant) planning permission have frequently been the subject of legal challenges. Similarly, the courts have often been asked to rule on what is or is not allowed by a planning permission and its conditions (whether granted in response to a planning application or by statute). As a result, in addition to the various statutory rules, a rich body of legal principles governing planning is derived from decades of court decisions. 

Our specialist planning solicitors regularly advise on:

• Pre-application and de-risking development proposal;
• The scope of permitted development (PD) rights/prior approval applications for PD rights;
• Environmental Impact Assessments, screening and scoping opinions;
• Nutrient and Water Neutrality issues;
• The lawful interpretation of planning policies, and the terms of planning permissions;
• Discharging planning conditions and implementing development;
• Amendments to planning permissions;
• Section 106, infrastructure agreements, Community Infrastructure Levy;
• Securing Biodiversity Net Gain.

Development carried out without planning permission or in breach of the terms of a planning permission runs the risk of enforcement. Often this first comes to light when a property is sold.  We support our transactional property colleagues by thoroughly investigating the planning status of a property in advance of purchase.

Where development has taken place without planning permission, the local authority may take enforcement action, including issuing enforcement notices, stop notices or taking legal action.  Our planning solicitors are experienced in advising on planning enforcement and on ‘regularising’ unauthorised development in a cost-effective way. 

We also advise on Certificates of Lawfulness where a developer or landowner requires legal certainty that an existing or proposed development is lawful.  To that end, we advise on the merits of the proposed application and prepare the evidence base, including any necessary statutory declarations.  Once issued, a certificate of lawfulness is definitive as to the planning status of the development it describes.

Planning and development are often highly contentious, and decisions to grant planning permission can attract legal challenges. This can be not only stressful but also time-consuming and expensive.

Part of our role when advising developers on planning applications is scrutinising the development proposals and advising on their ‘de-risking’. When a challenge to a planning decision is lodged, we advise developers and landowners as third parties to the case.

Where incorrect planning decisions have been made, our planning experts have also successfully brought proceedings for objectors.

Whether acting for a developer or someone considering challenging a decision to grant planning permission, we advise you on the most cost-effective way to achieve your objective.  If you wish to find out more, please get in touch.

National planning policy is primarily contained in the National Planning Policy Framework (the NPPF) in the form of broad-brush policy statements aimed at balancing issues such as sustainability, the protection of the environment, the protection of natural and historic assets, and the need to accommodate development. Since first being adopted in 2012, the NPPF has been frequently amended to reflect changes in government policy. 

Area-specific planning policy is contained in a Local Plan prepared by the relevant local planning authority. Local Plans will set out a strategic vision for development within a local authority’s area and provide a finer grain of local policy governing particular development types such as housing, commercial and rural development. Preparing or updating a local plan is a significant exercise involving preparing numerous reports on local needs and opportunities, a call for sites, and a number of rounds of public consultation. A public inquiry will then be held on any proposed new local plan before it is formally adopted. 

Any public consultation exercise and inquiry are subject to strict legal requirements. Failure to observe those requirements can result in a successful legal challenge. 

The public, landowners, and professionals involved in the development industry need local policies to be clear and pragmatic to provide some certainty about the outcome. Our planning team advises on the correct interpretation of planning policy and how proposed changes will affect landowners and developers. We have also successfully represented clients advocating amendments to draft policies at local plan inquiries. Our services include:

• Advising on the lawful interpretation of planning policies
• Advising on the lawfulness of consultation exercises. 
• Advising on and submitting representations in response to consultations. 
• Advocacy at local plan inquiries. 

It is not uncommon for development to require the diverting or closing of a public right of way. Under the Highways Act 1980 and the Town and Country Planning Act 1990, a range of powers are available to divert or stop up public highways, bridleways, and footpaths. It is critical that the correct power is used in the appropriate case.

In addition, objectors to a proposed development may apply to register a previously unrecorded public right of way across a development site in the hope of delaying or obstructing the development. Where such an application is made, the affected landowner will be notified, and it is important to submit any objection and supporting evidence within the stipulated timeframe to defeat the application. 

Our planning team has extensive experience in advising on all aspects of public rights of way. Our services include:

• Promoting or opposing applications to register a new public right of way.
• Advising on the appropriate route to stop or divert a public right of way.
• Promoting stopping up or diversion orders, including at inquiry. 

An agreement made under section 106 of the Town and Country Planning Act 1990 (also known as a ‘Planning Obligation’) ensures that any adverse impacts of a development can be mitigated.  The agreement will usually be made between persons with a legal interest in the development site, the developer and the relevant local planning authority and the key feature of such agreements is that unlike a normal contract, they ‘run with the land’, i.e. the obligations in the agreement (including any positive obligations) can be enforced against successors in title to the original signatories. Section 106 Agreements secure various benefits, including affordable housing, financial contributions towards off-site facilities and bio-diversity net gain. 

There are specific formal requirements if an agreement is to have effect under s. 106 of the Town and Country Planning Act 1990. Furthermore, to be given weight in a decision to grant planning permission, the benefits secured by such agreements should meet three statutory tests: 

a) necessary to make the development acceptable in planning terms;

b) directly related to the development and

c) fairly and reasonably related in scale and kind to the development.

Once an agreement is in place, it will bind successor landowners. Where an agreement has been in place for more than 5 years, section 106A of the Town and Country Planning Act 1990 provides a right to apply to modify or discharge the agreement. While there is no statutory right to apply to modify a s. 106 agreement before that five-year deadline, where circumstances have changed, and there is good evidence that a planning obligation no longer serves a useful purpose, local authorities will generally agree to modify or discharge it. 

We regularly advise developers on the lawfulness of proposed planning obligations. We have extensive experience drafting and negotiating section 106 agreements and variations to such agreements for a range of residential, mixed-use, and commercial developments.