A guide to applications for permission and other consents #10ThingsSH you need to know Contents

Our planning team 1

Introduction to briefing series 2

Common pitfalls with planning applications 3

Highways 8

Environmental Impact Assessment 14

Bespoke planning training 19

Why Stephenson Harwood LLP? 20

b Our planning law team

Our planning law team provide commercially- We act for developers, public authorities, grounded advice to enable our clients to funders and occupiers, which means that we maximise their chances of planning success. see all sides of an argument when proposing strategies and negotiating solutions. Planning advice cannot be given in isolation to a client’s commercial objectives; and so, We can help you with: we work closely with all members of the client‘s professional team to secure the best • strategic planning advice results, delivered in a timely fashion and in an • major projects accessible format. • submission of planning applications

We are widely recognised for our ability to • planning audits analyse, suggest and use particular strategies • section 106 obligations and other and tactics that define the approach and statutory agreements achieve the right result for our clients. • planning appeals and inquiries

Our clients are drawn from a variety of • applications for judicial review sectors and industries and we have a wide • compulsory acquisition range of experience advising on the following • highways matters. types of projects:

• education Stay in touch • energy • housing Follow us on twitter @SH_EnviroPlan • infrastructure (including Nationally to keep track of further news and Significant Infrastructure Projects) insights into environmental and planning law issues, and keep • leisure (including hotels and watch for our “Top Ten” series entertainment) #10ThingsSH • manufacturing and industrial • offices • retail.

“Stephenson Harwood ‘competes effectively both in terms of price and service’.” The Legal 500 UK 2015

1 Introduction to briefing series

We have prepared a short series of articles As part of our role, we: containing practical insights, based on our recent experience of advising on applications • Check that applications comply with the for planning permission and other consents. myriad of planning and environmental rules. • Suggest improvements so that the The articles in the series consider: applications can be validated and subsequently determined quicker. • The common pitfalls with planning applications and how they can be avoided. • Highlight inaccuracies or omissions that may otherwise lead to a successful claim • Overcoming tricky highways issues that for judicial review or which may make intersect with the planning system. implementation more difficult. • How to undertake a robust Environmental • Reduce the grounds for refusal where Impact Assessment. a scheme is contentious and where We get involved with a large number of a refusal and appeal are distinct applications for planning permission that possibilities. enable development to proceed. The issues that we come across are often straightforward for the project team to correct, but where they are not, we propose solutions to minimise the risks.

2 Common pitfalls with planning applications

This short article sets out ten of the most Environmental Impact common problems that we come across with applications for planning permission. Assessment 2. Undertaking an Environmental Impact Offering backdoor Assessment (EIA) in order to produce an development commitments Environmental Statement (ES) is perhaps the most time-consuming aspect of 1. The proper place for development putting together a planning application commitments is either in a condition and has become the most fertile area for attached to the planning permission, or third party challenge - as a result it has in a planning obligation within a section to be robust and the conclusions within it 106 agreement. Both a condition and need to be consistent and defensible. As a planning obligation can be properly lawyers, we focus on key chapters of the reviewed, negotiated and managed ES to ensure compliance with current EIA during or operation of the Regulations and best practice. For further approved development. However, with information on how we assist client teams the increase in the number of reports, with undertaking robust EIA, see page 14. assessments and studies written by different authors, together forming the planning application, we see an increase in the amount of backdoor obligations, hidden within specialist reports, which are subsequently woven into the planning permission by a seemingly innocuous planning condition. We recently came across a Transport Assessment for an exclusive luxury hotel, which sought to commit the hotelier to provide information on local bus routes to visitors at the time they made their booking - sounds innocent, but it would have created the wrong impression for the business.

3 Inconsistency Minimal property investigation

3. It is rare that a planning application is 5. A further application form issue that entirely the work of a single consultancy we come across is using the wrong - most applications pull in the skills of ownership certificate which can open a number of technical specialists. Each up judicial review consequences in specialist consultancy will have its own the worst cases - we often see long house-style for its report and when leaseholders using Certificate A, not B; reviewing applications, we see references and developers using Certificate B (to to “Site,” “Property,” “Development be used only where all relevant property Site,” “Application Land,” and “Land” etc. interests have been identified) instead Whilst this rarely produces significant of Certificate C, which must be used, legal issues, there have been occasions together with a newspaper notice, where where officers have raised queries, it is not possible to identify all property and delays have been incurred whilst interest owners. It’s also good practice to ambiguous reports are re-written. The refresh the index map searches shortly solution is simple - creating a central before submission, particularly when the glossary of terms at the start of the initial searches were undertaken at the project for all authors to follow. start of the application process.

Description of the development Non-compliance with validation

4. It is easy to make errors on the guidance application form - often it is the last part 6. The National Planning Policy Framework of the application that gets attention, requires local planning authorities to because it’s just completing a few boxes, publish their requirements for planning right? Well, sometimes completing application content - i.e. the reports, the form is straightforward, but our assessments, studies, plans (at the experience is that circulating an early correct scale) and statements that they draft is beneficial: the description of the will require in order to validate, or accept, development is of critical importance, a planning application. Whilst there is and key elements of the proposed uses obviously a lot of similarity between within the scheme do get overlooked authorities as to what they require, there from time to time and relying on ancillary are differences and from time to time uses to permit the use isn’t always these are only picked up at submission workable or does not give sufficient time, which causes delay whilst the comfort to development funders. additional information is prepared. A simple table of documents produced at the start of the application process, which is reviewed frequently, will ensure that there are no gaps at submission.

4 Incomplete planning conditions Inflexible planning conditions

7. Whilst some planning officers are not 8. We come across a fair number of always willing to share draft decision planning permissions containing notices, our experience is that many conditions that don’t maximise flexibility. are – particularly where the proposed Most commonly, planning conditions scheme, site or developer has unique don’t allow for phasing and therefore requirements. Where a decision notice is require remediation schemes for large shared in draft, we think it makes sense sites to be agreed prior to any works to review the conditions carefully to commencing, notwithstanding that ensure that they’re enforceable and fit only part of the site is to be developed for purpose, because if the conditions initially. Encouraging Planning Officers are poorly drafted, the risk of challenge to share early draft conditions is critical increases and problems can arise during so that the applicant can review and construction where the Project Manager propose amendments to them. Whilst and Planning Officer interpret conditions there is no duty upon Officers to do this, differently. We have been involved most Officers appreciate additional help with a scheme that was contentious and in our view Officers and applicants locally because of neighbours’ have a shared interest in making the concerns regarding roof plant noise. A conditions workable so that the scheme condition was imposed requiring the is implementable and the conditions can submission of noise mitigation and the be readily satisfied or discharged. approval of those measures prior to commencement; however, there was no condition requiring implementation of the approved measures. With our help, the issue was corrected and judicial review avoided.

5 Delaying discussions on planning obligations

9. This is an aspect that is not always in the applicant’s gift in so much as it is in the Planning Officer’s control. However delaying discussions on the planning gain package, to be included with a Section 106 Agreement, can put an applicant at a disadvantage in later stages of the application. Submitting a Section 106 Heads of Terms as part of an application can be helpful to set out clearly the developer’s stall and begin to manage the Planning Officer’s expectations. On those schemes that are considered by the Planning Committee, we find that once Members have resolved to grant planning permission subject to the completion of a Section 106 Agreement, there can be a tendency for the lead Planning Officer to move on to the next application and momentum can be lost.

Focussing on the wrong goal

10. Planning performance agreements (PPAs), for medium or large schemes, can be a terrific means of securing resources within a local planning authority; but we have experience of the negotiation of PPAs being a distraction from the application itself. Agreeing a timetable or deadline for the drafting and negotiation of a PPA can be helpful so that applicants and Planning Officers can focus their attention on the scheme itself. You don’t want the negotiation of the PPA to take longer than determining the application itself!

6 7 Highways

Highway law is one of those areas of planning We have advised landowners and their law that should be simple, but isn’t. As planning consultant teams to take the following lawyers here at Stephenson Harwood, we have measures to prevent highway rights a depth of experience having provided advice on accruing over time: highways law for over 10 years. • Erecting signs clearly stating that the property is not public highway We assist with: and that access is only authorised by • Identifying privately maintained highway the owner of the property. (presumed highway) during an acquisition. • Blocking access a few times a year, • Advising on the stopping up process, often usually under the guise of maintenance. in conjunction with a planning application. • Taking formal steps under the • Advising on highways agreements and Highways Act 1980 in order to the fixes that ensure things run smoothly. prevent adoption of the relevant land. In this briefing have set out 10 commonly Identifying presumed highway encountered highways issues and how we can on acquisition assist client teams to overcome, or better yet, avoid altogether the issues arising. 2. Alarmingly, presumed highway will not be revealed on the results of a search Presumed highway of the index map carried out by the Land Registry. This is because land that 1. Presumed highway is one of those areas is classified as highway (whether it is of planning law that can catch out even publicly or privately maintained) does the most experienced practitioner. not change the underlying ownership The creation of highway rights occurs of the land. Further, and perhaps more in much the same way as an easement startling, is that in some cases privately may be acquired by prescription over maintained highway will not even show time. However, the key difference is up in the results of the highway search that the right is not simply between two provided by the highway authority. neighbouring properties, but a right to Therefore, when carrying out due the public at large. diligence, those undertaking site Presumed highway can arise where inspections should be careful to identify the land in question has been used “as any thoroughfares or “shortcuts” on the of right” (without permission, force or property that are used by the public. secrecy) for a continuous period of 20 years. Therefore, by simply allowing the public to cut across your property you may, inadvertently, be allowing highway rights to accrue.

8 How to stop up highway

3. Landowners and their client teams come to us for advice on stopping up where unwanted presumed highway has been created, or where proposed developments need the land on which a publically maintained highway is currently located. There are two ways a landowner can stop up a highway: • The Planning Process (under the Town and Country Planning Act 1990), is a far more user friendly procedure but can only be used when the stopping up is necessary in order to enable development to be carried out in accordance with planning permission. When using the Planning Process it is important to remember to apply for the stopping up order up front Objection to stopping up because there is a bar to using this process after the development has 4. Client teams faced with an application been substantially completed. to stop up highway may wish to object • If the Planning Process is not to that application. The key message available (because the development behind any objection is to prove that the is substantially complete or highway is necessary. The process being because a planning application is used to obtain the stopping up order will not being made) then it is possible determine the precise test you have to to use the “Highway Process” which meet and who you need to convince. requires the highway authority to obtain a stopping up order from the Magistrates’ Court under the Highways Act 1980 however this is a less certain process.

9 How to prevent objections to number of lessons we have learnt to ensure these agreements are in place ahead of your stopping up order contractor/highway reservations: 5. In our experience, dealing with any • Identify early on whether there will possible objections before they are be any dedication of land as this will made is crucial to a smooth stopping up inform your ability to control/limit the application. To do this we have some tips number of parties to the agreement that may be useful: e.g. some highway authorities only • Liaise with all interested parties – require long leaseholders to be a party e.g. all those with an interest in the where the works are relatively minor land and any statutory undertakers. and there is no dedication. • Use the tools available to you – e.g. • Make sure your engineer is aware of the Planning Process (referred to the requirements including any lead above) contains a useful mechanism in notice periods – we have seen a 3 that preserves the rights of month notice period before. statutory undertakers as if the • Only push back on those elements highway was still in place. that you genuinely cannot comply • Locate a more convenient with – the majority of highway alternative route that potential authorities are unwilling to make objectors are comfortable with, or significant changes to these demonstrate that the highway is no documents so there is little point longer in use. wasting time “trying arguments on”. • Ensure that efforts were made to • Make sure that the scope of the design the proposed development in highway works are agreed early with a way that would allow the highway the highways engineer and that the to remain (but those results were highway authority is restricted from unsatisfactory). late significant changes or additions. • Your goal is the issue of the “final S278 agreements certificate”, so be aware of the proposed end of the maintenance 6. Section 278 agreements permit a period and rectify snagging items ASAP. developer to carry out works on a highway. The scope of section 278 agreements Dedication of land as public varies from the simplest dropped highway kerb to the most complex of highway redevelopment projects. There are often 7. A landowner may dedicate a road time pressures on completing these (constructed to an adoptable standard) agreements as they will directly impact as highway to be maintained at the the programme. We have set out below a public’s expense under section 38 of the

10 Highways Act 1980. If your intention is It is important to have the bondsman to dedicate new roads as highway then approved by the highway authority it is important to discuss this with the early as delays may be incurred if the highway authority as it will have particular highway authority rejects the bondsman specifications that will need to be met late in the day. Equally, ensure that before the works are signed off and your bondsman agrees to the form of adoption is completed. Further, a section bond before you finalise the agreement 38 agreement is similar in form to a otherwise you will be contractually section 278 agreement so the bullets we bound by the highway authority to have set out above are equally relevant. provide something that you can’t achieve in the market. In our experience it is also important to consider adoption of highway as a purchaser because if you are purchasing TROs a property on a new estate with new 9. Traffic Regulation Orders (TROs) can be internal roads, and those roads are not a magic wand for highways problems, at adoptable standard, the maintenance particularly for larger developments. will not become the responsibility of the TROs are the principal means of highway authority, rather you and your regulating traffic and can perform a neighbours could remain responsible for number of tasks: from prohibiting or maintaining that road. restricting waiting, setting speed limits, or prohibiting or restricting vehicular Providing a bond to the highway traffic – e.g. for pedestrianising highway. authority Certain statutory tests need to be passed in order for a TRO to be made by 8. A bond is ordinarily required for a traffic authority, but these are generic agreements under s278 or s38 of the and rarely hard to meet. As with stopping Highways Act 1980 and its purpose is to up orders, there is a strict procedure to protect the highway authority should the be followed, involving consultation of developer fail to carry out the works to potentially affected residents, freight the agreed standard. The amount of the transport/haulage associations and the bond is based on the costs of the works, emergency services amongst others. so the earlier you can provide this to the Proposals need advertisement and highway authority the better. objections can be made, which may The bond is usually released in two result in a public inquiry being held – stages: the first at practical completion although this is not common in our of the works (when between 70-90% experience. Following the making of of the bond will be released); and the a TRO, details must be published in a remainder being released on issue of the newspaper and objectors notified. The final certificate. process is generally quick and can be a useful tool in the developer’s toolbox.

11 Oversailing and building over highway

10. Oversailing and building over highway requires a licence under the Highways Act 1980. Failure to obtain a licence can lead to a fine and in the worst case the highway authority may require the building or oversail to be removed. Recently we assisted a client with the purchase of a shopping centre that had a number of ornamental features attached to the facade of the main building. Those features oversailed the highway. We advised our client of the risks of enforcement that it could face as a result of those oversailing features and on possible mechanisms to regularise the property under the Highways Act 1980.

12 13 Environmental Impact Assessment

Robust Environment Impact Assessment As planning lawyers we have experience (EIA) is vital to the success of planning being on both sides of EIA – including: applications for large development projects. Due to the importance of EIA and the • Assisting client teams undertaking EIA resulting environmental statements (ES), EIA by ensuring compliance and consistency is a fertile ground for legal challenges, which with the EIA regulations, thereby helping can result in planning permissions being to reduce the chances of success of quashed following judicial review. judicial review claims. • Assisting third parties challenging the grant of planning permission for EIA developments.

14 This note sets out ten things that we think The timing and uncertainty are crucial to undertaking a robust EIA and protecting ES from future legal challenges. surrounding screening and scoping 2. Screening is undertaken by local Types of development for which planning authorities (LPAs) or the EIA is required Secretary of State and is used to assess the environmental effects 1. In broad terms, EIA may be required where: of a development and to determine • The development is a large industrial whether EIA is required. Even if the LPA or infrastructure project and therefore undertakes screening and determines falls within Schedule 1 of the EIA that EIA is not required, the Secretary of Regulations. This will include power State can overrule this by issuing its own stations, waste installations, water positive screening opinion. Additionally, treatment plants, quarries, etc. in an almost cruel twist to the rules, the • The development falls outside LPA can change its mind and determine of Schedule 1, but is likely to that EIA is actually required once an have significant effects on the application for planning has been environment and meets the criteria received without an ES; however, to do in Schedule 2 of the EIA Regulations. this it must notify the developer that For example, ‘urban development an ES is required within three weeks projects’ (not including the of the LPA receiving the application. construction of homes) will require An extreme case we’ve heard about EIA if the development exceeds is where the LPA issued a negative one hectare. If the development screening opinion, but an objector to the is planned within a sensitive area application sought a screening direction or meets the relevant threshold, from the Secretary of State. In the then screening (see point 2 below) meantime, the planning permission was must be carried out. If screening granted. The Secretary of State issued determines that the development a screening direction stating that an ES would be likely to have significant was required, overriding the opinion of environmental effects, then EIA the LPA, and so the planning permission must be carried out. was quashed in the courts. The key takeaway is that the EIA Regulations can Occasionally, projects that are borderline be difficult to navigate and sometimes EIA developments will still undertake EIA to produce unexpected results. Later in this remove the risk associated with a planning article we set out some ways to reduce permission granted without EIA. We are EIA judicial review risk. often involved with weighing up the pros and cons of making this difficult decision.

15 3. Once it has been determined that an ES What about changes to the is required, developers and their advisors will need to decide what the scope of development after planning the ES should be. It will be a rare (but permission has been granted? welcome) occurrence that the scope of the ES will be abundantly clear, in which 6. In an ideal world, developments would case a developer can ‘crack on’ and be fully designed prior to applying for prepare the ES for submission. However, planning permission, but we understand if there is any uncertainty about that this is rarely the case. In order which environmental impacts of the to prevent the need for an updated development should feature in the ES, EIA being triggered by section 73 then a scoping opinion should be sought. applications (effectively to vary the The key benefit of a scoping opinion is, in scheme), flexibility can be brought into reality, to agree what can be left out. the ES so that changes can be made to the development easily and without 4. Screening and scoping opinions can further EIA. The EIA process can also be be sought at the same time. When this triggered when applying for reserved strategy is adopted, the scoping opinion matters approvals. This most commonly must be given to the developer by the LPA arises if new information has come to within five weeks of the screening decision, light through the submission of the although a longer period can be agreed application for reserved matters. Equally, between the developer and the LPA. if the EIA was previously undertaken, the LPA can require the ES be updated. Is there any way you can beat 7. Often a Rochdale approach will be taken the system? to ensure that planning applications and EIA have enough flexibility to enable 5. Not likely. Developers have now had over the developer to tweak elements of thirty years to come up with creative a scheme down the track. Under the ways to try and beat the EIA Regulations. Rochdale approach, an envelope of In the past, some developers have environmental impacts is assessed due sought to phase their developments to the fact that certain elements of a to avoid the EIA thresholds – “salami scheme have not been fully finalised slicing” the development. The courts prior to submission of the application. and third parties are now awake to this We help client teams walk the tight-rope strategy and it is unlikely to fly except in between providing maximum flexibility to rare cases. the developer, but still providing enough certainty to the decision-maker so that it can feel comfortable accepting the EIA and granting the permission.

16 Make my EIA and ES bulletproof, please

8. From a legal point of view, the most obvious way to protect your planning permission from judicial review is to ensure that screening (i.e. does the development need an ES?) and scoping (i.e. what should the ES cover?) are done correctly. 9. We assist a lot of client teams by assessing ES critically (playing the devil’s advocate) and identifying weaknesses within ES, which could be exploited to challenge planning permissions. If successful, legal challenges could cause the planning permission to be quashed by the courts causing both delays and Early drafts of key chapters should be shared the developer to provide additional within the client team and also with the LPA information to the LPA to enable it to so that there are no surprises. In addition, reconsider the application. Key areas of early and thorough consultation with the focus for legal review are: public is not only required under the EIA • Baselines (against which the new Regulations, but it is also useful for the development proposals are assessed) developer in order to determine whether – making sure all proposals are particular aspects of the development are considered/covered off by the EIA. likely to be controversial and what measures can be addressed whilst the scheme is still • Development parameters – ensuring being worked up. sufficient detail is included to enable proper assessment but enough Overall, the ES must be clearly structured, flexibility to allow a developer to and avoid drafting inconsistencies and illogical amend a development (e.g. to take statements, which more often than not arise account of future occupiers’ needs) merely from the fact that EIA are a culmination without triggering further EIA. of work from multiple disconnected authors • The description of the development working on the same document. in the application for planning permission should be flexible and care should be taken when relying on ‘ancillary’ uses. • Cumulative impacts – whether the environmental effects of other projects have been taken into account properly.

17 Just tell me quickly what the recent changes are all about

10. On 16 May 2017, a suite of amendments • Requests for screening opinions were made to the EIA regime. The must now be more comprehensive. changes are now in force, and we set out Requests should include planned a brief summary of the key points below: mitigation measures to avoid • The consultation period for ES has significant adverse effects. increased for town and country • Previously, if a scoping opinion planning regime developments to no was requested then the developer less than 30 days (up from 21 days). could choose whether or not to This means that the application rely on that scoping opinion. Under for planning permission must not the changes, if a scoping opinion be determined until 30 days have is requested and the proposed passed from publication of the ES. development does not change • Elements of the environment materially, then the scoping opinion against which developments must must be followed by the developer. be assessed have been amended There are other changes too. Please contact to include: biodiversity (previously us if you would like to discuss further the EIA ‘flora and fauna’), climate, and human or the changes to the EIA Regulations. health (previously, ‘human beings’).

18 Bespoke planning training

Stephenson Harwood’s planning team would like to offer you a free seminar consisting of a selection of topics listed below. We would like you to select four or five topics (each lasting approximately 10-15 minutes) to make your tailored training session. The list below is not exhaustive, so please let us know if you have any other topics which you would be keen to learn more about.

Engaging a planning consultant Permitted development rights for Top five tips for terms of engagement commercial buildings • What you can do and opportunities The planning application process • Office to residential practical issues From preparation to decision Planning enforcement Planning application validation requirements Practical impacts for developers, occupiers, What do you need to submit? investors and funders

London planning Section 278 The Mayor’s powers What is important and what is not?

Environmental Impact Assessment Heritage What is it and what are the current issues? Listed buildings: what can you do?

Planning obligation or planning condition? Freedom of information Policy and practicalities How to make it work for you

Planning conditions Compulsory purchase How to avoid them going wrong From start to finish

Section 106 Agreements Buying property conditional on planning What they can do and how to complete them What are the must win points? quicker Enforcement Planning appeals What to do when the LPA comes knocking? What are the options and what are the timings? Assets of community value Judicial review Nominating and opposing nominations Impacts for developers

Use classes A refresher

19 20 Why Stephenson Harwood LLP?

Stephenson Harwood is a law firm with over 1000 people worldwide, including more than 150 partners. Our people are committed to achieving the goals of our clients - listed and private companies, institutions and individuals.

We assemble teams of bright thinkers to match our clients’ needs and give the right advice from the right person at the right time. Dedicating the highest calibre of legal talent to overcome the most complex issues, we deliver pragmatic, expert advice that is set squarely in the real world.

Our headquarters are in London, with ten offices across Asia, Europe and the Middle East. In addition we have forged close ties with other high quality law firms. This diverse mix of expertise and culture results in a combination of deep local insight and the capability to provide a seamless international service.

21 GET IN TOUCH

Ben Stansfield Lorrae Hendry Christina Achkarian Partner Senior associate Associate T: +44 20 7809 2500 T: +44 20 7809 2602 T: +44 20 7809 2113 M: +44 7584 515 251 M: +44 7711 347 439 E: [email protected] E: [email protected] E: [email protected]

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© Stephenson Harwood LLP 2018. Any reference to Stephenson Harwood in this document means Stephenson Harwood LLP and/or its affiliated undertakings. Any reference to a partner is used to refer to a member of Stephenson Harwood LLP. The fibre used to produce this paper is sourced from sustainable plantation wood and is elemental chlorine free. BD200-Planning guide-0318