TAN 15

We began to hear rumours a couple of weeks ago that the were stirrings about the impacts of the new TAN 15 and Wales Flood Maps due to come into force on 01 December. Talk of threats of JR, letters from WLGA, impacts on regenerations sites, town and city centres etc.

Welsh government has announced that the new TAN 5 has been suspended until 01 June 2023 to allow “local planning authorities to fully consider the impact of the climate change projections on their respective areas”. See here for the full announcement. There is also a consequential change to he Development Management Procedure Order in respect of the consultation requirements.

Homeworking and Material Change of Use

The Pandemic has been a bit of a game changer in planning matters in many ways. it has accelerated home-working, Welsh Government itself has set a target of 30% of people “remote” working at or near to home. Home working is a familiar concept here.

As ever, the law is changing.. A judgement handed down today (in respect of a Personal Trainer operating from a garden building at home) may prove to be a little problematic.

Without going into the specifics of the case, it centres around a lawful development certificate and (English) Planning Practice Guidance on working from home. Welsh Government also issues similar, but not identical guidance. Both sets broadly focus on the localised “environmental” impacts. Guidance is not a statement of the law of course. The case however points to the limitations of using environmental impact as the measure not of impact but of materiality of the change of use. It tells us:

…, a material change of use can be made without any adverse environmental impact at all. Treating environmental impact as the seemingly crucial issue for the judgment as to whether a material change of use has occurred, or a purpose is reasonably incidental is not consistent with clearly established law. The crucial test is whether there has been change in the character of the use. Environmental impact can be relevant as evidence that a material change has occurred, because a use of the new character may be capable of yielding environmental impacts or have done so already. The Guidance as written is apt to mislead as to what the real question is, and as to the true but limited relevance of environmental impact.

The consequence of the case is that there may well be tightening up of how (your still home working Planning Officer) will approach your request to work from home without permission and applications being requested where once they weren’t. It’s therefore crucial to understand what you are doing if working from home and how it relates to the correct tests of materiality where change of use (or a secondary/mixed use) my be involved.

As ever we are happy to advise.

Garden Caravan - LDC Secured

A trend in these in times is enquiries to provide ancillary accommodation for loved ones or as home offices.

In a recent case, a client had previously had a lengthy battle (a term i use rarely) to secure a replacement house including Judicial Review and 2 previously failed appeals. He needed more space for a family member to join the household.

We are therefore delighted having advised on and submitted a lawful development certificate for proposed use of development (CLOPUD) for a large mobile home as annexe ancillary accommodation, a Certificate has been granted this week. Thereby enabling a family, who have been apart way too long over covid times to reunite as a single unit and improve the wellbeing of all involved.

A little Friday joy. If you have need for a garden room or additional accommodation talk to us about how we can guide you through the planning system smoothly.

A brief thank you.

Anniversaries come and go. I rarely pay them much attention certainly historically . Im a planner after all - always looking forward.

Over the weekend a fellow consultant noted it was his work anniversary on my Linkedin feed. Memory jogged. I started sometime in May. A quick diary check showed it was the week of 15 May 2006. So this week I celebrate 15 years of this life called planning consultancy. I remember clearly that Tuesday morning walking into the Main Block foyer of (then) Shire Hall, Mold to commence my first self-employed instruction. 20 hours a week for 3 months helping clear a backlog of planning applications.

I owe thanks to Kay Sheffield (now an Inspector), and Glyn Jones (now retired) for presenting the opportunity and figures to make the jump stack up. To Gary Deane (at David McClean Developments) for advice including “never undervalue yourself” and for sending pre-purchase bank pack planning work to me in that first year or so.

It’s been a pleasure to work with and for some extremely driven, talented and able people along the way as well as the support from some amazing office dogs. Many clients, fellow consultants and supporting businesses, I consider friends. You are too numerous to mention.

It’s also fair to say others have been more challenging - as have I at times.

Longevity is something I’m genuinely proud of but I don’t dwell on it. New and ongoing instructions demand focus now. However, I hope in my own small way during the period, its helped you solve your problems, clarified your thoughts or deliver your opportunities. For the time being the plan is to carry on doing well what is done well, but perhaps not for another 15 years.

The world is very different to when I embarked on this journey, but challenges and issues remain. Wales has just appointed its first Climate Change Minister. A step of far greater significance than a mere name, I have no doubt of the challenges ahead.

I cannot finish without saying that throughout, 3 wonderful people have always been here. No words can ever express my gratitude and love for them. Just “thank you”.

Px

The Importance of Correct Plans

Justice Dove came down from above and handed judgement in Choiceplace earlier today. The case might well have some far ranging implications.

The case involves a lawful development certificate to continue to carry out development following a planning permission. It turned on a streetscene drawing, part of the approved suite of drawings covered by the usual “:in accordance with the the approved drawings” condition. In a nutshell the streetscene didn’t correctly depict the locality. The key paragraph in the judgement is lengthy but says::

There is no reason why the depicted heights of the existing buildings should be regarded as illustrative or somehow excluded from the requirements of condition 1 on the planning consent. As was pointed out during the course of argument, a relationship between a proposed development and the existing height of either adjacent structures or indeed adjacent ground levels is a matter to be accurately depicted on plans accompanying planning permission for good reason. It is at the very least to be assumed to be an accurate depiction, in the absence of any specific text on the drawing indicating that elements of it are not to scale. The Inspector was correct in pointing out that the drawing showed a relationship between the proposed development and surrounding buildings which should have been capable of replication on the site at the time permission was granted and it was not. In short, the development is not capable of being implemented in accordance with the approved drawings because it is not capable of being implemented in a manner which replicates the street elevations both longitudinally and axially which are purported to be shown to scale on drawing P.04. To reach that conclusion does not involve any suggestion that the planning application granted might be capable of controlling the scale or appearance of adjacent dwellings beyond the application on site; it is simply a reflection of the inaccuracy in the plans leading to an inability to construct a development which accords with that which is depicted upon them.

So in a nutshell. if plans don’t accurately depict the site or the locality, then your entire permission could well be of no effect and incapable of being implemented.

In plane view

We thought we would briefly report a rather extraordinary event at one of the early examination sessions of the Flintshire LDP today. Matters of Strategic growth and 2 Key Strategic Sites (the Northern Gateway and Warren Hall) were under discussion.

These are time limited sessions, so after nearly 2.5 hours on the Northern Gateway site - and having already decided she was going to need to give some more time to these matters in a further session next week -the examining Inspector though it fair to give a number of very patient “non-planning professionals” the opportunity to speak about Warren Hall in case they didn’t want to sit in next weeks session.

And the starter for 10 was Airbus. Warren Hall Key site sits under the flightpath/landing/take off/approach to Hawarden Aerodrome. Their witness referenced a new hearing statement issued at 0927 this morning. It seems further assessment has resulted in potentially rather serious concerns over the impact to their runway of the proposals to develop Warren Hall. These matters appears to revolve around mapping of Obstacle Limitation Surfaces and Inner Horizontal Levels and we presumed from the very brief discussion - how much development (if any?) could be accommodated on the site and if so its height above mean sea level.

Wow. The morning of the Examination second day. Just wow.

Flabbers were gasted to say the very least. That left the Inspector with no choice but to park the rest of the session on the spot and to ask Airbus, Welsh Government and Flintshire to find a little corner of a zoom room for a chat. It really would be very odd indeed for a Strategic Site to advance quite so far only for a potential show stopper to emerge at this stage.

A further session is tentatively re-scheduled for next Thursday, assuming the three parties can clarify what the issue is in that time.

Temporary Town Centre and Hospitality Permitted Development Rights.

Welsh Government is to introduce new additional temporary permitted development rights, presumably to free up some things from the planning process to kick start and facilitate popups and aid the much needed post pandemic economic recovery. They take effect on 30 April 2021.

Amongst other things:

Part 4a permits temporary changes of use of land of up to 28 days in the relevant period “for any purpose” and associated moveable structures (14 days in the case of markets and motorsport) . Markets by or on behalf of a local authority have no upper day limit. These rights apply until 03 January 2022, are restricted in more sensitive locations. Temporary caravan sites are permitted (although temporary camping/glamping sites are permissible).

New Classes C, D. and E allow temporary changes of use for a period of up to 6 months within town centres from a building in class A1, A2 or A3 use to a use within class A1, A2, A3, B1, D1 or D2. The right applies until 29 April 2022 and the premises must revert to the former use after. Developers must notify the Local Planning Authority of the change. Takeaway use is not PD under these provisions.

A3 uses can place removable furniture to sell, serve or consume food or drink supplied from the premises on the highway between 0800 am and 2200 hours.

And finally…

Retractable awnings will be PD if installed before 29 April 2022. Consent under the Highways Act is a condition of exercising this right.

Tres continentale.

As ever conditions. limitations and interpretations apply and we are always ready to advise on requirements.

We love to be positive so welcome these flexible measures in the planning system. Let’s hope the related “trades” of licensing, highways etc don’t encumber to the extent they negate viability and the short term opportunity. It will also be interesting whether Welsh Government will have released the potential short term activities out of “lockdown”.

What Next for Denbighshire?

Sometimes planning surprises you. Not least a phone call the week before last regarding some land on the market. That triggered a series of checks and cross checks.

The first surprise is that the Outline Planning Permission for the Key Strategic Site at Bodelwyddan has lapsed. It was (is?) the kingpin of he Current LDP Strategy and the Preferred Strategy in the Replacement LDP consulted on in 2019. It is also a key scheme in the North Wales Growth Deal Land and Property Programme.

Despite the scheme’s original promoters no longer being in play, new interests secured some non-material changes to the outline permission last year, removing some of the obstacles to submitting reserved matters. It might (in theory) have been relatively straightforward to apply to extend the life of the permission. Covid 19 may have hindered preparation of reporting and scheme design in mitigation were an application of that type made. Yet it wasn’t. That is perhaps the greater surprise.

So, now Denbighshire has no approved jewel in its Development Plan Crown. So tightly defined is Policy BSC 5 on which the KSS hangs, a new, alternative (lesser?) scheme might well depart so significantly from the LDP as to force an early LDP review as it would not comply with the current LDP and be open to challenge.

That leaves, in its immediate wake, 3 questions to ask.

1 . What now for Denbighshire, its development plan and this part of the Growth Deal?

2. Deliverability is key to planning in 2021. As the saying goes, “Once Bitten, twice shy’. Will Denbighshire Officers and Members have the appetite to promote the KSS or a KSS lite a second time ?

3. What other immediate opportunity exists in the wake of the KSS lapsing?

A New Era: Future Wales 2040

The national development framework - Future Wales: The National Plan 2040 - has been published today. Future Wales replaces the Wales Spatial Plan and forms part of the development plan for Wales.. It sets out high level and strategic national planning policies, some of which will be relevant to to individual planning applications and appeal decisions from today. It also sets contexts and requirements for new Strategic Development Plan (In the case of North Wales, a “Regional Plan” spanning all 6 LPAs and National Park) which will start to gather steam from mid 2022 onwards,. Local Development Plans are also be required to be in general conformity with Future Wales.

Alongside that, a new Edition of Planning Policy Wales has also been published today. Edition 11 aligns national planning policy with Future Wales and reflects recent legislative, policy and guidance updates.

As a consequence of the changes brought by Future Wales, TAN 8 (Renewable Energy) has been revoked.

January 2021 News

What’s it like working as an independent planning consultant? I thought this year, at the end of each month, I would do a short post about our work. Let’s see how it goes. Let me know if there’s anything of interest or things you’d like me to cover. Firstly, i write this on a Friday. I plan to continue the work-life balance of Fridays off, but todays catching after the start to the year.

As a starter for ten, COVID-19 remains pretty much foremost in all our minds. The onset of fever and aches mid month resulted in a very rare shutdown for over a week, all after a late post Xmas return. Its difficult to accept when self-employed not least it can impact income and creates pressure on work. A few days lost working were more than compensated by a negative result.

Welsh Government has prolonged temporary (online only and hard copy) PAC procedures, which were due to expire this month. The extension, until 08 October 2021 gives welcome certainty for the foreseeable future. A consultation on a long term solution is promised ‘in the New Year’ but hasn’t materialised yet.

Speaking of PAC, a new consultation event was issued this week, on proposals to redevelop the Ty Nos Night Shelter site in Wrexham as new triage hub with 19 apartments for the homeless. Details of that here. Also acting on a proposal in Llandudno for a smaller 3 unit conversion scheme for homeless accommodation, where we hope to have convinced planners that lawful ‘fallback’ and social benefits of reuse of a tired guest house, outweigh perceived flood risks.

Just before I put this note together, the send button on submission of outline proposals for up to 140 dwellings on an allocated housing site in Flintshire was pressed. It’s great when any application goes in, even better when it’s one that involves huge team efforts across multiple disciplines. The PAC saw significant responses and objections in the community. The proposals are especially interesting as they seek a large proportion of EPC A performance affordable housing, which is technically challenging and market housing must be to larger than standard sizes. One to keep an eye on.

Speaking of Flintshire, attended its LDP pre examination hearing meeting mid-month and look forward to taking part in the first virtual LDP Examination in Wales (UK??) in the next couple of months. We already hear talk of delays to the examination but trust these won’t be too long. On the LDP front, Denbighshire dropped a note just before Christmas saying its replacement LDP is a little delayed, primarily due to COVID-19. Don’t expect any decisions on potential candidate sites for around 6 months.

It’s not been the busiest month for decisions. The receipt of the Planning Permission for 63 dwellings in Glasdir, Ruthin was very welcome. Its been some 18 months of challenging work, including a refused larger scheme (and withdrawn appeal). I gather work is already scheduled to start on delivery of that innovative housing project. And hot off the press, A log cabin holiday accommodation - instructed after refusal. Re-submission. Appeal avoided.

The practice has sent out 11 fee proposals with a strong book of work in the pipeline. We have more to issue this afternoon. February looks to be majoring on some listed building conversions,, tourism development and early phase housing advice.

it’s been a little while since I’ve volunteered within the RTPI. To close this month, it’s an honour to have been invited onto the steering group of the Institute’s Independent Consultants Network. I hope to bring a flavour of my experience and Welsh-nuance to the work if this increasingly important sector of the Institute membership.

Next months tease? NDF, SDP, PPW…. .

Till February. P