Today’s post looks at a case on whether boats constitute development, a new advice note, and considers optionality in the DCO process.
I’m on a boat
Is a boat ‘development’ for the purposes of the Planning Act? Not so, says the Court of Appeal in a case where a council sought to charge CIL on a floating hotel. HMRC argued that a vessel would not normally be described as a building; an appointed person decided it was not, and the London Borough of Newham challenged that decision.
For context, development for the purposes of the Planning Act 2008 and the CIL Regulations is defined in section 209 as: ‘(a) anything done by way of or for the purpose of the creation of a new building or (b) anything done to or in respect of an existing building’. The Court of Appeal, considering this, held that a vessel is not a building, but a vessel may be adapted into a structure that has the characteristics of a building. So now you know.
Making a splash
PINS has published a new advice note on the Water Framework Directive. It helpfully says what you’d expect it to, but also sets out PINS’ view on pre-application consultation.
In particular, the note sets out that ‘Applicants should use the pre-application consultation process to obtain advice from the consultation bodies. This should include confirmation that all relevant water bodies have been considered, that all potential impacts to these waterbodies have been considered, and whether the requirements of the WFD have been met.’ The outcomes of the consultation should, in turn, be included in the assessment document itself.
In, out, shake it all about
Many moons ago, we advocated for giving the option of going down the conventional planning route or the DCO route for nuclear projects. As there is little news this week, it might be interesting to discuss the pros and cons of broadening this approach out.
On the one hand, the DCO process is useful where compulsory acquisition is required or there are unfriendly local plans. No doubt, some are put off by the time and cost of a DCO application (compared to a TCPA application, where there are no appeals or challenges). On the other hand, the conventional planning route may well be useful if you have a friendly authority and development plan in place. The truth is that creating thresholds, as the Planning Act 2008 does, means that there will inevitably be some projects at the margins which are not well suited to their assigned regime.
We have a route for opting into the DCO regime via section 35, and it’s something a great many developers have done. The gap, however, is about opting out: some projects – highways or solar – may well have a more proportionate ride under the conventional planning regime. The concern here would be that projects which are genuinely nationally significant would potentially be subject to local authority decision-making, either risking refusal or unpalatable conditions. I guess the response to this would simply be ‘let the developer decide’ – they will take the best decision cognisant of the risks and whether to sacrifice strong national policy support.
One residual concern has been local authorities may end up opining on the interpretation of the national policy statements – but I’m not sure that has much force; they already do that with the NPPF. In short, the arguments for the opt-out seem strong, and the arguments against seem weak.
A related concern is that the test for section 35 should be loosened too: reframing the statutory test from national significance to national or regional need would help. The broader issue does suggest that we need a closer look at some of the thresholds – the rises for solar are welcome but could be accompanied by a Written Ministerial Statement making clear that those below 150 MW could nonetheless use section 35. The Welsh are doing precisely this for their opt-in: making clear when, in policy terms, a section 35-equivalent direction will be made.
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