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Certificate of Lawfulness rules

A recent change in the law came into force on 25^th April 2024. This requires all applications for certificates of lawfulness relating to alleged breaches of planning control to be subject to the 10-year rule, which has caused confusion to many property owners and developers.

Our view at Robinson & Hall is that applications for qualifying developments can still be submitted based on 4-year evidence, provided that the breach occurred before 25^th April 2024. This is derived from case law which confirms that an accrued lawfulness endures unless it is abandoned.

Please contact us for an initial assessment and assistance to apply for a certificate of lawfulness.

Appeals case studies

We recently obtained planning permission on appeal for a change of use from agricultural land to a dog walking field (sui generis) in Central Bedfordshire.

The main highlights of the case are:

• The Inspector opined that as a leisure activity, dog walking would be appropriate in the open countryside as it would support the rural economy and agricultural diversification.

• Although noting that most users of the facility would rely on the use of private vehicles to access the site, the Inspector reasoned that Government advice within the National Planning Policy Framework acknowledges that sites  meeting local business and community needs may have to be found adjacent to or beyond existing settlements and in locations that are not well served by public transport.

• Furthermore, the Inspector agreed with the Appellant that it is not uncommon for dog walking to be undertaken outside of settlement boundaries. Therefore, given that the availability of sustainable transport options varies between urban and rural areas, it is reasonably likely that local dog walkers regularly travel by private car to dog walking destinations.

• The Inspector also agreed with the Appellant that the development would not cause harm to the character and appearance of the countryside.

This is only one example  demonstrating how landowners can take advantage of policies that support agricultural diversification. Please contact us for more ideas on how you can unlock the value of your land through the planning process.

Difference between permitted development rights to convert and change the use of agricultural buildings to residential use (Class Q) versus the change of use of agricultural buildings to a flexible commercial use (Class R).

We obtained consent for our client through the appeal process to change the use of an agricultural building to flexible commercial use (Classes B8, C1 or E) through Permitted Development Rights, commonly referred to as Class R.

The main highlights of the case are:

• In awarding costs against Bedford Borough Council, the Inspector opined that it is clear that Class R does not permit any operational development associated with the change of use and that the Council misdirected itself by applying tests from other classes of the General (Permitted Development) Order, in this case, Class Q.

• Unlike Class Q development, there is no requirement for the building changing use under Class R to be structurally sound.

Biodiversity Net Gain (BNG)

BNG has become mandatory from 12^th February 2024. No matter what size your development, at least a 10% BNG must be achieved, except for those developments which are exempted from BNG requirements.  These are listed in our previous article which can be found here.

Key points to consider

1. Involve the professionals, i.e. planners, landscape architects, ecologists, as early as possible to ensure that the design of your layout will achieve the BNG requirements.

2. Any habitats within the red line boundary must be included in the baseline where BNG is required. You will need to understand the baseline and site conditions and keep track on the landscape designs and BNG.

3. You should avoid or reduce any negative impact on biodiversity through the site selection and layout design. At least 10% increase in BNG must be delivered through (1) creating biodiversity on site, (2) making off-site biodiversity gain from your own land outside the development boundary, (3) buying off -site biodiversity units on the market or (4) buying statutory biodiversity credits from the Government.

4. You must use the Statutory Biodiversity Metric to measure the biodiversity value of habitats, including area-based habitats (e.g. woodlands), linear-based habitats (e.g. hedgerows) and watercourse-based habitats (e.g. rivers, streams), by calculating the number of biodiversity units.  The minimum 10% increase in biodiversity units for BNG must be achieved for each habitat module independently.  

5. If any river or stream lies within 10m of the red line boundary, or any ditches, canals and culverts are located within 5m of the red line boundary, then the watercourse unit module is applied. A 10% uplift of watercourse unit must be achieved.

6. Both on-site significant enhancements and all off-site BNG provision must be legally secured for at least 30 years. A Habitat Management and Monitoring Plan (HMMP) must be submitted, which outlines how the land will be managed and monitored and how the habitats will be created or enhanced over at least 30 years. 

7. If you are not able to create the BNG on site or off site, as a last resort you can buy statutory biodiversity credits from the Government. You should contact the Local Planning Authority (LPA) and apply for purchasing credits. It can take up to 8 weeks for the LPA to approve your application. You must prove why you cannot meet BNG by using on-site or off-site options.

8. After planning permission has been granted, you must submit a Biodiversity Gain Plan to the LPA for approval. You cannot start the development until the LPA approves Biodiversity Gain Plan and biodiversity metric tool calculation.

For more information or to find out how our Planning & Design team can help you, please contact 01234 352201.

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