News

The Budget on 11 March set out that there would be new funding for various planning-related schemes, including:

  • an extension of the Affordable Homes Programme;
  • over £1 billion towards around they're currently i70,000 new homes across the country;
  • almost £650 million to help rough sleepers find permanent accommodation.

Further plans were then set out in a document entitled "Planning for the future", which, amongst other things, set out the Government's ambitions in the following areas:

  • investing £400m to use brownfield land productively;
  • ensuring there is enough land to deliver homes in the right places;
  • speeding up the planning system;
  • helping first time buyers onto the housing ladder;
  • creating beautiful and sustainable places, including by revising the National Planning Policy Framework (NPPF) to embed principles of good design;
  • ensure affordable, safe and secure housing for all;
  • setting the foundations for greener homes.

Details of how the planning system will be made more efficient and faster are expected to be published in a planning White Paper expected sometime this Spring. This could include measures such as the utilisation of technology to modernise the system and to help communities better understand the planning system. It is expected to set out planning reforms to encourage more building. In particular, it seems there will be an emphasis on good design and housebuilding.

As part of this, the Government set out in "Planning for the future" that it could look to reform planning fees, expand the use of zoning tools (such as Local Development Orders) to support local areas in simplifying the planning process, and to improve the effectiveness of Compulsory Purchase Orders to help speed up the decision-making process.

Furthermore, the Government are expected to publish a Building Safety Bill, aimed at improving building safety standards and create one of the "safest building safety regimes in the world".

Cedrec's take

Many will welcome provisions that will modernise and simplify the planning system, especially if effective and well considered measures are introduced in the forthcoming White Paper. However, the desire to speed up the planning process needs more careful thought. Recent research undertaken by the Local Government Association discovered that over one million homes with planning permission had not been built. The suggestion is therefore that the planning system is not a hindrance to house building. The issue lies with delivery. It is therefore reasonable to question the rationale behind speeding up the planning system, when this could lead to ill-considered development or poor decisions if the speeding-up process is not done effectively.

There is therefore great interest as to what the pending White Paper will set out and also on any consultations for reform launched as a result.

For more information, see:

The claimant applied for judicial review of the defendant local authority's decision to grant planning permission for the development of agricultural land in the Green Belt.

The development involved the phased extraction, processing and export from the site of 3.5 million tonnes of saleable sand and gravel aggregate. An officer's report to the local authority's planning committee recommended that planning permission be granted for the development, subject to the imposition of planning conditions and the completion of an agreement under the Town and Country Planning Act 1990.

The claimant argued that:

  • in failing to require a further hydrological assessment before granting permission, the local authority had breached the Town and Country Planning (Environmental Impact Assessment) Regulations SI 2011/1824, which stated that planning permission would not be granted unless the environmental information had first been taken into consideration;
  • the local authority failed to satisfy legal requirements in relation to the statutory development plan;
  • in relation to the Green Belt, the officer approached the question of "preservation" incorrectly, because he did so on a mistaken understanding that "specific localised impacts" could not result in a failure to preserve openness, and because the report did not include any discussion of whether the proposed screening measures themselves might have a harmful effect on the openness of the Green Belt;
  • the local authority had failed in relation to the development's impact on air quality/dust, in particular, its reliance on national air quality levels was unlawful, and it had failed to impose adequate planning conditions to address the issue of air quality.

The judge concluded it was not necessary for all uncertainty to be resolved to achieve compliance with the requirements of SI 2011/1824. This case fell within the scope of the local authority's entitlement and obligation to exercise a judgement on the adequacy or otherwise of the available information, and it was entitled to conclude that it had adequate information and that significant adverse consequences were not likely. In regards to the statutory development plan, it was confirmed that the officer's report evidently had the relevant policies in mind because it had referred to them expressly and concluded that their requirements were met. It could not reasonably be argued that the local authority's conclusion, having expressly considered the policy provisions on which the claimant relied, was irrational or unreasonable.

When considering the Green Belt, the judge stated that the report had approached the issue or "preservation" correctly. It showed the importance of taking a broader look at the potential impacts of a proposal rather than merely cataloguing and assessing specific impacts that might have a local effect, but were not necessarily material when viewed in the overall context of a development. Also while the report did not expressly question whether the proposed screening measures might themselves have a harmful effect on the openness of the Green Belt, it plainly addresses the question of openness, taking into account the screening measures that were proposed, and concluded that there was no material residual impact or harm to the openness of the site. That was a planning assessment and judgment which the local authority was entitled to reach. There was no material error in the report's approach and it was not reasonably arguable that the committee would have been materially misled by the terms in which it was presented.

On the final argument on air quality/dust, the judge decided the evidence before the committee indicated that levels of air pollution would be significantly below the national objective levels set in legislation. The available information was that those statutory levels were considered to be acceptable in terms of what was scientifically known about the effects of pollutants on health and the environment. The evidence was that the quarrying would not make a material difference to background levels. There was no basis on which the court could speculate that such levels were or might be damaging for two sensitive individuals living in the vicinity, whereas the evidence was that they would not be.

"It is concluded that the interests of the sensitive receptors can be adequately safeguarded given the design of the quarrying proposals and the available planning conditions. This conclusion is supported by the Council's Regulatory Services section and by experience of operation of other sand and gravel sites within Shropshire".

The application for judicial review was refused.

A local resident appealed against a decision, that a proposed housing development on a brownfield site was not an Environmental Impact Assessment (EIA) development.

The appeal Site A, prior to 1970, had been used as a brickworks quarry, but was later infilled and used as a recreation ground. A small sports stadium was also built. In 2008, a developer applied for planning permission for 150 homes on Site A. The local authority granted permission, but was subsequently quashed by consent. In 2016 the appellant, who was concerned about air pollution levels, requested an EIA screening direction.

The first respondent Secretary of State directed that the proposed development was not an EIA development within the meaning of the Town and Country Planning (Environmental Impact Assessment) Regulations SI 2011/1824, because it was not likely to have significant effects on the environment. It concluded that an environmental statement to assess the environmental effects of the development was not required. That direction reflected an earlier screening opinion issued by the second respondent local authority. The appellant sought judicial review of the screening direction, but the judge rejected his challenge.

On considering this appeal, it was confirmed that the judge had been entitled to conclude that there was a proper evidential basis for concluding that there was no likely significant effect on the environment. There was nothing unusual about the proposed development and the screening direction had adopted the approach required by SI 2011/1824. Also the first and second respondents were well aware of the Air Quality Management Areas (AQMA), and aware that the increased traffic from the completed development of Site A would have an effect on the AQMA. They concluded it was not likely to have a significant effect on the environment.

Also, five other potential development sites in the area had been properly taken into account in the screening opinion. In addition, the consented housing developments on Sites B and D and the application for housing in respect of Site C were also considered by the first respondent in the screening analysis under the heading "cumulative impact". Accordingly, the first and second respondents had reached their conclusions taking into account all relevant considerations, including the nature, location and scale of the proposed development and other developments in the area. There was plain evidential basis for that conclusion.

In addition, nowhere in the screening direction was there any suggestion that the potential air pollution from completed development of Site A was treated differently because it would occur in an urban environment, as opposed to a rural location. The screening direction made it plain that the pre-existing urban environment was part of the context in which the development was going to take place, and was therefore a relevant factor when considering if the effect was likely to be significant. The judge had not erred in finding that the proposed development was not likely to have a significant effect on the environment, so that an EIA was not required.

"The conclusion that the development was not likely to have a significant effect on the environment has not been shown to be in any way irrational".

The appeal was dismissed.

The outbreak of COVID-19 has presented its own unique challenges, especially to businesses trying to continue in operation when social distancing rules and social lockdown is being enforced. It is particularly difficult, as a business, to understand how this period of uncertainty affects health and safety duties.

Cedrec has written a short guide about keeping your distance at work, which could be useful to those working on premises which are still open.

When it comes to equipment; under key safety legislation such as the Pressure Systems Safety Regulation SI 2000/128, the Lifting Operations and Lifting Equipment Regulations SI 1998/2307 and the Provision and Use of Work Equipment Regulations SI 1998/2306, employers must carry out inspections of equipment periodically. Many businesses will therefore have upcoming equipment inspection deadlines looming and are uncertain what to do in such circumstances. 

The Health and Safety Executive (HSE) has issued the below statement to clarify the situation:

HSE Statement on COVID-19 and equipment inspections

"Duty-holders have a legal responsibility to maintain work equipment and carry out thorough examinations, written schemes and Statutory Inspections. These legal duties exist to help manage the significant hazard that the failure of such equipment can pose, not complying with these duties can significantly increase the risk of harm to workers and members of the public. Under certain circumstances with the agreement of a suitable competent person, some legislation does allow thorough examinations/statutory inspections to be postponed to a later date. Even if such options are taken, it remains the duty-holders responsibility to ensure that the equipment is safe to use.

If engineering companies are suffering shortages in their own resources, they should consider focusing this resource/expertise on equipment in premises where the most vulnerable are located such as hospitals, care homes and infrastructure which is essential to the running of the country.

Engineers who are working on sites where there are restrictions arising from the risk of COVID-19 infection should comply with site rules and take into account the wider Public Health England advice regarding good hygiene practices and separation distances. Consideration needs to be given to protecting the engineers but also, where relevant, any vulnerable persons who may be affected by their work.

At the current time, HSE is not considering issuing exemptions or relaxation of these requirements, but we recognise this is a fluid situation and this position is constantly under review."

Materials Handling and Plant Equipment

The HSE has also issued a joint statement with the British Industrial Truck Association (BITA) and the Fork Lift Truck Association (FLTA).

The statement stresses the importance to protect staff as much as possible, which has sometimes involved banning external parties from entering a site. Whilst this is commendable, there is a concern that this could lead to important considerations being ignored.

It states:

"The importance of control measures around the use of Materials Handling and Plant Equipment should not be taken lightly. Sadly, it is not uncommon for these types of equipment to be involved in serious or even fatal accidents when they are not managed correctly and as a responsible user, we are sure you are all too aware of this.

The ongoing scheduled maintenance, repair and statutory inspection of Materials Handling and Plant Equipment is fundamental to its safe use. By stopping these activities, users are at very serious risk of jeopardising the safety of their staff and any person the equipment interacts with. Failure to maintain, repair and inspect equipment within agreed guidelines leads to component failures, damage and ultimately accidents."

"Whilst we appreciate these are unprecedented times, these fundamental requirements remain in place as a strict expectation for any business operating Materials Handling and Plant Equipment. The joint recommendation from BITA, the FLTA and the Health and Safety Executive, is that scheduled maintenance, repairs and statutory inspections must be considered essential ongoing activities for any users of such equipment.

Whilst equipment remains operational, it is imperative for the safety of your staff and the overall legal compliance of your business, that you allow your service and maintenance provider – and where applicable – your Thorough Examination provider, ready access to the equipment in order to keep it safe and compliant."

Next steps

If equipment inspection deadlines are approaching, it is recommended that you have a conversation with those responsible for maintaining such equipment and formulate a suitable and, importantly, safe solution to equipment safety inspections.

The Health and Safety Executive (HSE) have issued a derogation which will aim to help the manufacturers of chemicals to adjust their production to make hand sanitizers, which are currently of significant demand.

Some of the UK's existing manufacturers of biocidal hand sanitizer products have reported that they are facing challenges to their normal supply chains due to increased demand for raw ingredients. This demand has been as result of the Covid-19 pandemic.

Normally, Regulation (EU) 528/2012 on the making available on the market and use of biocidal products requires all biocidal products to obtain an authorisation before such products can be placed on the market. That Regulation also enables the HSE to provide short term derogations from the requirements for product authorisation, in cases of danger to public health, animal health or the environment which cannot be contained by other means. 

Biocidal hand sanitizer products containing propan-2-ol (also known as isopropanol or isopropyl alcohol/IPA), will not be required to obtain a product authorisation - only if they meet the relevant WHO-specified formulation II.

Manufacturers wishing to place products that meet the WHO specified formulation on the UK market must contact the HSE by e-mail to biocidesenquiries@hse.gov.uk, using Propan-2-ol Article 55, as the subject of the e-mail.

The HSE will then respond as soon as possible to request details about the products being manufactured and once details are provided, issue a derogation certificate. Products should not be placed on the UK market until the HSE had provided a derogation certificate.

The WHO currently does not specify a formulation for hand sanitizers containing propanol-1-ol. Therefore, although derogations from the Biocidal Products Regulation may be possible for hand sanitizers containing that substance, these will require more information from applicants to enable HSE to determine the efficacy and the risks associated with their use. Such applications will inevitably take longer to process and approve by the HSE.

There is a WHO-specified formulation I for hand sanitizer containing ethanol. Under the transition arrangements in the Biocidal Products Regulation, manufacturers do not require product authorisations to place hand sanitiser products containing ethanol on to the UK Market.

The derogation guidance provided by the HSE also provides information on the:

  • rules for supplying chemicals for use in biocidal products;
  • non-Article 95 supplier’s chemicals for use in hand sanitisers;
  • active substances not yet subject to authorisation under the Biocidal Products Regulation.

For more information on this subject, see:

The Office of Rail and Road (ORR) prosecuted Renown Consultants Limited, a National Rail contractor after their failings led to the tragic death of two employees.

On 19 June 2013, Zac Payne and Michael Morris died after their work vehicle came off the motorway and crashed into a parked van. It is believed the driver, Mr Payne, fell asleep behind the wheel whilst driving back to Doncaster following a night shift in Stevenage.

Mr Payne had left Doncaster at 4.30 am the day before the accident, driven to Alnmouth, Northumberland, arriving at 7.30 am for work. This expected job did not take place so after midday he drove back to their Doncaster depot, arriving at 3 pm. Whilst returning to the depot Mr Payne was asked to undertake an overnight welding job in Stevenage. So after 7 pm that night, Mr Payne and Mr Morris set off to the new work site, arriving just before 10 pm.

Both men then started work at the railway welding job at 11.15 pm, and they left site at 3.40 am. The fatal crash occurred at around 5.30 am.

The ORR told Nottingham Crown Court that Mr Payne was suffering from the effects of fatigue, and it is believed he may have fallen asleep at the wheel or experienced 'microsleeps', which greatly increase the risk of a road traffic accident.

On 18 June, the day before the fatal crash, Network Rail had asked its contractor, Renown Consultants, for an additional welding team at Stevenage.

Renown Consultants accepted the job before they considered if they had employees that were well-rested sufficiently to complete the work. They failed to follow their own fatigue management procedures and did not comply with working time limits for safety-critical work, which welding is. There should be a minimum 12 hour rest period between an employee booking off duty and returning to work. The company also failed to conduct a suitable and sufficient risk assessment of Mr Payne's fatigue.

On top of this, Mr Payne had been permitted to drive the work vehicle, despite the fact he was only 20, and the company's insurance policy only covered drivers over the age of 25. This policy was routinely breached according to members of staff.

An investigation by the ORR deemed Renown Consultants policies and procedures to be inadequate in light of zero-hours contracts, which Mr Payne was on. As they were only paid for the shifts they worked, this incentivised these employees to volunteer for jobs despite their levels of fatigue. They were also discouraged from refusing jobs as they were reliant on Renown Consultants for securing their welding qualifications.

Chief Inspector of Railways, Ian Prosser, commented: ''Our thoughts are with the family and friends of Mr Payne and Mr Morris. The rail industry relies on a huge workforce of skilled manual staff often working at night and on shifts. Fatigue is a real and known risk which reduces alertness and affects performance. Today’s tragic case shows the fatal consequences that can occur when fatigue policies are disregarded. Safety comes first and ORR will continue to monitor and take action where companies do not take sufficient care to ensure their workforce is not too tired to work.''

Nottingham Crown Court found Renown Consultants guilty under the Health and Safety at Work etc. Act 1974 and the Management of Health and Safety at Work Regulations SI 1999/3242.


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