Wednesday, 22 July 2015

How to ‘fix’ the planning system

Earlier this month there was a flurry of announcements intended to make it look as if the government is at last prepared to do something about the continuing failure (primarily on the part of the development industry, but they of course are excused from any blame by the government) to deliver sufficient new housing to meet ever-growing demand. This process started with a joint newspaper article by Cameron and Osborne in The Times on 4 July, foreshadowing the budget statement and various press releases and other documents issued to coincide with the budget the on 8 July, and then on 10 July a policy document described as the government’s “Productivity Plan” and entitled Fixing the Foundations.

I have commented before on the Treasury’s habit of taking ownership of such announcements, rather than De-CLoG, leaving that subservient department to obey the commandments of the Chancellor handed down on tablets of stone from the Mount Sinai of Downing Street. This is nothing new; the tendency of the Treasury to take charge was equally evident under the last Labour government. But Gorgeous George has always found this approach particularly to his taste, and he has been in a notably gung-ho (not to say hubristic) mood since the election.

The government’s proposals for further changes to the planning system are set out in Chapter 9. With regard to housebuilding, the document acknowledges the longstanding failure to build enough homes to keep up with growing demand, and notes that housing starts fell by nearly two-thirds between 2007 and 2009, with the number of first time buyers falling by more than 50% between 2006 and 2008 (carefully selected figures to coincide with the last period of Labour government).

The document blames “an excessively strict planning system”, which prevents land and other resources from being used efficiently, thereby impeding productivity by increasing the cost and uncertainty of investment, hindering competition, constraining the agglomeration [?] of firms and the mobility of labour, and encouraging land speculation, rather than productive development. Ministers assert that the resulting under-supply of housing, especially in high-growth areas of the country, has pushed up house prices.

The document recognises that the glacial pace of the plan-making system has been a major constraint in achieving the release of housing land, although they refuse to acknowledge one of the primary factors in this – the abolition under Eric Pickles’ superintendency of the Regional Spatial Strategies, which were designed to ensure that all authorities should contribute their share to meeting housing land need. The weak and wishy-washy ‘duty to co-operate’ that was incorporated in the Localism Act failed (as nearly everyone predicted) to provide an effective alternative, and even the NPPF has only had a limited effect in securing the release of housing land.

The plain fact is that local planning authorities, with all the local political pressures to which they are subject, cannot be trusted to deliver the housing that is needed in their areas in order to meet demand not only locally but generated in neighbouring areas as well. The government forswears ‘top-down planning’, but is nevertheless obliged to cast about for some mechanism that would force the hands of LPAs.

In pursuit of this objective, the government has announced its intention to take further action to ensure that local authorities put local plans in place by a set deadline. That deadline has been announced today in a written ministerial statement. It will be “early 2017” (five years after the publication of the NPPF), although it is not entirely clear whether ‘producing’ a local plan means actually adopting it, or merely publishing the first consultation draft. Furthermore, a local plan is not complete until all the DPDs are in place (a lengthy process). I suspect that what is referred to here is simply the Core Strategy.

The government proposes to publish league tables, setting out local authorities’ progress on their Local Plan. The league tables will be fairly meaningless in themselves, but where it becomes clear that LPAs are not making effective progress towards the adoption of a Local Plan, De-CLoG will intervene in those authorities and will do the job themselves. Whether this will in practice lead to faster plan-making is perhaps open to doubt.

This will be accompanied by proposals to streamline the plan-making process significantly, helping to speed up the process of implementing or amending a plan. The government also intends to strengthen the duty of cooperation between local authorities (a clear admission that this provision in the 2011 Act has been ineffective). This means that LPAs will have to be prepared to find housing land to meet the housing needs of adjoining local authority areas where they cannot be met within those areas themselves. However, you can be sure that this will produce a good deal of screaming and kicking on the part of some local councillors, who can see no reason why Midsomer Fartworthy District Council should be forced to allow houses to be built on its nice green fields just to meet the housing needs of their despised neighbours in the Borough of Clagthorpe.

There is a suggestion that further use will be made of development corporations to deliver higher-density development in designated areas. The government says it will consider how policy can support higher density housing around key commuter hubs. There is also a welcome intention to devise policy guidance to secure the release of commercial and industrial land for housing. Local planning authorities are all too prone to resist the ‘loss’ of employment land on which future commercial or industrial development is very unlikely ever to take place, and for which there is no demand in practice.

There is a more radical proposal for ‘brownfield’ sites (previously developed land), where the government is promising “an urban planning revolution”, including funding to provide infrastructure, strong local leadership to shape development and assemble sites, and the removal of unnecessary planning obstacles. The real problem, as anyone who has been involved with such sites is well aware, is the cost of remediation of site contamination where there has been an interesting and varied history of industrial uses. Developers have been known to bankrupt themselves in the process of trying to clean up sites of this sort.

Ministers contend that the planning system can create the sort of “slow, expensive and uncertain process” that reduces the appetite to build, where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny. The government says it is clear on the need to promote the use of brownfield land, and that it will remove all unnecessary obstacles to its re-development, including these sorts of planning obstacles. To this end, as well as legislating for statutory registers of brownfield land suitable for housing, the government proposes to legislate to grant automatic permission in principle on brownfield sites identified on those registers, subject to the approval of a limited number of technical details. On brownfield sites, this will give England a ‘zonal’ system, like those seen in many other countries, reducing unnecessary delay and uncertainty for brownfield development. (Hands up those of you who are old enough to remember ‘zoning’ in this country, and its abolition under ‘new-style’ development plans in the 1980s.) There is also a suggestion that compulsory purchase powers may be used to assemble housing sites on brownfield land.

The assertion is repeated that delays in processing planning applications may be a significant factor preventing housing supply from responding to upturns in the market. So the government proposes to legislate to allow major infrastructure projects with an element of housing to apply through the Nationally Significant Infrastructure Regime (i.e. taking the project out of the normal planning system and shoving it through the fast-track procedure for Development Consent).

There is a threat to further tighten the thumb-screws of the planning performance regime, so that local authorities making 50% or fewer of decisions on time are at risk of designation. The performance regime will also be extended to minor applications, so that local authorities processing those applications too slowly will be at risk of designation.

An unspecified fast-track certificate process is also proposed for establishing the principle of development for minor development proposals, coupled with an intention to significantly tighten the ‘planning guarantee’ for minor applications (whatever that means).

Section 106 agreements have also been identified as a delaying factor, and so the government proposes to introduce “a dispute resolution mechanism” [sic] for section 106 agreements, to speed up negotiations and allow housing starts to proceed more quickly. There isn’t supposed to be a ‘dispute’ about a draft section 106 agreement; it is intended to be negotiated, but where an LPA is proving difficult, I suppose some means of shifting the log-jam may be helpful (although an appeal against non-determination may still be the most practical way forward).

Finally, in order to bring forward more ‘starter’ homes, the government intends to extend the current exception site policy, and to strengthen the presumption in favour of Starter Home developments, starting with unviable or underused brownfield land for retail, leisure and institutional uses. These starter developments will be exempted from the Community Infrastructure Levy, and from the requirement to provide or contribute towards affordable housing. Tariff-style general infrastructure funds will not be sought from them.

How this will all be brought about will become clear over the next year or so. We will presumably see yet another Planning Bill later in this parliamentary session, and some re-writing of ministerial policy to give effect to the government’s stated intentions. How effective all this will prove to be is open to doubt, and I have already heard some very sceptical views expressed as to the actual delivery of all those new houses.

The government has still not addressed some of the real bugbears of the planning system, such as the nonsenses over the ‘validation’ of planning applications. Nor have they addressed the chronic under-funding of planning departments in local authorities and the consequent lack of sufficient experienced planning officers to handle planning applications quickly and effectively. If local authorities are squeezed even harder by the Treasury (as seems likely) things will only get worse. It is not enough for ministers to will the end; they must also will the means.


Tuesday, 21 July 2015

Catching up

Readers will have noticed that three weeks have passed since I last posted anything here, when I reported the arrival of Andrew Hignett as a member of our Planning Law Team; and the last substantive post on a planning issue was three weeks before that. Three of those weeks were taken up with final completion of my forthcoming book (“A Practical Guide to Permitted Changes of Use”) of which I hope to post further details shortly. The remaining time was accounted for by a much needed holiday.

It seems to be an immutable Law of Nature that whenever I go away for more than a week or so, the government seizes the opportunity to rush out major announcements of forthcoming changes to planning law and procedure, and so it proved this time. I will comment on the government’s proposals in due course, although what has been announced so far is a bit light on detail.

Not yet formally announced, but widely anticipated, is the further amendment of the GPDO so as to make permanent the PD right for the residential conversion of offices under Part 3, Class O of the Second Schedule to the GPDO, which is currently due to expire towards the end of May next year. These further changes should occasion no surprise, as they were canvassed in some detail in last year’s consultation paper. It is only their timing that has remained in doubt, and my guess is that an amendment Order will be made so as to come into force at the beginning of October.

Those who followed my various posts on short term lets in Greater London will be aware by now that, following the re-election of a Conservative government, sections 44 and 45 of the Deregulation Act 2015 duly took effect on 26 May so as to allow the short-term letting of dwellings in Greater London, which had previously been restricted by the Greater London Council (General Powers) Act 1973. There had been a possibility that a different election result might have led to the new provisions not taking effect, but now that we are living in a Tory paradise nothing can stop the government doing exactly what they like.

There are various other matters, including some judicial decisions, that may merit comment as soon as I have the chance to write them up, and I rather hope that I can now update this Blog more frequently than I have managed to do in the past couple of months. The same applies to the rather large backlog of comments that are awaiting moderation and publication.


Wednesday, 1 July 2015


Although (as I have explained before) this blog is not intended to be a corporate or personal marketing tool, I am very pleased to be able to tell you that another leading planning and environment lawyer, Andrew Hignett, has joined KEYSTONE LAW. This further strengthens our well-established planning law team, and now gives us coverage of major infrastructure projects, particularly in the ports sector, in addition to the other specialisations we already cover. It brings the number of planning lawyers in the firm to five, all of whom have substantial experience in planning law at a senior level.

Andrew’s key skills are founded in planning and environmental law, and he principally advises ports and other organisations in the sector on marine-related development, particularly in relation to port infrastructure projects. As well as project work, Andrew advises on regulatory and harbour management issues, including the promotion of Harbour Revision Orders.

He has considerable practical experience on the impact of nature conservation law in both the UK and Europe. Andrew also has experience of the judicial review of development consents, including planning permissions, marine licences, and harbour revision orders.

Andrew is a member of the UK Environmental Law Association and is actively involved in the work of the British Ports Association. He also writes and lectures on issues of concern to the ports industry.


Monday, 8 June 2015

The 56-day rule – some additional points

A couple of readers have written to me to draw attention to Article 7 of the GPDO. This is a new provision that did not appear in the 1995 Order.

There was no provision in the 1995 Order for any extension of time in respect of the determination of a prior approval application. However, Article 7 (after restating the basic rule that prior approval applications must be determined within 56 days) now allows the LPA to make a decision in relation to the application within such longer period as may be agreed by the applicant and the authority in writing (which could comprise an exchange of emails).

There is, of course, no obligation on the applicant to agree to such an extension of time, but if they do not do so a prudent authority might then refuse the application fairly promptly in order to avoid the 56-day rule coming into operation, thereby enabling the development to go ahead in any event. It is clear that any agreement to an extension of time would have to be explicit and unequivocal; it cannot be assumed or implied, nor can it be construed from only one side of a purported exchange of correspondence. A nil response from the applicant to the LPA’s a request for more time would not prevent time from continuing to run for the purposes of the 56-day rule. There would need to be some written evidence that both parties had agreed to extend time.

One correspondent queried whether sub-paragraphs (a), (b) and (c) in Article 7 do in fact enable time to be extended (or whether sub-paragraph (a) in fact rules this out), but there is no doubt that any one of sub-paragraphs (a) or (b) or (c) may apply; there is a comma after sub-paragraph (a), so it is clear that each is an alternative to the others.

Reverting to appeals against non-determination of a prior approval application, after further representations from the LPA, the Planning Inspectorate subsequently changed their minds in the case I mentioned in my last post, and accepted the appeal, on the basis that the case raised other issues besides the question of non-determination within the 56-day period. In the absence of such additional issues, though, it would appear that it is unnecessary (and in fact impossible) to appeal against the non-determination of a prior approval application. The right to proceed with the development arises automatically. However, if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, it may in such circumstances be advisable to make an application for a Lawful Development Certificate under section 192 of the 1990 Act, as I mentioned previously.


Wednesday, 3 June 2015

The 56-day Rule - Some further thoughts

Since I wrote my previous posts on this topic on 9 and 13 February and 11 March, I have taken the opportunity to look in more detail at the requirement as to the timing of the LPA’s notification of their determination of a prior approval application.

On the basis of the practical examples that I quoted in those posts, the consensus would appear to be that notification of the LPA’s determination of the prior application must not only be given by the authority within the 56-day period, but must also be received by the applicant within that period, and a proper construction of paragraph W(11), read as a whole, would seem to support this.

In paragraph W(11) of Part 3, sub-paragraph (a) refers to “the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required” and sub-paragraph (b) refers to “the receipt by the applicant from the local planning authority of a written notice giving their prior approval”, although sub-paragraph (c) merely refers to “the expiry of 56 days following the date on which the application was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”.

Sub-paragraph (c) relates to both of these two alternative notifications under sub-paragraph (a) or (b), and (by implication) to the third possibility that the notice served by the authority may be to inform the applicant that prior approval is refused. It therefore seems clear from the context that sub-paragraph (c) must also be taken to refer to the receipt by the applicant of such a notice, so sub-paragraph (c) should in practice be read as - “the expiry of 56 days following the date on which the application was received by the local planning authority without the receipt by the applicant from the local planning authority of a written notice as to whether prior approval is given or refused”.

Whilst on this topic, I am grateful to a correspondent for drawing to my attention the position regarding an appeal under section 78 against non-determination of a prior approval application, where the failure of the LPA to determine the application or to notify the applicant of that determination within the 56-day period is the sole determining factor in the appeal.

In such a case, the Planning Inspectorate seems recently to have taken the view that no appeal is required (or can be made) in such a case. I have been shown a letter from the Planning Inspectorate, written in May of this year in response to an appeal which had been made against non-determination of a prior approval application in Gloucestershire, in which they stated that, because it would appear that the LPA did not determine the application within the required 56 day period, the applicant can proceed with the development in these circumstances, and no right of appeal applies. The LPA had the power to refuse the application on the basis that the development was not appropriate for the prior approval process but there was no indication in this case that they did so. In the circumstances, the Inspectorate stated that the appeal appeared to be invalid and no further action would be taken on it. A copy of this letter was sent to the LPA who were asked to note its contents.

This would appear to dispose of the need to appeal against non-determination. If the applicant is correct in their assertion that they have the right to carry out the permitted development, then the expiry of the 56-day period would in principle enable the development to proceed, but if there is any doubt in such a case as to the qualification of the pre-existing use under the terms of the relevant Class of permitted development in Part 3, or as to the nature and scope of the proposed development itself, or if there is a dispute with the LPA as to the qualification of the site for change of use under the relevant Class in Part 3 (or where the LPA is otherwise challenging the right to carry out the proposed development), caution may suggest that the correctness of the applicant’s assertion as to the lawfulness of the proposed development should be tested by means of an application under section 192, before going ahead with the development.

It may be helpful to readers who are making an LDC application to be reminded of the judgment in F W Gabbitas v SSE and Newham LBC [1985] JPL 630, where it was held that the applicant's own evidence does not need to be corroborated by "independent" evidence in order to be accepted. If the local planning authority has no evidence of its own, or from others, to contradict or otherwise make the applicant's version of events less than probable, there is no good reason to refuse the application, provided the applicant's evidence alone is sufficiently precise and unambiguous to justify the grant of a certificate "on the balance of probability”. This was helpfully summarised in paragraph 8.15 of Annex 8 to Circular 10/97. The Circular was cancelled in March 2014, but the legal principles that it set out continue to apply.


Thursday, 28 May 2015

Savings for old provisions in the GPDO

When I wrote the other day about Article 8 of the GPDO 2015, I mentioned the possibility that there may be some general rule of statutory interpretation which would preserve the effect of the repealed legislation, but I had not had time to look this up.

I am grateful to Fraser Kerr for reminding me of section 16 of the Interpretation Act 1978. Although we are dealing here with a statutory instrument rather than an Act of Parliament, under section 23 (1) the provisions of this Act apply (unless the contrary intention appears) to subordinate legislation made after the commencement of this Act as they apply to Acts of Parliament. Section 16(1) provides that where an Act repeals an enactment, the repeal does not (unless the contrary appears) affect the previous operation of the enactments repealed or anything done or suffered under that enactment.

This is enough, I think, to protect the effect of a prior approval already granted before 15 April 2015, and this provision should also suffice to enable any pending prior approval applications and/or appeals against their refusal to be determined after 15 April, whereupon any prior approval so granted could be acted upon, even though the prior approval application was made under the provisions of the 1995 Order. It would also appear that the relevant provisions (including any limitations, conditions or restrictions) applying to the permitted development in question would be those under the 1995 Order, rather than the 2015 Order, although I am not absolutely certain about this last point.

In other cases, where no prior approval application had been made before 15 April, or in any cases where no prior approval was required (and where development had not commended before 15 April), the permitted development will now be entirely governed by the provisions of the 2015 Order.

So far so good, but I don’t think this answers the second problem which I posed in my last post, namely whether dwelling units (or floorspace) converted under a relevant class in the 1995 Order (e.g. under Class MB) should be counted towards the numerical limit (or cumulative floorspace limit) in the corresponding Class in the 2015 Order (Class Q in the example given). I am not convinced that the Interpretation Act has that effect. In this connection, I also looked at section 18 of the Interpretation Act, but I am not convinced that this section has the effect of enabling the provisions of the former classes of development in Part 3 of the 1995 Order to be read as if they were equally applicable to the corresponding new Classes in Part 3 of the 2015 Order. But I am open to persuasion on this point.

This last issue is perhaps more important, from a practical point of view, than the first point I raised. I am assuming for the time being that I am right in thinking that the numerical and floorspace limits in respect of development carried out under the 1995 Order do not affect development subsequently carried out under the corresponding provisions of the 2015 Order, but (as before) I would welcome any comments from readers on this point.

[P.S. I wrote this piece before I had seen Tom Bright’s comment, which has now been published under the previous post. I will take a look at the other point he raises, regarding Article 4 Directions, and come back on this subject in a future post.]


Thursday, 21 May 2015

GPDO 2015 - a problem?

Like most planning professionals, I imagine, I have had my nose buried in the new GPDO since it was published, in an effort to check all the changes (some of them quite subtle) that have been made to this legislation by the new Order. (This, incidentally, explains the relative paucity of posts on this blog in the past few weeks.)

As a result of a question someone asked me (and which I still haven’t answered), I have hit upon a possible problem of statutory interpretation arising from the new GPDO.

Article 8 of the GPDO 2015 revokes all the statutory instruments listed in Schedule 4, including the 1995 Order, and the amendment orders of 2013, 2014 and the most recent amending order of March 2015. One would naturally expect, however, to find a savings provision in the new Order, and Article 8 does indeed contain such a provision. However, the saving in Article 8(2) is solely for the purposes of development specified in Article 6(2) of the March 2015 amendment order, namely in respect only of a temporary change of use, under Class C or Class D of Part 4, of premises used within Use Class A4 (drinking establishments), and certain demolition under what had been Part 31 in the 1995 Order (now replaced by Part 11 in the 2015 Order). There is nothing else to preserve the effect of any of the provisions of the 1995 Order.

Have I missed some obvious general rule, contained elsewhere in the planning legislation? Or is there some other general rule of statutory interpretation which would preserve the effect of repealed legislation in any way? If not, then it seems to me that the repeal of the 1995 Order and all its amending orders could have two consequences, one which would clearly disadvantage developers and one which could be of benefit to them.

It seems to me that (at least in theory) unless development has actually begun, any planning permission granted by Article 3 of the 1995 Order was revoked with effect from 15 April 2015, even if prior approval had been granted in respect of that development before that date. (Bear in mind that the prior approval is not a planning permission, and does not have the effect of a planning permission; it simply fulfils a condition without which the development could not proceed. The planning permission was actually granted by Article 3.) So does anyone who had intended to carry out development under the 1995 GPDO now have to start again, even if the LPA had notified the developer of their prior approval? If one views each of the 1995 Order (now repealed) and the 2015 Order (effective from 15 April) as being entirely self-contained and mutually exclusive, which in the absence of any relevant saving provision in the 2015 Order would appear to be the case, then this would appear to be the position (as I say, at least in theory) in which a developer could find themselves.

On the other hand, if we take (say) the 3-dwelling limit in the former Class MB and the same limit in the new Class Q (or the floorspace limit under each of those provisions), then arguably any development carried out under Class MB (i.e. commenced before 15 April 2015, even if it has not yet been completed) would not count towards the limits now imposed by Class Q. There is no mention anywhere in the new GPDO, as far as I know (and I really have been through it over and over again with a fine-tooth comb while writing my book on the subject) of development previously carried out under Class MB in the 1995 Order. So, arguably, one could have used up the 3-dwelling limit under Class MB (or the floorspace limit under that class) and still be able to develop another three dwellings under Class Q ! [I appreciate that the ability of the LPA to refuse prior approval because “the location or siting of the building makes it otherwise impractical or undesirable” for the proposed residential conversion might possibly be used as an excuse by an LPA, or even by PINS, to block extra dwellings over and above the three already built under former Class MB, but it is the underlying principle with which I am currently concerned.]

I put these points to my colleagues in Keystone Law’s planning law team, and we all agreed that the apparent result of this legislative change which I have postulated above cannot have been intended by ministers. So far as concerns the apparent revocation of any permission granted by the 1995 Order (even where prior approval has been given in respect of the relevant issues with which it was concerned), the consensus we have reached in the team is that the new GPDO must be construed in accordance with Human Rights legislation, in a way which is compatible with the landowner's rights under Article 1 of the First Protocol, so far as it is possible to do so, and that the permission granted by Article 3 of the 1995 GPDO should not be regarded as having been revoked where prior approval in respect of such a development has been given, bearing in mind the 3-year time limit for commencement under the 1995 Order. We have collectively taken the view that a commonsense approach is required to this issue. Nonetheless, the strict legal position remains uncertain.

We have similarly taken the view that a prior approval application made under the terms of the 1995 Order which has not yet been determined should be treated as an application under the corresponding provision in the 2015 Order and should be processed and determined in accordance with the new rules, with the 56-day rule continuing to run from the day after receipt of the prior approval application by the LPA. This again, however, is a matter of common sense rather than legal interpretation. Planning inspectors in determining planning appeals have certainly taken this approach in recent weeks.

However, as regards the limits on development that were imposed (for example) by Class MB in the 1995 Order, as compared with the same limits imposed by Class Q in the 2015 Order, we take a different view. We have come to the conclusion that it would theoretically be possible to create up to six dwellings within a single agricultural unit – three under Part 3, Class MB in the Second Schedule to the 1995 Order, and another three under Part 3, Class Q in the Second Schedule to the 2015 Order (subject to prior approval under the terms of Class Q). [If my my supposition as to the loss of these permitted development rights if they had not been implemented before the 1995 Order was repealed is in fact correct, these residential conversions would have to have been started before 15 April 2015 in accordance with a prior approval or approvals under Class MB.]

Incidentally, I trust that readers have caught up with the change made in the amending Order made shortly before the consolidating Order itself, which resolved the previous doubt as to whether the 3-dwelling limit applied to all dwellings previously created on the same agricultural unit or only those created as permitted development under the GPDO. That amendment, now carried into the substantive Order, confirmed that it is only dwellings created as permitted development under Class MB of the 1995 Order (and now under Class Q of the 2015 Order) that count towards the 3-dwelling limit.

I would be very grateful if readers could direct my attention to any legislative or judicial authority on the issues I have raised above, and I shall be pleased to publish these as comments on this post.

Meanwhile the text of my book (working title – “A Practical Guide to Permitted Changes of Use”) has now been completed, and we are now moving on to the editing stage and preparation for publication. It is still too early to give details of the book’s publication, and in particular the date when it is likely to become available, but I naturally hope it will be as soon as possible.