Friday, 18 July 2014

De-CLoG - Ministerial jobs shared out

De-CLoG have now sorted out their ministerial responsibilities between new and existing members of the ministerial team.

Those ministers with specific responsibilities in respect of Town and Country Planning are:

Eric Pickles (Secretary of State) – overall responsibility for planning and housing (and everything else)

Brandon Williams (Minister of State) - responsible for housing, planning and development, Ebbsfleet development, Traveller policy.

Stephen Williams (Parliamentary Under-Secretary) – responsible for localism, decentralisation and community rights, building Regulations and standards, empty homes, climate change and sustainable development

Kris Hopkins (Parliamentary Under-Secretary) - responsible for local government, planning policy and casework in relation to wind farms and solar, community pubs

Penny Mordaunt (Parliamentary Under-Secretary) - responsible for coastal communities, local growth, high streets, town centres and markets, enterprise zones, planning casework (supporting Brandon Lewis, Minister of State for Housing and Planning)

Lord Ahmad (Parliamentary Under-Secretary) - responsible for DCLG business in the House of Lords

I have omitted those ministers whose responsibilities do not include any involvement in planning as such.


Wednesday, 16 July 2014

The new planning minister

I am grateful to Charles Mynors (see comments appended to yesterday’s post) for alerting me to the fact that Brandon Lewis has taken over as planning minister in place of Nick Boles, also adding housing to his brief. He has been promoted within De-CLoG from Parliamentary Under-Secretary of State to Minister of State. His previous role within De-CLoG (since October last year) was as minister responsible for local government, fire and resilience, high streets, town centres and markets, travellers, and community pubs, having originally joined De-CLoG in September 2012. He is MP for Great Yarmouth, and has been in the Commons since 2010.

Lewis is a barrister, and served as a councillor on Brentwood Borough Council for more than 10 years, including 5 years as Leader, so he ought (one hopes) to have some idea of how the planning system works. He and Pickles go back some years together as local politicians in Essex, so this should help them to build a good working relationship.

I have been unable to ascertain any details of Brandon Lewis’s career at the bar, and am not clear whether he actively practised at the bar (and, if so, in what specialisation, if any) before his ministerial appointment in 2012.

Whether Pickles and Lewis (“the Eric & Brandon Show”) will continue the programme of ‘liberalisation’ through further extensions of permitted development remains to be seen, but further PD rights have been promised, so we should perhaps expect some further changes. One gets the impression, however, that the government generally is now changing over to pre-election mode, and that apart from tying up a few loose ends, they are not expecting to embark on any bold new initiatives.

Meanwhile, Penny Mordaunt, the latest recruit to De-CLoG, has been put in charge of the teaspoons (oh, and also coastal communities).


Tuesday, 15 July 2014

Boles moves on

The Planning Minister, Nick Boles, has left De-CLoG to become Minister of State jointly for the Department for Business, Innovation and Skills and the Department for Education. Penny Mordaunt (who?) has been appointed as Parliamentary Under Secretary of State in De-CLoG. I am not sure yet whether she is Boles’ replacement as Planning Minister, or whether there may be a re-arrangement of ministerial responsibilities in the Department. No doubt this will become clear in the next day or so.

There is no news of Uncle Eric, who is apparently staying put. Perhaps he was just too difficult to move. On 12 July, the Daily Mirror speculated that Ian Duncan Smith and Eric Pickles could be among the front bench casualties in the reshuffle. Both are still in post, so it looks as though the Mirror may need a new set of crystal balls.

Meanwhile, Owen Patterson has got the bullet at DEFRA. He turned up in Somerset without his wellies to see the floods, but proved that he was unable to walk on water. His departure has been widely welcomed. Liz Truss has taken over as the Secretary of State at DEFRA. So the next flood disaster, when it happens, will land on her desk.

[UPDATE: Just one minute after I posted this item, Eric Pickles tweeted: Just spoken to the PM I am very honoured to continue as Secretary of State at DCLG. ]

Monday, 14 July 2014

Office to residential – ministers enforce the rules

When Class J was added to Part 3 of the Second Schedule to the GPDO in May 2013, I predicted that some authorities would attempt to negate this change by making Article 4 Directions, but I pointed out that ministers have the power to cancel such directions. Sure enough, several authorities announced their intention to make directions, with the London Borough of Islington being first off the blocks with a blanket Article 4 Direction for its area.

It was a moot point as to whether there would be a confrontation between ministers and recalcitrant local authorities over this issue, and De-CLoG ministers finally made their position clear last week when Nick Boles made a written ministerial statement to the Commons.

He recognised that there may be very local reasons that mean these permitted development rights might not always be appropriate, and that LPAs do have the power to make Article 4 Directions. However, he pointed out that the National Planning Policy Framework provides that Article 4 directions should only be used in limited situations where it is necessary to protect local amenity or the wellbeing of the area. The Government’s planning guidance specifies that there should be particularly strong justification to withdraw permitted development rights where a direction applies to a wide area or where prior approval powers are available to control development.

In an earlier written ministerial statement of 6 February 2014, Boles reported that the London Borough of Islington had issued a blanket Article 4 direction which had the intended effect of removing permitted development rights for the conversion of offices to homes from the entire Borough area. National planning policy and guidance is clear that such expansive Article 4 directions require particularly strong justification, given the clearly stated public policy goal of liberalising the planning rules and helping provide more homes. It was the minister’s view that the Council had not provided this justification and so Islington had been ‘invited’ by ministers to narrow the scope its direction.

However, having considered Islington’s proposal for the Article 4 direction to apply to a reduced area, ministers have determined, in light of the tests set out in national policy and guidance, that it remains unacceptably expansive and unjustified. Taking into account the background of the significant need for new housing in London particularly, ministers have therefore taken steps to cancel Islington’s Article 4 direction in relation to Class J.

Boles made it clear that this revocation is intended to send a clear message that those who seek to oppose these changes to permitted development rights need to justify any Article 4 Directions and their extent. Clearly this is a warning shot across the bows of other LPAs, particularly in Greater London, against making widespread Article 4 Directions in an attempt to frustrate the use of permitted development powers for office to residential conversions. The London Borough of Richmond has announced its intention of making such a direction, but in light of the ministerial cancellation of Islington’s direction, Richmond had better think again. They are clearly not going to get away with a direction which is at all wide-ranging in its geographical scope. At best, an Article 4 Direction might be acceptable in certain core town centre areas, but these are likely to be strictly limited, and De-CLoG ministers can be expected to see to it that they are, if they accept them at all.


Tuesday, 8 July 2014

“Events, dear boy. Events.”

Harold Macmillan never used those precise words, but the best quotations are often misquotes. Anyway, it is events that have conspired to prevent my posting on this blog since 18 June, and as the BBC used to say in the days of steam-driven television - ‘We apologise for this break in transmission. Normal service will be resumed as soon as possible.”


Wednesday, 18 June 2014

Residential conversion of agricultural buildings - ecological considerations

Neil Pearce at Wychavon DC has raised with me a point arising from the conversion of agricultural buildings to residential use under Class MB in Part 3 of the Second Schedule to the GPDO. This relates to the appropriateness of a requirement that certain ecological surveys should be carried out. There are actually two points –

(1) Can the need to protect bats or other protected species be a material consideration in the determination of a prior approval application under Class MB?

(2) Can pre-commencement conditions relating to ecological surveys and protection measures be attached to a notice of prior approval under Class MB?

Paragraph MB.2 provides that the change of use under Class MB(a) is permitted subject to the condition that before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to—

(a) transport and highways impacts of the development,
(b) noise impacts of the development,
(c) contamination risks on the site,
(d) flooding risks on the site, or
(e) whether the location or siting of the building makes it otherwise impractical or undesirable for the building to change from agricultural use to a use falling within Class C3 (dwellinghouses),

and it goes on to say that the provisions of paragraph N of Part 3 shall apply in relation to any such application.

As I pointed out in earlier blog posts relating to the changes to the GPDO made in 2013 and 2014, paragraph N provides that the local planning authority must, when determining a prior approval application have regard to the National Planning Policy Framework as if the application were a planning application.

The consensus of opinion seems to be that, notwithstanding paragraph N, the LPA is in fact constrained in its consideration of the prior approval application to the criteria listed in the relevant class in Part 3 (in this case, paragraph MB2). I believe that several appeal decisions have now been issued that confirm this approach.

In the case of Class MB, however, the criteria that the LPA must take into account are rather more wide-ranging than they are under certain other classes. In particular, these criteria include consideration as to whether the location or siting of the building makes it impractical for any other reason (besides the others that are listed) or undesirable for the building to change from agricultural use to residential use. This seems to me potentially to introduce all sorts of other factors that might arguably militate against the residential conversion of the building. Among these, I suggest, could be ecological considerations, including the presence of protected species, such as bats.

I am told that Wychavon has a lot of bats (Stop sniggering at the back there!) and some enthusiastic ecologists. The argument is that, whilst not expressly referred to as one of the prior approval issues for an LPA to consider, ecology (and in particular the conservation of protected species) remains a key factor in the conversion of rural buildings. The ecologists very reasonably point out that the De-CLoG response to consultation on this issue stated that “All changes under permitted development are required to meet necessary habitats and environmental legislation and regulations.”. Furthermore, Section 40 of the Natural Environment and Rural Communities Act 2006 requires all public bodies to have regard to biodiversity conservation when carrying out their functions. In the exercise of its functions, an LPA is also required to have regard to the requirements of The Conservation of Habitats and Species Regulations 2010. I am bound to say that this does seem to me to be an entirely reasonable approach, and I really can’t fault the ecologists’ view on this issue.

The ecologists also point out, again quite rightly, that Paragraph N of Part 3 provides that “the local planning authority may require the developer to submit such information as the authority may reasonably require in order to determine the application, which may include —

(a)assessments of impacts or risks;
(b)statements setting out how impacts or risks are to be mitigated; or
(c)details of proposed operational development;

The ecologists believe that the implications for protected species should be considered as “impacts or risks”. Again, I really can’t disagree with that. They also take the point which I referred to earlier that prior approval applications are required to be determined with regard to the requirements of the NPPF. This requires decisions to be taken with regard to protected species. The ecologists therefore feel that the council should require a prior approval application to be accompanied by an appropriate assessment of the potential impact upon protected species and a mitigation strategy, if there are protected species at risk of harm from the development.

This would certainly be done if the LPA was dealing with an application for planning permission, and I am inclined to the view that a similar approach would be appropriate in the case of prior approval applications under Class MB. One might argue that this makes a nonsense of the principle of “permitted development”, but I think this is inherent in the whole prior approval concept that the government has devised. I have previously described it as “planning permission-lite”. It would be a serious mistake for anyone to run away with the idea that the government ever intended a free-for-all for residential developments in the countryside . Some people may find this disappointing, but that’s the way it is.

I mentioned earlier the issue of pre-commencement conditions. The 2014 amendment to Part 3 made it clear that LPAs have the right to impose conditions on prior approvals in the same way, and subject to the same rules and considerations, as in the case of planning permissions. It follows that pre-commencement conditions may be appropriate in some cases, and such conditions might include protection measures for fauna and flora, among other things.

I don’t think Neil was expecting me to come down on the side of the ecologists, but as a lawyer I just have to interpret the law as it stands, irrespective of my personal views as to whether it is ‘right’ or not in a political sense.


Monday, 16 June 2014

More pain for struggling planning authorities

It has no doubt been a considerable disappointment to De-CLoG ministers that, despite all the huffing and puffing on the part of Yorkshire’s Biggest Export, only one local planning authority has ended up being put in special measures on the grounds of alleged poor performance (Blaby – a Tory-controlled council in Leicestershire), and it looks as though only one county planning authority (actually a unitary – Trafford) will join them on the naughty step, on account of their performance in dealing with minerals and waste applications.

It was with this in mind that ministers have tried to dream up other ways in which they could sweep local planning authorities into the net, although (when you think about it) the whole idea seems pretty daft, as most developers probably won’t want to apply for planning permission direct to the Planning Inspectorate. What vast number of such direct applications have there been in Blaby so far, I wonder?

Anyway, undeterred by the sheer pointlessness of the exercise, De-CLoG has now announced the outcome of the consultation it launched in March. Among the ideas that had been canvassed was a rise in the percentage threshold to 40% or even 50% for determining major applications within the target period (13 weeks, or 16 weeks where EIA is involved). Instead of abandoning the daft idea of judging LPA performance by the speed of decision-making, it seems the government has settled on a 40% threshold (which actually represents an increase of one-third in the number of major applications that LPAs will now have to process on time).

There will be an exemption for LPAs receiving no more than two major applications over the two-year assessment period, but this means that an authority that receives only three such applications will have to determined two out of the three on time in order to meet the 40% threshold, because meeting the target time for only one out of the three would be belowe the 40% benchmark! Such an authority would in practice be facing a 66% threshold. (Which just goes to show how daft this game really is.). Not content with this, ministers have thrown in a veiled threat that the threshold could still be upped to 50% at some time in the future, although this may be an empty threat if the current motley crew get thrown overboard by the electorate at the General Election in 11 months’ time.

The other whizzo wheeze that ministers have dreamed up is the proportion of decisions on major applications that are overturned at appeal. The threshold here is losing 20% of such appeals over a two-year period. LPAs will be assessed against each of these two criteria independently, and so could be put in the sin bin on the basis of either or both of these. On the lost appeals criterion, there will be an exemption for those authorities receiving 10 or fewer major applications in the two-year period.

One point which is not spelt out, but which may lie behind ministerial thinking, is that LPAs who turn down major housing applications on un-allocated green field sites, but then lose subsequent appeals because they can’t demonstrate a 5-year housing supply, could be at some risk of being ‘designated’ under the appeals criterion if they lose, say, three out of 11 to 15 major appeals in their area. This could act as a further strong incentive to councils to ensure that their local plans are updated as soon as possible, so as to allocate enough housing sites to meet the 5-year housing land supply requirement in the NPPF and, in the meantime, to let these applications through, rather than risk losing appeals and getting sat upon by the Secretary of State (a painful experience, as the Leader of Blaby Council has discovered).

I wonder whether the government is going to keep up this performance all the way to the General Election? With UKIP snapping at their heels (having jumped on this conveniently passing bandwagon), I find it hard to believe that ministers will be able to resist making a U-turn at some time between now and next May.