Tuesday, 25 May 2010

Queen's Speech

As expected, the 22 Bills listed in the government’s legislative programme, as set out in the Queen’s Speech today, will include a Bill to devolve greater powers to Councils “and neighbourhoods” [?] and give "local communities" [sic] control over housing and planning decisions.

This Bill will take the form of a “Decentralisation and Localism Bill”. It will not be among the first measures to be introduced in this new parliament, but will start its passage through the legislative process after the summer recess. This does not necessarily imply that we can expect to see the draft Bill in October or November; previous planning bills have often been delayed.

The new Bill (the third planning bill within a six or seven-year period) will be piloted through the Commons by the DCLG’s ministerial team, headed by Eric Pickles, and the new Bill will be the vehicle for the necessary legislative changes to give effect to those policy priorities which have already been announced. But in the way these things have of growing like Topsy, we could possibly see quite a rag-bag of legislative proposals thrown into the Bill, including second and third thoughts as it wends its way slowly through the parliamentary procedures of the Commons and the Lords. Expected contents currently include scrapping Regional Spatial Strategies, the Infrastructure Planning Commission and the Standards Board. Regional Development Agencies will also go, to be replaced with “local enterprise partnerships”.

It remains to be seen exactly what is meant by the stated intention of “handing back decision-making powers on housing and planning to local councils”, beyond the scrapping of RSS [but see my afterthought below], although (again as previously announced) Councils are also to be given a general power of competence, and this too will be included in the proposed Bill. One area of remaining uncertainty is exactly how powers are to be further devolved to “neighbourhoods” (or “communities”). No doubt all will be revealed when the draft Bill emerges.

One afterthought is causing me some disquiet. I was puzzled by the reference to "the return of decision-making powers on housing and planning to local councils", bearing in mind that these powers have not in fact been removed from them. Is this a coded way of referring to an intention to do away with the current appeals system, I wonder? Threatened abolition of PINS has certainly been mentioned by the Tories. But why not spell it out, when other proposed changes have been openly announced? Do they fear the reaction if they come out with it openly at this stage?


Friday, 21 May 2010

That’s the way to do it! (Or is it?)

In a recent post I speculated on the need for primary legislation to abolish Regional Spatial Strategies (RSS) and to abolish the IPC and replace it with an alternative regime for the approval of major infrastructure projects.

The latter will almost certainly require primary legislation so as to partially repeal and replace the 2008 Act, but it has been pointed out to me that the S of S already has the necessary statutory power under Section 10(5) of the Planning & Compulsory Purchase Act 2004 to revoke RSS. What the subsection says is that “If the Secretary of State thinks it necessary or expedient to do so he may at any time revoke (a) an RSS, or (b) such parts of an RSS as he thinks appropriate.” As the commentary in the Planning Encyclopedia points out, this is entirely reasonable, bearing in mind that the RSS is a statement of his own policies.

However, the ghostly wraith of RSS may still haunt the planning system for some time after it has been summarily dispatched by the S of S. Those core strategies and other Local Development Documents which have so far been adopted or which are close to adoption have no doubt been prepared in compliance with RSS. Plans which have yet to be adopted could perhaps be amended to reflect the freedom which the LPA would have to revise its housing figures and other policies following the abolition of RSS, but that might call in question the ‘soundness’ of the local core strategy under current legislation.

There may have to be some fancy footwork in DCLG to work round this problem. If planning legislation is going to be needed to deal with infrastructure planning, the opportunity might be taken to legislate on development plans in general (going beyond the abolition of RSS and making consequential amendments to the provisions relating to the preparation and adoption of local plan documents). In the meantime, if RSS is abolished by ministerial order (under s.10 of the 2004 Act) there is scope for confusion pending clarification of its impact on plan preparation at the local level.

It has also been suggested that some LPAs might be tempted to refuse planning applications which are in accordance with the Development Plan but which are locally opposed because they are thought to be compliant only due to the imposition of housing targets in the RSS with which the LPA disagrees. This would present the LPA with a slight problem because, in accordance with s.38(6) of the 2004 Act, the LPA would have to demonstrate that material considerations indicate that the application should be determined otherwise than in accordance with the Development Plan, in order to be able to justify a refusal.

On reflection, waiting until comprehensive legislation can be introduced to deal with development plans generally might be the safest course for the government. But if impatience gets the better of them, ministerial cancellation of RSS under existing powers might cause more trouble than it’s worth.


Thursday, 20 May 2010

Getting the bit between their teeth

It seems that the Cabinet Office is on a roll, and is busy churning out major policy statements. The latest is the full text of the inter-party agreement on the policies to be pursued by the coalition (“The Coalition: Our Programme for Government”). The following are the main planning-related policies listed under Communities and Local Government.

As we already know, the government intends “rapidly” to abolish Regional Spatial Strategies and return decision-making powers on housing and planning to local councils. Instead, they propose to publish and present to Parliament “a simple and consolidated national planning framework covering all forms of development and setting out national economic, environmental and social priorities”. More detailed provisions will include giving LPAs new powers to stop ‘garden grabbing’. In the longer term, the government intends to “radically reform the planning system to give neighbourhoods far more ability to determine the shape of the places in which their inhabitants live, based on the principles set out in the Conservative Party publication Open Source Planning”.

The government intends to abolish the “unelected” Infrastructure Planning Commission and replace it with “an efficient and democratically accountable system that provides a fast-track process for major infrastructure projects”.

There is a commitment to maintain the Green Belt, SSSIs and other environmental protections, and to create a new designation – similar to SSSIs – “to protect green areas of particular importance to local communities” (as if present restrictions on development were not already too tight!). On the other hand, the government says it will promote “Home on the Farm” schemes that encourage farmers to convert existing buildings into affordable housing. There is also a rather vague commitment to creating “new trusts that will make it simpler for communities to provide homes for local people”.

Rather surprisingly there is a promise to give councils a general power of competence – something which New Labour promised in the past, but never delivered. Councils will also be allowed to return to the committee system, should they wish to, and councillors can breathe easy again with the abolition of the Standards Board regime.

Another rather vague proposal is to introduce new powers “to help communities save local facilities and services threatened with closure”, and to give communities the right to bid to take over local state-run services.

The 'green agenda' has not been entirely forgotten; the government will require continuous improvements to the energy efficiency of new housing and they will provide “incentives” for local authorities to deliver sustainable development, including for new homes and businesses.

We may perhaps be grateful that the document does not contain some other ideas which had previously been canvassed, such as a serious curtailment of the right to appeal against the refusal of planning permission or the introduction of a third party right of appeal. [Further reflection, however, suggests that these proposals have not been abandoned, as they form part of the programme set out in "Open Source Planning".] The Culture, Media and Sport section, incidentally, makes no mention of any intention to introduce the previously postponed Heritage Protection Bill.

It remains to be seen, when the Queen’s Speech is delivered next week, whether there will be a Planning Bill in the current parliamentary session. Early abolition of Regional Spatial Strategies and the abolition and replacement of the IPC (which will need to be tackled pretty quickly if it is not to delay major infrastructure projects which are in the pipeline) will require early primary legislation. Other proposals may take longer to work up, so the proposed changes may have to be dealt with in two instalments.

It will be interesting to see how all this works out.


Wednesday, 19 May 2010

Big ideas

I try to keep up-to-date by keeping an eye on the DCLG website among others, but it seems that proposed changes to the planning system are in fact being driven from the Cabinet Office, judging by various material released yesterday.

It seems the government is pressing ahead with the Tories’ “Big Society” ideas, and are promising (or threatening) that they will “radically reform the planning system to give neighbourhoods far more ability to determine the shape of the places in which their inhabitants live” and “will abolish Regional Spatial Strategies and return decision-making powers on housing and planning to local councils”. They have been wittering on about these ideas for some time, and it seems they really are going to try to put them into action. One can only hope that ‘Sir Humphrey’, together with the Tories’ friends in the development industry will explain in words of one syllable what those ideas would really mean in practice. If they fail to get through to the government, then ‘Gawd’ help us.

On the other hand, homeowners already established on the property ladder can rub their hands with glee at the prospect of even greater house price rises in future as the supply of new housing dwindles to a trickle, and unmet demand pushes house prices through the roof. Even buy-to-rent is likely to make a big comeback in the face of the resulting housing famine.

A further thought occurs to me. If (as seems to be the case), it is the Cabinet Office that is driving the agenda, then my confidence in ‘Sir Humphrey’s’ ability to head ministers off may be misplaced. Bold statements made by the Cabinet Office, setting out the government’s policies and intentions in relation to town and country planning, as well as other subjects, may leave other departments (such as DCLG) with little option other than to toe the line and obediently try to put those policies into practice, however impracticable they may privately think they are. Thus DCLG may be forced to work up legislative proposals to implement the government’s stated policies, without having had any input into those policies or any opportunity to comment on them in any meaningful way. This does not bode well for the future.


Tuesday, 18 May 2010

More ministerial priorities

The two priorities for ministers I mentioned in a previous post were simply my view as to two issues which I feel ought to receive early ministerial attention.

In practice, ministers may have more pressing problems to consider. The first of these is what to do about the IPC and major infrastructure planning. Apparently, the Commission has yet to receive its first formal application for development consent. Ministers will have to decide fairly quickly whether they will continue with the development consents system for major infrastructure projects set up under the 2008 Act or whether to replace this and scrap the IPC, in which case they must then decide what to put in its place.

One possible compromise would be to merge the IPC with PINS who would hold a public inquiry and make a recommendation to the Secretary of State (as in Section 77 call-ins), with the final decision being taken by the Secretary of State. In the past, of course, it was not necessarily the SSCLG (or his predecessor) who took the decision; for example, in the case of a power station, the decision would have been made by the Secretary of State for Energy (as that post was then known).

The second area requiring ministerial attention is the future of CIL. Is this form of funding for local public infrastructure to be rolled out over the whole country and made permanent, or should we revert to the more flexible system of planning obligations under Section 106 (or similar statutory powers)? One reform which might be retained, and even extended, is the need for any s.106 agreement to pass a test of necessity in order to be lawful. Financial contributions should be contingent on the completion of an identified infrastructure project (with a bond to secure the payment in the meantime). The need for the financial contribution should arise directly from the development in respect of which the contribution is to be paid.


Problems with comments

People seem to be having problems posting comments in response to posts on this blog, or (to be more correct) there is a problem in those comments reaching me through Google's 'blogspot' system so that they can be moderated and uploaded.

I have added one comment manually to the "Priorities for Ministers" item, but am still awaiting help with the underlying problem. In the meantime, if anyone has any suggestions as to how this problem can be overcome, please e-mail me (see the e-mail link on the "View my complete profile" page).

Friday, 14 May 2010

Priorities for Ministers

No doubt we all have our own ideas about how the planning system could be improved, and I set out some ideas a few weeks ago in the form a speech by the fictional Jim Hacker [see the April archive – “Real Planning Reform”].

I am sufficiently realistic to appreciate that many of those ideas will not appeal to the incoming administration, but there are a couple of issues which I feel would merit urgent consideration by ministers.

The first is the Development Plan system, which is now in complete chaos as a result of the ill-conceived changes brought about by the 2004 Act. Unfortunately, it will require fresh primary legislation to unscramble the mess, and DCLG will have to take their place in the queue for parliamentary time before they can introduce any further Bill.

What the Tory green paper was canvassing would make things worse rather than better, and at the very least there needs to be some fairly robust ministerial policy guidance imposed at regional level to ensure that housing land comes forward at a sufficient rate to meet the very real need for housing, especially in the southern part of the country. That need really must be met, and it will undoubtedly involve building on green fields.

There is also much to be said for having a county level policy document – whether you call it a County Development Plan or a County Structure Plan. Finally, at District level, we need something much simpler than the byzantine process involved in formulating the slowly emerging Local Development Frameworks. The current emphasis on process must be dropped, in order to focus on content. A streamlined procedure needs to be designed to fast-track the production of Local Plans and to keep them under review. There must clearly be an opportunity for public comment and objections to draft plans, but the tail must not be allowed to wag the dog as it does now.

Finally, repeal of Section 38(6) of the 2004 Act (originally Section 54A of the 1990 Act, inadvisedly inserted as a hasty amendment to the 1991 Bill as it was going through parliament) would relieve much of the pressure on the Development Plan process, which has slowed it down and made it such a long and weary dance. This would leave Section 70 of the 1990 Act on the statute book, which is a perfectly adequate basis for development control.

The other priority, which will not require primary legislation, is an urgent review of the validation of planning applications, including simplification of the information requirements (and ideally the scrapping or, at the very least, substantial simplification of the national and local checklists) coupled with an amendment of Article 20 of the GDPO to reverse the effect of the Newcastle judgment [see the post on 5th May below – “Validation dispute goes pear-shaped”]. Design and Access Statements should also be scrapped, except possibly for major applications.

No doubt many other items could be added to this wish-list, but the overhaul and acceleration of the Development Plan process and simplifying the requirements for submitting Planning Applications are the most urgent.



The following comment has been received from a reader :

The 2004 Planning Act frustrates building, and retards the construction industry. But why would reform help? The 1947 Town and Country Planning Act underpins the 2004 law, and will underpin any reform. Wouldn't it be better if farmers had their development rights back?

I am not sure I agree with this, and I would certainly not agree that we should return to a free-for-all for farmers, although there may be scope for revising Part 6 in the Second Schedule to the GPDO, as part of a more general tidying up of the GPDO. - MG

Thursday, 13 May 2010

Where to now, Guv ?


With a change of government, we can no doubt expect some changes of direction in planning policy, but these are being announced from the Cabinet Office, rather than from DCLG (see other more recent posts).

One change of policy which emerged within 24 hours of the new government being formed – Government support for a third runway (plus Terminal 6) at Heathrow has been abandoned. Whilst BAA, as a private sector body, are still free to promote it, it stands little chance of success without government support.

I initially thought that in the new situation following the formation of the Tory – LibDem coalition, the identity of the Secretary of State, and in particular the Planning Minister might have some effect on policy. However, in light of subsequent policy announcements, it seems that the government is steaming ahead with its proposals.

The new Communities Secretary, Eric Pickles, was a long-serving Tory councillor in Yorkshire and was leader of the council in Bradford between 1988 and 1991, before entering the Commons in 1992. So he presumably has some knowledge of the planning system, although being an elected member is certainly not an automatic guarantee of that!

He has previously shadowed both transport and communities and local government, among other opposition roles. More recently he was Tory Party Chairman (a position he has now relinquished on taking up this ministerial post).

The pre-election shadow Communities Secretary, Caroline Spelman has gone to DEFRA instead. I had hoped that that might possibly indicate a wish to distance the new government from the poorly-received policies in the Tory party’s planning ‘green paper’ published earlier this year, but apparently not. Even Tory supporters in the development industry thought those ideas were nonsense, and I still live in hope that some of the dafter ideas might be quietly dropped.

I had assumed that, as in the past, the Housing Minister (Grant Shapps) would also be responsible for Planning, but this will now be in the hands of the Parliamentary Under-Secretary of State, Bob Neill. Neill is another Tory. He is a barrister who before his ministerial appointment had a criminal practice at the bar. He has been MP for Bromley & Chislehurst since June 2006. In opposition he was a member of the Shadow Communities & Local Government team, becoming Shadow Local Government Minister in 2008 and holding the shadow planning brief. So he is now doing the job he shadowed for two years in opposition.

Prior to entering parliament, Neill served as a member of the GLC and was a councillor in Havering for 16 years, where he chaired the Environment and Social Services Committees. He was also a member of the London Assembly until he entered the Commons in 2006. He has thus had a good deal of relevant experience in local government, and presumably some contact with planning. On the down-side, he is inevitably associated with his party’s controversial planning proposals, which they now seem intent on trying to put into practice.


Wednesday, 5 May 2010

Validation dispute goes pear-shaped

Those of us advising applicants for planning permission have never been happy with the new validation requirements which accompanied the introduction of the standard application form (1APP) in 2008. The whole philosophy behind the standardisation of applications was to simplify the application process, and to ensure that there would be a degree of uniformity in the accompanying information requested by LPAs. The result was the opposite of those stated intentions and has turned the submission and registration of planning applications into a bureaucratic nightmare.

The problem stems from the use of national and local checklists which, whilst they may be justified in the case of major developments raising complex planning issues, are largely irrelevant to more straightforward proposals. I have generally found that if one takes the trouble to point out when submitting a planning application that certain information in the checklist has been specifically excluded and to explain precisely why it is not required, this will usually obviate any difficulties in getting the application registered. But what happens if the LPA disagrees with you and insists on additional information listed in either the national or the local checklist being submitted before they will register the application? In many cases, the practical answer will probably be to swallow hard and produce the requested material, simply in order to avoid any further delay to the processing of the application, even though you may think it unnecessary or irrelevant to the determination of the application.

There may, however, be cases where you and your client think the LPA is being utterly unreasonable, and that the application should be determined without the need for a lot of unnecessary extra information to be supplied. I think most of us had assumed that in those circumstances, after the expiry of the 8-week or 13-week period, one would be able to appeal to the Planning Inspectorate under s.78 against the non-determination (deemed refusal) of the application, and ask the Inspector to determine the appeal on the basis of the information already supplied. If the Inspector agreed, he would deal with the appeal on its planning merits, and you might even get an award of costs against the Council if the Inspector felt that their conduct had been unreasonable in demanding the unnecessary additional information.

Unfortunately, the decision of Langstaff J in Newcastle Upon Tyne City Council v SSCLG [2009] EWHC 3469 (Admin) appears to have put paid to any such hopes. The case turned on the precise statutory provisions by which the new validation requirements were introduced. These are Section 62(3) of the 1990 Act (as inserted by the 2004 Act) and Article 20(3) and (3A) of the GDPO (as amended in 2008). What Section 62(3) says is : “The local planning authority may require that an application for planning permission must include (a) such particulars as they think necessary, and (b) such evidence in support of anything in or relating to the application as they think necessary” Subsection (4) contains a proviso that these requirements must not be inconsistent with the terms of a development order made under sub-section (1) (which in practice means the amended version of Article 20 of the GDPO).

Article 20 is the provision in the GDPO which prescribes the time within which the LPA must determine the application (and which therefore triggers the right to appeal against non-determination). The time limit is prescribed by reference to the receipt by the LPA of a “valid application”. By Article 20(3), “valid application” means an application which consists of the prescribed application form, the ownership certificate, a design and access statement (where required) and, subject to paragraph (3A), “the particulars or evidence required by the authority under section 62(3) of the Act”, together with the requisite application fee. Paragraph (3A) limits the scope of the requirement for the particulars or evidence etc. referred to in paragraph (3) to items that fall within a list of requirements which has been published on the LPA’s website for the purposes of paragraph (3) before that planning application is made. Thus the scope of the particulars or evidence which the LPA thinks necessary under Section 62(3) is not open-ended but is confined to the items in the national and local checklists. Nevertheless, the LPA could in theory insist on being provided with each and every one of the items in those lists.

In the Newcastle case, the developer refused to produce items in the checklist which it thought it unreasonable to be expected to provide and, when the LPA refused to register the application, the developer waited for the end of the 13-week period, then appealed against the non-determination of the application. PINS accepted this as a valid appeal, but the Council made strenuous representations that the appeal should not be heard, and then applied for judicial review of PINS’ decision to consider the appeal. The issue for the Court was whether PINS had the jurisdiction to entertain the appeal, which would involve an Inspector considering the reasonableness of the Council’s insistence on being provided with all the information in the checklist.

In giving judgment in favour of the Council, Langstaff J put it this way :

There is in my view no room here for doubt as to what is or what is not a valid application in principle. That is defined by Article 20, which refers to s.62(3). In particular it seems to me that Article 20 means that an application is valid if it contains the particulars or evidence required by an authority under Section 62(3), and therefore it is invalid if it does not. And Section 62(3), containing as it does the words that the local planning authority may require that an application must include “such particulars as they think necessary”, is making the local planning authority the arbiter of what is necessary. The wording is not, as it might otherwise have been, “as are necessary” or for instance some such longer phrase as “such particulars as are items chosen from a local list by the local authority as may be necessary”. That would leave the question of what is necessary for the determination of others but that is not what the statute says.

Thus the LPA is left as the sole arbiter as to what information is necessary within the scope of Section 62(3) and Article 20(3), and this can now be challenged only by way of an application for judicial review on Wednesbury grounds, and not by means of an appeal to the Planning Inspectorate. The Treasury Solicitor has chosen not to take the Newcastle case to the Court of Appeal, and so it would appear that we are stuck with what many will see as a thoroughly unsatisfactory situation with regard to the validation of applications. The only hope is that, once the dust has settled after the General Election, a future review by the government of the validation requirements and their operation might lead to a more reasonable approach to the submission and processing of planning applications, and a simpler and fairer way of resolving any differences over the information to be supplied.