Replacing the Infrastructure Planning Commission

Some weeks ago, I wrote that one of the items near the top of the governments ‘IN’ tray must be an urgent decision as to what is to replace the Infrastructure Planning Commission, in light of their stated intention to abolish it. As expected, the government is to announce its closure later today and its merger with the Planning Inspectorate.

Early reports of this decision seem to be based on remarks made by the Chancellor, George Osborne, to a conference of local authority chief executives in London yesterday. It is expected that the actual announcement will be made by the Minister for ‘Decentralisation’, Greg Clark, at the RTPI’s summer bunfight in London later today.

What is proposed is the establishment of a ‘Major Infrastructure Planning Unit’ within the Planning Inspectorate. Inspectors will report to DCLG ministers, who will then make a ministerial decision in the same way as they would in respect of a called-in planning application. I recall suggesting at the time the IPC was set up (under the 2008 Act) that this would be a more sensible way of organising it.

We are promised that major infrastructure schemes will still be ‘fast-tracked’, and proposals will still be judged against National Policy Statements, although these will in future be subject to parliamentary approval (which could further slow an already tardy process). It is the continuing absence of National Policy Statements in certain important areas which is preventing some major infrastructure schemes from being brought forward. This is an issue to which DCLG needs to give urgent attention.

[A final thought: Did the IPC ever actually receive a formal application for development consent during its short life?]

© MARTIN H GOODALL

Decisions under the new regime

Three Secretary of State’s appeal decisions have recently been published reflecting his revised approach following the announcement of the forthcoming abolition of regional strategies. In all three appeals he states that he has taken into account as a material consideration his own letter of 27 May (which he quotes verbatim). In all three cases, he made it clear that although the Regional Strategy currently constitutes part of the development plan, he affords it less weight in determining these appeals than he would have done prior to the publication of his letter. However he did not consider it necessary to refer back to the parties on the implications of this change of weight before reaching his decision as in two of the cases – in West Yorkshire and in Thurrock - he would anyway have refused planning permission for these proposal on the grounds that very special circumstances had not been demonstrated to justify allowing the release of land from the Green Belt, so that the proposals were not in line with the development plan in that respect.

In a housing appeal for 299 dwellings at East Tilbury, the Secretary of State records that it was accepted by all parties at the Inquiry that, as a matter of fact and irrespective of allocations in the East of England Plan (EEP), there is less than a 5 year supply of housing land in Thurrock. However, the extent of the shortfall was a major issue of contention, which the Inspector explored thoroughly, concluding that there is a serious shortfall in the 5 year supply of housing land. The Secretary of State agreed with the Inspector’s reasoning and conclusions that this shortfall represents a failure to deliver a flexible and responsive supply of housing in relation to the housing targets required by the EEP. He considered that this was a material consideration in favour of the appeal proposals and that, notwithstanding the fact that the weight he affords to this matter is tempered by affording less weight to the housing figures set out in the EEP than formerly, it needed to be considered in the overall balance. The appeal was allowed.

In another housing appeal, for up to 199 dwellings in Leighton Linslade, the Secretary of State, in applying the same approach to regional strategy, made it clear that he would anyway have refused planning permission for this proposal (even had, for example, the EEP housing targets been afforded their former weight) on the grounds that very special circumstances had not been demonstrated and that the proposal is not in line with the development plan - his reasons for doing so being set out in his decision letter.

Referring specifically to housing supply, he agreed with the Inspector’s reasoning and conclusions on whether the proposal would assist in meeting national housing policy objectives, having regard to the supply of housing. He agreed that the proposed housing provision, including affordable housing provision, would contribute to housing targets in an area identified for housing growth where there is a shortfall and this is a material consideration in favour of the appeal proposals. However, the weight he afforded to this matter was tempered by the fact that he affords less weight to the housing figures set out in the EEP than formerly. However, even had the EEP housing targets been afforded their former weight he did not consider that the contribution this proposal would make to meeting those targets would be of sufficient weight to demonstrate very special circumstances, either alone or in conjunction with those other factors which weight in favour of the proposal.

So in all three cases, the reduced weight given to regional strategies did not in the end affect the outcome of these appeals. Perhaps we should not be altogether surprised by this. The targets set by regional plans may no longer be given the same weight as before, but the objective studies and statistics on which those targets were based cannot be ‘abolished’, and will clearly continue to carry some weight in themselves.

© MARTIN H GOODALL

The future of Development Plans

We were promised further details of the Government’s plans to scrap regional planning. This seems to have come in the form of an address by the Planning Minister, Bob Neill, to the National Planning Forum on 23 June.

What he actually said was typically full of political hyperbole and largely unenlightening as to the detail (due, no doubt, to a great deal of head-scratching still going on inside DCLG). Unsurprisingly, Neill reaffirmed the government’s determination to abolish Regional Spatial Strategies, although no date seems to have been given, and this will presumably have to await the passage through parliament of the promised ‘decentralisation’ Bill.

The only clue as to what is to be put in place of the current system were gnomic utterances about communities coming together to “take responsibility for solving their own local challenges in a way that make sense for them”. Local plans, Neill said, will be “more transparent and spell out how they will benefit the community. Communities will help develop proposals for their neighbourhoods, rather than be consulted on 'options' that have already been prepared.” He also said that local, long-term plans will become more important. “If a new development is in the plan that is supported by local people, a proposal in line with that plan will be approved unless there are significant reasons against it,” he added.

This is the first clue we have had that what is proposed goes beyond mere scrapping of regional planning, and will involve an overhaul of the whole Development Plan system. This was inevitable in view of the pivotal role that regional planning plays in the current system. The plan-making process we have at the moment can’t go on working if you remove the key element (the Regional Spatial Strategy, or its predecessor – Regional Planning Guidance) on which the rest of it depends. So it looks as though we are going to have yet another complete overhaul of the Development Plan system.

In some ways, the scrapping of the system set up under the 2004 Act will be welcome, as the byzantine complexity of the process has resulted in the various elements of the Development Plan emerging with glacial slowness. But whether the system that ministers intend to put in its place will be any better is open to question, especially if it is to be NIMBY-driven at the local level.

The Government's answer to this appears to be financial 'incentives' to LPAs and their voters to accept development in their areas which, left to their own devices, they would rather not have. This could act both as a carrot and a stick, as local authorities could possibly find themselves starved of grant funding from central government if they refuse to allow building at levels which would qualify for the proffered financial incentives. It sounds uncannily like the recently-scrapped housing and planning delivery grant.

© MARTIN H GOODALL

Interpretation of planning permissions

Those who have followed this blog in the past will be aware that the problem of construing the meaning of planning permissions has been before the courts on several occasions, most notably in the cases of Ashford and Barnett.

It was apparently established in Ashford that a planning permission must be construed solely by reference to the decision notice which actually grants permission, and that resort can only be had to the application and submitted drawings if they are expressly incorporated in the permission by clear words set out in the description of the development which the permission authorises, unless the words of the planning permission are ambiguous, in which case resort can then be had to extraneous material, and in particular to the application and submitted drawings.

This approach was refined in Barnett, which established that the approved drawings must be taken to be included in the permission, because in many cases the permission would be meaningless without the approved drawings. In practice, the approved drawings are usually listed in the permission so as to confirm which drawings the permission refers to.

Another case has now reached the High Court - Stevenage BC v. SSCLG [2010] EWHC 1289 (Admin) (in which judgment was given on 3 June) which raises further questions as to the interpretation of a planning permission. In this case, a planning permission which, according to its wording, was for external alterations to a retail unit was found by an Inspector in an LDC appeal also to grant permission for internal alterations to subdivide the retail unit. Normally, internal alterations do not require planning permission but, without going into the detail, the nature of the internal alterations in this case was such as to constitute development requiring planning permission.

Relying on Barnett, the Deputy Judge upheld the Inspector’s decision, and confirmed that because the application drawings clearly showed the internal alterations, they must be taken to have been included in the planning permission for alterations to the building granted in 2006.

The High Court has granted permission to appeal to the Court of Appeal in this case, because the principal point as to the primacy of the planning permission notice is an important one and in a context such as this has not been explicitly dealt with by the Court of Appeal [in Barnett].

So watch this space in a few months time for what will hopefully be a definitive decision from the Court of Appeal on the interpretation of planning permissions, particularly as regards the relationship between the wording of the notice and the approved drawings.

© MARTIN H GOODALL

Unitaries quashed

This is not planning law so much as local government law, but in the High Court today (21 June) Mr Justice Ouseley quashed the statutory orders creating unitary authorities at Norwich and Exeter. The ground on which the ministerial orders (made by the previous Secretary of State) were quashed was simple procedural unfairness. The S of S had set out clearly the grounds on which he would make such orders, then proceeded to make them on an entirely different basis, in circumstances in which (according to his previously stated criteria) those orders could not have been made.

The significance of this judgment is that it saves the government the trouble of proceeding with fresh primary legislation to undo the orders setting up the two unitary authorities. In his judgment, Ouseley suggests that the decision can be re-taken after a comparatively short further consultation period, but it is clear that the new S of S has no intention of doing any such thing. His re-taken decision, surely, will be not to proceed further with these unitary proposals.

With the previous proposals for unitaries already on hold in Suffolk and in the rest of Devon and Norfolk, Ouseley’s judgment would seem to have shot the fox, and saved some parliamentary time, unless there are some statutory loose ends that still need to be tied up in order to put the whole issue finally to bed. It might, for example, be felt necessary to drive a stake into Dracula’s heart (by passing a repeal Act) in order to avoid any possibility that disappointed local politicians in Norwich, Exeter and Ipswich might seek to raise the ‘undead’ again, by challenging a fresh ministerial decision not to create unitaries in those cities.

© MARTIN H GOODALL

Planning for ‘free’ schools

All the papers were full of the news at the end of last week that Michael Gove, the Schools Secretary, is going to “tear up planning laws” to allow his new ‘free’ schools to be built. This overlooks a small detail – Gove doesn’t have the power himself to change planning legislation.

DCLG have made no comment on this, so far. Presumably, the Education department will have to persuade Uncle Eric’s department to make the necessary changes to the GPDO. Or perhaps orders to do so will come from No.10 or the Cabinet Office.

There seems to have been an assumption that what this involves is simply a change of use of existing premises, rather than operational development, but that remains to be seen. One wonders how this will fit in with the government’s ideas of letting people at a local level decide what development they want in their neighbourhood. I can think of a number of objections on land use grounds which could arise in the case of particular school proposals. Presumably Article 4 Directions would still be available to LPAs to prevent undesirable changes of use or other permitted development for educational purposes in sensitive areas.

We shall have to wait and see what actually emerges. All we have had so far is government by press release. Putting Gove’s ideas into practice may prove to be more difficult than his bullish press statement was intended to suggest.

© MARTIN H GOODALL

HMOs – About turn!

Changes have been announced regarding the treatment of HMOs that will largely reverse the effect of the recent amendment to the UCO which came into effect on 6 April. This attempted to distinguish between dwellings occupied by groups of people (up to six) living together as a single household (which still come within Class C3) and dwellings occupied by between three and six unrelated individuals as their only or main residence, who share basic amenities such as a kitchen or bathroom (which now fall into a new Class C4). The ‘saving’ in Class C3 for dwellings occupied by groups of people (up to six) living together as a single household was intended to cover groups such as a small religious community, or a homeowner who is living with a lodger. The intention was to put student lets and similar house-shares into the HMO category (now Class C4), although there seems to me to be considerable scope for debate as to whether particular domestic arrangements put the use into Class C3 or C4.

The General Election distracted many people’s attention from the change, but the last government cannot really be accused of having ‘sneaked it though’, because it has been the practice in DCLG for some time past to put through tranches of such changes twice a year, to come into effect on 6 April and 6 October.

It subsequently seems to have dawned on DCLG that the effect of this change is that LPAs are liable to be snowed under with planning applications to authorise student lets and similar arrangements now falling into the HMO category, and there could potentially be a reduction in the number of premises available on the market if landlords were deterred by the red tape involved in applying for planning permission. Up to 8,500 applications a year were expected as a result of the change. This may well be what lay behind the announcement from the Housing Minister, Grant Shapps, yesterday (17 June) of a substantial relaxation of the new rules.

The changes to the UCO will remain in place, but the GPDO will be amended so that changes of use between Classes C3 and C4 will be permitted development. In those areas where LPAs feel that the concentration of HMOs is a problem, they can use their existing powers to make an Article 4 Direction. So, instead of a blanket requirement for planning permission for change of use to an HMO, this will be a requirement only in those areas where LPAs exclude this particular form of PD through an Article 4 Direction.

Until we have seen the exact wording of the proposed changes to the GPDO it will not be possible to assess the precise legal effect of this amendment. However, one possibility which occurs to me is that it might (perhaps unintentionally) make it much easier to create an HMO than it was, even before 6 April. Prior to that time, an HMO was sui generis, so that it would always have required express planning permission. I would need to look again at the definition of an HMO, as now refined by Class C4 in the UCO, to see whether the combined effect of these changes is as wide as I think it might be. This is a topic to which we may return.

© MARTIN H GOODALL

Revised model 106 agreement

On Monday (14 June), the Law Society announced the publication of the second edition of their standard draft planning agreement, which has been revised to take account of legal and economic developments since the first edition. In particular it expands on the provisions for affordable housing, which was one of the weaknesses which I identified in the original version of the agreement when commenting in this blog on that first draft (in 2006). Other comments by users have also been taken into account and incorporated in this revision.

The draft agreement is intended to provide a starting point for negotiations over planning agreements with local authorities, to reduce the time spent negotiating standard matters and to encourage greater standardisation in drafting planning agreements and the use of common provisions.

I have not had time yet to look at the new draft in any detail, but the provision of an updated version of the draft agreement is welcome. Such a model agreement can be no more than a guide to drafting, because the specific requirements of a particular development will inevitably call for bespoke drafting to make detailed provision for those requirements, and this applies particularly to the provision of affordable housing which, in my experience, has to be tailored to the particular requirements of individual LPAs and their chosen RSLs (which can vary widely). Nevertheless, a widely accepted model agreement is a good starting point from which to work.

© MARTIN H GOODALL

Hammering home the message

Just in case they hadn’t got the message, Steve Quartermain, the chief planner at DCLG, wrote to LPAs yesterday (15 June), drawing their attention to the amendments made to PPS3 last week, viz: the exclusion of private residential gardens from the definition of previously developed land in Annex B of PPS3, plus the deletion from paragraph 47 of the national indicative minimum density of 30 dwellings per hectare. These changes, he says, emphasise that it is for local authorities and communities to take the decisions that are best for them, and decide for themselves the best locations and types of development in their areas. In other words, it’s a free-for-all so far as the level of provision of housing sites is concerned.

Quartermain repeats that LPAs and PINS are expected to have regard to this new policy position in preparing development plans and, where relevant, to take it into account as a material consideration when determining planning applications.

One wonders why DCLG has found it necessary to press the message home in this way. Only Rip Van Winkle could have missed the hoo-ha over last week’s announcement. Is it perhaps that the Department dimly perceives that their announcement has received a less than rapturous reception, and that even LPAs, as the alleged beneficiaries of the new policy, are querying the resulting policy vacuum in which they are being asked to operate?

A more detailed announcement regarding the abolition of RSS has been promised for 22nd June. But it seems unlikely that this will provide any greater enlightenment, as ministers don’t seem to appreciate the huge void in planning policy which they have created. They don’t appear to have any plans to fill the gap anytime soon, and so chaos will reign. PINS will have the most difficult task of all, faced with having to determine Section 78 appeals in this situation.

The only safe course is to apply the provisions of Section 70(2) of the 1990 Act and Section 38(6) of the 2004 Act, relying on whatever it is that legally constitutes the Development Plan at the time the appeal is determined. Bearing in mind that the S of S has chosen not to use his powers under Section 10 of the 2004 Act to rescind RSS immediately, those RSSs which have been formally promulgated by the S of S remain for the time being part of the statutory Development Plan and must continue to be treated as such.

The S of S’s intention to abolish RSS in the forthcoming ‘decentralisation’ bill is undoubtedly a material consideration, which could in principle indicate that the appeal before the Inspector should be determined otherwise than in accordance with the Development Plan. But the weight to be given to such material considerations is a matter for the decision-maker, and an Inspector may not necessarily feel that the intention to abolish RSS is an over-riding consideration when all the other material considerations, including the demand for housing in the LPA area, are taken into account. PPS3 (as amended) remains, of course, one of the major material considerations, and I have already pointed out that (apart from the deletion from paragraph 47 of the national indicative minimum density of 30 dwellings per hectare) the advice on the efficient use of land (paragraphs 45 to 51) remains in place.

So, despite the huffing and puffing from ministers and from DCLG’s Chief Planner, Inspectors may still allow appeals against the refusal of housing proposals on ‘garden land’ and other sites where this appears necessary in order to meet the strategic need for housing in the locality, and where it is an efficient use of land within the urban area or within the relevant settlement boundary. The policy of protecting ‘green field’ sites (which has not been amended or watered down in any way) means that we must still maximise the development potential of urban land, even if it is currently garden land.

© MARTIN H GOODALL

Bad news for gypsies and travellers

One of the consequences of the proposed scrapping of RSS (and Eric Pickles’ stated intention that this should become a material consideration immediately) is that, as well as relieving LPAs of the requirement to find a larger number of housing sites than they would prefer if left to their own devices, it will also relieve them of the obligation to achieve specified targets for the provision of sites for gypsies and travellers.

Several authorities have seized on this as an easy excuse to surrender to NIMBY pressures, and have already announced their intention to reduce the number of gypsy and traveller sites they will seek to provide in their areas through their local development plans.

This is an extremely short-sighted and ill-advised change of policy. There is a considerable unmet need for gypsy and traveller sites in this country. This has led to groups taking matters into their own hands and establishing their own sites, often resulting in long drawn out and hard fought planning battles. Quite a few of these cases have ended up in the High Court.

The result of this change of policy on the part of the government will undoubtedly be an increase in the number of planning battles over gypsy and traveller sites, and more cases can be expected to reach the High Court, whether as challenges to appeal decisions or as fights over injunctions or other legal proceedings. One or more references to the ECHR can also be expected.

The new government is going to learn the hard way that ‘quick and dirty’ policy changes of the sort they have been announcing in the past few weeks will have serious practical consequences and will lead them into all sorts of political and legal difficulties. ‘Uncle Eric’ and his friends still seem to be in a gung-ho mood at the moment, but reality will impose itself on them sooner or later – it always does.

© MARTIN H GOODALL

A note about comments

As I have mentioned, there is a comments facility on this site, but it is intended solely for comments which are strictly relevant to the post to which that comment is to be attached. All comments are subject to moderation before they are published (which may mean that they do not appear for a few hours or even a day or more after they were posted). For sound editorial reasons, I must reserve the right to reject comments which appear to me to be ‘off-topic’.

Whilst readers are free to raise with me (preferably by e-mail, rather than through the comments facility) issues which they feel might be aired in the blog, I regret that I do not have the time to enter into a dialogue or personal discussion on such topics, and may not wish to deal with the issue in the blog in the immediate or foreseeable future.

Where points are raised in a comment, I am unable to reply direct to the person who posted that comment, as the comments facility does not allow me to do so, and in most cases I have no means of knowing the identity or contact details of the person who has posted the comment. In some cases, where a comment is published, I may add a response at the end of the original post, but that is dependent on my having time to do so.

Do please feel free to add relevant comments to posts on this blog, but at the same time please be aware of the editorial control which will apply.

It’s good to be back

A warm welcome to those readers who have recently begun to access this blog after receiving an e-mail alert from me. Do tell your friends and colleagues about the blog.

Quite a few of you were no doubt readers of this blog when it appeared on the RTPI Planning Matters website. I even got paid to write it in those days! I was hoping that someone else would like to take up publication of the blog, but after a year it became clear that if the blog were to be re-launched, I would have to publish it myself.

Although the first posts went ‘on air’ on 20th April, I wanted to make sure that I had got the blog looking right and had posted a reasonable amount of material before announcing the return of the blog more widely. As you will see, there have already been 23 posts on a variety of topics since April.

In addition, I shall be uploading archived items from the previous blog, and the first tranche of these (22 posts covering the period from October 2008 to April 2009) can be accessed by clicking on “OCT 08 – APR 09” on the top bar. Further items from the archive will be posted in the same way shortly.

There is now a comments facility (a feature which was not available when the blog appeared on the Planning Matters website) and, after some initial teething problems when comments did not seem to be uploading properly, one or two readers have already taken the opportunity to add comments to particular items.

One final point which might be worth mentioning is the availability of an Atom feed, which will enable you to receive new posts automatically by e-mail without your having to remember to visit the site from time to time. This is a free service provide by Google. You will find the link at the bottom of the page. Just click on it and follow the instructions, and you will then get e-mailed copies of new items as they are posted on the blog. However, you will still need to visit the site if you want to access other items from the archive or look at other pages.

So what’s in it for me? Well, not a lot really, apart from the fun of writing the blog. As you will see from “MY DAY JOB” (on the top bar) and the link to the KEYSTONE LAW website (on the side-bar), I am still a very active planning lawyer, so if you think your clients might benefit from my services or those of my colleague Ben Garbett, do please get in touch. If you click on “View my complete profile” on the side-bar, you will find a direct e-mail link on that page, which will enable you to contact me by e-mail.

In the meantime, I hope you enjoy reading the blog.

© MARTIN H GOODALL

Not-so-fast food

Those of you who saw Saturday’s Guardian may have spotted a report of Cranston J’s judgment in the High Court last Friday (11 June) in R. (Copeland) v. Tower Hamlets LBC, in which he quashed a planning permission for a fast food takeaway which would have been located near a school. The challenge was based on the fact that the officers had advised members that the possible temptation of fast food for the pupils at the school (a point raised and strongly urged by objectors) was not a material planning consideration and should be disregarded by Councillors in reaching their decision. The school has a ‘healthy eating’ policy, and it was alleged that this would be undermined by the presence of the takeaway.

The judge brushed aside a submission on behalf of the Council that, notwithstanding the advice in the officers’ report as to the immateriality of the proximity of the application site to the school, its nearness to the school had in fact been treated as a relevant issue and was taken into account at the committee meeting itself.

I have considerable misgivings about this decision, bearing in mind what the Court of Appeal had said only the day before in R (Morge) v. Hants CC [2010] EWCA Civ 608 [see “Developing overgrown land” below]. Just as members are entitled to decide not to follow professional advice, so long as they did at least take it into account, it would seem to me that they are equally entitled to take a decision in accordance with professional advice, so long as they have taken into account any other material considerations, as it appears they did in this case.

If this case were to go to the Court of Appeal, it seems to me that this judgment might well be over-turned. The LPA, on the other hand, might choose simply to re-take the decision. In this event, the officers’ advice (in light of the High Court judgment) would clearly be that the proximity of the site to the school is capable of being a material consideration, but they would no doubt point out that it is not necessarily an overriding consideration, and that when members take into account all the material considerations, including this one, they may still conclude that it would be wrong to withhold planning permission for the proposed change of use. Such a decision should be reasonably judge-proof, and the objectors would find that they had scored only a ‘pyrrhic’ victory in the High Court.

On the more general question as to whether issues surrounding the easy availability of fast food should be taken into account as a material consideration in planning applications for fast food outlets, I feel that this is stretching the concept of material considerations too far, and that such considerations should be confined to genuine planning considerations, relating to issues of land use planning and analogous topics (such as design). Whilst more general environmental issues are clearly capable of being material considerations, it distorts and undermines the planning system if more general considerations of social policy are allowed to impinge on planning decisions.

This is not the first time that this issue has been raised, and readers who followed the earlier version of this blog on the RTPI’s Planning Matters website may recall the piece I wrote early in 2008, which is reproduced below.

Obesity - a material consideration?
[First published on 27 Feb 2008]

There seem to be some people around who would like to control absolutely anything and everything we do, and if the planning system can be used as a tool to this end, then so much the better.

The Department of Health is the latest to get in on the act. They have opined that, in order to tackle obesity, LPAs should use their planning powers to exercise greater control over the number and location of fast food outlets in their areas. How this can be a proper material consideration in the determination of a planning application is at the very least questionable. One wonders whether they consulted DCLG before coming out with this nonsense.

Taking their cue from recommendations made by the National Institute for Health and Clinical Excellence (NICE), the DOH has also suggested that there should be a requirement for planning applications for new developments to give priority to “the need for people to be physically active as a routine part of their daily life”. Quite how this would be applied to actual DC decisions remains to be seen, but there are hints that it might even extend to detailed design issues, so that (for example) “staircases are designed and positioned to encourage use, and are clearly signposted”. At least they do not quite go so far as to suggest a ban on the installation of lifts!

Although it is put in a slightly different way (in relation to the design and construction of roads), another one of NICE’s bright ideas is that “pedestrians, cyclists and users of other modes of transport that involve physical activity” should be given the highest priority, and one can see how this, too, might find its way into planning policy guidance (the next revision of PPS13?).

Meanwhile, not to be left behind, the London Mayor has published a “draft health inequalities strategy”, which includes an aim to ensure that developments are designed in ways that will improve health. Perhaps he too has been reading the NICE document.

I may be a dinosaur, or a Luddite, but I still cling to the seemingly old-fashioned idea that the determination of development proposals should be governed by planning principles, meaning primarily issues relating to land use and design. The planning system is not intended and should not be used to secure or promote wider social objectives, no matter how desirable they might seem. The Courts in earlier years were robust in defending this principle, but when it is the government itself, or its cohorts, who are instrumental in distorting the planning system to serve other purposes, the courts seem less inclined to intervene. We shall all be the losers if town and country planning is subverted in an effort to secure extraneous policy objectives.

© MARTIN H GOODALL

[In answer to the comment left by a reader (ERW, Anglesey) (Click on "comments" immediately below this item to see the comment), I agree that the requirement for the provision of Affordable Housing is a classic example of subverting or distorting the planning system for non-planning purposes. An early attempt to use the planning system in this way was quashed by the High Court in 1973 (see R v. Hillingdon LBC ex p Royco Homes), but a more recent challenge to the current policy, although it is not a statutory requirement and has no legal basis, was not supported by the High Court, who upheld the approach taken by the LPA and the S of S. (I can't remember the name of the case off the top of my head.) I firmly believe that social housing should be provided by public housing bodies, funded through taxation rather than being some sort of unofficial tax on developers. It has undermined the viability of quite a number of housing schemes, and is another factor reducing the number of homes being built in this country.]

Developing overgrown land

The Court of Appeal decision in R (Morge) v. Hants CC [2010] EWCA Civ 608 in which judgment was given on 10 June is an interesting example of the problems facing developers of derelict sites which have become overgrown and have consequently become the habitat of various fauna and flora including protected species. It also reinforces the rule that elected members are not automatically bound to follow expert advice, but must make their own decision (subject to its being reasonable in the Wednesbury sense).

I don’t propose to discuss the detailed facts of the case but as Ward LJ put it, this was a case “about bats and badgers, Beeching and busways”. Hants CC (acting through ‘Transport for South Hampshire’) had proposed a busway along an old railway line, closed some 40 years ago by Dr Beeching. In the meantime, the route of the line has become the habitat for, among other things, bats and badgers.

The appellant sought to have the planning permission for the busway scheme quashed due to various alleged breaches of the European Habitats Directive and the regulations giving effect to the directive in this country, specifically relating to the deliberate disturbance of protected species. The judge at first instance decided that the regulations had not been breached, and after a careful analysis of the regulations, the Court of Appeal upheld that decision. [For those interested in the interpretation of ‘disturbance’ in this context, there is a useful discussion of that issue in the judgment.]

Another ground of challenge had been that the Planning Committee in deciding to grant planning permission failed to have due regard to the Directive as required by the Regulations in the sense that it needed to consider the protection afforded to protected species and to consider whether the derogation requirements (allowing a scheme to go ahead notwithstanding adverse effects) could be met. The Court of Appeal was satisfied that the committee had discharged this duty, including paying proper regard to an updated bat report.

Counsel for the appellant had submitted that the members of the Planning Committee could not rationally have concluded that the environmental effects on the bats, the badgers and local amenity were not significant when the material in the various reports to which the Committee had access expressly stated that the impacts would be significant. Counsel for the appellant questioned whether in circumstances where expert consultants for the Planning Authority have reported to it that there will be certain significant effects, it is open to the Planning Authority to reach the contrary conclusion. He submitted that the LPA must be guided by its experts and that it is irrational to disagree with them.

The Court disagreed. This proposition went too far. A conclusion which is reached against the weight of evidence is not necessarily unlawful. This argument was based on the assumption that reaching a contrary conclusion constituted an error of law, because as a matter of law the Committee must willy-nilly accept the experts' opinions, and that no other option is available to it. That must be wrong because it would emasculate the members' duty themselves to decide the question. It is their decision to make, not the experts’. Whilst of course they must pay due regard to the evidence before them, they are not bound to follow it. The weight to give the reports is a matter for the members to assess. The members must exercise their independent judgment about the significance of the effects looking at the information overall. This was quintessentially a matter for the Committee to exercise its planning judgment and form its independent opinion. In those circumstances it could not be said that the decision was irrational.

Cases of this sort, involving the development of sites that have become overgrown and have therefore become the habitat of various flora and fauna, possibly including some protected species, can sometimes result in a refusal of planning permission where development might reasonably have been allowed in other circumstances. The practical lesson for landowners and developers is that they should keep potential development sites clear of plant growth, so as to prevent the site gradually becoming a wildlife habitat. If the site is derelict, make sure it stays that way!

© MARTIN H GOODALL

PPS3 - Plus ça change.....

One gets the impression that Greg Clark’s announcement the other day (in his capacity as 'Minister for Decentralisation') was more about headline-grabbing than garden-grabbing. I have been taking a look at the new version of PPS3 (which is what all the fuss was about) and was struck not so much by the changes as by the extent to which this PPS remains unchanged. This is not a wholly recast policy statement, but simply the third edition of the existing PPS3, first published in November 2006, revised in January 2010, and now revised again. Furthermore, even those changes which were headlined may not be so dramatic in their effect as Fleet Street hacks were led to believe.

The definition of ‘brown land’ has been amended so that it now excludes land in built-up areas such as private residential gardens, parks, recreation grounds and allotments, which has not previously been built on, and also land which was previously developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time (to the extent that it can reasonably be considered as part of the natural surroundings). There is no longer a presumption that land that was previously-developed is necessarily suitable for housing development, nor that the whole of the curtilage should be developed.

At the same time, the policy on housing densities has been relaxed. However, the section on “Efficient use of land” (paragraphs 45 to 51) remains in place. Using land efficiently is still a key consideration in planning for housing, and there is still a sentence which reads: “Regional Spatial Strategies should set out the region’s housing density policies, including any target.” (Shome mishtake, shurely?) LPAs are still told that they should develop housing density policies having regard (among other things) to “the spatial vision and strategy for housing development in their area”, including the level of housing demand and need and the availability of suitable land in the area, and the desirability of using land efficiently. As against this, they must also take into account the current and future level and capacity of infrastructure, services and facilities such as public and private amenity space, in particular green and open space, current and future levels of accessibility, particularly public transport accessibility, the characteristics of the area, including the current and proposed mix of uses and the desirability of achieving high quality, well-designed housing.

Quite clearly, this revised version of the advice in PPS3 does not do what the press has been led to believe it does. The important point is that most of the garden land and other sites which are no longer to be labelled as ‘brown land’ will in any event be within the urban envelope or other settlement boundaries, and so are still potentially suitable for housing development in policy terms. I shall certainly be advising my house-builder clients to press on with their ‘garden-grabbing’ proposals!

A reader commenting on one of my recent posts points out that this and the various other changes announced by DCLG are turning out to be an ill-thought out mess. There must be hundreds of appeals (he suggests) that are going to be re-opened, from small single house developments to urban extensions. Whether this will happen in practice may be open to question, but I would certainly agree with the general proposition that Pickles and his merry men are proceeding to make an unholy mess of the planning system. Is this Sir Humphrey’s latest ploy? – Let ministers get themselves into a thorough muddle over town planning and then step in with some helpful suggestions to the next Secretary of State and his new ministerial team as to how the mess might be cleared up.

© MARTIN H GOODALL

RSS challenge, anyone?

Eric Pickles’ letter of the 27th May (in which he told LPAs and PINS that he wants his intended abolition of RSS to be treated as a material consideration in current development control decisions) has been greeted with such a loud chorus of dismay, dissent and disbelief – all of it entirely justified – that I would not be surprised if someone decides to have a crack at it by way of an application for judicial review.

The claimant would have to have the necessary standing and interest in the subject-matter of the letter, for example a developer or group of developers with major proposals currently awaiting decision, and they would only go ahead with a challenge if they felt they had a sufficient commercial interest at stake to make it worthwhile to incur the risk as to costs which is inevitably involved in such an exercise. But you never know – there may be someone out there willing to have a go.

The argument would be that in asking for his future intention to abolish RSS to be taken into account as a material consideration right now, the S of S has left out of account a number of important material considerations, including the continuing statutory status of RSS while it remains in being, not to mention the status of other elements of the Development Plan which have been designed to comply with actual or emerging RSS. Bearing in mind the provisions of Section 38(6) of the 2004 Act, it seems daft to expect decision-makers to act as though RSS had already been abolished. One might even argue that it is something that no reasonable Secretary of State properly informed of the facts would do, and is perverse and therefore Wednesbury unreasonable.

One wonders why, if he is so anxious to be rid of RSS, the S of S did not use his powers under Section 10 of the 2004 Act to do it straight away by way of a simple order. That would still have left all sorts of anomalies and problems behind (as I suggested in a post a couple of weeks ago), but it might have been somewhat more judge-proof.

In the event, developers may not choose to challenge Pickles’ 27th May letter itself, but may prefer to await the actual outcome of their own applications and appeals. There will still be plenty of scope at that stage for legal challenges to adverse decisions taken by LPAs, by PINS or by the S of S himself in reliance on his 27th May letter. Members of the planning bar must be drooling at the prospect.

© MARTIN H GOODALL

‘A person aggrieved’ under s.288

One of the recurrent issues which has troubled the courts over the years is the legal standing (or locus standi, as old-fashioned lawyers like me still prefer to call it) of someone seeking to challenge an appeal decision under s.288.

There has been a plethora of judicial authority on this topic, but it surfaced yet again in Ashton v. SSCLG ([2010] EWCA Civ 600) in which judgment was given by the Court of Appeal on the 27th May.

This was the latest episode in the long-running saga of the Coin Street development, and the judgment was largely concerned with the Secretary of State’s substantive decision, which the Court of Appeal upheld. That would have been sufficient to enable the Court to dismiss the appeal, but they also found that the claimant did not in any event have sufficient standing under s.288 to bring this challenge.

After reviewing the authorities in some detail, Pill LJ set out this useful summary of the principles which can be extracted from those authorities:

1. Wide access to the courts is required under section 288 (article 10a, N'Jie).
2. Normally, participation in the planning process which led to the decision sought to be challenged is required. What is sufficient participation will depend on the opportunities available and the steps taken (Eco-Energy, Lardner).
3. There may be situations in which failure to participate is not a bar (Cumming, cited in Lardner).
4. A further factor to be considered is the nature and weight of the person's substantive interest and the extent to which it is prejudiced (N'Jie and Lardner). The sufficiency of the interest must be considered (article 10a).
5. This factor is to be assessed objectively. There is a difference between feeling aggrieved and being aggrieved (Lardner).
6. What might otherwise be a sufficient interest may not be sufficient if acquired for the purpose of establishing a status under section 288 (Morbaine).
7. The participation factor and the interest factor may be interrelated in that it may not be possible to assess the extent of the person's interest if he has not participated in the planning procedures (Lardner).
8. While recognising the need for wide access to the courts, weight may be given, when assessing the prior participation required, and the interests relied on, to the public interest in the implementation of projects and the delay involved in judicial proceedings (Advocate General Kokott in Ireland).

In this case, the claimant’s participation in the planning process was insufficient in the circumstances to acquire standing. He was not an objector to the proposal in any formal sense and did not make representations, either oral or written, at the Public Inquiry. Mere attendance at parts of the hearing and membership of a local campaign group, which had not brought proceedings in this court, were insufficient. Pill L J agreed with the conclusion of the judge at first instance (HH Judge Mole QC) that the claimant did not play a sufficiently active role in the planning process properly to be described as 'aggrieved' within section 288.

Moreover, the absence of representations before or at the Inquiry about the loss of amenity at the claimant’s property, either personally or through the campaign group , deprived the developer and the LPA of the opportunity to test the extent of the alleged loss and to call evidence in response. That being so, the Inspector (who was the fact finding tribunal) was not in a position to assess the extent of the loss and whether it amounted to a sufficient interest. The Court could not make good that deficiency.

Pill LJ made no finding as to whether the appellant would also have failed under the interest limb of the test, though it appeared likely that he would do so. A major project, approved following proper public consultation and a Public Inquiry, should not readily be challengeable on this or other grounds on the basis of a grievance about amenity such as the claimant’s appeared to be. What is a sufficient interest will always be a question of fact and degree. That reinforces the need to place the facts relied on before the decision maker during the planning process.

In practice, this case simply serves to underline an already well-established principle that to be ‘an aggrieved person’ you must have participated actively in the planning process. Being upset about an appeal decision after the event, when you did not take any effective steps to oppose the scheme at the time, will deprive you of the necessary standing to challenge the appeal decision under s.288.

© MARTIN H GOODALL

Delays at PINS

If you have some appeals in the pipe-line, as I have, you will be aware of the delay in fixing hearings and site visits, despite a reduction in the number of appeals being handled by PINS.

My sources tell me that this has occurred for a number of reasons . A significant factor is the advent just over a year ago of the new fast-track Householder Appeals service. The target of determination within 8 weeks seems to be paramount, and other appeals are being bounced to ensure that this target is met. This suggests to me that, as I predicted in a post on this blog in April 2009 (see the archive), the shortened appeal period for householder appeals has led to a significant increase in those appeals, as it did when the appeal period was reduced generally a few years ago.

The delay is additionally blamed on ‘budget constraints’ which are preventing the deployment of extra Inspectors to deal with the backlog. PINS has on its books a number of retired Inspectors who are available to work part-time on a contract basis and would be willing to do so, instead of which they are sitting at home twiddling their thumbs because the powers that be don’t have the budget to pay them to take on the appeals backlog.

There is much grumbling in the ranks as Inspectors are coming up to retirement and then being effectively thrown on the scrap-heap when they would be only too willing to carry on working as part-time contract inspectors. These are extremely experienced men and women who would be capable of tackling almost any type of appeal and could be a valuable resource for PINS if properly deployed.

Meanwhile, my frustrated clients have to wait for site visits or hearing dates while the bean-counters continue to turn the screw. And that was before the £6-billion ‘efficiency’ savings announced by the Chancellor early last week. It can only get worse.

© MARTIN H GOODALL

Abolition of RSS – a material consideration

As you may already be aware, the Secretary of State wrote to Council leaders on 27th May drawing attention to the government’s intention “to rapidly abolish Regional Strategies and return decision making powers on housing and planning to local councils”. Consequently, decisions on housing supply (including the provision of travellers sites) will rest with Local Planning Authorities without the framework of regional numbers and plans.

The Secretary of State promises to make a formal announcement soon, but there is a sting in the tail in this letter. The final sentence reads: “I expect Local Planning Authorities and the Planning Inspectorate to have regard to this letter as a material consideration in any decisions they are currently taking.”

So the Secretary of State wishes LPAs and PINS to treat RSS as if it had already been abolished. I have already drawn attention to the uncertain situation that this creates, and there is clearly scope for considerable confusion and debate over the legal implications of this letter. As a planning lawyer, I suppose I should welcome the resulting extra work that this will create, but it can hardly help developers, landowners and their advisers seeking to achieve certainty over their development proposals.

© MARTIN H GOODALL

Another weapon in the enforcement armoury

I don’t usually look up judgments in the Criminal Division of the Court of Appeal, but my attention has been drawn to a planning case there in which judgment was given on the 19th May - Basso & anor v. R. [2010] EWCA Crim 1119

The appellants ran a ‘park and ride’ airport parking facility from a date in 2000 without planning permission. An enforcement notice was served in January 2003 and an appeal against that notice was dismissed in October 2003. Permission to appeal to the High Court was refused in February 2004. No attempt was made to comply with the EN, and in September 2004 the LPA prosecuted the appellants in the Crown Court for failure to comply with the notice. After a trial, the appellants were convicted of the offence in November 2005, and in December of that year each of them was fined £20,000. Applications for leave to appeal against both conviction and sentences were refused by the Court of Appeal.

The unauthorised use nevertheless continued and so, in January 2006, the LPA launched a second prosecution for failing to comply with the EN. In June 2007 the defendants pleaded guilty. The LPA also launched confiscation proceedings under section 6(3)(a) of the Proceeds of Crime Act 2002. The case for the prosecution was that the 'park and ride' operation became criminally unlawful from the moment the EN became effective, that the appellants were to be treated as having had a criminal lifestyle and, as a result, were subject to the assumptions set out in Section 10 of the 2002 Act, unless these assumptions were incorrect or would result in a risk of serious injustice.

I don’t propose to discuss the technicalities of the confiscation regime under POCA in any detail (as the Court of Appeal did in this judgment), but this case does underline the fact that a confiscation order may be available as an additional remedy in enforcement cases where there is a continuing breach of an Enforcement Notice, from which the developer derives a financial benefit.

The relevant part of Section 6 of POCA provides that the Crown Court must proceed under this section if the following two conditions are satisfied. First, the defendant must either be convicted of an offence or offences in proceedings before the Crown Court or be committed to the Crown Court for sentence; secondly, either the prosecutor must ask the court to proceed under this section, or the court may of its own motion decide that it is appropriate for it to do so. In either event, the court must decide whether the defendant has ‘a criminal lifestyle’ (see below) and, if so, whether he has benefited from his general criminal conduct. If the Court decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. If the court decides that the defendant has benefited from the conduct referred to, it must decide the recoverable amount, and make a confiscation order requiring him to pay that amount.

A defendant has a 'criminal lifestyle' if one of the offences of which he is convicted falls within the statutory catalogue in Section 75 of POCA. The list includes “an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence", but this provision is not satisfied unless the defendant obtains relevant benefit of not less than £5,000.

Section 76 of POCA provides that “criminal conduct” is conduct which constitutes an offence in England and Wales. “General criminal conduct” of the defendant is all his criminal conduct, and it is immaterial whether that conduct occurred before or after the passing of the 2002 Act, or whether property constituting a benefit from that conduct was obtained before or after the passing of this Act. A person “benefits” from conduct if he obtains property as a result of or in connection with the conduct. If a person benefits from criminal conduct his benefit is the value of the property obtained.

These provisions were satisfied in this case and the Court of Appeal dismissed an appeal against the confiscation order. It had been argued on the appellants’ behalf that the court should pay attention to the reality and look at what the appellant 'actually made' from the crimes to which he pleaded guilty on the basis that almost all the income which derived from payments by members of the public to park and then be taken to Stansted Airport was expended on the costs of operating the scheme, including VAT, national insurance contributions for the staff, business rates and rent, rather than just looking at the financial turnover of the business. However, having reviewed various previous judgments, the Court rejected the argument that the language of the statute permits the court to look at what the appellant 'actually made' net of all expenses. A leading case [May] shows that the reverse is the case ("Benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses."). It is for the judge in the Crown Court to find as a fact what property the appellants had obtained and, thus, the extent of the benefit. What happens to that benefit after it has been obtained (for example, how it might have been spent) forms no part of the statutory test. That is what the judge did in this case and his findings had not been challenged as wrong or unjustified by reference to the evidence. Neither did he fall into error in his analysis of the law.

The Court ended by quoting with approval the words of the judge in the Crown Court :

"I conclude with a final observation about the mentality of the [appellants] and other similar law breakers. I have received the strong impression that neither the [appellants] nor … their accountant appreciated fully the risk that the companies and individuals involved in the park and ride operation faced from confiscation proceedings. They have treated the illegality of the operation as a routine business risk with financial implications in the form of potential fines or, at worst, injunctive proceedings. This may reflect a more general public impression among those confronted by enforcement notices with the decision whether to comply with the law or to flout it. The law, however, is plain. Those who choose to run operations in disregard of planning enforcement requirements are at risk of having the gross receipts of their illegal businesses confiscated. This may greatly exceed their personal profits. In this respect they are in the same position as thieves, fraudsters and drug dealers. Although the peculiar facts of the present case have led me to exclude the receipts of the parking company from the confiscation, that is a decision reached very much having regard to the unusual circumstances presented to me. [Counsel for the prosecution's] submission that a defendant should not escape the confiscation consequences of his conduct by the expedient of running his unlawful operation through a company will, I expect, generally carry the day."

Well, that should cheer up enforcement officers on a wet Tuesday morning.

© MARTIN H GOODALL