Monday, 29 November 2010

Round 2 to Cala Homes

Cala Homes have obtained interlocutory relief in the High Court in their bid to prevent the Secretary of State from treating his intention to abolish Regional Strategies as a material consideration in the determination of current planning applications and appeals.

Cala’s renewed application to the High Court has been expedited and the Chief Planner’s letter (in which the Secretary of State’s intention to treat his intention to abolish RS as a material consideration was reiterated) has been stayed pending a full hearing.

This interlocutory ruling does not necessarily indicate the way the case will ultimately be decided, but it does have the effect of ensuring that, until that hearing, those Regional Strategies which have been formally adopted will remain in full force and effect, and the Secretary of State’s continuing determination to revoke them is not (for the time being) capable of being a material consideration in those cases that are about to be determined.

So Regional Strategies, where adopted, remain an integral part of the Development Plan and decisions must be made in accordance with that plan (in accordance with Section 38(6) of the 2004 Act) unless material considerations – which cannot now include the forthcoming abolition of the Regional Strategy – indicate otherwise.

No doubt everyone will await the third and final round of this litigation (the substantive hearing in the High Court) with great interest.

Update (3 Dec): Apparently, Uncle Eric isn’t happy with the interlocutory Order made by the High Court staying the effect of the letter from his Department which sought to make his intention to scrap regional strategies a material consideration in the determination of current applications and appeals. So the government’s lawyers are now trying to get the stay removed. Initial indications had been that the substantive hearing in the High Court might be later this month, but latest indications are that it will not now take place until some time in the New Year. I don’t know whether the Department will be seeking an interlocutory hearing in the meantime on their application to lift the temporary stay on the infamous letter, but no doubt that will become clear in the near future.


Could PINS be swamped by the IPC?

Rumours have reached my ears that there is concern within PINS that in subsuming the Infrastructure Planning Commission, which is intended to become PINS’ ‘Major Infrastructure Planning Unit’, the Inspectorate is being asked to absorb and digest an organisation which is somewhat larger than itself. At the very least this has major implications in management terms, but the fear is that it might turn out in practice to be a reverse take-over, whereby the enlarged Planning Inspectorate is in effect the IPC with PINS bolted on as an adjunct, even though the new organisation still bears the PINS name.

Like so many other changes proposed by the present government, the merger of the IPC with PINS will require legislation (expected to be incorporated in the ‘Localism Bill’) amending the 2008 Act and bringing about the merger. Only time will tell whether the fears currently emanating from within PINS will prove to be justified.

A longer term threat to PINS and its current functions is contained in the Conservatives’ pre-election ‘Green Paper’ (“Open Source Planning”) which seems to envisage the abrogation of the current right to appeal against the refusal of planning permission, and to replace it with what amounts to no more than a desk-based review to check that correct procedure was followed in assessing the application, and that the decision reached is not in contravention of the local plan. The suggestion is that the first of these issues would be dealt with not by PINS but by the Local Government Ombudsman, leaving PINS to deal solely with appeals concerning ‘correct’ application of the local plan. So far as I am aware, this proposal does not seem to feature in the expected contents of the imminent ‘Localism Bill’, but we cannot be sure about this until the draft bill emerges.

PINS (“The Planning and Housing Inspectorate” to give it its full official title) celebrated its centenary last year, having been set up under the 1909 Act. It looks as though its days may now be numbered, at least in the form in which it has existed for the past hundred years and that it may survive in name only, with its functions radically altered.


Thursday, 25 November 2010

More mobile advertisements

Shortly after the Tile Wise case about advertising on a vehicle (on which I commented on 21 October), the Divisional Court heard another appeal by way of case stated on precisely the same point. This time the appeal was by the prosecutor against the dismissal by magistrates of a prosecution alleging several offences involving the display of mobile advertisements on a farm, so as to be readily visible from the M62. This was the case of Calderdale MBC v. Windy Bank Dairy Farm Ltd and Steve Quinn [2010] EWHC 2929 (Admin). On 12 November, the Court gave its reasons for dismissing this appeal and upholding the acquittal of the defendants by the magistrates.

It is fair to say that this case turned primarily on the factual evidence or, to be precise, on the inadequacy of that evidence. The magistrates had concluded that they could not be satisfied beyond reasonable doubt that the offences as charged had actually been committed. The High Court could find no grounds for saying that this was a conclusion which no reasonable bench of magistrates could reach on the facts before them, and so the prosecutor’s appeal must necessarily fail.

The magistrates had received evidence of several visits made by the LPA’s staff who had taken photographs of the number, type and position of several vans and lorry trailers on the land, adjacent to the M62 motorway. The dates of the taking of these photographs were stated as 20 October 2006, 9, 13 and 31 March 2009, and 13 and 22 June 2009. On cross-examination, the Applicant's main witness accepted that there had been no measurements taken of the precise position of the vehicles, nor any notes made of licence plate numbers or trailer markings. The magistrates were not therefore satisfied beyond a reasonable doubt that these vehicles had not been moved between the various visits undertaken by the witness.

The witness further stated that in his view at least in respect of one vehicle the wheels were immobilised, such that it could not be considered to be a vehicle normally employed as a moving vehicle, but rather one that could not be used for any other principal purpose other than advertising, as it was in effect static. In cross-examination, he accepted that he did not have any engineering or mechanical qualifications to hold this view nor could he be certain of his view. The magistrates did not find this to be evidence upon which they could rely to the required standard.

The magistrates upon considering the photographs produced found as a fact that the vehicles and trailers were not the same ones shown in the pictures on all the dates on which they had been taken. In all the photographs there was a 40-foot trailer, but in the earlier photographs it appeared to be white whereas in later ones it was blue. In other photographs, some of the vehicles and trailers were clearly different.

The prosecuting authority provided no evidence upon which the magistrates could make a finding of fact as to whether the 40-foot trailer had or had not been moved during the period of time covering the charges before the Court. Against this, the second defendant when giving his evidence produced documents, which were not successfully challenged, detailing a trailer being exchanged with another from its Shrewsbury base.

The magistrates’ conclusion was that, on the balance of probabilities, both defendants had satisfied the requirements of the exemption from the requirement to obtain consent for the display of the advertisements on the side of the lorries and trailers. They accordingly dismissed the prosecutions.

Although counsel for the appellant prosecutor sought to rely on the decision in Tile Wise, it is clear that the case in Calderdale did not turn on the interpretation of the exemption in the first schedule to the Control of Advertisements Regulations (as it did in Tile Wise); it simply came down to a question of fact and degree. The prosecuting authority had simply failed to prove its case on the facts. The magistrates were therefore entitled to dismiss the prosecutions.

This case may serve to explain why so few prosecutions seem to be brought by LPAs against this type of unauthorised advertising. It is clear that in order to be sure that a conviction will be secured, the LPA will have to be very thorough in gathering its evidence, and must be able to prove that where the photographic or other evidence covers two or more different dates, that evidence does refer to one and the same vehicle, and that if the charges relate to a period of time during which the display of advertisements is alleged to have continued, the vehicle was not moved within that time. This may place an almost impossible burden on LPA enforcement staff seeking to prosecute this type of infringement, but it does underline the fact that prosecutors must prove their case in the Magistrates’ Court or the Crown Court beyond reasonable doubt.


Wednesday, 24 November 2010

Concealed development still on the agenda

Readers will no doubt recall the two cases which arose from the concealment of development which it was then claimed had become lawful under the four-year rule. In Welwyn-Hatfield, the Court of Appeal, applying the clear ruling in FSS v Arun DC [2006] EWCA Civ 1172, held that the deliberate concealment of the development did not prevent the four-year rule from operating. In the case of Fidler, the High Court upheld an Inspector’s decision that the concealed development had not been substantially completed (in accordance with the criterion laid down by the House of Lords in Sage) until the straw bales hiding the development were removed. The straw bales, and their subsequent removal, were regarded by the Inspector (and apparently by the High Court) as being an integral part of the development.

Both decisions are the subject of further appeals. I understand that the Supreme Court is likely to hear the appeal in Welwyn-Hatfield some time next term (i.e. between Christmas and Easter). The appeal in Fidler is due for hearing in the Court of Appeal, but so far as I am aware no date has been set, and it is impossible to estimate when that appeal may come on.

So it looks as though we may have to wait a while longer before we get a definitive answer on the issues arising from these two cases. For what it’s worth, I think the Court of Appeal got it right in Welwyn-Hatfield - one simply has to look at what the statute actually says. If this leads to what some may regard as an unsatisfactory result, it is for parliament to amend the legislation, and the courts ought not to concoct some strained interpretation in order to produce an expedient result.

As regards Fidler, I find it very difficult to understand how the removal of a free-standing pile of straw bales can be brought within the definition of operational development, although the thrust of the House of Lords decision in Sage was that one has to take into account the entirety of the project, rather than confining one’s consideration to those operations which actually constitute development. This view, however, differed markedly from the conclusion reached in that case both at first instance and in the Court of Appeal, and there must be some considerable remaining doubt as to how far the Sage doctrine can be taken, and in particular whether it can be said to include the removal of a physically separate pile of straw bales.

The so-called ‘Localism Bill’ will still be going through parliament at the relevant time, so there is a possibility of an amendment to the Bill being proposed to deal with these issues. The precedent represented by the rules on demolition, which were hurriedly shoved into what became the 1991 Act is not encouraging. A similarly ill-thought-out amendment made to the same Bill was the provision which then became Section 54A of the 1990 Act (now, in slightly amended form, Section 38(6) of the 2004 Act). So before anyone makes any hasty proposals to amend Section 171B, the implications of such a change, and the way it would work in practice need to be carefully thought through.

[UPDATE (14 December): The Localism Bill will make amendments to the 1990 Act which will introduce a procedure for taking enforcement action 'out of time' against development which has been concealed. See later posts in this blog dealing with the enforcement provisions in the Bill (in this case Clause 104).]


More is less

Fellow planning professionals will no doubt be aware that the Welsh Assembly Government is consulting on proposed changes to householder permitted development rights in Wales. The consultation period runs until 15 Feb.

If you take at face value what the WAG says, they want to make a number of changes to allow “more improvements” and to clarify what permitted development householders can do. They claim that the proposed changes will:

• Allow householders freedom to make more improvements and alterations within their property without planning permission;
• Set conditions for some permitted development rights so developments are carried out in a way that minimises impact on others, and takes account of flood prevention measures; and
• Place more restrictions on permitted development within World Heritage Sites.

Stephen Ibbitson, who as you know from recent posts takes a close interest in PD issues, has pointed out to me that whilst the new draft Order 'tidies up' some of the mess in the English revision to Part 1 of the Second Schedule to the GPDO, the proposed new Welsh PD Order is most notable for how much MORE RESTRICTIVE it will be than the current order.

So the claim by the Welsh Assembly that the proposed changes will "allow householders freedom to make more improvements and alterations within their property without planning permission" represents either ignorance/stupidity or downright mendacity. The new Order would be even more restrictive that the English version and cannot but add to the number of applications for minor developments that householders will be obliged to make in Wales in the future.

Planning professionals in Wales should make strong representations to WAG about this. Maybe it would give us all a bit more work, but it cannot be in the interests of the wider public, nor will it assist administrative efficiency if planning departments are clogged up with a lot of householder applications for minor development. The whole idea of amending the GPDO was to avoid this. It takes a peculiar kind of bureaucratic genius to dream up a ‘simplification’ of the order which has precisely the opposite effect of what is purportedly intended.


Tuesday, 23 November 2010

The future of the Community Infrastructure Levy

You are no doubt aware by now that the government has decided to retain CIL, but to amend some of the details. As a ‘stakeholder’, I have been privileged to receive a communication from DCLG drawing my attention to the recently amended notes on the CIL regime. I don’t flatter myself that anyone in “De-CLoG” (as I gather it is called by insiders) actually reads this blog or would take any notice of it if they did, so I assume this arises from my being registered as a professional user of the Planning Portal, and that other portal users got the same note.

The note acknowledges that the proposed changes will require primary legislation amending the provisions of the 2008 Act. This will be included in the ‘Localism Bill’, when it finally appears. This all-embracing bill seems likely to be of massive proportions – possibly even larger than the Secretary of State himself.

Until we see the Bill, it is still not entirely clear how the proposed changes will work. The note does not give any details as to the precise nature of the proposed changes to CIL. As provided in the 2008 Act, when CIL is fully in force there will be restrictions of the use of planning obligations under Section 106. Amended restrictions will take effect from April 2014, or earlier where a charging authority starts to charge the levy. Perhaps the most important point (already incorporated in the 2008 legislation and in the regulations) is that it will no longer be possible to demand developer contributions to fund infrastructure on a tariff basis through the medium of a Section 106 agreement. The intention is that CIL will be used in future as the mechanism for pooling contributions from a variety of new developments to fund infrastructure.

Planning obligations under Section 106 will continue to have a role, for example as the medium by which the provision of affordable housing will be secured, and for restricting the use or development of land where this would be a more effective method than a condition attached to a planning permission.

I confess that I did not find the new ‘overview’ of CIL particularly enlightening. (Admittedly I had been hoping that CIL would just go away.) Hopefully we shall all get to grips with it once practical implementation is under way, and when we know how the new Bill modifies the rules.


Monday, 22 November 2010

Fees fraud

As promised last week, I am posting below some further observations from Stephen Ibbitson arising from the confusion caused by the revised rules for householder PD. All too often this results in householders having to make applications for express planning permission for minor developments and, as Stephen points out, it is costing them a disproportionate amount in application fees, and these fees are set to rise further.

Stephen writes:

We can perhaps expect that LPAs will interpret PD so as to create a planning application and thus generate fees; that much is no surprise. But how will this pan out, I wonder, for householder application fees in the future now that the level of fees is to be determined locally? I worked out from data published in the new fees consultation document that for every £100 somebody earned in 1989 they would have to now earn £424 to match the increase in fees since then. (Perhaps I should flag that up to the Daily Wail?!?) The last increase was 23% as recently as 2008 and still they are, apparently, not covering costs. Doesn't it occur to government that the problem, just maybe, does not lie in the inadequate level of fees but in how increased receipts are being spent?

I have recently come across a case in my own village: a 6ft x 4ft greenhouse (a modest development by any standards) erected in a side garden. Cost of greenhouse = circa £250; cost of planning application, drawings, fees etc for erection of greenhouse = circa £2,500. NB: It would have been PD under the old regs.

I have never researched this, but I have the impression that householder application fees - at £150 + VAT - are effectively subsidised; they have been held at lower levels than real costs for many years. So with LPAs free to set levels 'at cost' I have a hunch that householder application fees will at least double under the proposed new regime, possibly triple.

The consultation document says: "We will undertake consultation on this proposal with small businesses and their representatives in parallel with consultation with the wider public", but how will they consult with the 'wider public' and, in particular, with householders? Householders are not collectively represented at all except rather nebulously through local councillors. They have no collective voice. There is no way the government can meaningfully 'consult' them. I have toyed in the past with the idea of trying to set up a National Householders Association to remedy the problem. But the trouble is that most householders deal with the system as a one-off experience. Having gone through the planning application process (quite possibly/probably one which was not necessary in the first place) and got through to the other side, most people would rather stick their heads in a bucket of sick that have anything more to do with! And those who've yet to go through the mill simply wouldn't believe in advance what they could be in for.


Friday, 19 November 2010

Told you so

When commenting on the Cala Homes judgment last week and the government’s reaction to it, I pointed out that Steve Quartermain’s letter on behalf of the Secretary of State reiterating the government’s intention to revoke Regional Strategies and asserting again that this should be treated as a material consideration with immediate effect was of dubious legality and could lead to further legal challenges, not least by Cala Homes.

Clearly they and their lawyers thought so too, and they are now seeking a declaration from the High Court that the government’s intention to revoke Regional Strategies is not a material consideration. They are also seeking to have Quartermain’s letter withdrawn pending final determination of the company’s claim or a stay of its effect until that time.

As I observed earlier, the mere fact that the Secretary of State and his minions would like his intention to scrap Regional Strategies to be treated as a material consideration in the determination of current planning applications and appeals does not make it a material consideration in law. That is a matter for the courts, and so it is perfectly right and proper that Cala Homes should seek a ruling from the High Court on this point.

Meanwhile, as we have seen, the guidance issued to planning inspectors is much more sensible, and pays due regard to Section 38(6) of the 2004 Act. When reporting on that advice I gave credit to someone in DCLG for having had a rare attack of common sense. I should have known better - that advice clearly came from within PINS itself. It was always inherently unlikely that anyone in DCLG would be so sensible.


Thursday, 18 November 2010

Headaches for householders

I have fulminated more than once in this blog about the complexities and ambiguities in Part 1 of the Second Schedule to the GPDO, which sets out the Permitted Development rights for development within the curtilage of a dwellinghouse. Stephen Ibbitson has analysed these provisions in far greater detail than I have had time to do, and has made a brave attempt to make sense of the rules in graphic form on his website However, as Stephen readily acknowledges, even this does not resolve some of the difficulties and uncertainties which the re-writing of Part 1 has thrown up.

I cannot express the frustrations of trying to make sense of Part 1 better than Stephen Ibbitson has done in the note which he has kindly allowed me to reproduce below, and with which I am in entire agreement.

Stephen writes:

The provisions on permitted development within the curtilage of a dwellinghouse are continuing to cause endless difficulties for householders. Since the government published 'guidance' on the new rules (on the Planning Portal),the meaning of its provisions has become even more inconsistent; so much so that its now all but impossible to advise clients what they can and can't do. Interestingly, the areas I identified which were open to interpretation---and clearly flagged up as such in my 3D Guides themselves---have been confirmed by a number of inspectors in the same manner as my own views. At the same time, other inspectors have made conflicting decisions on the same subjects! I have never seen such inconsistency and floundering by PINS in the last 23 years or so I've been involved in the subject. I used to complain to PINS about these (and copy the complaints to Grant Shapps) but they no longer even bother to reply.

The Planning Portal PD guidance document notes (perhaps wisely) that it was drawn up under the previous administration in, it appears, an attempt to distance the coalition from what the guidance is actually saying. To my mind that is a poor excuse - it is still CLG output and officials have provided interpretations which are simply not on all fours with all the consultation evidence used to draft the amendment of the GPDO, let alone the intention to liberalise the householder PD regime. Most notable is the interpretation of 'side elevation' which means that simple, single storey rear extensions on typical 'rear wing' style terraced housing in conservation areas are now barred as PD. Previously (under the original version of the GPDO) they were not even barred in Article 4 areas within conservation areas!

What gets my goat the most about the amended PD is the near contempt displayed by both central and local government about who it’s all for. Householders are treated as though the state is doing them some sort of favour by allowing a piddling little rear extension (where permitted at all). “Be a good little boy and we'll let you have a little bit of what you'd like.” The patronising misanthropy of it all is almost palpable.

When a Victorian terrace, to cite a ubiquitous example, gets a Class B rear dormer extension done, it is common to replace/renew the slates/tiles on the front roof slope at the same time -Class C; it is economic and efficient to do so. It is not uncommon either, when such works are undertaken, to find, and have to replace faulty rafters which have part rotted and/or become worm-infested; a job which, to my certain knowledge, would take a competent carpenter about 3 or 4 hours - a repair, not 'development'. In such a job there is a short time interval, therefore, during which there may be almost no 'roof' left. Yet according to one inspector's construction it would be outside the scope of PD! Why would parliament want that to be the case? It would be absurd, and self-defeating of the purpose of the legislation being there in the first place.

The problem is that appeal decisions get seized upon by LPAs to justify refusals of LDC applications either for something they don't like or just to create a planning application and the fees thereon, thus defeating the whole purpose of PD in the first place. Yes, planning controls are designed to operate in the public interest, but the concept of Permitted Development is part of the public interest equation.

The revised version of Part 1 of the Second Schedule to the GPDO has been the complete opposite of the liberalisation trumpeted by Caroline Flint when introducing in 2008. CLG, their private sector consultants and PINS between them have turned Part 1 into a dysfunctional, scrambled mess which the rest of us are now having to live with. Part of this mess is due to the failure of CLG, their consultants, PINS and LPAs to properly understand the basic geometry (floor plans) of our housing stock, particularly how types/styles follow predictable patterns. It should be remembered that Victorian 'pattern books', upon which the bulk of that era's stock was based, invariably used an almost universal floor plan. Behind the vast kaleidoscopic variety of facades, they're basically all much the same. The same is true of inter-war housing - the ubiquitous hip-roofed semi.

This brings me to the vital point that CLG et al are missing a crucial trick: the opportunity to link liberalised PD to 'eco re-furbs' of the existing stock - a matter of acknowledged importance and a subject on which they are floundering. Refurbishment of the existing housing stock is far more important than the tiny handful of zero carbon new builds which won't amount to hill of beans in the big picture.

Way back in the Autumn of 2007, when CLG published their draft provisions for the revised GPDO for consultation, I implored them in my response to take this on board, and to put the potential link between pattern-based refurbishments and PD at the forefront of the amended Part 1. I literally spelt out to them how to do this and how pattern-based measures would fit neatly into the so called 'impact based' system they were trying to devise. Alas, my efforts fell on deaf ears.


Stephen has also commented on the fees payable by householders for those developments which fall outside the PD rights under Part 1, and I propose to publish his further note in a future post in a day or two’s time.

[An anonymous contributor has kindly drawn my attention to another source of help on the GPDO and other planning legislation. This is a website compiled by Steve Speed which can be found at It includes some comments on the ambiguities found in Part 1, and analyses the relevant appeal decisions which have been issued by PINS. This is all part of the growing consensus among planning professionals that Part 1 is in dire need of overhaul. The current anomalies, ambiguities and downright silliness of some of the resulting interpretations of Part 1 cannot be allowed to continue. Ministers must get to grips with the problem as a matter of urgency. MHG]

Localism Bill delayed?

We were being promised that the long-awaited (or dreaded) “Decentralisation and Localism Bill” would be published today (18th November), but what we have instead is a statement from Uncle Eric, waffling about ‘people power’ and referring to the Localism Bill, which will be unveiled ‘later’ (but does that mean later today, or just ‘later’?)

In a fruitless search for the Bill, I noticed on the DCLG’s website a press release dated 10 November which mentioned that the Coalition Government would be introducing the Localism Bill to Parliament “later this month”, and that “the Bill is expected to begin its passage through Parliament before Christmas.”

So maybe we shall all have to contain our excitement for just a little bit longer.

[Update (19 Nov): I had expected that news of the Bill would be included in yesterday’s Business Statement in the Commons. However, the only mention of it was a casual reference made by The Leader of the House in the course of answering another question, when he said “The Government will shortly introduce a localism Bill”.]

[Further Update (22 Nov) : According to Local Government Chronicle, the Bill has been delayed by another two weeks. Apparently, it is now promised for the week ending 10 December (but don’t hold your breath!). As I mentioned in an earlier comment (see below), there is very unlikely to be time for a Second Reading debate before Christmas.]


Tuesday, 16 November 2010

Interesting times

There has been a lot of news coming in over the past week or so which adds up to a whole raft of major changes in the way the planning system will work in future. Those of us professionally involved in the field may well regard this as ‘situation normal’; constant change has been a feature of town and country planning for as long as I can remember. However, there is little point in my repeating here news which you will no doubt have read on various websites or picked up through other news media. The objective of this blog is primarily to comment on actual changes in planning law and procedure, rather than simply regurgitating the latest press releases.

If one strips out announcements of future changes and consultation documents, it will be seen that rather less has actually happened so far, although the news this week does give us advance notice of the changes we can expect over the next two or three years. This includes a warning that application fees are set to rise again (and to be fixed by Councils locally, so we shall have to look up each Council’s fee schedule separately before submitting an application). Then there is the forthcoming demise of CABE, which is due for the chop by the end of March. The weeping and wailing and gnashing of teeth has already started. Legislation will also be introduced to give councillors more freedom to express their views in advance of the determination of planning applications, but before there is too much rejoicing in town halls it should be borne in mind that some of the constraints on councillors’ conduct have been imposed by the courts rather than by the last government’s legislation.

Meanwhile, as I noted in a recent post, there are all the consequential changes which will be brought about as a result of the new Planning and Local Government Bill (yes, I know – “the Decentralisation and Localism Bill” [ugh!]), including a whole lot of subordinate legislation, policy guidance and related material which we shall have to digest over the next twelve months or more.

I expect to be concentrating in the next few weeks on getting to grips with the contents of the new Bill, now only two days away if the government keeps to its own timetable. Meanwhile, the courts continue to churn out judgments on planning cases, some of greater interest than others, and it is a continuing worry that the means by which one becomes aware of these cases is still rather ‘hit and miss’.

We do indeed live in interesting times.


Monday, 15 November 2010

Putting flesh on the bones

I have complained more than once in these pages that what we have had from the Coalition so far in relation to town and country planning is largely ‘government by press release’. That is now beginning to change, as concrete proposals to implement the government’s somewhat hare-brained schemes are gradually worked up into draft legislation and finalised policy statements. A major step in this process will be the publication of the so-called “Decentralisation and Localism Bill” which is now promised for 18 November. It is likely to be a weighty tome.

I will defer comment on the Bill until its contents become clear later this week, but one welcome aspect of the Bill is the proposal to allow councils to return to the committee system should they wish to, but presumably this will not apply in the twelve largest cities which are to have directly elected mayors (subject to local referenda to be held in May 2012). No doubt the details will become clear when the Bill is published.

In the meantime, DCLG has also published a timetable for the implementation of other elements in its plans derived from the Conservatives’ pre-election ‘Green Paper’ (“Open Source Planning” [sic]).

Unfortunately, the DCLG press release contained the usual waffle about ‘putting communities in charge of planning’, but among the other items mentioned (in no particular order) were

• the publication of the promised “National Planning Framework” in April 2012
• the continuation but (unspecified) ‘reform’ of the Community Infrastructure Levy
• the introduction by July 2011 of a Bill to implement Tax Increment Financing
• the preparation and introduction (between November 2010 and April 2012) of secondary legislation to give effect to the statutory changes set out in the ‘Decentralisation Bill’
• followed by a programme (running from November 2011 to April 2012) intended to “help communities understand their new rights and to encourage take-up of community ownership of assets and services”

What is not yet clear (but may perhaps be partially revealed by the new Bill) is the means by which the government intends to bring about ‘radical reform’ of the planning system so as “to give neighbourhoods much greater ability to shape the places in which they live, based on the principles set out in the Conservative Party publication ‘Open Source Planning’”.

One welcome move is the promise to develop proposals to streamline the process of producing development plans, although this also involves a backward step in that Inspectors’ recommendations will no longer be binding on Councils, so we shall be back to the unsatisfactory situation of Councils being able to ignore the objective judgment of Inspectors on unsatisfactory and unjustified policies, and in particular the Council’s failure to designate sufficient housing sites in the plan.

At the same time, the government intends to develop proposals (as yet unspecified) “to empower local communities to bring forward neighbourhood plans through the structure of either a parish council or a newly-formed neighbourhood forum”. The Department also intends “to work with a small number of places to develop neighbourhood plans using existing powers”. The timetable for these initiatives will run from now until April 2012. This programme is also intended to “empower local communities to bring forward their own plans for their neighbourhoods”. Funding is intended to be put in place by April 2011 to help town and parish councils to develop neighbourhood plans, and monitoring of the number of neighbourhood plans will start from April 2013, identifying the number of people involved in the process of their production (not very many, I suspect). There is more on these lines, but it is all a bit unclear and we shall have to await the relevant secondary legislation before we know how all this is likely to work out in practice.

This all sounds ‘fine and dandy’, but my natural scepticism leads me to wonder whether all this new-fangled ‘community involvement’ in planning will actually work. There are many, including me, who fear that it will just be a charter for the NIMBYs to rule the roost. Meanwhile, we shall be faced with continuing uncertainty as Councils struggle to get to grips with the new system. The planning system has been subjected to years of flux and change already and it looks as though it will have to endure years more of it. Frankly, it is not what the country needs.


Wednesday, 10 November 2010

Scrapping Regional Strategies was unlawful

Judgment has been given today in the Cala Homes case challenging Eric Pickles’ abolition of Regional Spatial Strategies. The High Court found that the way this was done was unlawful and so the Secretary of State’s action in abolishing RSS has been quashed.

The effect of today’s judgment is to reinstate the various Regional Spatial Strategies so far adopted, at least for the time being. The government is still hell-bent on abolition of this level of strategic planning, and its permanent abolition will form part of the ‘Decentralisation and Localism Bill’ due to be introduced in parliament later this month. However, the huge policy vacuum created by Pickles’ purported abolition of RSS will at least be filled in the immediate future, and it is to be hoped that some means of plugging that gap will be found in the course of the passage of the new Bill through parliament.

I have not yet seen the judgment itself, so I cannot give any further details at present. An appeal to the Court of Appeal is a possibility if the government feels sufficiently strongly about it, and is not prepared to wait another year or so for the new Bill to become law. Things should become clearer in the next day or two when all concerned, including DCLG ministers, have had the chance of digesting the High Court’s decision in more detail.

LATER: Since posting this comment this morning, I have now had a chance to read the judgment. The challenge succeeded primarily on the ground that the abolition of Regional Strategies defeated the statutory intention of the 2004 Act (as amended in 2009) that there should be such strategies in place. The Secretary of State had in effect abused the power granted by the Act to cancel Regional Strategies; there was a clear statutory intention that there should be a system of Regional Stategies, and so there was an implication that any Regional Strategy cancelled under this power would be replaced. The judgment follows the House of Lords decision in the case of Hadfield. The cancellation of Regional Strategies was also in breach of environmental assessment regulations, and so was unlawful on this ground.

Rather cheekily, it seems that the DCLG's Chief Planner is now writing another circular letter similar to his letter in late May, reiterating the government's firm intention to abolish Regional Strategies, and asking that LPAs and PINS should therefore treat this intention as a material consideration in all decisions reached in the meantime. As I commented at the time of the original letter, this is of dubious legality in itself and could lead to further legal challenges, not least by Cala Homes. The plain fact of the matter is that, until formally abolished in about a year's time by the 'Decentralisation Bill', when this is eventaully passed, Regional Strategies where they had been formally adopted (in, I believe, seven regions) will remain an integral part of the statutory Development Plan. Section 70(2) of the 1990 Act and Section 38(6) of the 2004 Act will apply accordingly, and it is for the independent judgment of decison-makers (including Planning Inspectors) whether or not to treat Quartermaine's letter as a material consideration at all and, if they do so, what weight to give it. Just because some pipsqueak in the DCLG says they want the intended abolition of Regional Strategies to be treated as a material consideration does not in fact make it a material consideration in law.

A FURTHER FOOTNOTE: It is interesting that in guidance subsequently issued to Inspectors in light of the Cala Homes decision, the suggestion that the intention to revoke Regional Strategies might be a material consideration is down-played, and stress is laid instead (quite correctly in my view) on the fact that RS is now once again part of the statutory Development Plan (at least in those regions where it had been formally approved) and attention is drawn to the requirement contained in Section 38(6) of the 2004 Act that appeals must be determined in accordance with the Development Plan unless material considerations indicate otherwise. This situation is likely to obtain for at least another 12 months, and so the abolition of RS after that date is unlikely to be a material consideration in the immediate future. It seems that the denizens of DCLG have had a rare outbreak of common sense.


Thursday, 4 November 2010

Watching and waiting

There are several topics on which I am itching to comment, but at the time of writing they are still ‘in the pipeline’.

The judgment of the High Court in the Cala Homes case is expected daily. This is the challenge which Cala Homes and a couple of other developers brought against the cancellation of Regional Spatial Strategies. If I were asked to make a small wager on the outcome, I would suggest that this challenge probably won’t succeed, but you never know.

Also this month, the Court of Appeal is due to hear the appeal in the Herefordshire polytunnels case about which the NFU got so excited when permission to appeal was granted in the summer. If judgment is reserved, we may have to wait until next month for the result.

The major event this month which everyone is eagerly awaiting is the promised publication of the Planning & Local Government Bill (which the government insists on calling by the rather silly name of the “Decentralisation and Localism Bill”). This is likely to be a major piece of legislation in terms of its length and complexity, and so I would not be at all surprised if the timetable were to slip.

Finally, I am wondering what happened to Mr Fidler’s intended appeal to the Court of Appeal against the judgment of Sir Thayne Forbes in February. This, you may recall, is the case involving the concealment of development behind a pile of straw bales. It is not the question of concealment which is in issue in this case (on which the Court of Appeal has already made a clear ruling in the Welwyn-Hatfield case) but whether removal of the straw bales to reveal the new dwelling in all its glory was an integral part of the development, so that the development was not substantially completed (as per the judgment of the House of Lords in Sage) until that had happened.

Meanwhile I have lots of work to get on with, so I shan’t be twiddling my thumbs while we wait for news of these various matters.


Monday, 1 November 2010

Shelf life of an EIA

The EIA regulations are silent as to how long a screening direction lasts. There is therefore no ‘sell-by date’ attached to an EIA, but there is of course a well-established rule that the LPA (or other decision-maker) must take into account any change of circumstances between its original assessment of an application and actually issuing a planning permission (see the well-know Kides case).

In R (Mageean) v SSCLG [2010] EWHC 2652), the High Court has quashed an appeal decision granting planning permission for a wind turbine, because the Secretary of State should have reconsidered a screening direction given six years before the appeal decision, when it had been determined that the wind turbine was not EIA development. It was not the lapse of time which led to a need to reconsider the requirement for the screening direction to be reconsidered, but a material change in circumstance in the meantime. A change of circumstances could render a screening opinion out-of-date within weeks but, on the other hand, if there were to be no change of circumstance, the screening opinion might hold good for many years.

The LPA (Caradon DC) had given a screening opinion in 2003 as to whether the proposed wind turbine would be an EIA development. It decided that it would. The developer accordingly requested a screening direction from the Secretary of State who advised that the development was not an EIA development. Three years later, in 2006, an area close to the application site was designated as a World Heritage Site. A planning application for the wind turbine was then made in 2007, which the LPA refused on the ground that it would be detrimental to the appearance and character of the landscape and contrary to development plan policies seeking to protect the landscape including the World Heritage Site.

An appeal against this refusal was allowed in 2009. It was this decision which the claimant sought to quash, arguing that the Planning Inspectorate should have referring the case back to the Secretary of State for a review of the 2003 screening direction because of the lapse of time and the subsequent designation of the World Heritage Site.

The question was whether the change in circumstance could, rather than would, affect the Secretary of State's screening decision. Only he could make that decision. A change of circumstances would not automatically require a reference back to the decision maker. That would depend on the circumstances and the extent to which the development might have a significant effect on the environment. There may be changes in circumstance which would not lead to a different screening decision.

In the present case, the designation of a nearby area as a World Heritage Site was a material change in circumstance and the Planning Inspectorate should have considered whether or not to refer the screening direction back to the Secretary of State for reconsideration on the grounds that the change could affect the screening decision.


[COMMENT: Tim Webb asks whether I have any thoughts on the shelf life of EIA survey information. On the basis of the case reported above, and also matters I have dealt with myself, I would suggest that the shelf life of EIA information is entirely dependent on the circumstances. If those circumstances have changed, then that EIA information can no longer be relied upon. I suggested to a client in one case that the ecology report ought at least to be revisited due to the lapse of time. They decided not to do so, and as it was not challenegd either by the LPA or by any third party objector, there was no problem. This is really the key to the question. If the LPA raises no objection and if third party objectors are unlikely to make a fuss, then maybe 'old' EIA information can still be relied upon. It is where proposals are controversial and other parties are looking for some way of de-railing the development that you may run into trouble with allegedly out-of-date EIA information.]