Thursday, 29 December 2011

New Year’s Resolutions

1. I will be nice to Uncle Eric (who is a Truly Wonderful Human Being), and I will not make comparisons between him and Other Things, or make references to

2. I will freely acknowledge the Unquestionable Wisdom of our great Coalition Government in all that it does in relation to everything, and will not pour cold water on any of their proposals in relation to the economy, or town planning or anything else (because We Are All In This Together, and There Is No Alternative).

3. I will be nice about all politicians at all levels, who strive ceaselessly for the public good without any regard to their own interests or the interests of their friends in the City, and are worth every penny of the salaries and expenses they are paid; and I will give proper recognition to their unrivalled technical knowledge and expertise in every subject they have to deal with, especially Town & Country Planning.

4. I will cheerfully accept the imperative need to cut jobs and services in town planning and across all our public services as savagely as possible (so as to demonstrate to international financiers that this is a country that recognises their unbounded power and influence in the world).

5. Finally, I will not use irony, sarcasm or other low forms of humour in this blog ever again.

(Oops! I seem to have broken that last resolution already. Oh, well. Who cares about New Year’s Resolutions anyway?)

Happy New Year to all my readers.


Monday, 19 December 2011

Curtilage confusion (2)

If you have found this post by searching for “curtilage” on the internet, you may like to know that there has been a total of 7 posts on this topic in this blog – on 25 January 2011, 27 May 2011, 12 August 2011, 18 August 2011, 6 December 2011, 19 December 2011 and 2 January 2012. If you wish to display them all on the page together, just put “curtilage” into the search box at the top left-hand corner of this page (but NOT in the ‘Google’ or ‘Jeeves’ box above that).

I frustrated several readers of my last piece on this topic by stopping short of discussing the actual definition of the ‘curtilage’ of a dwellinghouse (or other building). So now at last we come to that definition and its significance in planning terms. As I mentioned before, there is no such thing in planning law as ‘use as residential curtilage’. This is not a use in planning terms; it is simply a physical description of an area of land which is closely associated with a house (or other building). The use of a property for residential purposes (within Use Class C3) relates to the whole of the planning unit comprising the house and its grounds. The ‘curtilage’, as I mentioned before, may very well be a smaller area, the use of which in planning terms does not differ materially from the use of the planning unit as a whole.

The dictionary definition is helpful to a certain extent [“a small court, yard, garth or piece of ground attached to a dwellinghouse, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings” - OED], but does not give the whole answer. I usually take as my starting point a quotation from Sinclair-Lockhart’s Trustees v. Central Land Board (1950) 1 P&CR 195, where it was held that: “The ground which is used for the comfortable enjoyment of a house or other building may be regarded in law as being within the curtilage of that house or building and thereby as an integral part of the same although it has not been marked off or enclosed in any way. It is enough that it serves the purpose of the house or building in some necessary or useful way.”

A later case which has often been cited is Dyer v. Dorset County Council [1989 1 QB 346, in which the Court of Appeal adopted the dictionary definition mentioned above, but this decision of the court of Appeal can no longer be relied upon. For one thing, the case was not being decided in the context of planning law, but was concerned with the ‘right to buy’ under housing legislation. More importantly, the use of the word “small” in the dictionary definition is misleading, and was held to be irrelevant by the Court of Appeal in Skerritts of Nottingham Ltd v. SSETR [2000] 2 PLR 102; [2000] JPL 1025, who decided that Dyer had gone too far in adopting the dictionary definition word for word.

Beyond this, there is not much further judicial help in reaching a definition. It is, to use a favourite phrase of planning lawyers, “a matter of fact and degree” in each individual case, and this was the principal point established by Skerritts of Nottingham. You have to look at all the circumstances in the particular case in question.

One practical point which can clearly be derived both from decided cases in the courts and from inspectors’ appeal decisions is that if something like a tennis court or a swimming pool is separated from the house by an area of rough grass or is situated in a field or paddock which is clearly not part of the formal garden closer to the house, then it is very unlikely to be seen as falling within the curtilage of the house. (For examples of this, see Collins v. SSE [1989] PLR 30 and McAlpine v. SSE [1994] EGCS 189. In Collins the area of rough grass was held not to be part of the curtilage because it did not serve the dwellinghouse in some necessary or useful manner, echoing the words used in Sinclair-Lockhart’s Trustees).

The significance of ‘curtilage’ in planning terms arises from the use of the word in both primary and subordinate legislation. We have already seen that the use of land or outbuildings within the curtilage of a dwellinghouse, which is mentioned in s.55(2)(d), is no longer of any relevance, as the inclusion of dwellinghouses in Use Class C3 in the Use Classes Order brings the whole planning unit (not just the curtilage) within the terms of s.55(2)(f). However, ‘curtilage’ is still important in other contexts. I do not propose to explore every use of the word in the planning legislation, but will just mention the two most important references to the term. The first is in Part 1 of the Second Schedule to the General Permitted Development Order, and the second is in section 1(5)(b) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

Permitted development within Part 1 in the GPDO (and in particular under Class E) can only be carried out within the ‘curtilage’ of a dwellinghouse, and not within any part of the planning unit which lies outside the curtilage. As regards the Listed Buildings Act, the inclusion of a building in the statutory list of buildings of architectural or historic interest embraces not only the building itself, but also any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land [within the curtilage] and has done so since before July 1, 1948. Thus in these two cases, it is important to define the curtilage in order to determine the effect of these statutory provisions to particular parts of the property.


Still busy

I decided a week or so ago that I would try to publish three posts in this blog each week. Well, so much for good intentions. Such has been the pressure of work recently that I only managed one post last week.

I will try to publish posts more frequently in future, but the fact remains that priority has to be given to client work, and this shows no signs of letting up. Needless to say, I am not complaining. Whenever I contemplate the sheer silliness of the planning system at times, I console myself with the thought that it all makes work for the working man to do!


Wednesday, 14 December 2011

Challenging an Enforcement Notice - Nullity as a defence

After I wrote the two previous pieces on questioning the validity of enforcement notices published here on 20 April and 8 September this year, it occurred to me to revisit R v. Wicks to refresh my memory as to what the Court had actually decided in that case. This led me on to look at Palacegate Properties Ltd v. Camden LBC [2000] PLR 59 (CA). If the Planning Encyclopedia is to be believed, a court trying an alleged offence under s.179 has no power to inquire into the validity of an enforcement notice on grounds of “nullity”, but that is not what that case decided. The Court did not say that the nullity of the enforcement notice cannot be raised as a defence to a prosecution for non-compliance with the notice, but it did restrict the definition of ‘nullity’ to a very narrow compass.

The EN would be a nullity if the person issuing it had no authority to do so. Thus there must have been a resolution of the Council or of a committee or subcommittee exercising a power duly delegated to that committee or subcommittee under the Council’s standing orders or scheme of delegation, or it must have been issued by an officer acting under a power duly delegated to a specified officer under the Council’s standing orders or scheme of delegation. Note, however, that the Courts have shown some flexibility in this regard and are content that the EN should have been issued in the name of the officer having the delegated power to issue it, even if that officer did not personally sign it. Only if some junior officer had gone off on a frolic of their own and was acting entirely outside the scope of their authorised sphere of action could it be argued that the notice was a nullity. Moreover, if the person issuing the EN has ostensible authority to do so, issues such as bad faith, bias, etc. cannot make the notice a nullity. These might make the notice voidable if challenged either on appeal under s.174 or by way of an application for judicial review, but the EN cannot be treated as a nullity on these grounds.

The only other basis on which an EN can be a nullity is if some vital element required by statute to be included in the notice is missing from the notice. It is not sufficient to argue that the notice is void for uncertainty; it has to be so fundamentally defective as not be a notice at all. The statutory requirements are set out in s.173 and in regulations made under s.173(10), in Part 2 of the Town & Country Planning (Enforcement Notices and Appeals)(England) Regulationss 2002. It might be argued that some of these requirements are more important than others, and it is a moot point as to whether some minor omission in respect of the prescribed contents would be sufficient to render the notice a nullity, or whether a failure to include or serve with the notice the explanatory note prescribed by Reg 5 would be sufficient to render the notice a nullity. I would very much doubt that the latter would render the notice itself a nullity; that would most likely be seen as a procedural irregularity which could conceivably lead to the EN being quashed, but would be unlikely to render the notice a nullity as such.

This does perhaps leave open a question as to whether, if some element of the notice were to be so garbled as to be completely unintelligible, it might then be argued that there had been a failure to include the relevant element in the notice, thus rendering it a nullity. However, Malcolm Spence QC’s argument in Palacegate Properties that the EN in that case did not make sense even to an informed reader was rejected by the Court. I strongly suspect that the courts would be unsympathetic to such an argument on the basis of Wicks and Palacegate Properties, but there must surely be some threshold beyond which the relevant element in the notice is so hopelessly defective as not to comply with the statutory requirements at all. What, for example, if the same section of two unrelated ENs were accidentally transposed, so that in each case the relevant section in fact related to an entirely different site or to an entirely different and unrelated breach of planning control? Surely it could not be argued that because on the face of it the notice contained the relevant elements as required by statute, the notice could not therefore be a nullity, notwithstanding that it made no sense in the context of that notice?

What is nevertheless clear is that the scope for arguing that an Enforcement Notice is a complete nullity as a defence to a prosecution under s.179 is very restricted. So I hope no-one had false hopes raised by my earlier pieces on questioning the validity of an enforcement notice.


Thursday, 8 December 2011

The planning process

Readers will be aware that I frequently inveigh against the nonsenses of the planning system, and I know there are many other planning professionals who share my views. It is the development management process that is the biggest headache for developers and their advisers. In the majority of cases the outcome is successful from the developer’s point of view (subject to certain reservations about over-prescriptive conditions attached to planning permissions); but what bugs users of the system is the bureaucratic nightmare associated with submitting a planning application in the first place and getting it ‘registered’ by the LPA, with all the extra work and resulting delays which this involves.

Brian Waters (who is principal of the Boisot Waters Cohen Partnership, chairman of the National Planning Forum and immediate past-president of the Association of Consultant Architects) recently wrote an article on this topic in Architects’ Journal, although he stressed that he was writing strictly in a personal rather than a representative capacity. He observed that HM Treasury’s concerns about the drag on the economy due to our increasingly sclerotic planning system have been evident for years. They first emerged with the apparently uncommissioned McKinsey report in the late 1990s and have been reiterated at intervals since then.

Brian’s article continued: “Architects will know that since then things have got worse. A planning application used to be a four-page TP1, a location plan, certificates and some drawings. Now 1APP runs to 12 pages and a mountain of studies and statements for the most modest of proposals. As for policies, just as we got close to national coverage with Unitary Development Plans (UDP) and Local Plans, whoops, the introduction of a new planning act (2004) meant starting all over again with Frameworks, Core Strategies and the rest. Planning Policy Guidance (PPG) turned to Planning Policy Statements (PPS) as national policy got ever-more deterministic, spatial planning got lost in a fog and the long-standing ‘presumption in favour of development’ (vintage 1923) became swamped by ‘plan-led’ decisions with increasingly invasive conditions.

It is the process that needs tackling, not the policies. I predicted in a previous article in Architects’ Journal here that 1APP’s introduction would lead to a ‘train crash’. The Killian-Pretty review was set up to count the bodies and tried to get the system back on track, but the defensive stance of local planning authorities that demand vast wodges of information to cover every possible angle goes on

As regards the mountains of studies and statements which Brian mentions, an architect told me recently of some of the irrelevant material which he had been forced to submit to one LPA in order to get an application registered. It included a complex statistical study of some abstruse aspect of the development which the LPA insisted they must have. Whether deliberately or by mistake (I can’t remember which it was), the last 10 pages or so of this document, containing the essential analysis of the data and the conclusions to be drawn from this material, were not copied, thus rendering the document entirely meaningless. Nevertheless, this document was accepted as fulfilling the LPA’s requirements, and the application was registered, processed and determined without any question being raised about this document or its contents. Quite clearly no-one had read this lengthy and expensive study. Its production had in practice been completely unnecessary.

As I have observed before, I am convinced that much of the dissatisfaction about the planning system which has penetrated the consciousness of ministers, including the PM, stems from the actual process rather than from its outcomes. Further reform of the planning system should therefore be concentrated on two areas. The first is the simplification of the requirements associated with the submission of planning applications and the removal of the entirely unnecessary requirements which have been imposed on applicants in recent years. This would include abolishing Design & Access Statements, abolishing national and local validation checklists and restoring a right of appeal where an LPA is delaying determination of an application because of insistence on the provision of information which the applicant considers unnecessary. This would require the amendment of section 62 of the 1990 Act and of corresponding provisions in the DMPO, thus reversing the effect of the High Court judgment in Newcastle Upon Tyne City Council v SSCLG [2009] EWHC 3469 (Admin). [For further details, see my posts on Wednesday, 5 May 2010 - “Validation dispute goes pear-shaped” - and Friday, 13 August 2010 - “A much-needed reform”]

The second area of reform relates to the development plan process. It is vastly over-complicated and needs to be greatly simplified. Repeal of section 38(6) of the 2004 Act would be a great help here, by removing much of the pressure which it and its predecessor (section 54A of the 1990 Act) has placed on the development plan system over the past 20 years. I have repeatedly pointed out that section 70(2) of the 1990 Act provides a perfectly sound basis for development management.

But will the government listen to us? After all, we are only the poor professionals who have to try to make the system work.


Tuesday, 6 December 2011

Curtilage confusion

If you have found this post by searching for “curtilage” on the internet, you may like to know that there has been a total of 7 posts on this topic in this blog – on 25 January 2011, 27 May 2011, 12 August 2011, 18 August 2011, 6 December 2011, 19 December 2011 and 2 January 2012. If you wish to display them all on the page together, just put “curtilage” into the search box at the top left-hand corner of this page (but NOT in the ‘Google’ or ‘Jeeves’ box above that).

The one topic which has received more page views than any other on this blog is the short article entitled “Curtilage Confusion” published in this blog on 11 January 2011. It has now been read more than 2,500 times. Clearly this issue is proving to be a serious problem for a large number of people.

As I have explained in several posts in the blog, the ‘curtilage’ of a house (or other building) is not necessarily co-extensive with the boundaries of the property on which the house stands. Where the house is located on a modest plot in an urban or suburban area, the domestic curtilage may well encompass the whole of the property, and I strongly suspect that this is what leads people to refer loosely (and inaccurately) to the whole of the land around their house as the ‘curtilage’. However, on larger plots in rural and semi-rural areas, the curtilage often proves to cover rather less than the whole of the property. It is in these circumstances that the inaccurate use of the word ‘curtilage’ begins to cause problems.

If we are dealing with a house occupied with a substantial area of surrounding land, there may be a need to establish - (a) whether the domestic use of certain parts of the property is lawful and (b) whether certain outbuildings, a swimming pool or ornamental ponds, tennis courts, etc. are Permitted Development within Part 1 of the General Permitted Development Order.

It is necessary to make a clear distinction between issues relating to the use of land and issues relating to operational development (i.e. building, engineering or other operations) involved in creating a building or other structure or facility, including (for example) a swimming pool or a tennis court. The rules relating to the lawfulness of the erection or creation of the building, structure or other facility differ in certain important respects from the rules relating to the lawfulness of their use, or (to be more precise) the lawfulness of the use of the land on which they are located.

It may come as a considerable surprise to some planning officers, but the lawfulness of the use for domestic purposes of various parts of the property surrounding a house is not dependent on the area or areas in question being within the ‘curtilage’ of the house.

The origins of the confusion which has clearly arisen can be traced back to what is now Section 55(2)(d) of the Town & Country Planning Act 1990, which provides that “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such” is not to be taken for the purposes of this Act to involve development of the land. Taken at face value, it might seem that this does confirm that, in order to be lawful, uses associated with a single private dwelling must be within the ‘curtilage’ and must be purely ‘incidental’ to the use of the house as a dwelling, but this is not so.

When the predecessor of s.55(2)(d) first went on the statute book (in 1947), single private dwellings were what lawyers call a sui generis use, i.e. a use of its own kind. However, that changed in 1987, when a new version of the Use Classes Order included ‘dwellinghouses’ for the first time. Since then, use as a dwellinghouse, whether or not as a sole or main residence, has come within Use Class C3.

It seems to have escaped the notice of quite a few planning professionals that the inclusion of dwellings in the Use Classes Order had an important knock-on effect. It brought dwellings within the provisions of what is now Section 55(2)(f) of the 1990 Act, which provides that “in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section [i.e. the Use Classes Order], the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or other land, for any other purpose of the same class” is not to be taken for the purposes of this Act to involve development of the land. So in the case of a dwelling, which by definition comes within Use Class C3, it is lawful by virtue of s.55(2)(f) to use any part of the buildings or other land for any other purpose falling within Use Class C3, whether that purpose is primary, ancillary or incidental to the use of the house as a dwelling. This has effectively made s.55(2)(d) redundant, although it remains on the statute book because no-one has spotted the fact that it is of no further relevance.

There is just one point that needs to be clarified. What exactly counts as “any part of the buildings or other land” ? You won’t find the answer to this question anywhere in the planning legislation, but the courts have long since developed the concept of the ‘planning unit’, and the way in which the planning unit is to be defined is clearly set out in the judgment of Bridge J (as he then was) in Burdle v. SSE [1972] 3 All ER 240; 24 P&CR 174. The basic rule is that the unit of occupation is the appropriate planning unit, unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally.

This is a point which should be borne in mind when we are considering a house which is occupied with a large area of surrounding land. In these circumstances, it cannot automatically be assumed that the whole of the land falls within one and the same planning unit as the house. Some of the land could, for instance, be in agricultural use, or might be used for some other purpose. Thus the property might possibly include another planning unit which, in terms of the activities carried on there, is physically and functionally separate from the remainder of the property.

So how is a planning unit comprising a house and its grounds created, and how can it lawfully be enlarged to include extra land? If planning permission is sought for the erection of a new house, the red line on the site plan should be drawn round all the land which is intended to be used and occupied with the house. The land within the red line will be the planning unit, and the grant of planning permission for the erection of the house will necessarily authorise the use of all the land within the planning unit for the same purpose. Section 75 of the 1990 Act confirms this, and the effect of s.55(2)(f), as we have seen, is to allow the use of every part of the planning unit for any purpose falling within Use Class C3. If the planning permission is for a change of use (for example a barn conversion), the same considerations apply to the land shown in the planning permission (i.e. edged red on the approved site plan) as being part of one and the same planning unit.

The application drawings should therefore include within the red line on the site plan all the land which is intended to form part of one and the same planning unit as the house. Note that the planning unit may well be larger than the more tightly defined domestic ‘curtilage’. However, there must be some reasonable limit as to how much land can properly be included in the planning unit when a planning application is made. Being greedy about the amount of land to be included in the planning unit might lead to a refusal of planning permission altogether if it is felt that involves a change of use of too large an area of land to use for residential purposes.

The subsequent incorporation within the property of land which was outside the originally defined planning unit represents a material change in the use of that land (in many cases from use for agriculture) to use for domestic or residential purposes, but please note is does not represent a change of use to ‘use as residential curtilage’, even if it is close enough to the house to come within the curtilage, because this is not a use in planning terms. It is an enlargement of the planning unit and a material change of use of that land to use for residential purposes (or, possibly ‘to a use or uses ancillary to a residential use of the planning unit in which it has been incorporated’). Such a change of use requires planning permission, which most local planning authorities will be very reluctant to grant in most cases. However, if such a change of use takes place without planning permission and this unauthorised use continues without interruption for 10 years, then it will become immune from enforcement and therefore lawful. But please note that this does not have the effect of making that land part of the domestic ‘curtilage’ as such.

Following the inclusion of dwellinghouses in the Use Classes Order in 1987, as Use Class C3, the definition of the curtilage is no longer relevant to the lawfulness of the use of any particular part or parts of the planning unit, because this is now governed by section 55(2)(f) rather than by section 55(2)(d), as explained above.

However, it is when we come to the consideration of Permitted Development within Part 1 of the Second Schedule to the General Permitted Development Order that the precise definition of the actual ‘curtilage’ of the house is of crucial importance, particularly in relation to Class E. The precise definition of the curtilage of a listed building is also important for the purposes of listed building control.

I will return in a future post to the question of how the precise extent of the curtilage can be determined.


Monday, 5 December 2011

The chilling effect of CIL

Local planning authorities up and down the country are busy setting their charging schedules for the Community Infrastructure Levy and it is becoming clear that, at the level at which charges are being set in quite a few areas, the cost to developers will be large enough to deter them from going ahead with planned developments. It is possible that some authorities who wish to avoid having to accept significant levels of housing development in their areas would be quite happy to deter developers in this way.

I always expected that this attempt to tax development, like all the previous attempts (‘development charge’, ‘betterment levy’, ‘development land tax’, etc.), would have a seriously depressive effect on the market. The trouble is that, whilst financial contributions under section 106 agreements are negotiable, and developers can point out to an LPA the effect which a particular level of demanded contribution would have on the viability of the project to which that contribution is linked, the charge payable under the CIL regime will be a fixed percentage calculated solely by reference to the size of the development, and there will be no scope for negotiating a lower charging level by reason of the effect which the charge would have on the viability of the particular scheme. The result will be that developers will not even bother to apply for planning permission in many areas, and so urgently needed housing, including affordable housing, will simply not get built, nor will the money required for new or upgraded infrastructure in the district get the necessary funding.

The government is anxious to promote development as one means of stimulating the economy, and in the Chancellor’s Autumn Statement they have reiterated their intention to make early changes to the legislation to enable existing section 106 agreements to be renegotiated (or, if necessary, appealed) sooner than is currently possible, so as to obviate the current drag on development which over-ambitious financial obligations under those agreements had been causing. The Community Infrastructure Levy will have precisely the opposite effect to this liberalisation of the current regime. It will be entirely counter-productive and will act as a major brake on development. That may please the NIMBYs no end, but it will have a depressive effect on an already faltering economy.

It is somewhat surprising that the government decided to stick with CIL, when they had previously expressed an intention to abolish it. They correctly saw CIL as an undesirable tax on development, and predicted that it would have the deleterious effect on the market which is now beginning to emerge. At the risk of making yet another U-turn (although they should be getting used to that by now) the government should abolish CIL or, at the very least, suspend its implementation indefinitely.

The counter-argument which may well be heard if the abolition or suspension of CIL were to be seriously considered is that the levy is essential in order to fund the infrastructure for which new development creates a demand. But it is disingenuous to pretend that it is new development and, in particular, the construction of new homes which gives rise to the need for new or upgraded infrastructure. The new schools, roads and other facilities would still be needed even if the development did not occur. Household formation is continuing apace, the population is continuing to increase, and so the need for new school places, new roads, new community facilities and other public amenities will be there even if we do not build any more homes for these people to live in.

I strongly suspect that what led the present government to decide that CIL should be introduced after all was its overriding aim to cut public spending, and CIL was no doubt seen as one of the means of ensuring this, rather than having to fund local infrastructure through general taxation. Now that ‘Plan A’ has been seen to fail, and has in fact led to increased borrowing by government (to fund additional benefits for all the people the government has thrown out of work, and to replace lost tax revenue from the resulting economic downturn), what the country needs is a good dose of Keynesian economics – a New Deal which would include the funding of new schools, libraries and other community facilities from general taxation, rather than expecting an increasingly beleaguered development industry to pay for it.


Saturday, 3 December 2011

Proposed changes to Listed Building control

The government is proposing some important changes to simplify the system of listed building control. This is part of the implementation of the recommendations of the Penfold Review. The changes will require primary legislation, and so their introduction will be dependent on finding the necessary parliamentary time (so they are not imminent).

I have referred recently to the imaginary speech I wrote before the election delivered by ‘James Hacker’ [see “REAL Reform of the Planning System”, posted here on Tuesday, 20 April 2010]. This is yet another example of some of the ideas canvassed in that piece being put into practice. I had put the following words into the mouth of our imaginary Secretary of State:

I also propose to relax the controls over alterations to listed buildings. Many owners and occupiers of listed buildings are under the impression either that the prohibition on altering a listed building without consent applies only to the exterior, or that this protection applies only to those features expressly mentioned in the listing description. ............I propose to change the law so as to bring it into line with public perceptions.”

What the government is now proposing is that, in order to reduce the number of unnecessary applications for Listed Building Consent, they will enable [but not ‘require’ ?] the extent of a listed building’s special interest to be legally defined in its list entry – so only those parts of a building that contribute to its special interest will be protected by law, thus removing the requirement to apply for consent for works affecting other (‘unlisted’) parts of the building.

In practice, particularly in the case of Grade II listed buildings, the interior has very rarely been inspected, and the statutory listing description of the exterior is often quite brief and does not at present indicate the importance of those features which are mentioned in the description. The government clearly recognises that this will require an extensive re-survey of listed buildings, and so they are going to commission English Heritage to begin a programme to update the list entries of listed buildings, providing more detail on the special interest of those buildings, so as to ensure the protection of those parts of a building which are of special interest, while freeing from listed building control the parts of a building which are not listed. The programme will start by enhancing the listings of 20th century office buildings, because these are frequently the subject of LBC applications by business occupiers. The task as a whole will be enormous, and implementing the relaxation of the requirement for LBC may not therefore occur for some considerable time to come.

The proposal which I put in the mouth of my alter ego was rather simpler. It was confined solely to buildings listed as Grade II. I/he suggested that, in future, listed building consent should no longer be required for interior alterations to Grade II listed buildings unless such alterations would materially affect the basic structure of the building or would affect any internal feature which is specifically mentioned in the listing description. However, control over internal alterations would continue to apply to Grade II* and Grade I listed buildings (which are far less numerous) as it does at present. This would be a lot simpler than what the government is now proposing, and could be implemented much more quickly. There are very few interior features in Grade II listed buildings which are of special architectural or historic importance in themselves, and so there would be comparatively little risk of significant features being lost in this way.

The government’s actual proposal is not confined to Grade II listed buildings , nor is it confined to interior features. It is therefore rather wider in its effect than what I had suggested, but its implementation will be dependent on extensive re-inspection and may therefore be considerably delayed.

The government also proposes to change the procedure for seeking a certificate of immunity from listing so that it can be used more flexibly. This will no doubt be helpful to developers, but another change (which has not been proposed) which would be helpful to all owners and occupiers of listed buildings would be the introduction of a provision similar to the existing procedures for lawful development certificates, in order to enable them to determine whether listed building consent may or may not be required in particular circumstances. The non-availability of such certificates in respect of works to listed buildings is an anomaly that has long been in need of reform. LBC is needed only for those alterations which would affect the character of the listed building as such, and this would be a means of obviating disputes over whether or not particular works would or would not (or, if already carried out, did or did not) affect the character of the listed building, and so would remove the anxiety of threatened listed building enforcement action in such cases.

An interesting innovation which the government has proposed is to allow the owners of listed buildings to enter into a Statutory Management Agreement with their local planning authority to enable works specified in such an agreement to be undertaken without the need for separate LBC applications. This will reduce the need for repeated applications for Listed Building Consent where complex or frequently-changing listed buildings are involved. This provision is most likely to be used by business occupiers of listed buildings rather than by householders.

Another simplification of the current control regime is the proposed replacement of the need for conservation area consent for the demolition of unlisted buildings in conservation areas by a requirement for planning permission instead. Bearing in mind that such demolition is usually associated with proposed redevelopment of the site, this will obviate the need for two separate applications, and the common situation of two completely separate committee reports and decisions relating to what is in practice a single scheme. Carrying out development without planning permission is not at present a criminal offence, but in order to ensure continued protection of unlisted buildings in conservation areas, the demolition of such a building without planning permission will now be made an offence. One hopes that this will not be treated as a precedent for any future widening of the scope for potential criminal liability for carrying out development without planning permission.

Another way in which the government suggests that the LBC regime might be simplified is by introducing a prior notification procedure. As in other cases where a prior notification procedure applies (e.g. agricultural buildings, telecommunications development, etc.), Listed Building Consent would be deemed to be granted if the LPA does not respond to a developer’s notification by requesting a full application within a specified time. This proposal will be subject to consultation, and can be expected to meet with some opposition. In certain respects it would take us back to the pre-1969 situation, before the requirement for express consent for works to a listed building was introduced. The pre-1969 system was in effect a prior notification procedure, but failure to give the required notice had only limited consequences, and it was this weakness that led to the full listed building control system we now have. This problem would not arise if the current rules on prior notification are applied – failure to give that notification would render the works wholly unlawful and therefore liable to prosecution and enforcement.
Another intriguing suggestion which the government is canvassing is the possibility that they might legislate to allow certification of applications for Listed Building Consent by accredited independent agents. This would be analogous with the current operation of the building control system. Such independent agents would presumably have to be conservation architects or similar professionals with equivalent qualifications and experience. Something tells me that this is an idea that is not going to take off. We shall see what emerges from the forthcoming consultation exercise.

A consultation exercise is also proposed on the subject of minimum compensation where a listed building is compulsorily purchased in exercise of listed building enforcement powers. The objective is to devise a legal definition of the circumstances in which minimum compensation should be payable. At present this is uncertain, and is inevitably the subject of expensive and sometimes bitter legal dispute.

I assume that it is DCMS, rather than De-CLoG, which will be the sponsoring department for the proposed legislation. If or when parliamentary time can be found, I wonder if they may be tempted to dust off the abandoned draft Heritage Protection Bill from some years back, and see if any of its provisions could be shoved into the new Bill. Some of the proposals in the old draft Bill would now be inconstant with what the government is currently proposing, but there may be other parts of the old Bill which could be resuscitated. It will be interesting to see what emerges when draft legislation is eventually published.


Wednesday, 30 November 2011

Osborne’s Autumn Statement

For the second time this year (the first occasion being the Budget Statement in late March) the Chancellor of the Exchequer has stolen Uncle Eric’s thunder by announcing important planning reforms.

I don’t propose to list everything in the statement, which has already been summarised elsewhere, but there are certain elements of the package which presage significant changes in planning law and practice.

The costs regime in planning appeals is to be amended in the summer of next year in order to ensure that there is a more effective mechanism for applicants to obtain an award of costs in a case where a statutory consultee has acted unreasonably. At present, it is the LPA which is likely to cop the costs order in this sort of case, so it is unlikely to make a lot of difference from the appellant’s point of view. What would have been far more useful would have been a change to the costs regime so that it would be the normal practice in future for appeal costs to follow the event, whilst leaving a measure of discretion to the inspector where the justice of the case requires some other outcome – in other words the same practice which applies in the civil courts. But once again the opportunity has been missed.

Some tweaking of the new major infrastructure planning process can be expected by the summer of next year, particularly in the pre-application phase, apparently in response to comments from applicants.

The government may have to steer a delicate course in their avowed intent to ensure that compliance with the Habitats and Wild Birds Directives does not lead to unnecessary costs and delays to development, without provoking legal challenges alleging failure to follow the directive or to transpose it correctly into our domestic law. This will involve a review of these two Directives as currently implemented in England, to be completed by next Spring, in an effort to find a way of preventing delays to developments where compliance is particularly complex or has large impacts. This is what Sir Humphrey might describe as a ‘brave’ initiative. Members of the planning bar will no doubt be on stand-by for the judicial review applications which could ensue.

Incidentally, the review of the two European directives has been entrusted to DEFRA, rather than to De-CLoG. If I were Uncle Eric, I would be getting worried about the way his department seems to keep getting bypassed. Various planning-related tasks are repeatedly being handed out to the Treasury, the Business Department, DEFRA, Uncle Tom Cobbleigh and all, but seemingly not to Uncle Eric’s merry crew. Is someone trying to tell them something?

Further planning reforms which have been flagged up include a review of planning appeal procedures, with the intention of making the process faster and more transparent, improving consistency and increasing the certainty of decision timescales. These proposals are expected to be implemented in the summer of next year. I have drawn attention on a number of occasions to the government’s long-held ambition to emasculate the appeals system, but does this latest announcement indicate a change of tack, and an acceptance that the appeals system must be improved rather than hobbled, as the government originally intended? If there are dark forces within De-CLoG who still harbour ambitions to make it more difficult to appeal against adverse planning decisions, one hopes that they will now finally be banished by the over-riding need to ensure that the planning system (including the appeals system) responds to the need to enable development wherever possible.

As we already knew, pre-April 2010 section 106 agreements will be up for re-negotiation. All this needs is a ministerial order varying the period prior to which an application under s.106A need not currently be entertained by a local planning authority. There does not seem to be much for the government to consult over on this subject.

Another possibility which is being canvassed is a variation of the General Permitted Development Order to enable existing agricultural buildings to be used for other business purposes - such as offices, leisure and retail space. This may meet with some resistance from the likes of the CPRE, but it will no doubt be widely welcomed by farmers and rural businesses.

Buried in one of the appendices is a statement that the government will support new development, which could include modern garden cities, urban and village extensions. The Government intends to invite proposals from developers and local authorities for new developments which have clear local support. Local support for this type of development seems rather improbable, and if support is not forthcoming the government might be tempted to go ahead with these developments anyway. This could be a future battleground for CPRE, the National Trust and their friends at the Daily Torygraph.

Finally, the government intends to introduce new permitted development rights for non-domestic ‘micro-generation’ of electricity. They hope this will incentivise the take-up of small scale renewable and low carbon energy technologies. It could also lead to some dissatisfaction among neighbours of these ‘micro-generation’ projects.

It looks as though 2012 could see some significant changes on the planning front, when the proposals listed in the Chancellor’s Autumn Statement are added to final publication of the NPPF and, of course, the gradual implementation of the Localism Act, not to mention certain other changes which the government has been canvassing.

Interesting times.


Monday, 28 November 2011

Where does the government go now?

The government has still got to do some hard thinking about the planning system. There is an, as yet, unresolved contradiction between the attitude to the planning system which the Tories displayed both before they came to power and in the first ten months after the election and, on the other hand, the government’s apparently damascene conversion (dating from this year’s budget statement at the end of March) to the benefits of built development in contributing to much-needed economic growth.

Scrapping regional strategies (and with it the removal of any form of regional planning) clearly serves the anti-development agenda with which the government came to power. The Localism Act, with its concept of neighbourhood planning and various other forms of ‘localism’, was also directed to the same end. The original intention behind scrapping detailed ministerial policy guidance and replacing it with a single very thin document (the NPPF) was similarly to remove what were seen as over-prescriptive centrally promulgated policies, so as to leave local planning authorities free to resist development in their own back yards. An intention to emasculate the appeals system was another item on the same agenda.

The first and most controversial change has been the alleged transformation of the draft NPPF from what originally promised to be a fairly innocuous document, which would have left local planning authorities with what they imagined was to be enhanced freedom of action in turning down planning applications, to an engine for unrestricted development. For the reasons which I have explained previously, I do not believe that this was the primary intention in the drafting of the NPPF, nor do I believe it will necessarily have this effect. Mere omission of some of the detailed guidance in existing PPGs and PPSs does not necessarily betoken a change of approach. On the other hand, the opportunity was taken to throw into the draft document some encouraging noises about development, in order to bring the document into line with the government’s newfound need to promote economic growth (or, at the very least, to fend off another recession). The result is a somewhat inept piece of drafting which pleases no-one.

The economic outlook is still very threatening, and the government cannot afford to lose any opportunity to shore up a faltering economy. I suspect that this will ultimately prove to be the stronger of the two competing forces which are currently pulling the government in opposite directions over town planning. Much as the National Trust, the CPRE and the Daily Torygraph may hate it, it may well prove to be the pro-development agenda which will win the day.

The Federation of Master Builders suggested recently that it will be necessary for the government to reintroduce housing targets, whether on a regional or on a county-by-county basis, but this would be so embarrassing politically that it is beyond the bounds of practical politics. For the same reason, the government cannot be seen to abandon the NPPF in face of the chorus of dissent which greeted the publication of the consultation draft. So far as the NPPF is concerned, what is likely to emerge is a messy compromise, which reinstates some of the material omitted from the consultation draft but was to be found in previous ministerial policy guidance, and perhaps some toning down of the apparently aggressive pro-development thrust of the document.

Economic necessity will nevertheless drive the government to find other means by which development can effectively be promoted. This requires only a few simple mechanisms to be put in place, none of which will need legislation. First, in publishing a toned down final version of the NPPF next March (or April), the government should accompany it with a robustly worded letter or circular stressing the importance it places on economic growth and on the planning system as a means of delivering that growth. This statement should reiterate that the default answer to any planning application is ‘Yes’, and should confirm that ministers will apply this approach in determining appeals. (There is nothing revolutionary about this; as my colleague David Brock has pointed out, it has been written onto ministerial planning policy ever since the 1920s!) Secondly, any lingering thoughts of emasculating the appeals system should be abandoned; on the contrary it needs to be strengthened, and extra inspectors may well have to be recruited to cope with an increased workload.

In the absence of regional housing targets or similar centrally imposed policies, planning by appeal is the only means by which the reluctance of local planning authorities to allow sufficient development in their areas can be overcome. This approach might arguably be an unsatisfactory way in which to deliver much-needed development, but the government has left themselves little option, having abandoned a more structured policy-based approach.

In the meantime, what of the government’s much-vaunted housing strategy? This rag-bag of miscellaneous ideas, hastily cobbled together last week in something of a panic, can hardly be dignified with the term ‘strategy’. It has already become clear that many of the proposals will have little practical impact on housebuilding, and will hardly counter the action taken by the government soon after it came to power, which (to take just one example) has had the effect of cutting affordable housing starts to a pitifully low figure.

The government clearly has a mountain to climb if it seriously intends to get housebuilding moving. This makes it all the more likely that they will continue to rely on a strongly pro-development policy stance when publishing the NPPF next year, even if the document itself is slightly expurgated by comparison with the consultation draft . By itself, of course, a pro-development policy stance will not be enough to free up the logjam; fiscal and financial incentives will have to be considerably beefed up in order to oil the wheels of the housing market. Ministers are now getting so desperate about the economy (which has been depressed largely through their own post-election policies) that they appear to be quite ready to adopt desperate measures, even if it does involve yet more U-turns away from the over-hasty doctrinaire measures taken shortly after the government came to power, such as cutting the funding for social housing.

One views the developing situation not so much with amusement as bemusement.


Still busy, busy, busy

As you may have gathered from the time which has elapsed between posts on this blog recently, I have become increasingly busy in the past couple of weeks, and this inevitably makes it difficult to find the time to write items for the blog. There is certainly no shortage of material at the moment, and it is just a question of getting it written up. I will do my best to keep up with the blog, so as not to disappoint the growing number of readers visiting the blog.


Wednesday, 16 November 2011

Localism Act 2011 - Commencement

Following Royal Assent on 15 November, the Localism Act 2011 has now reached the statute book. Section 240 of the Act makes the following provisions as to commencement [planning provisions printed in bold italics] : -

The following provisions in the Act came into force on 15 November: - section 23, paragraphs 57 and 58 of Schedule 4, and section 26 so far as it relates to those paragraphs, section 37, Chapter 2 of Part 5 so far as it confers power on the Secretary of State to make regulations, section 86, Chapter 3 of Part 5 so far as it confers power on the Secretary of State or the Welsh Ministers to make regulations or orders, sections 103 and 104, section 109(1)(b) and (2) to (6), paragraphs 1, 13(1), 18 and 19 of Schedule 8 and section 109(7) so far as they relate to those provisions of that Schedule, section 110, sections 116 and 121 and Schedules 9 to 12 so far as those sections or Schedules confer power on the Secretary of State to make regulations or publish documents setting standards, sections 117 to 120, the provisions inserted by section 122 so far as they require or authorise the making of provision in a development order, section 144, sections 168 to 175, section 233 and Schedule 24 so far as they confer power on the Treasury to make regulations or orders, sections 234, 235, 236, 238, 239, 240 and 241, and Part 15 of Schedule 25, and section 237 so far as it relates to that Part.

Section 114 came into force on 16 November.

The following provisions of the Act will come into force on 15 January 2012 : - section 25, Chapter 8 of Part 1 so far as it relates to England, section 44, section 45, section 47, section 71, section 80, sections 111 to 113, section 143, section 177, section 183 and Schedule 18, Chapter 2 of Part 8, except section 197(3)(e) and (f) and (5), and Parts 6, 8, 14, 17 and 29 of Schedule 25, and section 237 so far as it relates to those Parts.

The remainder of the Act will come into force on such dates as are specified in the usual plethora of commencement orders. There is no guarantee that every section of the Act will actually be brought into force, and as planning professionals are very well aware, there are still sections in the 1991, 2004 and 2008 Acts which have not yet been brought into force and probably never will be.

Planning, which was originally in Part 5 of the Bill now forms Part 6 of the Act, comprising sections 109 to 144. Chapter 1 (sections 109 to 113) deals with the abolition of regional strategies and other matters relating to plan-making. Chapter 2 (sections 114 and 115) contains amendments to the CIL regime. Neighbourhood planning is dealt with in Chapter 3 (sections 116 to 121). Chapter 4 comprises a single section (122) introducing a requirement for consultation before applying for planning permission. The new enforcement provisions are set out in Chapter 5 (sections 123 to 127). Chapter 6 (sections 128 to 142) abolishes the Infrastructure Planning Commission and makes revised provision for the processing of applications for major infrastructure projects. Finally, Chapter 7 (sections 143 and 144) includes the notorious provision in section 143 introducing ‘local finance considerations’ as a material consideration in the determination of planning applications.

More detailed provisions on some of these topics are to be found in the following schedules: - Schedule 8 — Regional strategies: consequential amendments; Schedule 9 — Neighbourhood planning (Part 1 — Neighbourhood development orders; Part 2 — Neighbourhood development plans); Schedule 10 — Process for making of neighbourhood development orders; Schedule 11 — Neighbourhood planning: community right to build orders; Schedule 12 — Neighbourhood planning: consequential amendments; Schedule 13 — Infrastructure Planning Commission: transfer of functions to Secretary of State (Part 1 — Amendments of the Planning Act 2008; Part 2 — Other amendments).

All very turgid; but we are going to have to get our heads round this in the months to come.


Tuesday, 15 November 2011

Poundbury - a curate’s egg?

I was in Dorset last week and took the opportunity while I was there to visit Poundbury. Within a day of arriving in the area, I learnt that Poundbury is known locally as “Charlieville” or “Noddytown” and that its founding father, HRH The Prince of Wales, is colloquially referred to in that area as “Charlie-boy”. It seems that the denizens of Dorchester are a more earthy lot than the ‘refaned’ residents of Tetbury and district, who would never dream of referring to the heir to the throne in such a disrespectful way.

A conversation with a local architect suggested that the social mix at Poundbury is not so wide as it might be ideally, notwithstanding the inclusion of 20% social housing and some additional shared ownership properties. I was told that Poundbury residents are predominantly professional people or are retired, so the age profile is also untypical of the population as a whole.

On approaching Poundbury, I was immediately struck by its wind-swept hilltop site. It reminded me of the post-war council estates outside some of our larger towns and cities, so often located on a bleak, windy site, which inevitably creates an uninviting and even alienating environment even before a single brick is laid. This particularly applies at Poundbury to the larger, more recent area of continuing development on the highest ground. Thomas Sharp commented many years ago on the closed vistas which are such a notable feature of traditional English townscape, but in the later phases of development at Poundbury the opposite is all too often the case, with open views out of the town which entirely destroy any sense of enclosure.

The ambience of the earlier part of the development (for example around Pummery Square) is more intimate, and attempts a rather smaller scale vernacular pastiche than the polite architecture or even quasi-monumental style of some of the buildings in the later phases of development. Even so, there is a certain quirkiness in the design of individual buildings which is reminiscent of the style of Clough Williams-Ellis. In fact, my wife commented on the same slightly nightmarish quality that is evident at Portmeirion. Might the residents of Poundbury feel sometimes that they are extras in a re-make of “The Prisoner”?

Whether Poundbury works as a mixed use development is open to question. The range of local shops is very limited, although a Waitrose store is due to open later this month. The only local industry that I noticed is the Dorset Cereals factory (presumably a B1 use). I gather that working from home is encouraged, and some offices are now being built, but Poundbury remains overwhelmingly a residential development with only limited provision for other uses.

Despite its original aspirations, and the various claims made for it, I don’t think Poundbury succeeds in breaking new ground in terms of land use planning or urban design. Ebenezer Howard was far more successful with his developments at Welwyn Garden City and Letchworth. Poundbury, by contrast, has a number of distinct drawbacks, which I have referred to above, and on balance I think it is a failed experiment – not a disaster, certainly, but a disappointment. Whatever HRH may have hoped, I rather doubt whether Poundbury has any lessons to teach architects or town planners; nor does it offer a model for future urban development.


Tuesday, 1 November 2011

Localism Bill – Lords Third Reading

The House of Lords seems to have become addicted to debating planning recently. In addition to dealing with the committee stage and report stage of the Localism Bill last month, they had an opposition-sponsored debate on planning on 13 October (to which I referred briefly in this blog on the 23rd). This was followed by a second debate on planning in the Grand Committee on the 27th, this time on a formal government motion to consider the NPPF, and finally they had the third reading debate on the Localism Bill on 31 October.

The debate on Third Reading ranged over various parts of the Bill but, so far as the planning provisions are concerned, dealt only with the definition of sustainable development and transitional arrangements. In both cases, the government stuck to its guns. The definition of sustainable development, if we get one at all, will be in the NPPF, not in the Act. The government (i.e. De-CLoG) is still in full head-scratching mode over transitional provisions. This really relates to the status of previously adopted local plans and core strategies in light of the NPPF. My colleague, David Brock, has expressed his doubts about the bland assurances given by Baroness Hanham in the debate in the Grand Committee (see his recent blog entry, which can be accessed by clicking on the link on the side-bar on the left of this page), and I fully share his doubts, as do various members of the House of Lords and many other people concerned with the practical effect of the legislation and of the forthcoming NPPF.

The Bill now goes back to the Commons for the consideration of Lords amendments – a mere formality, as no opposition amendments were in practice made to the Bill, and it should then receive royal assent later this month. But that is when the fun will begin, and lawyers like me will start crawling all over it, trying to work out exactly how it is to be interpreted and how the various provisions will apply in practice. There will undoubtedly be difficulties of interpretation, and some aspects of the new Act will undoubtedly give rise to significant legal disputes, not least those provisions relating to enforcement and, in particular, concealed development, which is set to become a major legal battleground in the years to come.


Monday, 31 October 2011

Planning – the way forward?

Following the end of the consultation period on the draft National Planning Policy Framework earlier this month, it is becoming clear that numerous local planning authorities all round the country, and of all political hues, have sent a range of robust responses to the document to De-CLoG. The points they make are varied, but one message comes through loud and clear - they don’t like it.

Up to now the Secretary of State has seemed intent on impersonating Jabba the Hut in the way he has responded to any criticism or counter-argument to his stated intentions, not only about the NPPF but about almost anything and everything, including dustbin collections. However, it is going to be difficult for the government entirely to ignore the weight of opinion which has been brought to bear on this subject.

Although there are some LPAs whose views are indistinguishable from those of the Daily Torygraph, the National Trust and the CPRE, one theme which has emerged on all sides is the concern expressed about the loss of much very useful, even essential, policy guidance which is contained in the existing suite of Planning Policy Guidance Notes (and Statements) which the NPPF is intended to replace. The fear is that the NPPF will leave numerous lacunae in policy guidance which will lead to considerable uncertainty and the possibility of endless disputes as to the proper approach to those issues which were covered in the previous policy advice but about which the NPPF is silent.

This is precisely the objection I identified right at the outset of this exercise, when the government first announced their intention to produce a substantially abridged version of ministerial policy advice in the form of the NPPF, in place of all the PPGs and PPSs we have now. I predicted in this blog the difficulties and uncertainties which this would cause, and I made the point (as others have more recently) that the length of the existing policy advice, in terms of the number of pages it covers, is not an objection in itself to that policy guidance.

One option which the government might be well advised to consider (although it would involve considerable loss of face for ‘Jabba the Hut’ himself) would be to withdraw the proposed NPPF altogether. This is not so say that the government should abandon its determination to achieve economic growth through development, simply that they should go about it in a different way. If the government is prepared to admit that they made a huge mistake in seeking to scrap all the existing ministerial advice on planning policy, they could nevertheless publish a circular (very much on the lines of the pro-development circulars published by Michel Heseltine in the early 1980s, starting with Circular 9/80 and ending with 14/85) which makes the government’s more liberal approach towards development abundantly clear. Any necessary adjustment can then be made to individual PPGs and PPSs, although comparatively few changes to those documents are likely to be needed.

Such a revised approach would have the advantage that there is no legal or political obligation on the government to consult on a circular before it is published, and such consultation as might be required on amendments to PPGs and PPSs would relate solely to any minor changes that might be needed to bring a particular document into line with the over-arching policy set out in the new circular. Such an exercise would be much less likely to stir up controversy than the consultation exercise over the draft NPPF has done.

The question is – has the government got the guts to do this? It would involve what will almost certainly be seen as yet another U-turn, but that in itself could have its advantages. It would wrong-foot much of the rather over-heated and misguided opposition to the draft NPPF, while not in fact representing any retreat from the government’s intention to promote growth through development.

In practice, I rather expect that we shall still get a revised version of the NPPF, but perhaps fleshed out with some of the material which was inadvisably omitted from the original draft, and with some anodyne reference to the use of brownfield land as a sop to the critics. That would be a pity but politics, as they say, is the art of the possible, and David Cameron would never do anything to dent the pride and self-regard of ‘Jabba the Hut’, now would he?


Tuesday, 25 October 2011

Change at the Planning Inspectorate

Planning professionals will already be aware of the news that Peter Burley, who has been in charge of PINS’ Welsh branch in Cardiff, has been appointed Chief Planning Inspector.

My colleague David Brock has very recently commented on this in his own blog, and rather than my repeating what he has already written, I would refer you to the link to David’s blog on the left-hand side bar of this page. I agree with everything David has written about this.

It is encouraging that we have a professional head of the Inspectorate at an operational level (replacing the position which was formerly held, without the title but with great distinction by Leonora Rozee), although the chief honcho (Sir Michel Pitt) is purely a management man with no previous professional experience in PINS.

On the other hand, I share David’s concern at the removal of the PINS website. The Inspectorate should be and should be seen to be at arm’s-length from government. I am not paranoid by nature, but I strongly suspect machinations within De-CLoG to bring what had occasionally been an independent voice under central control, and to silence any potentially dissentient views.


Sunday, 23 October 2011

NPPF - a balanced view

On Thursday 13 October the House of Lords took a short break from the Report Stage of the Localism Bill to have a free-standing debate on planning generally. This debate was specifically concerned with the draft NPPF, and in initiating the debate, the Labour peer Lord (Jeff) Rooker said that in principle, and in general, he is actually with the Government on the issue of proposed changes to the planning system.

Ministers, he said, had had a torrid time from their friends at the Daily Telegraph, the owners of which are not really entitled to a view on this issue from their offshore island. There has been much misleading hype from the National Trust and the Campaign to Protect Rural England. He did not think they believed everything they put out. As Planning Minister, he had had disagreements with them, but they did not feel they had to resort to hype on the current scale.

Lord Rooker pointed out that the draft NPPF deals solely with England. Over 90 per cent of the land of England is not built on. National parks account for 9 per cent; designated areas of outstanding natural beauty account for 15 per cent; the green belt accounts for 13 per cent; urban developments (including the roads and other infrastructure) are 9 per cent. That is a total of 46 per cent. From memory, he said, when he was at the relevant department, the land that was thought to be needed for development, i.e. for housing and other infrastructure, was about 1 per cent. So, what on earth is the problem? That is all we are talking about in terms of the scope of the land of England for proper development. The last Government managed to leave behind more green belt than they inherited, two new national parks and sustainable development.

The draft planning policy nowhere near seeks to destroy our countryside, areas of outstanding natural beauty, the green belt or our vast open countryside. The NPPF simply does not do that given the very limited amount of land that is required. In Lord Rooker’s view, we need to get real on this matter.

However, he suggested that the final policy has to include encouraging the use of brownfield. It will remove a major plank from the sometimes misleading opposition to the draft policy. The NPPF is a draft and any draft can be improved. But the central thrust should remain a presumption in favour of sustainable development. It is not a plan to concrete over our manmade countryside or destroy the quality designated areas. Those who claim this were plain wrong, in his view.


Localism Bill - Lords Report Stage completed

The House of Lords completed the report stage of the Localism Bill on 17 October.

Disappointingly, there has been no further amendment of the clause relating to allegedly ‘concealed’ development, but the Law Society did at least secure a partial amendment of the offending clause at the committee stage, which will make its effect slightly less draconian than the original draft. These provisions are now set out in Clauses 124 to 126. I will take a look at these provisions in more detail in a separate post later.

The government tabled amendments to what was then Clause 111 (now Clause 123), dealing with applications for retrospective planning permission, so as to make it clear that a retrospective planning application would only be precluded where there is a pre-existing enforcement notice in place. For the purposes of the operation of this section, a "pre-existing enforcement notice" is defined as an enforcement notice issued before the retrospective application is received by the local planning authority. This amendment is designed to meet a point which had been raised in committee by Lord Avebury, who thought that the drafting of what is now Clause 123 was ambiguous, so that it might be possible for a local planning authority to negate the purpose of this clause by both declining to determine a retrospective planning application and arguing that an enforcement appeal on Gound (a) was also inadmissible. These amendments, according to ministers, should solve the problem. The government’s policy is that those people seeking planning permission after the event should have one, but only one, bite at the cherry.

The government has also attempted to a limited extent to allay fears as to the effect of what was then Clause 130 (now Clause 142), which provides for ‘local financial considerations’ (i.e. the New Homes Bonus) to be taken into account as a material consideration in the determination of planning applications in accordance with section 70(2) of the 1990 Act. The amendment makes it clear that this clause in the Bill does not alter whether regard is to be had to any particular consideration, or the weight to be given to any consideration under that subsection. Members of the House nevertheless expressed misgivings about the continued presence of this clause in the Bill, and its actual and intended effect on the development control process.

The government has also moved to meet criticisms of the clause relating to unauthorised display of advertisements by adding to the Bill a right of appeal to the Magistrates’ Court where a removal notice has been served in accordance with section 225A(3) or (5)(b) of the 1990 Act (as amended) – in what is now Clause 127.

There was a also a discussion on opposition amendments relating to appeals, which were not in fact pressed to a vote. This revealed that the government is still thinking in terms of limiting the right of appeal at some stage in the future. On behalf of the government, Lord Shutt said “The purpose of our planning reforms is to put the local plan at the heart of the system. In fact, the draft national planning policy framework explicitly says so. It is the plan where councils and communities weigh up and integrate different goals and long-term needs so that it sets the framework within which individual planning applications are assessed and decisions taken. We want planning decisions to be taken by local communities, not more appeals undertaken by unelected inspectors in Bristol.”

He added “We are committed to a system of fewer appeals and want development proposals to be determined locally. However, in the few cases where appeals are made, the Secretary of State, as decision-maker, must be entitled to take other material considerations into account, as can councils, on finely balanced matters of judgment-for example, where a local policy is out of date because it does not reflect the changing circumstances of the local area or more recent national policy. In such instances the law allows councils to consider other material considerations in making the right decisions for their communities. ........We shall take the measures that I outlined earlier so that councils and communities feel confident, if challenged at appeal, in defending planning decisions made in accordance with an up-to-date plan and where there is no conflict with national policy.”

I don’t like the sound of that, and we shall have to be vigilant to avoid any future attempt to abrogate or limit the right of appeal or the basis on which appeals will be considered and determined.


Wednesday, 19 October 2011

Non-planning issues creeping in

I received an interesting note last month from Robert O’Leary of O'Leary Goss Architects Ltd. As he observes, there appears to be a definite shift in the extent to which planning applications are now being evaluated against technical matters that have traditionally been quite separate, and were previously dealt with through the Building Regulations process. This seems particularly invasive where addressing the technical issues would not affect the design or appearance of the proposed building insofar as this is presented for planning permission.

An example of the introduction of detailed and highly technical issues into the development management process under the guise of "sustainability" is provided by the September 2011 edition of Bristol City Council's Development Services e-bulletin produced by their Development Management and Building Regulations & Standards services, referring to “Sustainability Statements and changes to validation requirements”: Here are a couple of examples of the information which the planning department is now asking applicants to provide when submitting a planning application:-

For residential developments comprising 10 or more dwellings there is a requirement for a Code for Sustainable Homes assessment. The quoted policy also requires a Revised Report/Ratings to be submitted with the planning application, with the design stage assessment/interim certification submitted wherever possible. This is at variance with the Technical Guidance (Nov. 2010) for the Code which advises that for the design stage assessment…"The DS assessment is carried out on the detailed design of each dwelling in the period up to the issue of tender documents, sometimes referred to as RIBA Stages A–G. A Code assessment requires a more detailed specification than Building Regulations compliance because the Code covers many more aspects of the performance of the dwelling." It follows from this that it is entirely inappropriate for the LPA to require this information at the planning application stage.

Another paragraph requires the modelling of the proposed building(s) using a specific code, the purpose of which (according to its authors) “is to produce consistent and reliable evaluations of energy use in non-domestic buildings for Building Regulations Compliance and for Building Energy Performance Certification purposes". Again, it is entirely inappropriate for the LPA to require this information at the planning application stage.

As Robert O’Leary observes, these points raise a number of very important questions:

1. In formulating these very specific policies has there been any consideration of the practicality of preparing the considerable level of detail to a fixed and final form at the time of submission of a planning application?

2. There are no specific guidelines on what Code Level is desirable. The saving of "at least 20%” in CO2 emissions in the Council’s document does not indicate the baseline from which this saving is to be achieved.

3. How do these policies, and the desire to implement compliance with energy strategies by planning condition tie in with the Building Regulations? In the event of conflict between what is approved by Planning and what is required by, say, an amendment to the Building Regulations or a rethink of the energy strategy during design development, which takes precedence? What mechanisms have been set up to allow for dialogue between planning officers and either Building Control officers or Approved Inspectors?

4. How would a revised energy strategy (which has no effect on the siting, scale, massing, access or detail of the approved building) to comply with the Building Regulations be dealt with? Would this require a full planning application, a minor amendments application, or would it be dealt with as a discharge of conditions?

5. How will the content of the highly technical issues associated with the energy strategy be assessed at the time of the planning application? Also, by whom, and with what technical qualifications?

6. Is it correct to assume that the discharge of the condition covering the energy strategy/CSH/BREEAM assessment can only be discharged on completion of the dwelling? This raises significant practical difficulties with regard to the discharge of the relevant condition, which (in Bristol at least, and no doubt in a number of other authorities) may take 8 weeks or even longer. This could result in a delay at the end of any project of a minimum of 8 weeks, and probably more, whilst the LPA discharges the condition requiring CSH certification. The absence of a discharged condition to a planning permission will not allow any sale to complete or occupation to take place, with an ensuing potential financial nightmare for all involved. Given that all other conditions would have been discharged, I assume that this final submission would require a further fee payment (currently £85).

I entirely agree with Robert O’Leary, when he says that all of this raises some significant concerns. These include :

1. The attempt to set aside the process for compliance with the Building Regulations by the planning system.

2. The difficulty in enforcing this, particularly where the Regulations may change and differ from the detail forced into the planning permission. In short - which takes precedence?

3. The competence of anyone in the planning system to properly discharge compliance with these issues (which would usually be dealt with by experienced building control staff).

4. The confusion amongst officers associated with the planning process between the Building Regulations, and the approved documents (which are only one way of complying).

5. The increasing drive to require ever more detailed designs and expensive reports at the planning application stage.

All of this very clearly demonstrates the impossible position in which developers, their architects and other professional advisers are placed when the planning system is distorted by importing concepts and standards which should be confined to other regulatory regimes, in this case building control under the Building Regulations. There used to be clear ministerial policy guidance to the effect that non-planning issues which are dealt with under other regulatory regimes should not be dragged into the planning process and should not be treated as material considerations in the determination of planning applications. I cannot put my finger on this in the current guidance, although it may still be inferred from paragraphs 11 and 12 of “The Planning System: General Principles” annexed to PPS1. Ministers should ensure that this principle is clearly re-stated in the published version of the NPPF next year. Technical issues which need to be addressed in order to tackle climate change should be confined to the building control process under the Building Regulations, where they properly belong.

© MARTIN H GOODALL (with due acknowledgement to Robert O’Leary)

Thursday, 13 October 2011

Dale Farm judgment

Perhaps not surprisingly, the last ditch attempt by residents of the Dale Farm travellers’ site in Essex to prevent their eviction from the site failed in the High Court yesterday. The challenge on human rights grounds was rejected by Mr Justice Ouseley, who held that the Council’s action in seeking to evict the residents from the illegal site was not disproportionate.

I have not yet seen a transcript of the judgment, but I understand that a further reason for refusing this latest application for judicial review was that there had been undue delay in bringing these proceedings against the Council’s decision to take direct action to evict the residents of the site.

It seems clear that the judge felt that this last-minute attempt to prevent or delay the physical execution of enforcement notices which had previously been upheld by planning inspectors and by the courts was totally lacking in merit, and that preventing the effective enforcement of planning law would bring the whole planning system into disrepute.

It seems that the claimants have not ruled out the possibility of an appeal against this judgment, but it is very unlikely that the Court of Appeal could be persuaded to give permission for an appeal to be pursued. These claimants have, however, shown remarkable determination in their attempts to use every possible means to prevent their eviction from the site, so it may be premature to predict that this is necessarily the end of the legal road for them.

Although reports which I have seen do not say so in terms, the injunction preventing the Council from proceeding with evictions has no doubt been lifted, so that there is no longer any legal impediment to the Council’s taking the necessary steps to clear the site. I would think it very unlikely that the claimants could persuade any court to order any further delay of evictions pending an appeal.

There has been a certain amount of hot-headed comment out of court on both sides of the case during the course of these proceedings, but the latest hearing does demonstrate that the Courts will bend over backwards to do justice and to ensure that it is manifestly seen to be done. It is right that the claimants’ latest legal challenge should not have been dismissed out of hand but that it was given a fair hearing. On the other hand, the judge was undoubtedly right, after careful consideration of the matter, to dismiss the claim and to insist that the law must now take its course.


Tuesday, 11 October 2011

The planning debate continues

I was interested to see a piece entitled “The Great NPPF Consensus?” which Chris Brown posted on his blog at the weekend, following the Tory party conference. I don’t necessarily agree with everything he said, nor with all of the comments the piece has attracted, but it is nevertheless an interesting summary of the current state of the planning debate, and gives a useful indication of the direction which the debate over the NPPF and ‘localism’ might take, following the end of the consultation period on the draft NPPF next week. The article can be found at:

[We don’t do links on this blog (sorry about that), but you can avoid having to retype the full web address by blocking and copying it (CTRL + C), then clear the address line at the top of your web browser and paste in the copied address (CTRL + V) and click on the ‘Go’ arrow. You should be able to get back to this blog afterwards by clicking on the return button at the top left of the screen.]


Friday, 7 October 2011

Brownfield first?

If one ignores all the hot air and pointless posturing in the National Trust’s recent 10 ‘asks’ to the government, the one point with any real substance is the request that the government should restore the preference for developing brown land (or “brownfield sites” as they are usually called nowadays) before greenfield sites are developed.

The form in which this policy was applied by the last government had a disastrous effect on housebuilding. The requirement that 70% of housing development should be on brownfield sites seriously reduced the overall level of house building and contributed to the ever-growing housing shortage.

I have expressed the hope in previous posts that the government will resist this particular demand on the part of the NT and others, but if they are minded to make some concession in that direction, as indications suggest they might, it should certainly not include any percentage target. To do so would be wholly unrealistic, and would simply prolong the current housing shortage.

The plain fact is that in order to build the sort of family homes that are needed, with generous gardens in which children can play safely, a lower density of development is required. The previous government’s policy led to too many little boxes being built on cramped sites, which were totally unsuitable for families. We do not need yet more one-bed and two-bed flats; we need decent family homes.

If ministers are persuaded that there does need to be some reference in the NPPF to the desirability of developing brownfield sites in preference to greenfield, any such statement should be qualified by the proviso that this would apply only where it can be demonstrated by the LPA that there are brownfield sites in the same district which are currently available and are physically capable of being developed with the same number and type of homes that are proposed by the developer, and that it would be commercially viable to do so taking account of the location of the alternative site or sites, the physical state of the land and any contamination and other problems requiring remediation.

In practice, it is likely that a substantial number of brownfield sites will prove on investigation not to be currently available or to be incapable of commercially viable development. It is undesirable and would be damaging to the government’s wider objectives to place too high a hurdle in the way of the development of greenfield sites. The development of such sites is essential and unavoidable if housing need is to be met. Only where a currently available brownfield site is a realistically viable alternative should the development of a greenfield site be resisted by the LPA.

So if the government makes any move to accommodate the views of the National Trust and others on this point, they should be very careful in doing so not to inhibit or delay much-needed housing development.


Saturday, 1 October 2011

And it came to pass..........

One of the early posts in this blog after it was re-launched in April 2010 took the form of an imagined speech by a Secretary of State (“in a galaxy far, far away”) who was intent on adopting a pro-development agenda, and was prepared to change the planning system to make it happen.

This was written and published a month before the General Election, when it did not appear that any of the major parties had any intention of pursuing such an agenda, and certainly not the Tories whose “Open Source Planning” ‘green paper’ seemed set to become a NIMBYs’ charter. How things have changed!

The readership of this blog back in April 2010 could probably be counted on the fingers of one hand; whereas we are now getting 8,000 page views a month (and still rising), so I thought it might be worth revisiting that earlier piece, to see how certain passages in the imagined speech compare with what the government is now proposing.

The first topic touched on was the presumption in favour of development. These are the words I put in the mouth of my fictional minister:

As you know, if you want to carry out development in this country you need planning permission, but I want to re-establish the principle which once applied to all cases where the citizen is required by statute to apply for a licence or permission to do something, namely that that licence or permission should always be given unless there are sound and clear-cut reasons for refusal. In other, words, there is always a presumption, indeed a strong presumption, in favour of the requisite permission being granted.

The reasoning behind this is very simple - without the legislative restriction imposed by parliament the citizen would be perfectly entitled to do with his property as he pleased. He should not therefore be deprived of his property rights without good reason, and so planning permission should always be granted unless to do so would cause demonstrable harm to interests of acknowledged importance. That was a principle which was recognised for many years, and it is not so very long ago since government policy guidance said precisely that

My colleague, David Brock, has pointed out that the presumption in favour of development dates back in fact to 1923. It applied, more or less without qualification, until at least 1987, if not later, and then continued as a presumption in favour of development which was ‘in accordance with development plan’, but the presumption remained in place nonetheless. It is hardly a revolutionary concept.

After a discussion of changes to the development plan system (not currently on the ministerial agenda), my putative Secretary of State went on to consider changes to the Use Classes Order and to the General Permitted Development Order:

I want to turn now to some of the main policy changes I propose in order to make the planning system fairer and less burdensome. First, I intend to widen considerably the scope of Permitted Development under the General Permitted Development Order, especially for householder developments. The previous government has already had one go at householder development (under Part 1 of the Second Schedule to the GPDO) and quite frankly they made a total mess of it. Far from being more liberal, the new provisions have simply replaced one set of restrictive and ambiguous rules with another. I don’t propose to go into the detail here, but what I have in mind is a much more liberal regime for householder developments and a set of rules which iron out the ambiguities and anomalies and which are easily understandable. I propose to take the same approach to the rest of the GPDO and to rewrite every part of the Second Schedule in a similar fashion.

I also propose to revisit the Use Classes Order so as to produce rather broader classes, especially for commercial uses in town centres. For example, I propose to amalgamate the Category ‘A’ Use Classes in a single class, so that there would no longer be any restriction in changes of use to and from retail, office and catering uses in town centres. We really must leave it up to the market to decide what uses will be commercially viable in particular locations. I do not accept that we have to intervene in a misguided effort to protect primary retail frontages from other town centre uses. Nor should the planning system be used to restrict or control the development of food and drink or leisure uses in town centres. So far as the sale of alcohol is concerned, and the problems sometimes associated with it, that is a matter for licensing authorities; it is not the business of the planning system

Proposed changes to the UCO and GPDO may not go as far as this, but ministers certainly seem to be prepared to contemplate some significant liberalisation in this area.

One suggestion which was put forward in this imaginary speech which ministers do not currently appear to be pursuing was to ensure that it should no longer be open to local planning authorities to restrict the scope of the UCO by conditions attached to planning permissions which seek to restrict changes of use within a particular Use Class. The intentions of parliament in passing Section 55(2)(f) of the 1990 Act should not be over-ridden in this way.

I (or, rather, my fictitious minister) also proposed that the power of local planning authorities to remove permitted development rights by means of conditions attached to planning permissions should be ended, so that in future, if there were genuine and compelling reasons for restricting permitted development in particular areas or on particular sites, planning authorities would have to use the procedures available under Article 4 of the GPDO, which should be subject to ministerial review and confirmation if there were objections. (The requirement for ministerial confirmation of Article 4 directions was removed by the last government.)

The next main topic dealt with in this theoretical speech was the need to find considerably more housing land.

There will still be a need for a very large number of houses to be built in the private sector, and it is frankly unrealistic to expect that the numbers required can be built without resort to a significant number of ‘green field’ sites, especially in the south-east of England. All that has been achieved by restricting new build to ‘brown’ land is an overall reduction in house building, and the over-provision of small flats when there is an overwhelming need for family houses, with a decent amount of garden space where children can play. I shall use my supervisory powers over Development Plans to ensure that sufficient housing land is released to provide the homes we need, and I shall reinforce ministerial policy requiring local planning authorities to identify a 5-year land supply for housing (with a 2-year supply of sites ready for immediate development), failing which undesignated ‘wind-fall’ sites will have to be given planning permission (on appeal, if necessary) in order to ensure that house-building targets are met. We do need to predict future housing needs, and we do need to provide the land to meet those predictions. The so-called alternative of “plan, monitor and manage” simply did not deliver the housing the country so badly needs.”

The government has set its face firmly against the imposition of top-down housing targets, but it is clear that by one means or another they intend that there should be substantially more houses built in the future, most of which cannot realistically be built on brown land.

My phantom Secretary of State next proposed to overhaul the Green Belt, but despite the fears expressed by the National Trust and others, the draft NPPF does not depart from the principles currently set out in PPG2. I have set out elsewhere in this blog my own views on the need for Green Belt reform, and so I do not need to repeat them here.

I (or my alter ego) also proposed similar changes to the legislation and practice relating to Listed Buildings and Conservation Areas, but there does not seem to be any appetite on the part of ministers to intervene in that area. Again, concerns which have been expressed about the NPPF appear to have been prompted by the omission of some detail which had previously been set out in PPS5. I do not believe this betokens any change of policy on the part of the government.

My imaginary Secretary of State ended his speech with this peroration:

Bearing in mind the disappointing results following previous promises of planning reform, those involved in planning and development might be forgiven for being a little cynical about the proposals I have announced, but I assure you, ladies and gentlemen, that this is no cosmetic exercise. This time we are going right back to first principles. It may involve the slaughtering a few sacred cows, and I can already hear the screams of agony from certain special interest groups, who have become accustomed to regard the planning system as a useful tool for resisting change. But such protests will not deter us from our intent to carry through these reforms, so as to produce a planning system that is truly responsive to the needs of society, and which will produce the development that we need, in the right place and at the right time, in order both to sustain our economic position and to provide decent homes for our citizens.”

We have recently heard loud and prolonged “screams of agony from certain special interest groups, who have become accustomed to regard the planning system as a useful tool for resisting change” Some of the details of the NPPF may benefit from some modest textual amendments, mainly to restore to the text certain passages from previous ministerial policy statements which seem to have got ‘lost in translation’, but I do hope that the government will stick to its guns “so as to produce a planning system that is truly responsive to the needs of society, and which will produce the development that we need, in the right place and at the right time, in order both to sustain our economic position and to provide decent homes for our citizens”.

Perhaps I should offer my services as a political speech-writer!