Saturday, 8 January 2011

Lighting the bonfires

Having made a ‘bonfire of the quangos’ (the results of which range from disastrous to merely very damaging), the coalition government is now proposing to tear up a substantial body of ministerial planning policy advice, as set out in a variety of Circulars, Planning Policy Guidance Notes and Planning Policy Statements.

It is very easy to make a headline by pointing out that this material extends to thousands of pages, but it entirely misses the point that most of this guidance is extremely helpful to users of the planning system and quite often essential. We need to know what approach we can expect decision-makers to take when determining planning applications and other matters under planning legislation, and this body of policy advice is therefore a valuable resource for everyone using the planning system.

The fact that this published ministerial advice is voluminous is entirely beside the point; it merely reflects the complexity of the planning system. It is, of course, desirable that the planning system should be simplified (whereas previous efforts at ‘reform’ have only succeeded in adding to its complexity), but scrapping the essential operational guidance provided by Circulars, PPGs and PPSs will not help in that process.

Three examples immediately spring to mind – Circulars 11/95, 10/97 and 03/2009. The first of these gives comprehensive and detailed guidance on the use of conditions attached to planning permissions. Unfortunately, some local planning authorities seem to be largely ignorant of the circular’s provisions, but it is robustly applied by planning inspectors in appeals and provides a valuable check on the imposition of unreasonable or unenforceable conditions.

Essential guidance on enforcement procedures is given by Circular 10/97, together with the accompanying Good Practice Guide and PPG18. This also covers related matters such as Lawful Development Certificates, and the advice in Annex 8 to Circular 10/97 is particularly helpful on this topic. The absence of equivalent guidance in Wales is a nuisance, and I can recall one Inspector taking a pragmatic decision to treat the ‘principles’ explained in 10/97 as a material consideration in Wales even though the circular does not apply there. The appeal in question would otherwise have had to be decided in a policy void.

Finally, Circular 03/2009 deals comprehensively with costs in planning appeals. It would be a lot simpler if we were to follow the practice in the courts where costs, although they are at the discretion of the court, are in practice awarded to the winning party unless there are exceptional reasons for not doing so. However, while it remains the rule in planning appeals that costs will be awarded only in respect of unreasonable conduct by the paying party, there needs to be detailed guidance on the criteria to be applied in determining costs applications, and how and when these should be made.

These are just three examples out of a great many. Most of the PPGs and PPSs have been of real value in setting down guidelines on the topics which they cover. If they are scrapped, this will leave considerable uncertainty in their absence, with a significant increase in appeals and litigation. Parties may well be forced to resort to judicial review in order to resolve such uncertainties.

The coalition government’s policies, not only in relation to town and country planning but also with regard to education, health and other areas, have been described as a ‘Maoist revolution’. We should remember that it took a generation for China to recover from the chaos caused by Chairman Mao’s ‘Great Leap Forward’ and from his equally disastrous 'Cultural Revolution'. One can only hope that the coalition government is persuaded that this is not the way to go, before similar chaos engulfs this country’s planning system.


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