Thursday, 24 February 2011

Localism Bill – Commons committee debate (2)

Due to pressure of work, I am still playing ‘catch-up’ on the Localism Bill. The Committee resumed its debate a week ago, on Thursday 17 February, when it raced through Clauses 90 to 96 and began its discussion of Schedule 9 (Neighbourhood Planning).

Ministers showed a surprising willingness to take on board various criticisms of the Bill, with offers of possible amendments at the Report stage. Thus although Clauses 90 to 96 were all ordered to stand part of the Bill, we can expect to see some government amendments to these clauses introduced in due course.

Clause 90 will introduce a duty to co-operate in relation to the planning of sustainable development. This will take the form of a new Section 33A in the Planning and Compulsory Purchase Act 2004. Clause 91 deals with Local Development Schemes, and will introduce amendments to Section 15 of 2004 Act (dealing with the preparation, revision and promulgation of local development schemes). Clause 92 relates to the adoption and withdrawal of development plan documents and will make further amendments to the 2004 Act, while Clause 93 will change the requirements as to local development monitoring reports (by amending Section 35 of the 2004 Act, which requires a local planning to make an annual report to Secretary of State). Clauses 94 and 95 are concerned with the Community Infrastructure Levy; Clause 94 will amend Sections 211 to 212A of the 2008 Act dealing with the approval of charging schedules, while Clause 95 deals with the use of moneys raised by CIL (by further amendments to the 2008 Act). It was in relation to these provisions in particular that ministers indicated a willingness to allow greater flexibility in passing on CIL contributions.

In kicking off the debate on Schedule 9, Jack Dromey put forward an amendment which would require at least 20% of electors to vote in a referendum on a neighbourhood planning scheme in order for the result to be binding. He said: “The Government’s proposals are wholly inadequate and run the risk of being utterly undemocratic in how they work in practice. Under the proposals, bizarrely, it is possible for only three people from a community to be involved in the creation of a neighbourhood plan. As I have described, that could be three men or three women and a dog in the Dog and Duck. Only three people have to be members of a neighbourhood forum, and only one of those members would be required to vote through the plan in a referendum. As the legislation stands, it runs the risk of producing an outcome that is both undemocratic and farcical. The plans have the potential to affect the lives of thousands of people living in a community. We therefore believe that it is only right that such actions should be backed by at least a significant minority of that community.”

Further debate was then adjourned to the next session of the Committee. You might think that the Committee will be hard at it day after day until 10 April. Not a bit of it. After sessions on Part 5 of the Bill on 15 and 17 February, the committee has now adjourned until 1 March, while ‘School’ is out on its half-term hols.


Unlawful designation of a conservation area

They never learn, do they? I think this is the third case I have reported in which an LPA had the bright idea of designating a conservation area as a device for preventing the demolition of a particular building, where listing of the building in question had previously been ruled out. As in the other two cases, the Court quashed this designation on the application of the owner of the building. This latest case is Trillium (Prime) Property Group Ltd v. Tower Hamlets LBC [2011] EWHC 146 (Admin), in which judgment was given by Ouseley J on 4 February.

There had been a local campaign to prevent the demolition of the building, but English Heritage refused to list it. The Borough Council, through its officers, refused to put it on the Borough list of buildings of local interest. Local listing would not have hindered demolition but the refusal of listing reflected a view of the building's worth. Officers had previously concluded that this group of buildings should not form a Conservation Area, nor an extension to an existing Area nor part of a new and larger Area.

There was continuing pressure from local residents to prevent the demolition of the building because of its architectural and historic interest. The possibility of including it and four Victorian warehouses in a Conservation Area was re-examined by officers and the idea evolved that there should be a Limehouse Cut Conservation Area. An initial case for its designation was produced in July 2009 which was expected to be approved for public consultation on 4 November 2009. Further work was carried out by officers in anticipation of that timetable. However, on 29 September 2009, Trillium gave notice under the Building Act 1984 of its intention to demolish the building after 6 weeks (i.e. after 9 November 2009). Under the Council’s urgency procedure, a senior member approved the urgent consideration of the designation of a Conservation Area in view of what he was told was the imminent threat of demolition. The Council decided not to consult with Trillium or any of the other commercial building owners elsewhere along the Cut whose property would be included in the Area. This would have alerted Trillium to the urgent advantage of demolition. On 7 October 2009, the Council’s Cabinet designated the Limehouse Cut Conservation Area.

Trillium challenged this decision on the grounds that the purpose of the designation was to prevent the demolition of their own building and not the statutory purpose of protecting the special character and appearance of the area. Relevant considerations had been ignored, such as the previous refusals to include the building in question in a Conservation Area and the refusal to include the building in the local list. The report to Cabinet misrepresented the true nature of English Heritage's views on what a Conservation Area should comprise and relevant guidance in PPG15. Irrelevant considerations were taken into account, such as the protection of ecological and biodiversity, and the improvement of accessibility to the Cut. The report did not contain sufficient material to enable the Cabinet rationally to designate the Conservation Area on the boundaries it chose. The Council had acted unfairly and in breach of Trillium's legitimate expectation that it would be consulted on the designation of a Conservation Area affecting its building and proposed development. The decision to deal with designation as urgent was made without regard to relevant considerations. Finally, background papers were not listed in the report to Cabinet as they should have been.

Ouseley J dealt with all these issues in detail in a very thorough judgment. Trillium’s primary contention (as to the lawfulness of the proposal to designate the conservation area) was in fact rejected. However, the way in which the matter was put to members was flawed; the officers’ report was misleading. The report was significantly based on irrelevant considerations which were taken into account by members, and the report failed to give them the clear advice as to the proper basis for considering designation which they needed; they were misled as to the significance of local policy. The designation was therefore quashed on that basis.

In fairness to the Council, this case can be distinguished from the two previous cases, as the Court did not accept that the entire designation was tainted with illegality. It was really the process, and in particular, the officers’ report to the Cabinet, which was flawed, and which led to the designation of the conservation area being quashed. This suggests that, unlike the two previous cases, there may still be scope for the conservation area to be lawfully re-designated, provided the Council goes about it the right way.


Delay prevents remedy of Council’s mistake

The case of R (Knowles-Fitton) v. Craven DC [2011] EWHC 212 (Admin) is a salutary lesson to local authorities and their legal sections in getting a move on if they are asked to take action to remedy an error made by their authority’s planning department.

In this case, a planning permission had been issued in terms which authorised a significantly larger development than the Council had intended to approve. In such circumstances, it has become the practice for a Council to challenge its own planning permission by the device of arranging for the Leader of the Council to bring an application for judicial review in his or her own name. That was the means by which Craven DC hoped to resolve the error which had occurred in this particular case.

However, as is well-known, an application for judicial review must be brought ‘promptly’, and in any event within three months of the date when the cause of action arose. In practice, this usually means rather more quickly than three months, although the Court does have power to extend time in exceptional circumstances. Where the challenge is to the Council’s decision to grant planning permission it has been established that time starts to run for this purpose from the date on which the planning permission is actually issued (rather than from the date on which a decision to grant planning permission was taken), although in this particular case it was agreed that the relevant ‘start’ date was 16 April 2010, when the Council received formal notification that there was a serious legal query over the planning permission the subject of these proceedings.

Without going into the unfortunate details, the Council’s officers were extremely dilatory in taking steps to remedy the situation arising from the mistaken issue of the wrongly worded planning permission. It seems that they were not even aware that the accepted way of dealing with this type of problem is by the device mentioned above, and it took them until the end of June 2010 to instruct counsel to advise. Counsel’s opinion was received on 14 July 2010 but a decision to commence litigation was not taken until 8 September 2010, by which date the three-month time limit had long since passed. Even then, a further delay of six weeks occurred before proceedings were eventually commenced, which necessarily included an application for an extension of time.

There had in the meantime been numerous reminders from the developers, who naturally wished to know where they stood in the matter and clearly found themselves in a very difficult position, pending a resolution of the confusion over the planning permission.

The judge was extremely critical of the inordinate and inexcusable delay on the part of the Council’s officers, and dismissed the application for permission to bring an action for judicial review of the planning permission on that ground, even though there might otherwise have been an arguable case in favour of relief being granted by the Court.


Thursday, 17 February 2011

Localism Bill – Committee starts to debate planning clauses

One of the problems of writing this blog is that it gets put on one side whenever fee-earning work demands my attention. So the Public Bill Committee has reached the planning clauses in Part 5 of the Bill ahead of me (except for the enforcement provisions, on which I have already commented).

Clause 89 was reached on Tuesday (15 Feb). This is the clause that will abolish regional strategies. I cannot do better than to quote several passages from the speech of Jack Dromey, in which he said: “It is with some bewilderment that my colleagues and I have watched the unfolding chaos that has come about as a consequence of the Government proposals. I have no doubt that many on the Government Benches share our sense of foreboding. Certainly, almost every organisation that we have spoken to about the proposed changes is of the same opinion; the Government have thrown the planning system into utter chaos. We should not be surprised because, as we understand it, that is what Ministers intend. In their vocabulary, chaos is a good thing and they believe that chaos is desirable in pursuit of the Government’s public policy objectives. If chaos is the objective, Ministers should be congratulated on their delivery. The proposed changes to the planning system under the Bill and the actions taken by the Secretary of State to scrap the regional spatial strategies will deliver chaos by the bucket load.

“The Bill, as it stands, will simply not deliver on many of the Government’s publicly stated objectives, which will harm the public interest in several areas. The Government claim that the planning reforms will contribute to economic growth, lead to increased levels of house building and empower local people. It is clear, however, from the evidence given to the Committee (to which the Committee should listen) that without significant amendments, the Bill will lead to stasis in the planning system, stifle economic growth and house building, threaten advances on climate change and the protection of the environment, empower the few, not the many, institutionalise inequality in the planning system and downgrade democracy, particularly the role of democratically elected local councils.

“The abolition of the regional spatial strategies and, crucially, how it has been handled has thrown the planning system into complete confusion. It has created a vacuum at the heart of the planning system that will not be filled until the Bill receives Royal Assent, which could be as late as 2012. The way the current planning system has been torn up for the proposed new system has proved nothing short of a disaster for house building. The proposed replacement will not offer the necessary framework to resolve greater-than-local issues. The RSSs provided crucial, much-needed guidance to local authorities on issues that cross local authority boundaries; in particular, housing, infrastructure, energy supply and waste management. These are all larger-than-local issues that are hugely important to everyone, locally and on a sub-regional basis, and they require co-ordination at a level above that of the council to guarantee effective and efficient provision. The RSSs provided that much-needed co-ordination, yet the Government have scrapped them without putting in place any meaningful transition mechanisms.

“The new system that we are putting in place must deliver on the issues that require strategic planning. Those issues include housing needs, climate change mitigation and adaptation—in particular, flood risk—economic development including retail needs, energy needs and capacity, biodiversity, natural resource use including waste management, and transport. The overwhelming body of evidence that came before the Committee in relation to all those issues—everyone was saying the same thing—was that without effective sub-regional planning, they would be immensely difficult to deliver.

“Adequate infrastructure provision is under threat by the removal of the RSSs and, crucially, the weak duty to co-operate contained in the Bill. Again and again, fears have been expressed—not just by all those to whom I have referred, but by local councillors, developers and authorities—about how to co-ordinate infrastructure projects at the sub-national level. With the abolition of the RSSs, which played an important role in co-ordinating between the national and local level for infrastructure provision, how are local authorities to assess larger-than-local needs and provide adequate infrastructural access? It is clear that the duty to co-operate in the Bill as it stands is a poor and insufficient replacement to the co-ordination offered to councils by the regional spatial strategies.”

As Nick Raynsford observed later in the same debate, this chapter in this part of the Bill proposes to do fundamental damage to a planning system which has, for better or for worse served this country well since 1947. The system has been painstakingly evolved over a period of 60 years, from its beginnings in 1947, through changes that both major political parties have introduced and together have worked to make successful. That has been put at risk by a view of planning based on a year zero approach: everything that went before is wrong; everything that is to come from now on is right. That year zero approach to planning is precisely the kind of thinking that will cause serious upheaval and damage in the short term, and result in this Administration being known as the one that will have delivered the lowest level of housing of any five-year period since the end of the war.

Nick Raynsford continued, “We have a situation where a new Government have come in, pledging to build more homes, but actually acting in a way that has damaged confidence in the market. They are now driving through a series of ill-thought-out proposals to change the way in which the planning system operates without any testing. For people who believe that their view is right and that others are wrong, one would think that they might have tried to test, in one area or another, whether it works. It is based on heroic, and misguided, assumptions. It is a huge gamble at the expense of hundreds of thousands, if not millions, of people, whose homes depend on a decent planning system. I fear that the consequence will be a long period of time in which we do not produce the homes that the country needs.”

In case anyone is in any doubt about it, this blog is non-political. But I do care about our planning system, and so I find myself in substantial agreement with what Jack Dromey and Nick Raynsford said in the debate.


Friday, 11 February 2011

Concealed development - the hidden trap in the Localism Bill

I don’t usually quote verbatim from press releases, but the Law Society has recently published an important statement with which I concur so strongly that I think it worth repeating here.

In this blog on 21 December I drew attention to Clause 104 of the Localism Bill, which seeks to deal with ‘concealed development’. I pointed out the potentially wide-ranging effect of this change, which could have serious unforeseen and unintended consequences.

The Law Society is quite rightly warning that this clause could bring uncertainty and chaos to the property market. As you will recall from my earlier posting on this topic, the clause would allow local planning authorities to seek a ‘planning enforcement order’ at any time after it becomes aware that there has been a breach of planning control which it alleges has been ‘concealed’. This will then enable it to issue an enforcement notice, even if the normal 4-year or 10-year time limit has long since expired.

Law Society President Linda Lee points out that the new regime could create uncertainty for the buyers of both residential and commercial property when they cannot establish whether previous owners have concealed a breach of planning control, with the result that they themselves could become liable to enforcement action for that breach at any point in the future. If the buyer discovers a concealed breach and then fails to report it, they will be concealing it themselves.

She points out that this proposed change could have a serious effect on both the residential and commercial property markets, where innocent purchasers could become liable for the actions of a previous owner. This could lead to purchasers demanding that every breach of planning control is remedied or that the price is abated for the risk. It could also delay transactions while enquiries are being made about the planning status of a property. It increases the level of due diligence buyers would need to do, as there will no longer be a cut-off date. This could involve buyers incurring considerable expense. It could even necessitate taking out insurance against any unknown potential liability.

While aimed at the fraudulent and blatant cheats, the provisions are drawn so widely that they will catch anything which has not been expressly pointed out to the planning authority. The new provision is unnecessary – the two cases which have led to these proposals are highly unusual and bizarre. [This is a reference to the Welwyn-Hatfield and Fidler cases, which have been the subject of previous posts on this blog, and both of which are still before the courts].

I fully endorse what the President of the Law Society has said. I hope that common sense will prevail and that ministers will withdraw this clause. They may be tempted to have a go at drafting something less draconian in its effect, but as Linda Lee has pointed out, it is in any event a sledge-hammer to crack a nut, and the government is over-reacting to the two cases mentioned above.


Monday, 7 February 2011

Cala Homes fall at the final fence

Cala Homes’ further challenge to the Secretary of State has been dismissed by Lindblom J in a judgment handed down today [7 Feb], after the substantive hearing of their second application for judicial review. Following the quashing of the revocation of Regional Strategies in the earlier proceedings, the current action concerned the Secretary of State’s response to the earlier judgment, which seemed to set at nought the effect of that judgment.

Cala Homes had claimed that the statement and letter issued by DCLG on 10 November 2010 (reiterating the contents of the notorious letter from the Chief Planner on 27 May 2010) were unlawful and so they could not lawfully be taken into account as material considerations in the determination of planning applications and appeals. They also complained that this was a “a transparent attempt” to thwart the judgment of the court in their previous claim for judicial review, and to subvert the policy and objects of the existing planning legislation. They claimed that the Secretary of State’s action was irrational and that he had failed to comply with the requirements relating to Strategic Environmental Assessment.

In their previous application for judicial review, Cala Homes had obtained judgment against the Secretary of State, and the May 27 letter had been quashed in a judgment handed down by Sales J on 10 November. He held that the purported revocation of Regional Strategies was an abuse of the legislative process. But, instead of appealing against that judgment, DCLG issued a statement (the subject of the current proceedings) which re-iterated the intention to revoke Regional Strategies by clauses to be included in the Localism Bill and repeated the view that this intention should be treated as a material consideration in the meantime.

On 25 November 2010 Lindblom J made an interim order granting a stay of the effect of the statement and letter of 10 November. However, on 7 December, when the Secretary of State undertook to publish on his web-site a further statement referring to the present claim for judicial review, that stay was set aside, and Lindblom J gave his reasons in a judgment handed down on 16 December (see this blog passim).

The essential question was whether the Government's declared intention, or policy, to secure by means of an Act of Parliament the removal of the regional component of the development plan, is incapable of being a material consideration for the purposes of a planning decision because that intention or policy "subverts" or "undermines" the policy and objects of the existing legislation. This question did not arise in the earlier proceedings. The focus of Sales J's decision was confined to a challenge to the Secretary of State's action in peremptorily revoking all Regional Strategies under section 79(6) of the 2009 Act. In effect what Cala Homes was now inviting the Court to do was to accept that until the moment when Regional Strategies are abolished upon the passing into law of the Localism Bill, the Government's intention to achieve abolition is legally irrelevant and therefore incapable of being given any weight in the making of any planning decision.

In a robust judgment, Lindblom J has comprehensively rejected this argument. The power of a minister to issue a statement articulating or confirming a policy commitment on the part of the government does not derive from statute, but the courts have traditionally upheld the materiality of such policy as a planning consideration. It was clear, in Lindblom J’s judgment, that the statement and letter of 10 November 2010 and the letter of 27 May 2010 manifested a political intent which is of relevance to planning throughout England. Whether it could properly be described as "policy" was of no consequence to its materiality, though the question might go to its weight. Because planning decision-making is a process informed by policy, prospective changes to the policy framework itself may logically be seen as relevant to a planning decision. This is entirely consistent with the latitude the Court has traditionally given to the ambit of what may be material in a planning decision. If changes to the matrix of national policy, as they emerge in draft circulars or draft Planning Policy Statements, and changes to local policy, as they come forward in draft development plan documents, can be material considerations (subject to their weight being contingent on the stage they have reached in their progress towards finality) there is no reason why this should not also apply to changes to the composition of the development plan promised by legislative proposals. His lordship saw no distinction in principle.

Lindblom J was therefore unable to accept that material planning considerations do not, and as a matter of law must not, embrace a government's intention to reform the composition of the development plan itself. He could not see why the principle that such a consideration is capable of being material in a planning decision should exclude the intention to take away, through legislation designed for the purpose, an element of the development plan which for the time being is properly to be regarded as "central". Whether in any particular case this factor is indeed material to the decision being made and, if it is, the weight to be given to it will always depend on the decision-maker's own judgment, which is ultimately subject to review by the court on public law grounds.

Neither the Secretary of State's statement of 10 November 2010 nor the Chief Planner's letter of the same date says anything one could sensibly read as misrepresenting or seeking to alter the priority to be given to the development plan, of which the Regional Strategy forms part. Both in substance and in the language they use the statement and letter are consistent with the established principles of development control in the plan-led system. The only reference they make to the statutory position of the Regional Strategies after Sales J.'s judgment is accurate. The Chief Planner's letter of 10 November explicitly acknowledged that the effect of Sales J's decision was to re-establish Regional Strategies as part of the development plan. But in the period preceding the revocation of Regional Strategies by that route, decision-makers were advised to have regard to the Government's commitment to their removal and its intention to secure their abolition by statute, as material considerations under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. No attempt had been made to deny the "centrality" Parliament has given to Regional Strategies in the planning system, or their role as "a primary instrument of planning policy". Although the Secretary of State's statement indicates that the Government thinks Sales J's decision "changes very little", it respects that decision.

Furthermore, neither the statement and letter of 10 November 2010 nor the letter of 27 May 2010 specifies how much weight local planning authorities or Inspectors should give to relevant provisions of Regional Strategies pending their abolition, let alone suggests that no weight, or minimal weight, is given to them. Weight is left to the decision-maker. Authorities will no doubt differ in their views on this. They will know, however, that the Secretary of State has not sought to impose a view of his own.

In effect, too much should not be read into these statements by or on behalf of the Secretary of State. He simply wished decision-makers to be aware of the Government's determination to reform the planning system by removing regional strategic planning from it, and he wished them to take this into account as a material consideration when they make "planning decisions". In this context, "planning decisions" could clearly embrace both development control decisions taken in the preparation of development plans. Lindblom J did not accept that the intent or the effect of the statement and letter of 10 November 2010 was subversive of the policy and objects of the existing planning legislation.

Neither the Secretary of State's statement nor the Chief Planner's letter conflicted with the priority of the development plan in planning decision-making, and neither was inconsistent with the continuing "centrality" of the Regional Strategies in the planning system, the "strong practical effect" of those strategies or their role as "a primary instrument of planning policy". The Court did not consider that what the Secretary of State and the Chief Planner wrote required local planning authorities when carrying out their planning functions, or Inspectors when deciding or reporting on appeals, to behave in any way inconsistently with the statutory and policy principles governing the operation of plan-led system of development control. When dealing with a proposal for development to which policy in an adopted Regional Strategy relates, authorities and Inspectors must continue to heed the statutory priority due to the plan of which that strategy will still be a part. The Secretary of State has not sought to dissuade authorities and Inspectors from doing that.

On the other hand, the weight to be given to relevant provisions of Regional Strategies pending their revocation through the legislative process will be for decision-makers to gauge. Until the end of that process is reached Regional Strategies will remain in place as part of the development plan, commanding such weight for the purposes of particular decisions as authorities, Inspectors and the Secretary of State may reasonably judge to be right.

In Lindblom J’s judgment, the circumstances of the present case were not parallel to those of Padfield or to those of the first proceedings. One could not equate the actions of the Secretary of State in the present case to the kind of transgression committed by the minister in Padfield. The Government is entitled to adopt the intention, or policy, of seeking, through appropriate legislative measures, the abolition of Regional Strategies. For its part, the Government accepts that Parliament will in due course decide whether and in what form that intention or policy is translated into the law in the provisions of the Localism Act. In this essential respect the present case is to be distinguished from the first proceedings. Those proceedings required the court to consider an executive decision to remove at a stroke an element of the development plan. The case now before the court was very different. The Secretary of State announced in May 2010 the Government's commitment to changing the planning system in England by removing the regional strategic component, and affirmed in November the Government's intention to achieve this aim not by executive decision but by primary legislation. Advice reflecting that intention has been given to planning decision-makers to guide them in the making of their decisions. No executive action of the type impugned in Padfield has been taken by the Secretary of State in this case.

The Secretary of State was entitled to advise authorities that the proposed revocation of Regional Strategies was to be regarded as a material consideration in their planning decisions. For the Secretary of State to do this was not to subvert the policy and objects of Part 5 of the 2009 Act or, more generally, the policy and objects of the existing planning legislation as a whole. On the contrary, it was entirely consistent with the principles which underpin the statutory framework.

The claims based on irrationality and failure to produce a Strategic Environmental Statement were also dismissed. On the other hand, a counter-argument on behalf of the Secretary of State that Cala Homes were guilty of an abuse of process and delay was also ruled out.

It now appears that the quashing of the previous revocation of Regional Strategies may in effect have been a pyrrhic victory for Cala Homes. The fact that the government has embarked on a process to abolish regional strategies by means of provisions incorporated in the Localism Bill cannot be ignored, and is bound to be a material consideration in the determination of their pending appeal in Winchester. What weight should be given to the impending revocation of the Regional Strategy in this case is, of course, a matter for the Inspector (or for the Secretary of State if he were to recover jurisdiction over the appeal). There are, of course, other material considerations, including unmet housing need, which may well favour a grant of planning permission in this case, and many of the considerations which led to the adoption of the Regional Strategy must still apply, even after it is abolished. So in the forthcoming public inquiry there is all to play for, and the recent litigation may prove to have been a largely irrelevant digression from the real planning issues which the appeal will determine.

[Update: Slightly to my surprise, I understand that Cala Homes are seeking permission to appeal to the Court of Appeal. Even if they get permission to go ahead with an appeal, it looks as though it will be a race against time, as their planning appeal will have gone ahead in the meantime, and PINS and/or the Secretary of State might not be too happy about delaying a decision in that appeal. It is difficult to see how Cala Homes can get to the finishing post in this race. By the time they have worked their way through the legal process, including any High Court challenge to an appeal decision which gives little or no weight to the Regional Strategy in view of its impending revocation, the Localism Bill itself may well have reached the statute book, and then the Regional Strategy will definitely have gone, and any redetermination of the planning appeal will take place in light of the policy situation at that time. But you have to admire their tenacity.]

[Update: The Court of Appeal has granted permission to appeal against this judgment, and the appeal is expected to be heard before Easter. In the meantime, an Inspector determining another appeal in Winchester gave little weight to the prospective cancellation of the Regional Strategy, and allowed the appeal on the basis of the strategic requirement for housing laid down in the Regional Strategy. To use an old journalistic cliché, Winchester City Coucil remained 'tight-lipped' about this decision and its implications for Cala Homes' planning appeal.]


Friday, 4 February 2011

Welsh planning law to diverge further

As a planning lawyer who practises in Wales as well as in England, it has been a matter of concern to me for some time that Welsh planning law and practice is gradually diverging from the English system. This is making it increasingly difficult to be sure as to which statutory provisions apply in Wales and which do not. Even where primary legislation (such as the 2004 and 2008 Acts) was designed to apply in both England and Wales, the Welsh Assembly Government has still not made commencement orders in respect of a number of important provisions which have been in force in England for some time. Thus one has to remember that it is the ‘old’ law on these points which continues to apply in Wales.

Similar considerations apply where government Circulars are concerned. Wales always had its own numbering system for circulars - when the DOE or DETR (as it was at the relevant time) issued a Circular in England, the same circular, but under a different number, was issued by the Welsh Office. Then we had the PPGs (and, more recently, PPSs) in England, but these have never applied in Wales, which has “Planning Policy (Wales)” and a series of Technical Advice Notes (TANs). These, frankly, are not as thorough or as helpful as their English equivalents. Nowadays, English circulars do not have a Welsh equivalent, and so when a new circular on appeal costs was introduced in England (03/2009), the 1993 circular continued to apply in Wales (WO Circular 29/93).

What has prompted this diatribe is the news that the “Sustainability Committee” (sic) of the National Assembly for Wales has decided that Wales needs its own new planning law to cater for its distinctive needs. They seek to justify this by arguing that English and Welsh planning processes are so different that discrete Welsh legislation is needed. Any planning professional who practises on both sides of the Severn (sorry, Afon Hafren) would agree with me that this is absolute nonsense. It is just like the argument one sometimes hears from local councillors who say that, of course, “Trumpton is different” (usually as an argument that they should be exempt from complying with well-developed ministerial policy).

It might come as a surprise to the Assembly Members that the problems they uncovered ("managing social, economic and environmental sustainability priorities and policies" and "finding the required higher skill levels to cope with these", plus "the need for better training for LPA officers to ensure they are sufficiently equipped to make informed decisions") are precisely the same as those faced by local planning authorities in England.

I suspect that the timing of this report might have some connection with the forthcoming referendum on giving the NAW greater legislative powers. Much heat (but very little light) is currently being generated by adherents of the “Yes” and the “No” campaigns. There was a singularly unenlightening grunt-match between the two sides on BBC Radio Wales the other morning. I have no idea what the outcome of next month’s referendum is likely to be, but I am afraid it would have to be the “No” campaign that would get my vote. It makes no sense to have two increasingly divergent planning systems in what is still a single legal jurisdiction (England and Wales or, if you prefer, Wales and England). Wales is not as different as some people on the Welsh side of the border would like to imagine. It really doesn't need its own laws.

Diolch in fawr. Nos da!


HMO rules challenge renewed

As you are no doubt well aware, changes to the Use Classes Order made by the previous government placed Houses in Multiple Occupation in a new use class (C4), separate from single private dwelling houses in Class C3. However, the coalition government subsequently amended the General Permitted Development Order so that changes of use between Classes C3 and C4 are now permitted development. This change came into effect on 1st October 2010. As I pointed out when originally commenting on the announcement of this change (in June last year), if LPAs feel that the concentration of HMOs is a problem in particular areas, they can use their existing powers to make an Article 4 Direction. So, instead of a blanket requirement for planning permission for change of use to an HMO, this will now be a requirement only in those areas where LPAs have excluded this particular form of permitted development through an Article 4 Direction.

Several local planning authorities were deeply unhappy about this change, and I reported in October that three of them (Milton Keynes, Oxford and Newcastle) were seeking permission from the High Court to challenge the changes by way of an application for Judicial Review. Successful challenges to subordinate legislation are few and far between, but are not impossible. Nevertheless I was inclined to be sceptical of the chances of persuading the court to upset the new rules.

The first hurdle for these councils was to obtain the Court’s permission to proceed, and they initially fell at this first fence. However, they renewed their application in the High Court following its initial rejection on the papers, and after an oral hearing last week, Lindblom J has given permission for the application for judicial review to proceed. This does not give any indication as to the eventual outcome of this challenge, but it does indicate that the three authorities do at least have an arguable case.

I gather that the authorities do not believe that the availability of Article 4 directions gives them sufficient control over the situation. They claim that this will involve them in having to give 12 months’ notice to landlords and that they will face the risk of having to pay substantial compensation. They fear that the new rules will encourage a proliferation of HMOs, and they believe that this could be damaging to those neighbourhoods where significant numbers of HMOs are set up.

The legal basis for the High Court challenge is an alleged failure on the part of the government to consult local planning authorities properly prior to amending the GPDO. I still remain sceptical of the chances of this challenge succeeding, but we shall see. The substantive hearing is expected to take place before the end of April.

[Update: The High Court dismissed this challenge. Basically, the Court said that the consultation exercise carried out by the government was not unfair.]


Wednesday, 2 February 2011

Localism Bill – Commons committee stage

There has been a raft of interesting judicial decisions recently, which have been the subject of several posts here over the past few weeks. This has distracted my attention from the rather more mundane contents of the Localism Bill, to which I hope to return over the coming weeks.

The committee stage of the Bill commenced on 25th January, but two sitting days were wasted in useless question-and-answer sessions with ‘witnesses’ (representatives of various interested organisations). This comparatively recent innovation is a complete waste of valuable parliamentary time, when debate could have been proceeding on the provisions of the Bill itself. I doubt very much whether this useless exercise left the members of the committee any better informed about the detailed provisions of the Bill, which it is the committee’s job to examine and amend.

Debate on Clause 1 of the Bill eventually got under way on 1st February, and it will be some time before the committee reaches the planning provisions in the Bill (Part 5, comprising clauses which are presently numbered from 89 to 120, and Schedules 8 to 13). The committee must complete its deliberations by 10th March, a bare five weeks away, which is a woefully inadequate time allowance for the proper scrutiny of this massive Bill, which contains a total of 207 clauses and 24 schedules and runs to 406 pages of text.

I will keep an eye on the committee proceedings when Part 5 of the Bill (and the corresponding schedules) are reached, but I fear that very little improvement will be achieved in what already appears to be a poorly drafted Bill.