Tuesday, 26 April 2011

Creating a lovely garden

My wife recently drew my attention to an article in the May 2011 issue of Homes & Gardens which twittered enthusiastically about “a beautiful informal garden on arable land” which a couple had created around a property they had bought in the countryside.

According to the article, the couple had found a property ‘half built’ in a small farming village. They spent a year completing the house and then set about creating a garden around it. As one of them said - “At that time, the garden didn’t exist – it was just arable land.” Creation of the garden included the erection of a boundary fence and the planting of boundary hedges, as well as laying out the garden itself.

It is possible, of course, that the planning permission for the house showed the plot as including the land which was later turned into a garden, but if not then the creation of the garden would have been a material change of use of that land which required its own planning permission. If the latter was the case, then I hope for the sake of this couple that the change of use took place more than 10 years ago, as it would have been vulnerable to enforcement action by the local planning authority until it became immune from enforcement under the 10-year rule.

When local planning authorities become aware of changes of use of this nature they tend to be rather unsympathetic, and are not usually persuaded to grant planning permission either prospectively or retrospectively. The success rate in appeals against these refusals also tends to be very low. These proceedings are often combined with enforcement action, and the outcome can be very disappointing for the aspirant gardeners. On the other hand, a reader drew my attention to a case recently where the local planning authority seems to be very reluctant to take any effective enforcement action against one such suburban encroachment on the countryside, despite its effect on the character of the rural area and on local amenity.

There is a possibility that, if the site is inconspicuous, no-one may notice the change of use. I can recall advising in such a case some 12 years or so ago, at a time when the recently extended garden in that instance would have been vulnerable to enforcement. The owner sought my advice as to what action he could take to protect his position. My advice was to do nothing and to wait until 10 years had gone by; then the change of use of the land would become immune from enforcement and would also be lawful. Lawfulness is automatic as soon as immunity is achieved; you don’t require a Lawful Development Certificate unless circumstances arise which make it desirable to obtain written confirmation of the lawfulness of the development.

Of course, if Clause 104 of the Localism Bill becomes law in its present form, this advice will no longer apply in future, and unauthorised garden extensions, if they are ‘concealed’ (a very widely defined term in the proposed legislative amendment) could remain potentially liable to enforcement for an indefinite period.

The fact remains that, even without Clause 104, extending a garden into what had previously been farmland, pasture or open countryside is a risky undertaking.


Wednesday, 20 April 2011

One year on

As you get older, time seems to pass ever more quickly, and it hardly seems a year since this blog was re-launched in April 2010; but we have now reached the first anniversary of its re-appearance, and within the past year nearly 140 separate articles have been published here. Readership has been increasing steadily every month, so that by the end of March page views per month were well above the 3,000 mark and still rising.

I hope to maintain frequent postings in the future and to cover an interesting and varied range of topics. I still haven’t got around to completing the archive, so that there is still quite a lot of missing material from the previous version of this blog from the 2007 to 2008 period which remains to be added to the archive pages, even if we strip out the purely ephemeral stuff. I also had a vague idea of adding in some items from the missing year (from April 2009 to April 2010) when this blog did not appear on the internet. Maybe I can manage that at some time in the twelve months to come.

Client work naturally continues to take priority, and will do so for some years yet. So the frequency of posts may still be a bit variable, although I hope that you won’t have too long to wait between each new item.

So far as content is concerned, there is no point in my repeating news items which are readily accessible from a number of other sources, and so my aim as far as possible is to add some useful comment to planning law topics that are in the news. There certainly seems to be no shortage of raw material.

The longer term future of this blog is not easy to predict, and I have a number of ideas which I hope to develop over a period of time. Meanwhile, I will continue to do my best to make this blog interesting and informative and I hope you will continue to enjoy reading it.


Questioning the validity of Enforcement Notices

A recent comment from HW relating to my piece on “Judicial Review of enforcement action” (Tuesday, 18 January 2011), to which I have replied in the comments section in that post may be of interest to readers who have not found these comments on the original page.

HW commented that there is little in the way of information about how to deal with issues of "expediency" in relation to the service of an enforcement notice. HW’s comment was based on Scottish Planning legislation, but this is sufficiently similar to the English legislation on this topic to make no real difference in practice.

In a recent enforcement appeal in Scotland the issue of expediency was raised with the Reporter [Inspector] in a challenge to the vires of the notice. HW points out that, as it is a statutory requirement to give reasons for issuing the notice, it seems that a challenge may be made with regard to expediency if the stated reasons for issuing the notice reveal a lack of proper reasoning or an unsound basis for the issue of the notice, or indeed if they show no rational basis for the issue of the notice at all. It has been shown in previous appeals that where such issues are raised, the Secretary of State [now Scottish Ministers] has no alternative but to consider them since they go to the question of his jurisdiction. In the case referred to by HW, the reasons on the notice only stated that the reason for issuing the notice was because it was a breach of planning control. The Reporter actually refused to deal with the vires challenge to this aspect by stating that as the appeal was not a deemed appeal because of lack of challenge on ground A, expediency did not come into it. Frankly, this seemed erroneous to HW but, as the appeal was allowed on another ground, the issue obviously wasn't taken any further. HW asked whether I could shed any light on this.

Secondly, it seemed to HW that if you take Flashman v Camden LBC (1979) into account, an enforcement notice may also be ultra vires on the ground that the planning authority misused their discretionary powers. He suggests that the validity of a notice might be challenged on the grounds that in deciding to serve the notice, the authority had failed to take account of some relevant factor. Of course, in the case HW spoke of above, the notice contained no reasoning as to expediency by reference to the provisions of the development plan or other material considerations nor with regard to harm to the environment or to public amenity. In HW’s view, these must count as "relevant factors" considering the requirements of the legislation (s.127 of the Scottish legislation) so that it would seem to him that not providing reasoning as regards expediency would be a major defect of any notice and could be categorised as a misuse of discretionary power.

HW commented that it was interesting to see in my post how residual grounds such as expediency may be challenged by way of judicial review, and asks whether it is correct to presume that a defence to a prosecution may also rely on this residual ground.

My response to these points is that one can certainly take legal points in planning appeals outside the scope of the statutory grounds (listed in Section 174 of the 1990 Act in England and Wales), although I have never attempted to question the expediency of the enforcement action in this way. More often one is likely to contend that the enforcement notice is a nullity, that is to say that the notice itself is so irretrievably defective as not to be an enforcement notice at all. Arguably the vires of the LPA’s decision to serve an enforcement notice could be challenged in the same way, although it seems to me that, as an alternative, a challenge on this ground by way of an application for judicial review is not precluded by s.285.

In England, it is the Enforcement Notices and Appeals Regulations (SI 2002/2682) which require that the enforcement notice must include a statement of the reasons why the LPA considers it expedient to issue the notice. Any challenges on appeal are most likely to be directed to the adequacy of the statement of reasons rather than to the underlying justification for serving the notice, but a more fundamental attack on appeal against the decision to serve the enforcement notice should not be ruled out. I just have a gut feeling that in these circumstances an application for judicial review might be a better way of dealing with the point. If, nevertheless, the point were to be canvassed in an appeal but dismissed by the Inspector [or Reporter in Scotland], then it seems to me that this point might be retaken in an application to the High Court under s.289 [in the English and Welsh Act].

So far as a defence to prosecution is concerned, the notice will have come into effect by this time (hence the prosecution) and so it would be too late to seek to defend the prosecution on the basis of the vires of the LPA’s action in serving the enforcement notice (and the House of Lords decision in R v. Wicks would seem to confirm this). On the other hand, if the notice is a complete nullity, then a defence based on that nullity would not necessarily appear to be precluded. If there is no notice, then there can be no prosecution.


Thursday, 14 April 2011

Follow this blog by e-mail

If you look down the bar on the left-hand side of the screen you will see a new gadget which will enable you to follow this blog by e-mail and save yourself the time you spend visiting this website to look for new material. Just enter your e-mail address and click on ‘Submit’. Now you will get regular alerts about new content. Simples!


Wednesday, 13 April 2011

Beware of restrictive covenants

Planning lawyers naturally tend to concentrate on issues of planning law and practice, and are inclined to leave it to colleagues in their firm who specialise in commercial property to deal with issues of property law. But planning lawyers would be well advised to keep at least one eye on property law issues when advising clients.

One of the points I always insist on checking before getting down to work on a development proposal is whether there might be a restrictive covenant which could prevent or interfere with the implementation of a planning permission. My clients would not be best pleased if we had spent a considerable amount of time and money getting planning permission, only to find that the development cannot in fact be carried out.

Of course, if you find that there is a restrictive covenant which might be a problem, there are several ways of tackling it. If there is no-one who could in practice enforce the covenant, an indemnity policy may be all that is required. If it is still enforceable, it might be argued that the covenant is obsolete due to changes in the character of the property or the neighbourhood, that its discharge or modification would not injure the persons benefiting from it, or that it prevents the use of the land for public or private purposes and does not secure any practical benefit of substantial value to those befitting from it. In such a case an application can be made to the Lands Tribunal [the Upper Tribunal (Lands Chamber)] under s.84 of the Law of Property Act 1925 to modify or discharge the restrictive covenant.

However, as several developers have found to their cost, the Lands Tribunal is no pushover. A recent example was the case of George Wimpey Bristol Ltd and Gloucestershire Housing Association Ltd [2011] UKUT 91 (LC), in which the developer applied to modify a restrictive covenant affecting land at Mill Lane, Prestbury, so as to permit residential development. The restriction was imposed by a 1936 conveyance by which the purchaser of the land covenanted “for the benefit of the adjoining land of the vendor on the West and South sides of the land hereby conveyed that no building shall be erected on the piece of land to the west of the line drawn on the said plan between the points marked ‘A’ and ‘B’…” (The line A-B is the eastern boundary of the land affected by the covenant.)

Detailed planning permission for residential development on a large site which included the land affected by the covenant was granted on 30 October 2006, authorising the erection of 124 dwellings and the provision of public open space, nature conservation area and associated access. The approved details included the construction on the land affected by the covenant of 17 dwellings, one triple garage and 6 double garages, comprising 7 detached houses, 3 townhouses, 4 affordable terraced houses, one affordable flat above a garage and 2 affordable flats, one above the other.

The effect of building these particular houses would be to change the immediate neighbourhood to one of a largely suburban character, with a resultant loss of views, privacy and overall amenity, resulting in substantial loss of value of the neighbouring properties benefitting from the covenant. (Note that whilst alleged loss of value of neighbouring properties is irrelevant as a planning consideration, it is highly relevant for the purposes of s.84 of the 1925 Act.) So the Tribunal had no difficulty in finding that the practical benefits of the restriction to the owners of the neighbouring properties are of substantial value and advantage.

Since the developers had not succeeded in establishing the ground relied upon, the Tribunal had no power to modify the restriction. However, even if this ground had been made out, the Tribunal is unlikely to have exercised the discretion to modify the covenant. This is because, on the evidence, the extensive works which Wimpey Homes had carried out on the application site were not an inadvertent action resulting from the discovery of the covenant at a late stage in the development programme; rather, they were the result of a deliberate strategy of forcing through the development on the restricted land in the face of many objections from those entitled to the benefit of the restriction, to the point where they had so changed the appearance and character of the application site that the Tribunal might be persuaded to allow them to continue with the development. The Tribunal made it clear that it is not inclined to reward parties who deliberately flout their legal obligations in this way.

So developers should not assume that inconvenient covenants can easily be removed by applying to the Lands Tribunal. They should ask their lawyers to check out the position before committing themselves to a development. No doubt my colleagues in our commercial property team would do this as a matter of course, even before letting their developer clients exchange contracts for the purchase of a site, but in any event I would not start work on a planning application before I had satisfied myself as to the position regarding restrictive covenants and any other potential constraints on the title to the land which might affect its successful development.


Monday, 11 April 2011

Secretary of State displays his ignorance

If there is one thing worse than listening to a speech by Eric Pickles, it is reading a transcript of one of his speeches ‘as delivered’. Literate it is not. In fact, his speeches don’t make sense even if you can get your head around the mangled grammar and the strangulated vocabulary. I find it hard to believe that he carries any weight in Cabinet at all (except in a purely physical sense). Unless he has some political clout of which we are all entirely unaware, he would seem to be a prime candidate for the chop when Cameron and Clegg have their first cabinet reshuffle, probably during the forthcoming summer vacation.

Uncle Eric is still burbling on about ‘localism’, blithely ignoring the fact that the changes announced to coincide with the Budget have effectively killed the concept stone dead. Of course, having made such a fuss about ‘localism’, and having very unwisely called their Local Government and Planning Bill “the Localism Bill”, De-CLoG ministers have little choice but to continue to pay lip service to the idea, even though they probably realise that following the fundamental change of direction recently announced by the government, central control and influence over what local councils can actually do in relation to town and country planning will have to be as strong as ever if the government wants to ensure the delivery of economic growth through property development.

One passage in a recent Pickles speech which caused me particular amusement was this one:

There is no doubt in my mind that when I became Secretary of State, the single biggest drag anchor on growth was the planning system - it's expensive, bureaucratic and it doesn't work. But we've recently launched the planning guarantee, ensuring that the journey from application to decision takes less than a year. We're also working to reduce the over 7,000 pages of planning guidance down to 70 - and we'll be consulting on that. I intend that you should be able to work out planning issues without needing to seek advice from leading Counsel. This is good news for communities; good news for growth but likely to be bad news for the legal profession. If your planning silk has to think twice about that third week in Tuscany or whether to buy the Lamborghini after all, that's certainly a price I'm prepared to pay.”

Leaving aside for the moment the fact that it is still a complete mystery as to how the government is going to ensure that, even where an appeal is involved, it will take no more than a year from planning application to final decision, Pickles and his fellow De-CLoG ministers still do not seem to appreciate that by removing most of the current ministerial advice on policy and practice set out in various circulars and PPGs/PPSs, they will be creating huge uncertainty where there is currently clear guidance. This can only result in substantially increased opportunities for disputes and legal challenges. I frankly wouldn’t be in the least bit worried if I were one of the fabled fat-cat lawyers whom Uncle Eric hopes to frustrate by forthcoming changes in planning law and practice. The battleground will simply be shifted from the planning appeals system to the High Court, and this will mean more work for the planning bar rather than less.

Pickles should not be so complacent about the likely outcome of the changes he seems to have in mind. He and his colleagues could find that this will actually prevent delivery of the development on which the government seems to be pinning so much hope. There seems to me to be a considerable risk that those local planning authorities intent on resisting the government’s ‘dash for growth’ may find an over-simplified system much easier to circumvent if they choose to refuse planning permission and to resist appeals.

Pickles and his merry men should beware ‘the Law of Unintended Consequences’. I predict that much of what ministers are busily dismantling, in terms of planning policy at a strategic level, and central policy guidance and control over local decision-making will have to be re-introduced when it is realised that their removal has resulted in a further reduction in development rather than the hoped-for expansion.

As for the role of planning lawyers such as myself, we are intimately involved in all aspects of the development process and, even if the planning system is to some extent simplified (as I hope it will be), we shall still have a vital role to play in securing the grant of planning permission to our clients on advantageous terms and in facilitating the implementation of our client’s development proposals in a commercially viable form. A large part of my work as a planning lawyer is non-confrontational and consists of finding practical ways to bring development proposals to fruition so as to ensure the achievement of my clients’ commercial objectives. It is a process which Uncle Eric clearly does not even begin to understand.


Thursday, 7 April 2011

Supreme Court rules on Concealed Development

The Supreme Court has unanimously overturned the decision of the Court of Appeal in SSCLG v Welwyn Hatfield [2011] UKSC 15 (on appeal from the Court of Appeal [2010] EWCA Civ 26).

The developer had obtained planning permission to build a barn. The external appearance of the building he erected closely resembled the approved drawings, but it had in fact been built and equipped as a house. Upon completion, the house was occupied as the developer’s home and this use had continued for more than four years when the developer applied for a Lawful Development Certificate. Until then the LPA had been entirely unaware that the unauthorised development had taken place.

It was contended that the house was now immune from enforcement under the 4-year rule and was therefore lawful. The LPA refused to grant an LDC, but an appeal against that decision was successful. However, the LPA successfully challenged the Inspector’s decision in the High Court. The Lawful Development Certificate which had been granted by the Inspector on appeal was quashed by Collins J, on the ground that the appellant had deliberately concealed the development and could not therefore rely on the 4-year rule to establish the lawfulness of the development.

In the Court of Appeal, the case went the other way. This was the subject of my very first posting after this blog was relaunched, on 20 April 2010 (see “Concealed development again ”).
The Court of Appeal overturned the High Court judgment on 29th January 2010 ([2010] EWCA Civ 26).

As I subsequently reported, the LPA then took the case to the Supreme Court. The Council appealed on two grounds. First, it challenged the Court of Appeal’s decision that the development in question was a material change of use; secondly, the Council contended that, as a matter of public policy, nobody should be allowed to profit from his own wrong, and this alone was enough to prevent the developer relying on the 4-year rule under s.171B(2).

I confess that I have certain difficulties with the reasoning of the Court on the substantive issue (relating to the precise operation of the 4-year rule), and I may return to this later. However, the public policy point is perhaps of greater interest and of greater importance.

Lord Mance pointed out that the developer intended to deceive the council from the outset. In his planning application he described the proposed building as a hay barn, said that the application involved no change of use of land, and, in relation to sewage disposal, answered not applicable. Secondly, when building his house, he deliberately refrained from giving the notice under the building regulations (applicable to a house but not an agricultural barn). He did not register for council tax or on the electoral register at the building. He also gave the council as his address his office, whereas all other correspondence was to and from the house. Finally, he lived a low key existence, the house being at the end of a lane or track apparently accessible from the road only by a locked gate.

The aim of this conduct was to obtain a planning permission which would not have been granted had the application been for a dwelling house, and then to conceal the fact that what was being built was and was to be a dwelling house and, subsequently, to live in the house without being detected so as to avoid enforcement action within the 4-year period. The Council therefore submitted that the developer’s deceit should preclude him from obtaining an LDC, even if the development otherwise qualified under the 4-year rule.

The essential point of the council’s case on public policy was that planning permission had been obtained as a result of a deceptive planning application. If the application when made was genuine, that could well put a different complexion on the developer’s conduct, which could then be said to consist predominantly of sins of omission and concealment, rather than of positive deception.

The real essence of the council’s case was to be found in the deception involved in the obtaining of a false planning permission which the developer never intended to implement, but which was designed to and did mislead the council into thinking that the building was a genuine hay barn and so into taking no enforcement step for over four years. This was deception in the planning process and directly intended to undermine its regular operation. The other aspects of the developer’s conduct were ancillary to the plan of deception. Lord Mance observed that, by themselves, these were aspects of conduct not uncommon among those who build or extend houses or convert buildings into houses without planning permission; they do not bear directly on the planning process and he was not prepared to assume, for the purposes of this case, that they would not, at least without more, disentitle reliance upon section 171B(1) or (2) or section 191(1)(a) or (b).

After reviewing the well-known judicial authorities on the issue of legal entitlements being defeated by the fraud or deception of the applicant or claimant, Lord Mance concluded that whether conduct will on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision must be considered in context and with regard to any nexus existing between the conduct and the statutory provision. Here, the four-year statutory periods must have been conceived as periods during which a planning authority would normally be expected to discover an unlawful building operation or use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner successfully preventing discovery take the case outside that rationale.

Here, the developer’s conduct, although not identifiably criminal, consisted of positive deception in matters integral to the planning process (applying for and obtaining planning permission) and was directly intended to and did undermine the regular operation of that process. He would be profiting directly from this deception if the passing of the normal four-year period for enforcement which he brought about by the deception were to entitle him to resist enforcement. The apparently unqualified statutory language could not in his lordship’s opinion contemplate or extend to such a case.

For the reasons he had given, Lord Mance did not consider that sections 171B(2) and 191(1)(a) were applicable to the facts of this case. Had he considered otherwise, he would have concluded that their language could not have been intended to cover the exceptional facts of this case, where there was positive deception in the making and obtaining of fraudulent planning applications, which was directly designed to avoid enforcement action within any relevant four year period and succeeded in doing so. This is a conclusion which would still be relevant, were any application to be made for a certificate under section 191(1)(b) or any reliance sought to be placed upon section 171B(1) to preclude enforcement action in respect of the building itself. In the present case, Lord Mance agreed that the Council’s appeal should be allowed, and that the grant of the certificate under section 191(1)(a) should be set aside.

Lord Brown, in agreeing with the judgment of Lord Mance referred to the case of Fidler v SSCLG [2010] EWHC 143 (Admin). Mr Fidler’s pending appeal to the Court of Appeal has been stayed pending the outcome of the Welwyn-Hatfield case, but Lord Brown observed that consistent with the Supreme Court’s judgment in the present case, it will be open to the council there to advance, as an alternative argument to that on which they have hitherto succeeded, the public policy argument based on the Connor principle.

Finally, Lord Brown referred to Clause 104 in the Localism Bill, which is intended to amend the 1990 Act by inserting three new subsections (171BA, 171BB, and 171BC) expressly to deal with issues of concealment. He did not accept that amending legislation is required. The Connor principle is available in cases of this sort, although it should be invoked only in highly exceptional circumstances (such as the cases of Beesley and Fidler).

One important point which is to be derived from the Supreme Court’s decision is that disqualification from reliance upon the 4-year rule would appear to arise only where a developer deliberately sets out to deceive the LPA (for example by making a false or fraudulent planning application). Mere concealment of the development, it appears, may not be enough to prevent the operation of the 4-year rule. That would change in the future in the event of Clause 104 remaining in the Localism Bill in its present form, although the government may yet be persuaded of the inadvisability of legislating as widely as is currently proposed.


‘The Plan for Growth’

It has taken me some time to get to grips with this document, which was jointly published by the Chancellor and the Business Secretary to coincide with the Budget on 23 March. It is frankly rather difficult to pick the bones out of all the verbiage, and there is not much in the way of definite proposals for change, so much as promised future changes, the nature of which is not entirely clear at present and/or which are to be subject to ‘consultation’.

The government clearly wants to increase the proportion of planning applications approved and dealt with on time (i.e. within the 8-week, 13-week or 16-week period, as applicable) and they clearly accept that much more could be done to promote development by simplifying the planning application process and removing unnecessary delays. They are promising by the Autumn of this year to consult on a package of measures to streamline the information required to support planning applications, in order to make it simpler and more efficient.

I very much hope that this will include scrapping the requirement for Design & Access Statements in many cases (requiring them only for those larger developments likely to have a significant impact on their wider surroundings), and that the validation check-lists will be substantially cut down or abolished altogether, so as to simplify and greatly speed up the registration and initial processing of planning applications. There is in any case a need to amend s.62 of the 1990 Act so as to reverse the effect of the judgment in Newcastle Upon Tyne City Council v SSCLG, with consequent amendments to the definition of a “valid application” in the DMPO, (as I suggested here in “A much needed reform”, posted on Friday 13 August 2010). Applicants must be given a right of appeal against the unreasonable failure of an LPA to register a planning application and/or against demands for information which is not reasonably required. If the government is serious about making radical changes to speed up the planning system, then these are changes which are vital in order to shift the logjam in local planning departments.

The other way in which the government clearly intends to make the planning system more development-friendly is by a significant shift in ministerial policy. This can very easily be achieved by replacing previous policy advice with much more pro-development ministerial policy documents. A start has already been made with the ministerial statement made by Greg Clark on 23 March, which signals this sudden shift in government policy and has taken immediate effect. It is obvious that in replacing a whole raft of existing policy advice by a new National Planning Policy Framework, the government intends to adopt a much more pro-development stance, just as the Tories did in the early 1980s.

The Chief Planning Officer wrote to all local planning authorities on 31 March attaching Clark’s statement of the previous week and drawing attention to other proposed changes, including the government’s wish that LPAs should renegotiate s.106 agreements where these are threatening the viability of proposed developments.

Some indication of the general thrust of the promised National Planning Policy Framework is given in the ‘Plan for Growth’. Local authorities will be required to identify and plan for development, with a clear role for market signals in assessing the need for development. For example, if land prices are high for housing, this should inform an assessment of relative need and may indicate housing shortages. For development plans, deliverability will remain a key test of soundness. Local authorities seeking to introduce the Community Infrastructure Levy will be legally required to assess the economic viability of the rates they set. The Government intends to ensure through the NPPF that local authorities will not be able to adopt plans that block the delivery of required development by imposing unsupportable burdens on developers. So ‘localism’ will clearly have strictly prescribed limits!

The message to LPAs is unmistakable. The “powerful presumption in favour of sustainable development” will reinforce a pro-growth emphasis on plan-making. It will require local authorities to work promptly to accept applications that comply with up-to-date plans and national planning policies. Local authorities will be expected to have an up-to-date core strategy in place. Where local authorities do not have plans for development, or they are silent, out of date or indeterminate, this policy will mean that local authorities should start from the presumption that applications for development and job creation will be accepted. The Government intends to publish a draft presumption in favour of sustainable development in May, alongside details of how it proposes to integrate the presumption into national planning policy. So the message is clear - LPAs must get pro-development core strategies in place without delay, or face ‘planning by appeal’.

These proposals demonstrate that a major shift in the planning system can be achieved without resort to legislation. However, as I have previously pointed out, in order to be effective this substantial shift in policy must be backed up with a robust appeals system to prevent local planning authorities from ignoring or circumventing this shiny new ministerial policy. Like it or not, this is one aspect of the planning system which cannot be left to ‘localism’ if ministers are to have any hope of achieving their aim of promoting economic growth through development. Unfortunately, the government still seems to be facing two ways at once, as their ‘Plan for Growth’ also contains a commitment to “localise choice about the use of previously developed land, removing nationally imposed targets, while retaining existing controls on green belt land”.

Notwithstanding ministerial protestations to the contrary, ‘localism’ is simply not consistent with the philosophy of ‘growth through development’. There is a clear need for some sort of strategic planning at a county level at the very least, if not on a regional basis; otherwise the hoped-for freeing up of the planning system in order to promote growth simply won’t happen. I am hoping that, having been won over to the cause of development, the government will now propose amendments to the Localism Bill which will restore this missing element of strategic planning to the development plan system. The presently proposed ‘duty to co-operate’ is woefully inadequate, as nearly everyone seems to agree, and something more robust must be inserted in the Bill.

There’s more in the ‘Plan for Growth’, but I think that’s enough to be going on with. I will comment in a later post on proposals for Land Auctions, Financial Incentives, proposed revision of the Use Classes Order coupled with greater freedom to switch between use classes, and other possible changes to the GPDO, plus ideas for speeding up the processing of applications and appeals.